EX-10.2 3 d39432dex102.htm EX-10.2 EX-10.2
Table of Contents

EXHIBIT 10.2

Confidential treatment has been requested for portions of this exhibit pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as [**]. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF LOUISIANA

 

UNITED STATES OF AMERICA,   )     
      and   )     
LOUISIANA DEPARTMENT OF   )     
ENVIRONMENTAL QUALITY   )     
  )     
  )     

Plaintiffs,

  )      Civil Action No. [              ]
  )     

v.

  )      Section:
  )     
  )      Magistrate:
MOSAIC FERTILIZER, LLC,   )     
  )     

Defendant.

  )     

CONSENT DECREE


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

 

  TABLE OF CONTENTS   
I.   JURISDICTION AND VENUE    5
II.   APPLICABILITY    6
III.   DEFINITIONS    8
IV.   CIVIL PENALTY    18
V.   COMPLIANCE REQUIREMENTS    19
VI.   WORK TAKEOVER    42
VII.   BENEFICIAL ENVIRONMENTAL PROJECTS    44
VIII.   REPORTING REQUIREMENTS    46
IX.   STIPULATED PENALTIES    50
X.   FORCE MAJEURE    54
XI.   DISPUTE RESOLUTION    56
XII.   INFORMATION COLLECTION AND RETENTION    59
XIII.   EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS    62
XIV.   COSTS    66
XV.   NOTICES    68
XVI.   EFFECTIVE DATE    71
XVII.   RETENTION OF JURISDICTION    71
XVIII.   MODIFICATION    72
XIX.   TERMINATION    73
XX.   PUBLIC PARTICIPATION    75
XXI.   SIGNATORIES/SERVICE    76
XXII.   INTEGRATION    77
XXIII.   FINAL JUDGMENT    77
XXIV.   APPENDICES    78

 

2


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

 

CONSENT DECREE

WHEREAS, Plaintiffs, the United States of America (United States), on behalf of the United States Environmental Protection Agency (EPA), and the Louisiana Department of Environmental Quality (LDEQ), an agency of the State of Louisiana to which the Louisiana Legislature has delegated the power and duty to enforce the Louisiana Environmental Quality Act (EQA) and Louisiana Environmental Quality Regulations, including the authority to bring actions in courts of competent jurisdiction for violations of the EQA (La. R.S. 30:2001 et seq.) and Louisiana’s Hazardous Waste Regulations (LAC 33: V. Subpart 1), (together the Plaintiffs), have filed a complaint alleging that Defendant, Mosaic Fertilizer, LLC (Mosaic) has violated the Resource Conservation and Recovery Act (RCRA), 42 United States Code (U.S.C.) § 6901 et seq., La. R.S. 30:2001 et seq, and the applicable regulations in 40 C.F.R. Parts 260-270, and LAC 33:V.Subpart 1, at its sulfuric acid, phosphoric acid and fertilizer manufacturing facilities located in Uncle Sam and Saint James, Louisiana, respectively the Uncle Sam Facility and the Faustina Facility (collectively the Facilities);

WHEREAS, the Complaint includes allegations that Mosaic failed to characterize and illegally treated, stored and disposed of hazardous waste from various processes at its Facilities, including: the production of sulfuric acid, diammonium phosphate (DAP) and monoammonium phosphate (MAP) fertilizer, and fluorosilicic acid (FSA); wastes generated during cleaning of the phosphoric acid plant and fertilizer plant equipment; and wastewaters generated from the scrubbers used to control air pollution from the phosphoric acid plants and from other chemical and waste management processes at its Facilities without a RCRA permit or interim status. The Complaint also alleges that Mosaic illegally placed hazardous wastes in the Uncle Sam Phosphogypsum Stack System dedicated for managing phosphoric acid production wastes

 

3


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

exempt from hazardous waste regulation pursuant to the Bevill Exemption, 40 C.F.R. § 261.4(b)(7), thus violating Sections 3004 and 3005 of RCRA, 42 U.S.C. §§ 6924-25, and the applicable regulations in 40 C.F.R. Parts 260-270, and La. R.S. 30:2001 et seq. and the applicable regulations in LAC 33:V.Subpart 1, and that those hazardous wastes remain in the Uncle Sam Phosphogypsum Stack System;

WHEREAS, Mosaic denies the applicability of Sections 3004 and 3005 of RCRA, 42 U.S.C. §§ 6924-25, and the applicable regulations in 40 C.F.R. Parts 260-270, and La. R.S. 30:2001 et seq. and the applicable regulations in LAC 33:V.Subpart 1, and the regulations promulgated thereunder to certain practices at the Mosaic Facilities that are the subject of the Complaint, denies the violations alleged in the Complaint, and maintains that it has been and remains in compliance with RCRA and is not liable for civil penalties or injunctive relief;

WHEREAS, the objective of the Parties in this Consent Decree is to resolve the civil claims alleged in the Complaint by 1) establishing certain injunctive relief and environmental projects, whereby Mosaic shall modify certain operating practices with respect to its management of hazardous wastes and Bevill-Exempt Wastes, implement environmental controls, remediation, and financial assurance, and undertake certain pollution reduction and other beneficial projects; and 2) assessing an appropriate penalty;

WHEREAS, Mosaic has conducted itself in good faith in its discussions with the Plaintiffs concerning the violations alleged in the Complaint, and has already implemented certain operational changes at its Facilities and remedial measures, obviating the need for certain injunctive relief;

WHEREAS, by agreeing to entry of this Consent Decree, Mosaic makes no admission of law or fact with respect to the allegations in the Complaint, and continues to deny any non-

 

4


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

compliance or violation of any law or regulation identified therein or in this Consent Decree. For the purpose of avoiding litigation among the Parties, however, Mosaic, and where applicable The Mosaic Company, agree to the requirements of this Consent Decree;

WHEREAS, the Parties agree that the United States’ filing of the Complaint and entry into this Consent Decree constitutes diligent prosecution by the United States and LDEQ, under Section 7002(b)(1)(B) of RCRA, 42 U.S.C. § 6972(b)(1)(B), of all matters alleged in the Complaint and addressed by this Consent Decree through the date of lodging of this Consent Decree; and

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.

NOW, THEREFORE, before the taking of any testimony, without the adjudication or admission of any issue of fact or law except as provided in Section I (Jurisdiction and Venue), below, and with the consent of the Parties,

IT IS HEREBY ADJUDGED, ORDERED, AND DECREED as follows:

I.  JURISDICTION AND VENUE

1.        This Court has jurisdiction over the subject matter of this action and over the Parties, pursuant to Section 3008(a) of RCRA, 42 U.S.C. § 6928(a), and 28 U.S.C. §§ 1331, 1332, 1345, 1355 and 1367. Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b) and (c) and 1395(a), and Section 3008(a) of RCRA, 42 U.S.C. § 6928(a), because Mosaic’s Facilities are located in this judicial district. For purposes of this Consent Decree, or any action to enforce this Consent Decree, the Parties consent to the Court’s jurisdiction over this

 

5


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

Consent Decree and any such action and over Mosaic and The Mosaic Company, and further consent to venue in this judicial district.

2.        Pursuant to Section 3008(a)(2) of RCRA, 42 U.S.C. § 6928(a)(2), notice of the commencement of this action has been given to LDEQ.

3.        For purposes of this Consent Decree only, Mosaic agrees that the Complaint states claims upon which relief may be granted pursuant to Sections 3004 and 3005 of RCRA, 42 U.S.C. §§ 6924 and 6925, and La. R.S. 30:2001 et seq.

II.  APPLICABILITY

4.        The obligations of this Consent Decree apply to and are binding upon the United States, LDEQ, Mosaic, and, as provided herein, The Mosaic Company, and any successors, assigns, or other entities or persons otherwise bound by law. Rights granted to EPA under this Consent Decree may be exercised by LDEQ upon the written agreement of EPA and LDEQ with notice to Mosaic. Nothing in this Consent Decree shall apply to administrative or enforcement proceedings other than this action or an action to enforce this Consent Decree. Nor does anything in this Consent Decree relieve Mosaic of its obligation to comply with any federal and state laws applicable to activities that are not within the definition of Work in this Consent Decree.

5.        No transfer of ownership or operation of all or a portion of a Facility, whether in compliance with the procedures of this Paragraph or otherwise, shall relieve Mosaic of its obligation to ensure that the terms of this Consent Decree are implemented, unless: (1) the transferee agrees in writing to undertake the obligations required by this Consent Decree and to be substituted for Mosaic as a Party to the Consent Decree and thus be bound by the terms thereof; and (2) the United States, after consultation with LDEQ, consents in writing to relieve Mosaic and the Mosaic Company of their respective obligations under this Consent Decree

 

6


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

pursuant to Section XVIII (Modification) of this Consent Decree. At least thirty (30) Days prior to a proposed transfer of Mosaic’s obligations under this Consent Decree, or such other period agreed to by the Parties in writing: (i) Mosaic shall provide a copy of this Consent Decree to the proposed transferee, if not previously provided; and (ii) shall provide written notice of the prospective transfer, together with a copy of the proposed written agreement (subject to Paragraphs 82 and 83 of this Consent Decree and as may otherwise be agreed in writing) transferring obligations to the transferee, to EPA, LDEQ, the United States Attorney for the Eastern District of Louisiana, and the United States Department of Justice, in accordance with Section XV (Notices) of this Consent Decree, together with a request for approval. The United States’ decision whether to approve the transferee’s substitution for Mosaic under this Consent Decree, and what conditions may attend approval, will take into account: (i) the status of the projects in Appendix 6 (RCRA Compliance Schedule), (ii) whether the transferee has or will have prior to the transfer the financial and technical capability to comply with this Consent Decree, (iii) and other factors that may be deemed relevant, including but not limited to the environmental compliance history of the proposed transferee and the environmental management capabilities of the proposed transferee. As set forth in Appendix 2, Paragraph 36, any such transfer will not include the Financial Assurance obligations specified for Mosaic therein, and therefore will include Financial Assurance conditions appropriate to the transferee. Any transfer of ownership or operation of all or a portion of the Facilities without complying with this Paragraph constitutes a violation of this Consent Decree. The United States’ refusal to approve, or approval with conditions for, the substitution of the transferee for Mosaic under this Consent Decree shall be subject to dispute resolution pursuant to Section XI (Dispute Resolution) of this Consent Decree, but any judicial review shall be conducted pursuant to Paragraph 76(a) of this

 

7


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

Consent Decree. If Mosaic does not prevail in such judicial review, Mosaic shall pay all costs incurred by the United States in connection with such judicial review, including attorney’s fees.

6.        Mosaic shall: (1) provide a copy of this Consent Decree to its President/CEO, Executive Vice Presidents, Senior Environmental Counsel, and the General Manager, Environmental Manager, and Maintenance Manager of each Facility, and shall ensure that any employees and contractors whose duties might reasonably include compliance with any provision of this Consent Decree are made aware of this Consent Decree and specifically aware of the requirements of this Consent Decree that fall within such person’s duties; (2) place an electronic version of the Consent Decree on its internal environmental website; and (3) post notice of lodging of the Consent Decree and its availability in a location at each Facility where legal notices are posted. Mosaic shall be responsible for ensuring that all employees and contractors involved in performing any Work pursuant to this Consent Decree perform such Work in compliance with the requirements of this Consent Decree.

7.        In any action to enforce this Consent Decree, Mosaic 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

8.        Every term expressly defined by this Section shall have the meaning given that term herein, regardless of whether it is elsewhere defined in federal or state law. Every other term used in this Consent Decree that is also a term used under RCRA, as amended, 42 U.S.C. §§ 6901 et seq., its implementing regulations, or La. R.S. 30:2001 et seq. and its implementing regulations, shall have the same meaning in this Consent Decree as such term has under RCRA or under federal or Louisiana regulations. In the case of a conflict between federal and state

 

8


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

definitions, federal definitions shall control. For purposes of this Consent Decree, whenever terms defined below or in Appendices 1-9 hereto are used in this Consent Decree, such definitions shall apply:

a.    Bevill-Exempt Wastes shall mean Phosphogypsum and Process Wastewater from phosphoric acid production through mineral processing, which are solid wastes excluded from hazardous waste regulation pursuant to 40 C.F.R. § 261.4(b)(7)(ii)(D) and (P);

b.    Big Holding Tank (BHT) shall mean the tank(s) that Mosaic will install as compliance projects and that are designated as Big Holding Tank(s) in the Uncle Sam Facility Report;

c.    BHT Effluent shall mean the output solution consisting of any or all of the inputs to the BHT that are described in the Uncle Sam Facility Report;

d.    BHT Recovery Units comprise the BHT and those units in Downstream Operations from which, as specified in the Uncle Sam Facility Report, cleaning wastes and other materials will be circulated to the BHT for recovery in Upstream Operations or reuse as a cleaning solution following completion of the relevant compliance projects;

e.    Complaint shall mean the complaint filed by the United States and LDEQ in this action;

f.    Consent Decree shall mean this Consent Decree and all Appendices identified in Section XXIV (Appendices) and attached hereto. In the event of any conflict between this Consent Decree and any Appendix hereto, this Consent Decree shall control;

g.    Corrective Action Work shall mean 1) the activities described in Paragraphs 17 - 19 of Appendix 1, Attachment A; 2) the activities described in Section II.D of Appendix 1,

 

9


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

Attachment B; and/or 3) other activities taken at the express direction of EPA or LDEQ pursuant to their respective legal authorities to address a release of:

(1) the following products, including intermediates and wastes: phosphoric acid, sulfuric acid, and FSA;

(2) the following cleaning solutions, including entrained wastes and solids: SACS, PACS, and FSACS;

(3) Process Wastewater, including mixtures and entrained wastes and solids;

(4) Phosphogypsum Stack System Wastewater, including mixtures and entrained wastes and solids;

(5) BHT Effluent, IGPU Effluent, or GHT Effluent, including entrained wastes and solids when such releases occur: a) within Upstream or Downstream Operations; b) from Mixed-Use, Grandfathered, or Recovery Units; or c) from the Phosphogypsum Stack System, as identified in a Facility’s Facility Report. Corrective Action Work does not include other activities to be taken at the direction of EPA or LDEQ pursuant to their residual authorities to address other releases of hazardous waste and/or hazardous constituents that may affect human health and the environment, which directions and activities will be undertaken outside of, and will not be subject to, this Consent Decree (“Non-CD Corrective Action”);

h.    DAP shall mean diammonium phosphate, which is manufactured in Granulation;

i.    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 Louisiana holiday, the period shall run until the close of business of the next business day;

 

10


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

j.    Defendant or Mosaic shall mean Mosaic Fertilizer, LLC. Mosaic’s parent company, The Mosaic Company, shall be referred to by its full corporate name;

k.    Downstream Operations shall mean all Facility operations involving the storage, management, transport, treatment, disposal or further processing of the First Saleable Product, manufacturing operations that use the First Saleable Product as a feedstock, and fluorosilicic acid (FSA) production operations, unless designated as a Mixed-Use Unit or Grandfathered Unit in that Facility’s Facility Report.

l.    EPA shall mean the United States Environmental Protection Agency and any of its successor departments or agencies;

m.    Effective Date is defined in Section XVI (Effective Date);

n.    Facility or Facilities shall mean any one or more of Mosaic’s Louisiana operations at Uncle Sam or Saint James (Faustina), which include manufacturing plants, Phosphogypsum Stack Systems, and such other contiguous or adjacent property owned and/or operated by Mosaic, as delineated in Appendix 3 (Site Maps).

o.    Facility Reports shall mean the reports dated September 8, 2015 (Uncle Sam), and September 29, 2015 (Faustina), attached hereto collectively as Appendix 4, prepared by EPA following inspections of Mosaic’s Uncle Sam and Faustina Facilities, which identify, where appropriate, the Facility’s Upstream and Downstream Operations, its Mixed-Use Units, BHT Recovery Units, Grandfathered Units, Granulation Plant Units, Interim Granulation Plant Units, Granulation Sump Ditches, compliance projects, and proposed future installations;

p.    Financial Assurance shall mean financial assurance for the benefit of EPA and LDEQ in order to ensure coverage for Third-party Liability, Phosphogypsum Stack System

 

11


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

Closure, and Long Term Care, as set forth in Appendix 2 (Financial Assurance) of this Consent Decree;

q.    First Saleable Product shall mean:

(1)      Merchant Grade Acid (MGA), whether or not it is actually placed into commerce; or,

(2)      if applicable, any intermediate phosphoric acid product with a P2O5 content less than or equal to MGA that is diverted from further processing into MGA in order to be placed into commerce, further concentrated above 54% P2O5 (by weight), or used as a feedstock in manufacturing MAP/DAP, Superphosphoric Acid (SPA), Purified Acid, or other chemical manufacturing products;

r.    FSA shall mean fluorosilicic acid (H2SiF6).

s.    FSA Cleaning Solution (FSACS) shall mean a solution of FSA or wastewater from FSA production (excluding waste solids not entrained in cleaning solutions but instead mechanically removed from FSA production, such as filtration residue, tank bottoms, and Swift Tower clean-out residue) with Non-Hazardous Aqueous Cleaning Solution (NHACS), Phosphogypsum Stack System Wastewater, and/or Process Wastewater used for cleaning pipes, tanks or other equipment;

t.    Grandfathered Unit shall mean a pipe, tank and/or other production, storage, or transportation unit in Downstream Operations specifically identified in the Uncle Sam Facility Report as not feasibly segregable from Upstream Operations;

u.    Granulation shall mean the process of converting liquid phosphoric acid, ammonia, secondary nutrients, and/or micronutrients into solid ammonium phosphate fertilizer in Downstream Operations;

 

12


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

v.    Granulation Plant Units (GPUs) shall mean those units identified in the Faustina Facility Report that Mosaic has installed or will install as compliance projects to manage, store or transport Downstream wastes for use in Granulation;

w.    Granulation Plant Unit Effluent (GPU Effluent) shall mean the output solution consisting of any or all of the inputs to the GPUs that are described in the Faustina Facility Report;

x.    Granulation Plant Holding Tank(s) shall mean the GPUs that Mosaic will install as a compliance project to replace certain of the IGPUs and to manage, store or transport Downstream wastes for use in Granulation.

y.    Interim Granulation Plant Units (IGPUs) shall mean those units identified in the Faustina Facility Report that manage, store or transport Downstream wastes for use in Granulation until they discontinue handling Downstream wastes in compliance with Appendix 6 (RCRA Project Narrative and Compliance Schedule) or such time as the Granulation Plant Holding Tanks are put in service to replace them.

z.    Interim Granulation Plant Unit Effluent (IGPU Effluent) shall mean the output solution consisting of any or all of the inputs to the IGPUs that are described in the Faustina Facility Report;

aa. Granulation Sump Ditches are identified in the Faustina Facility Report.

bb. Interest shall mean the interest rate specified in 28 U.S.C. § 1961;

cc. LDEQ shall mean the State of Louisiana Department of Environmental Quality and any of its successor departments or agencies;

dd. MAP shall mean monoammonium phosphate;

 

13


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

ee. Merchant Grade Acid (MGA) shall mean phosphoric acid that is typically 52% to 54% (by weight) of P2O5 but may vary slightly across the phosphoric acid industry, manufactured from the direct reaction of phosphate rock and sulfuric acid and containing less than one percent (1%) solids content;

ff. DAP Recycle Pond is the ditch and pond system described in LDEQ Permit P-0092RI and depicted in the Facility Report;

gg. Mixed-Use Unit shall mean a pollution control device, pipe, tank and/or other production, storage, or transportation unit specifically identified in the Uncle Sam Facility Report as serving both Upstream Operations and Downstream Operations;

hh. Non-Hazardous Aqueous Cleaning Solution (NHACS) shall mean an aqueous solution, including without limitation fresh water, non-hazardous condensate, non-hazardous recycled water, and non-hazardous recovered groundwater, used for cleaning pipes, tanks or other equipment that, if evaluated as a solid waste before use, is not a RCRA listed or characteristic hazardous waste as defined by 40 C.F.R., Part 261, Subparts C and D;

ii.    Paragraph shall mean a portion of this Consent Decree identified by an arabic numeral;

jj.    Parties shall mean the United States, LDEQ, Mosaic and, where applicable, The Mosaic Company;

kk. Phosphogypsum shall mean calcium sulfate and byproducts produced by the reaction of sulfuric acid with phosphate rock to produce phosphoric acid. Phosphogypsum is a solid waste within the definition of Section 1004(27) of RCRA, 42 U.S.C. § 6903(27);

 

14


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

ll. Phosphogypsum Stack shall mean any defined geographic area associated with a phosphoric acid production plant in which Phosphogypsum is disposed of or stored, other than within a fully enclosed building, container or tank;

mm.        Phosphogypsum Stack System shall mean the defined geographic area associated with a phosphoric acid production facility in which Phosphogypsum and Process Wastewater is disposed of or stored, together with all pumps, piping, ditches, drainage, conveyances, water control structures, collection pools, cooling/surge ponds (including former cooling/surge ponds that have been converted to lime treatment sludge ponds), auxiliary holding ponds, regional holding ponds, and any other collection or conveyance system associated with the transport of Phosphogypsum from the phosphoric acid plant to the Phosphogypsum Stack, its management at the stack, and the Process Wastewater return to phosphoric acid production. This definition specifically includes toe drain systems and ditches and other leachate collection systems, but does not include conveyances within the confines of the phosphoric acid or fertilizer production plant(s) or emergency diversion impoundments used in emergency circumstances caused by rainfall events of high volume or duration for the temporary storage of Process Wastewater to avoid discharges to surface waters of the State;

nn. Phosphogypsum Stack System Wastewater shall mean waste water in the Phosphogypsum Stack System containing Bevill-Exempt Wastes commingled with hazardous wastes as alleged in the Complaint;

oo. Phosphoric Acid Cleaning Solution (PACS) shall mean a solution of phosphoric acid (generated from an operation in which at least 50 percent of the feedstock in a calendar year was from ores or minerals or beneficiated ores or minerals) and Non-Hazardous Aqueous

 

15


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

Cleaning Solution, Phosphogypsum Stack System Wastewater, and/or Process Wastewater used for cleaning pipes, tanks or other equipment;

pp. Pond 11 is the surface impoundment described in LDEQ Permit P-0063 and depicted in the Faustina Facility Report;

qq. Process Wastewater shall mean process wastewater from phosphoric acid production. The following wastestreams constitute process wastewater from phosphoric acid production: water from phosphoric acid production operations through concentration to the First Saleable Product; process wastewater generated from Upstream Operations that is used to transport Phosphogypsum to the Phosphogypsum Stack; Phosphogypsum Stack runoff (excluding non-contact runoff); process wastewater generated from a uranium recovery step in phosphoric acid production; process wastewater generated from non-ammoniated animal feed production (including defluorination, but excluding ammoniated animal feed production) operations that qualify as mineral processing operations based on the definition of mineral processing that EPA finalized on September 1, 1989; and process wastewater generated from a superphosphate production process that involves the direct reaction of phosphate rock with dilute phosphoric acid with a concentration less than Merchant Grade Acid [see 55 Fed. Reg. 2328, January 23, 1990];

rr. Purified Phosphoric Acid (PPA) shall mean a refined grade of phosphoric acid where contaminants have been removed from wet-process phosphoric acid through solvent extraction, chemical precipitation, filtration, or other purification processes to produce a purified phosphoric acid product suitable for food grade or other higher purity phosphoric acid applications (as of the date of lodging of this Consent Decree, Mosaic does not manufacture Purified Phosphoric Acid);

 

16


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

ss. RCRA Requirements shall mean the requirements of RCRA Subtitle C, the applicable regulations in 40 C.F.R. Parts 260-270, and La. R.S. 30:2171 et seq. and the applicable regulations in LAC 33:V.Subpart 1;

tt. Section shall mean a portion of this Consent Decree identified by a roman numeral;

uu. State shall mean the State of Louisiana;

vv. Sulfuric Acid Cleaning Solution (SACS) shall mean a solution of sulfuric acid and Non-Hazardous Aqueous Cleaning Solution, Phosphogypsum Stack System Wastewater, and/or Process Wastewater used for cleaning pipes, tanks or other equipment;

ww.        Superphosphoric Acid (SPA) shall mean liquid phosphoric acid (not a solid phosphate product such as granulated triple superphosphoric acid) generally with a P2O5 content greater than MGA, resulting from the concentration of wet process acid that does not involve the direct reaction of phosphate ore in such concentration operations (as of the date of lodging of this Consent Decree, Mosaic does not manufacture SPA);

xx. Treatment for the purposes of Paragraph 18 herein shall mean any method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or composition of a waste so as to neutralize such waste or so as to recover energy or material resources from the waste, or so as to remove or reduce a hazardous constituent of the waste or make it safer to transport, store, or dispose of, or amenable for recovery, amenable for storage, or reduced in volume;

yy. United States shall mean the United States of America, acting on behalf of EPA;

zz. Upstream Operations shall mean all phosphoric acid mineral processing operations resulting in the manufacture of the First Saleable Product; and

 

17


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

aaa.        Work shall mean any activity that Mosaic must perform to comply with the requirements of this Consent Decree, including Appendices.

IV.  CIVIL PENALTY

9.        Within thirty (30) Days after the Effective Date of this Consent Decree, Mosaic shall pay the sum of $3,900,000.00 as a civil penalty, together with Interest accruing from the date on which the Consent Decree is lodged with the Court, at the rate specified in 28 U.S.C. § 1961 as of the date of lodging, in accordance with Paragraphs 10 and 11.

10.        Mosaic shall pay the sum of $2,350,000.00, together with Interest accruing from the date on which the Consent Decree is lodged with the Court, to the United States by FedWire Electronic Funds Transfer (EFT) to the U.S. Department of Justice, in accordance with written instructions to be provided by the Financial Litigation Unit of the U.S. Attorney’s Office for the Eastern District of Louisiana, 500 Poydras Street, Suite 210, New Orleans, Louisiana, 70130 (504) 680-3000 to Mosaic within ten (10) days of lodging of the Consent Decree. At the time of payment, Mosaic shall send a copy of the EFT authorization form and the EFT transaction record, together with a transmittal letter, to the United States in accordance with Section XV (Notices) of this Consent Decree; by email to acctsreceivable.CINWD@epa.gov; and by mail to:

EPA Cincinnati Finance Office

26 Martin Luther King Drive

Cincinnati, OH 45268

The transmittal letter shall state that the payment is for the civil penalty owed pursuant to the Consent Decree in United States et al. v. Mosaic Fertilizer, LLC, and shall reference the civil action number and DOJ case number 90-7-1-08388.

11.        Mosaic shall pay the sum of $1,550,000.00 as a civil penalty, together with Interest accruing from the date on which the Consent Decree is lodged with the Court, to LDEQ by EFT in accordance with instructions that will be provided by LDEQ within ten (10) Days of

 

18


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

the lodging of this Consent Decree. At the time of payment, Mosaic shall send a copy of the EFT authorization form and the EFT transaction record, together with a transmittal letter, to LDEQ in accordance with Section XV (Notices) of this Consent Decree. The transmittal letter shall state that the payment is for a civil penalty owed pursuant to the Consent Decree in United States et al. v. Mosaic Fertilizer LLC, and shall reference LDEQ File Number 015-176-SET-038and DOJ case number 90-7-1-08388.

12.        Mosaic shall not deduct any penalties paid under this Consent Decree pursuant to this Section or Section IX (Stipulated Penalties) in calculating its federal or Louisiana or local income tax.

V.  COMPLIANCE REQUIREMENTS

13.        Compliance Projects and Schedule.

(a)        Completed Activities. Mosaic has already completed the following activities at the Faustina Facility in compliance with the below-referenced Consent Decree Paragraph(s) or Appendices/Attachments to this Consent Decree: Granulation Plant Sump System (Paragraph 16); Phase 1 of the DAP Pond Sampling and characterization (Paragraph 23).

(b)        Uncle Sam Facility. Mosaic shall undertake the actions set forth in Appendix 5 (Best Management Practices (BMP) Plan) and Appendix 6 (RCRA Project Narrative and Compliance Schedule) of this Consent Decree to improve its waste management practices, pursuant to the description and schedule set forth in Appendix 6 (RCRA Project Narrative and Compliance Schedule). For any wastes generated by or managed in units that are identified in Section VI (Compliance Projects) of the Uncle Sam Facility Report found in Appendix 4 (Facility Reports) as part of the compliance projects set forth in Appendix 6 (RCRA Project Narrative and Compliance Schedule) requiring installation, construction, modification, shut

 

19


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

down, or replacement to cease commingling of hazardous wastes with Bevill-Exempt Wastes, and for any wastes that will be managed differently as a result of installing, constructing, modifying, shutting down, or replacing units, as specified in Section VI (Compliance Projects) of Appendix 4 (Facility Reports), Mosaic’s waste management obligations under this Section V (Compliance Requirements) shall become effective upon completion of those compliance projects.

(c)        Faustina Facility. Mosaic shall implement certain Facility changes at the Faustina Facility pursuant to the description and schedule set forth in the Faustina Facility Report found in Appendix 4 (Facility Reports) and Appendix 6 (RCRA Project Narrative and Compliance Schedule). For any wastes that will be managed differently as a result of installing, constructing, modifying, shutting down, or replacing units, as specified in Section VI (Compliance Projects) of Appendix 4 (Facility Reports), Mosaic’s waste management obligations under this Section V (Compliance Requirements) shall become effective upon completion of those compliance projects.

14.        Hazardous Waste Determinations.

(a)        Uncle Sam Facility. Mosaic shall make a RCRA hazardous waste determination, pursuant to 40 C.F.R. § 262.11, of all solid wastes generated at the Uncle Sam Facility within Upstream or Downstream Operations, or from Mixed-Use, Grandfathered Units, or BHT Recovery Units other than: (1) Bevill-Exempt Wastes; and (2) those wastes that Paragraphs 15-18 of this Consent Decree allow to (i) be input to Upstream Operations or (ii) managed in BHT Recovery Units or (iii) managed with Bevill Exempt Wastes, and, if the wastes are hazardous, Mosaic shall manage such wastes in compliance with the RCRA Requirements.

 

20


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

(b)        Faustina Facility. Mosaic shall make a RCRA hazardous waste determination, pursuant to 40 C.F.R. § 262.11, of all solid wastes generated at the Faustina Facility other than those wastes that Paragraph 16 allows to be input to Granulation or managed in IGPUs, GPUs or the Granulation Sump Ditches, and, if the wastes are hazardous, Mosaic shall manage such wastes in compliance with the RCRA Requirements.

15.        Wastes from Upstream Operations and Co-Managed Wastes at the Uncle Sam Facility.

(a)        Provided that any Phosphogypsum Stack System ultimately receiving the wastes enumerated below is subject to the requirements of Appendix 1, Attachment B (Groundwater Requirements), Attachment C (Phosphogypsum Stack System Construction and Operational Requirements), and Sections I, II, III and VI of Attachment D (Closure of Phosphogypsum Stacks/Stack Systems), as modified by Paragraph 22(a)(2)(i), and the Financial Assurance requirements of this Consent Decree set forth in Paragraph 25 and Appendix 2 (collectively the Stack System Requirements), the following wastes may be: (i) input into Upstream Operations; or (ii) treated, stored, managed, transported or disposed of together with Bevill-Exempt Wastes in accordance with this Consent Decree:

(1)        Process Wastewater, Phosphogypsum Stack System Wastewater, and Phosphogypsum;

(2)        Wastes from air pollution control devices that are associated with Upstream Operations or that are identified as Mixed-Use Units in the Uncle Sam Facility Report; and

(3)        Wastes generated from the use of Phosphogypsum Stack System Wastewater, Process Wastewater, a Non-Hazardous Aqueous Cleaning Solution, or any combination thereof, to clean pipes, tanks, process equipment, or other

 

21


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

storage or transport units that are:

(i)      Part of Upstream Operations;

(ii)     Serve to manage, store, or transport Bevill-Exempt Wastes; or

(iii)    Identified as Mixed-Use or Grandfathered Units in the Uncle Sam Facility Report.

(b)        Prior to commencement of operations of Compliance Project 1 (Big Holding Tank and Wash Solution System in the Phosphoric Acid Plant) and Project 2 (Cleaning Solution Return Piping) of Section VI (Compliance Projects) of Appendix 4 (Facility Reports) at the Uncle Sam Facility, Mosaic may continue to manage wastes generated from Upstream Operations, Mixed-Use Units, Grandfathered Units, BHT Recovery Units, or units that serve to manage, store, or transport Bevill-Exempt Wastes as specifically documented in Mosaic’s consolidated waste management practices submittal dated September 8, 2015.

(c)        Following commencement of operations of Compliance Project 1 (Big Holding Tank and Wash Solution System in the Phosphoric Acid Plant) and Project 2 (Cleaning Solution Return Piping) of Section VI (Compliance Projects) of Appendix 4 (Facility Reports) for the Uncle Sam Facility, the following wastes may be input to Upstream Operations via the BHT as described in Projects 1 and 2 of Section VI (Compliance Projects) of the Uncle Sam Facility Report set forth in Appendix 4 and in accordance with the BMP set forth in Appendix 5:

(1)          Spills and leaks of all grades of phosphoric acid, sulfuric acid, FSA, SACS, PACS, FSACS, or BHT Effluent; or NHACS, Process Wastewater, or Phosphogypsum Stack System Wastewater when mixed with any of the preceding solutions due to spills, leaks, or cleaning of spills and leaks;

 

22


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

(2)          Wastes generated from the use of SACS, PACS, BHT Effluent, FSA, FSACS, NHACS, Process Wastewater, and/or Phosphogypsum Stack Wastewater to clean pipes, tanks, process equipment, or other storage or transport units that are:

(i)    Part of Upstream Operations;

(ii)   Serve to manage, store, or transport Bevill-Exempt Wastes; or

(iii)  Identified as Mixed-Use, Grandfathered, or BHT Recovery Units in the Uncle Sam Facility Report.

In the event of a process upset after commencement of operations of the BHT and Cleaning Solution Return Piping Projects that prevents the input of SACS, PACS, BHT Effluent, FSA, or FSACS to Upstream Operations via the BHT, Mosaic: (1) shall not discharge to the Phosphogypsum Stack System any SACS, PACS, BHT Effluent, FSA, or FSACS in cleaning those units affected by the process upset; and (2) shall make a RCRA hazardous waste determination, pursuant to 40 C.F.R. § 262.11, of any cleaning wastes generated from BHT Recovery Units and not input to the BHT and, if the wastes are hazardous, shall manage such wastes in compliance with the RCRA Requirements. (d) If Mosaic, in the cleaning of Upstream Operations, Mixed-Use, Grandfathered, or BHT Recovery Units, uses any cleaning materials other than Phosphogypsum Stack System Wastewater, Process Wastewater, BHT Effluent, PACS, SACS, FSA, FSACS, or NHACS that, if evaluated as a solid waste before use, would be a RCRA listed or characteristic hazardous waste as defined by 40 C.F.R., Part 261, Subparts C and D and would generate a hazardous waste when mixed with Bevill-Exempt Process Wastewater under the Bevill Mixture Rule, 40 C.F.R. § 261.3(a)(2)(i) and (g)(4), then Mosaic

 

23


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

shall make a RCRA hazardous waste determination pursuant to 40 C.F.R. § 262.11, of the cleaning waste and, if the waste is hazardous, Mosaic shall manage such waste in compliance with the RCRA Requirements.

(e)        Mosaic shall manage any solids removed by means other than cleaning solutions from Upstream Operations, Mixed-Use, Grandfathered, and BHT Recovery Units in accordance with the BMP set forth in Appendix 5.

(f)        Equipment maintenance, repair activities, and emergency situations in Downstream Operations at a Facility may occasionally require Mosaic to temporarily store or transport a First Saleable Product in or through tanks or pipes that are part of Upstream Operations, and/or Mixed-Use or Grandfathered Units. Provided that: a) the use of any individual unit in Upstream Operations, or any Mixed-Use or Grandfathered Unit, for such temporary storage of a First Saleable Product does not exceed ninety (90) Days consecutively or one-hundred twenty (120) Days cumulatively per calendar year; and b) if the First Saleable Product is not stored or transported for greater than ninety (90) Days consecutively outside of Downstream Operations, then the cleaning wastes generated from such units that are used for the temporary transport and storage of the First Saleable Product may be managed with wastes from Upstream Operations. Notice of such temporary use of tanks or pipes that are part of Upstream Operations, or of Mixed-Use or Grandfathered Units, for a First Saleable Product must be given to EPA and LDEQ within seven (7) Days of the commencement of such temporary use, but advance approval will not be required. Mosaic shall keep a log of all such temporary uses. If Mosaic violates any of the time limits set forth in this Paragraph, Mosaic shall not manage cleaning wastes generated outside the prescribed time period with wastes from Upstream Operations. In the event of a second violation of any of these time limits within three-hundred

 

24


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

and sixty-five (365) Days of a first violation, Mosaic within 30 Days shall construct a separate system for the temporary transport and storage of the First Saleable Product, which system shall be part of Downstream Operations. Violations of the time limits set forth in this Paragraph are not subject to Paragraph 32 (Correction of Non-Compliance) but may be subject to dispute resolution (but not judicial review) under Section XI of this Consent Decree (Dispute Resolution) or to a claim under Section X (Force Majeure).

16.        Wastes from Downstream Operations at Uncle Sam and Faustina. Unless otherwise authorized by Paragraphs 15(a), (b), (c), (e) or (f), Paragraphs 16 (a) - (c), below, or Paragraphs 17(a) or (b), Mosaic shall manage all hazardous wastes generated from: Downstream Operations (including, without limitation, units that transport, store, treat, or manage the First Saleable Product (e.g., pipes, tanks, railcars, barges); chemical manufacturing processes that use the First Saleable Product as a feedstock (e.g., MAP/DAP, SPA or PPA processes); FSA production processes; pollution control devices, waste storage, transport and treatment units, cleaning wastes (liquid and solids), and spills and leaks from all such processes and units) in compliance with the RCRA Requirements, regardless of the use of any Bevill-Exempt Wastes as influent to such Downstream Operations. If any Mixed-Use Units or Grandfathered Units are replaced, modified, or reconfigured after the date of the Uncle Sam Facility Report such that they serve to manage, store or transport materials from Downstream Operations that are not identified in that Facility Report as being associated with those Units, they will be deemed to serve Downstream Operations, and any hazardous wastes generated thereafter from such Units will be subject to this Paragraph.

(a)        Waste Management at Uncle Sam. Mosaic may re-use or recover certain wastes from Downstream Operations in Upstream or Downstream Operations as specifically

 

25


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

documented in the Uncle Sam Facility Report.

(b)        Waste Management at Faustina. The Faustina Facility does not engage in mineral processing and does not generate Bevill-Exempt wastes. All solid wastes generated at the Faustina Facility as described in Faustina’s Facility Report are generated from Downstream Operations. Prior to completion of the Faustina Facility changes required pursuant to Paragraph 13(b) above, Mosaic may continue to manage wastes from the Granulation Sump Ditches, IGPUs, and GPUs as specifically documented in Mosaic’s consolidated waste management practices submittal dated September 8, 2015. Upon completion of Faustina Project 3 (Granulation Plant Holding Tank Installation) set forth in Appendix 6 (RCRA Project Narrative and Compliance Schedule), Mosaic shall no longer use the IGPUs to manage wastes.

(1) Cleaning Wastes. Wastes generated from the use of NHACS, SACS, IGPU Effluent or GPU Effluent to clean pipes, tanks, process equipment, or other storage or transport units and spills and leaks of NHACS, IGPU Effluent, GPU Effluent, SACS, phosphoric acid, or sulfuric acid may be input to Granulation, as described in Section V (Current Configuration) of Faustina’s Facility Report. In the event of a process upset that prevents the input of such wastes to Granulation , Mosaic shall make a RCRA hazardous waste determination of the cleaning wastes generated from those units affected by the process upset, pursuant to 40 C.F.R. § 262.11 and, if the wastes are hazardous, shall manage such wastes in compliance with the RCRA Requirements.

(2)        Projects. Mosaic has already modified certain of the containment pads and sumps at the Faustina Facility, as identified in the Faustina Facility Report.

(i) Granulation Sump Ditches. Mosaic shall implement Project 9 (Inspections, Maintenance and Repair of Ditches Flowing in the Granulation Sump) for the

 

26


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

Granulation Sump Ditches in compliance with Appendix 6 (RCRA Project Narrative and Compliance Schedule) for Project 7 and thereafter shall manage the Granulation Sump Ditches in compliance with Project 7.

(ii) IGPUs. Mosaic shall implement Projects 4 (Interim Granulation Plant Units - Tanks and Transfer Lines Operating Requirements) and 5 (Interim Granulation Plant Units - Sump Operating Requirements) for all IGPUs in compliance with Appendix 6 (RCRA Project Narrative and Compliance Schedule) until completion of Faustina Project 3 (Granulation Plant Holding Tank Installation) set forth in Appendix 6 (RCRA Project Narrative and Compliance Schedule).

(iii) Other Projects. Mosaic shall implement Projects 3 (Granulation Plant Holding Tank Installation), 6 (RCRA Requirements), 7 (40 CFR Part 265, Subpart J- Tank Standards for the Granulation Sump), 8 (40 CFR Part 265, Subpart J- Tank Standards for the Existing Holding Tank Sump), and 10 (RCRA Training) in compliance with and on the schedules set forth in Appendix 6 (RCRA Project Narrative and Compliance Schedule). Upon completion of those projects, Mosaic shall comply with 40 C.F.R. Parts 262 and 265 and the regulations in LAC 33:V. Ch. 11 and 19.

Notwithstanding the foregoing requirements of this Paragraph 16(b), Mosaic may re-use or recover certain wastes generated at the Faustina Facility in Downstream Operations as specifically documented in the Faustina Facility Report.

17.        FSA at the Uncle Sam Facility.

  (a)      FSA, and wastewater carrying entrained solids from FSA production, a part of Downstream Operations, may be managed as described in Section IV.D (Fluorosilicic Acid

 

27


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

(FSA) Standard Process Configuration) and Section VI Compliance Project 1 (BHT) and Project 3 (BHT piping) of Appendix 4 (Facility Reports) for the Uncle Sam Facility.

(b)        Waste solids not entrained in cleaning solutions but instead mechanically recovered from FSA production (such as filtration residue, tank bottoms, and Swift Tower clean-out residue) shall be managed in accordance with the BMP Plan set forth in Appendix 5.

(c)        Wastes generated from FSA production that are not subject to Paragraphs 17(a) and 17(b) shall be managed in compliance with the RCRA Requirements.

18.        Wastes from Treatment of Uncle Sam Phosphogypsum Stack System Wastes. Provided that any Phosphogypsum Stack System ultimately receiving the wastes complies with the Stack System Requirements set forth in Paragraph 15(a), wastes generated from the Treatment of materials in the Phosphogypsum Stack System through (i) the use of reverse osmosis or (ii) any other Treatment process that does not introduce into such materials hazardous constituents or other contaminants that would result in a violation of applicable discharge limits may be: (1) input to Upstream Operations; or (2) treated, stored, managed, transported and disposed of together with Bevill-Exempt Wastes, in accordance with this Consent Decree.

19.        Transfer of Wastes between the Facilities. In the event that Mosaic transfers hazardous waste, or Bevill-Exempt Wastes historically commingled with hazardous waste, between the Facilities, Mosaic shall comply with the RCRA Requirements. Nothing in this Consent Decree shall restrict the transfer and management of Bevill-Exempt Wastes and non-hazardous waste between the Facilities that is in compliance with all federal and Louisiana laws.

20.        Sulfuric Acid Plant. Mosaic shall manage hazardous wastes generated at the Uncle Sam sulfuric acid plant in accordance with applicable law.

 

28


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

21.        Site Assessment and Corrective Action.

(a)        Mosaic has already completed or will complete certain site assessment activities pursuant to existing RCRA Section 3013 Orders for both Facilities that are deemed to satisfy the requirements of Paragraphs 1-16 of Appendix 1, Attachment A (Site Assessment, Reporting and Corrective Action). Mosaic’s obligation to complete the Corrective Action Work are part of the Work required by this Consent Decree, but shall be set forth in and governed by an administrative agreement, permit, or order issued by LDEQ under its authorized state program, and subject to EPA’s residual RCRA authorities under RCRA and Paragraphs 21(c) and 88 of this Consent Decree. Mosaic’s performance of its obligations pursuant to the preceding sentence shall be subject to Paragraph 9 - 16 of Appendix 1, Attachment A, as applicable.

(b) Mosaic’s obligations under Paragraphs 17-19 of Attachment A of Appendix 1 shall be deemed to be fully satisfied on the date that LDEQ confirms Mosaic’s certification that Mosaic has completed all requirements of any such administrative agreement, permit, or order issued by LDEQ to govern the Corrective Action Work defined in Paragraph 8(g)(1), provided that EPA does not exercise its residual authorities under RCRA and this Consent Decree as set forth in Paragraph 21(c), below. Appendix 1, Attachment A is included as part of this Consent Decree in order to advise the Court and the public of sampling and analysis activities already completed or that will be completed by Mosaic, pursuant to the RCRA Section 3013 Orders, as part of its settlement with the United States and LDEQ, and the Parties’ intent to implement any necessary risk assessment and/or Corrective Action Work under LDEQ’s administrative authorities, and to reflect Plaintiffs’ residual authority to secure necessary Corrective Action Work pursuant to their reservation of rights in Paragraphs 86 and 88 of this Consent Decree.

 

29


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

(c)        EPA reserves the right to fully and directly enforce all the requirements of Appendix 1, Attachment A, if EPA: (i) notifies Mosaic within sixty (60) Days of LDEQ’s issuance of an administrative agreement, permit, or order setting forth and governing the Corrective Action Work defined in Paragraph 8(i)(a), that such administrative agreement, permit, or order does not adequately address the Corrective Action Work required under Paragraph 18 of Appendix 1, Attachment A; (ii) after consultation with LDEQ, notifies Mosaic that it has determined that Mosaic is not in compliance with an issued administrative agreement, permit, or order or (iii) notifies Mosaic within sixty (60) Days of LDEQ’s failure to issue an administrative agreement, permit, or order for Corrective Action Work that should be required under the terms of Paragraph 18 of Appendix 1, Attachment A. Any decision by EPA to directly enforce these Work requirements shall not be subject to judicial review, but shall be subject to dispute resolution (other than judicial review) pursuant to Section XI (Dispute Resolution) of this Consent Decree, although Mosaic retains its right to invoke dispute resolution as set forth in Section XI (Dispute Resolution) regarding any liability for asserted non-compliance with the Work requirements of this Consent Decree, including any liability for stipulated penalties.

22.        Phosphogypsum Stack Systems at the Facilities.

(a)        Uncle Sam Facility. If Mosaic is in compliance with the requirements of Paragraph 22(a), such compliance shall be deemed to satisfy the corresponding requirements of the Louisiana Solid Waste Management and Resource Recovery Law (La. R.S. 30:2151 et seq.) and the regulations promulgated thereunder (LAC 33:VII, Subpart 1), applicable to Phosphogypsum Stack Systems, with respect to the Uncle Sam Phosphogypsum Stack System.

(1) Mosaic shall comply with all requirements set forth in Appendix 1, Attachment B (Groundwater Requirements), Attachment C (Phosphogypsum Stack System

 

30


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

Construction and Operational Requirements), Attachment D (Closure of Phosphogypsum Stacks/Stack Systems), Attachment E (Imminent and Substantial Endangerment Diagnostic Requirements), and Attachment G (Phosphogypsum Stack System Closure Application) at the Uncle Sam Facility, except as provided in Appendix 8. The Parties agree that AOC MM-AOA-14-00269 shall be terminated as a separate order as of the Effective Date.

(2) Liner Alternatives

(i)     Plaintiffs agree that the Uncle Sam Phosphogypsum Stack System, subject to Mosaic’s completion of the Work required pursuant to Appendix 7 (Liner Compliance Requirements, Exemptions and Conditions) of this Consent Decree, either (i) meet the liner requirements of Appendix 1, Attachment C (Phosphogypsum Stack System Construction and Operational Requirements); or (ii) complies or will comply with the requirements, exemptions and conditions of Appendix 7 (Liner Compliance, Exemptions and Conditions) upon completion of the projects identified in Appendix 7, and thereby are or will be deemed to be environmentally protective and an acceptable alternative to the requirements of Appendix 1, Attachment C (Phosphogypsum Stack System Construction and Operational Requirements).

(ii)     In the event that Mosaic determines that it is not in compliance with the requirements, exemptions, and/or conditions set forth in Appendix 7 for the Uncle Sam Facility, Mosaic within ninety (90) Days of identifying the non-compliance shall investigate the cause of the non-compliance and submit an Evaluation of Remedial Options to address the non-compliance for approval by EPA, in consultation with LDEQ. The Evaluation of Remedial Options must: (i) evaluate the cause of the failure to meet the requirements and/or conditions in Appendix 7; (ii) identify and evaluate those measures needed to return to compliance with Appendix 7; (iii) identify and evaluate potential remedial alternatives to address any groundwater

 

31


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

contamination that has migrated beyond the Point(s) of Compliance for the Uncle Sam Facility as provided in Appendix 1, Attachment B (Section IV); (iv) identify and evaluate potential remedial alternatives to prevent or mitigate further migration of groundwater contamination; and (v) recommend one of the identified remedial alternatives for implementation.

(iii)       If EPA, in consultation with LDEQ, determines that Mosaic is not in compliance with the requirements, exemptions, and/or conditions set forth in Appendix 7 for a the Uncle Sam Facility, EPA shall so notify Mosaic in a written statement explaining the basis for its conclusion. Within ninety (90) Days of receiving such notice from EPA, Mosaic shall submit to EPA for approval, in consultation with LDEQ, the Evaluation of Remedial Options as required by Paragraph 22(a)(ii) or shall submit pursuant to Paragraphs 27-31 a written explanation of why it does not believe the alleged failure exists.

(3) If Mosaic determines to construct a Lateral Expansion of the existing Uncle Sam Phosphogypsum Stack System adjacent to the existing Phosphogypsum Stack System (e.g., “Expansion Stack 5A”) with an alternative design than Appendix 1, Attachment C, Section VI, then, no less than eighteen months prior to the start of construction of Expansion Stack 5A, Mosaic shall submit a proposed design to EPA and LDEQ for their review and approval, and a solid waste permit major modification request to LDEQ in accordance with applicable provisions of the Louisiana Solid Waste regulations. Any Phosphogypsum Stack System expansion documentation submitted pursuant to Appendix 2 (Financial Assurance) shall not affect LDEQ’s permit authority under the Louisiana Solid Waste regulations. If LDEQ approves an alternative liner in accordance with applicable Louisiana Solid Waste Regulations, which is subject to “EPA review” under Paragraph 31, the alternative liner shall be deemed to satisfy the liner requirements of Appendix 1, Attachment C, Section VI.

 

32


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

(4) Mosaic shall submit the Initial Phosphogypsum Stack System Closure Plan required in Appendix 1, Attachment D, Section II simultaneously with its first annual updated Cost Estimate submitted pursuant to Appendix 2, Paragraph 4(b).

(b)        Faustina Facility. Mosaic shall comply with Section VI (Long Term Care for Phosphogypsum Stacks/Stack Systems) requirements of Appendix 1, Attachment D (Closure of Phosphogypsum Stacks/Stack Systems), all groundwater monitoring requirements of Attachment B (Groundwater Requirements), and Section I of Attachment E (Imminent and Substantial Endangerment Requirements) for the Faustina Facility. If Mosaic is in compliance with the approved post-closure plan for this Facility, such compliance shall be deemed to satisfy the Work requirements of Appendix 1, Attachment D.

23.        DAP Recycle Pond at the Faustina Facility. Mosaic shall comply with requirements in Appendix 6 (RCRA Project Narrative and Compliance Schedule) regarding Plaintiffs’ April 9, 2014 approval of Mosaic’s Sampling and Analysis Report and future closure of the DAP Recycle Pond. Mosaic shall not place wastes in the DAP Recycle Pond, but may continue to use the DAP Recycle Pond to collect stormwater. Provided that Mosaic complies with this requirement, it shall not be required under this Consent Decree to conduct additional sampling of the DAP Recycle Pond, although EPA and LDEQ reserve all authorities to require sampling under applicable federal or state law. The final plan for the closure of the DAP Recycle Pond is subject to the LDEQ Risk Evaluation/Corrective Action program (RECAP), and Paragraphs 27-31.

24.        Aboveground Facilities for the Permitted UIC Well. Mosaic shall comply with Appendix 8.

 

33


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

25.      Financial Assurance. Mosaic shall secure and maintain Financial Assurance for the benefit of EPA and LDEQ pursuant to the requirements of Appendix 2 (Financial Assurance) of this Consent Decree as specified in Paragraphs 25(a) and 25(b) below. Mosaic’s inability to secure and/or maintain adequate Financial Assurance for the Uncle Sam and/or Faustina Facilities shall in no way excuse performance of the Work or any other requirement of this Consent Decree.

(a)   Uncle Sam Facility. Mosaic shall secure and maintain Financial Assurance for the benefit of EPA and LDEQ pursuant to the requirements of Appendix 2 (Financial Assurance) of this Consent Decree, including a corporate guarantee provided by The Mosaic Company and attached hereto as Appendix 2, Attachment I, in order to ensure coverage for: (i) Third-party Liability; and (ii) Phosphogypsum Stack System Closure (and Long-Term Care).

(b)   Faustina Facility. Mosaic shall secure and maintain Financial Assurance for the benefit of EPA and LDEQ pursuant to the requirements of Appendix 2 (Financial Assurance) of this Consent Decree, including a corporate guarantee provided by The Mosaic Company and attached hereto as Appendix 2, Attachment I, in order to ensure coverage for: (i) Third-party Liability; (ii) Phosphogypsum Stack System Long Term Care; and (iii) Closure and Long Term Care, as defined in Appendix 2, for the DAP Recycle Pond.

(c)   If Mosaic establishes Financial Assurances under Paragraphs 25(a) and 25(b) pursuant to the requirements of Appendix 2, such Financial Assurances shall also satisfy Mosaic’s obligations to comply with LAC 33:V. Chapter 37 and LAC 33:VII. Chapter 13, including the reporting requirements thereof, with respect to (a) Closure and Post-Closure Care for the Phosphogypsum Stack System at the Uncle Sam Facility, (b) Post-Closure Care for the

 

34


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

Phosphogypsum Stack System at the Faustina Facility, and (ii) Closure and Post-Closure Care for the DAP Recycle Pond at the Faustina Facility.

(d)   Corrective Action Work at Uncle Sam and Faustina Facilities. In the event that LDEQ or EPA determine that, pursuant to Paragraphs 21 or 22, Corrective Action Work is required, then Financial Assurance for the Corrective Action Work shall be addressed through an administrative agreement, order, or the modification of the Facility’s solid waste permit in the manner provided in LAC 33:VII.1305. If EPA, in lieu of LDEQ, directs Corrective Action Work pursuant to this Consent Decree, then Mosaic shall secure and maintain Financial Assurance for Corrective Action Work for the benefit of EPA pursuant to Appendix 2, Section IV.

26.      In addition to the financial assurance information included in the reports required pursuant to Section VIII (Reporting Requirements) of this Consent Decree, Mosaic or The Mosaic Company as guarantor shall provide to EPA and LDEQ, upon request, any information or reports that Plaintiffs are authorized to request pursuant to Section 3007 of RCRA, 40 C.F.R. Part 264 Subpart H, La. R.S. 30:2001 et seq. and LAC 33:VII.Chapter 13, or any other applicable statutory or regulatory information-gathering authorities, regarding the financial status of Mosaic or The Mosaic Company as guarantor, the financial mechanism(s) provided by Mosaic or The Mosaic Company as guarantor to meet its obligation for Financial Assurance, and the financial institution or guarantor providing the financial mechanism(s) to secure Mosaic’s or The Mosaic Company’s obligations, pursuant to Appendix 2 (Financial Assurance).

27.      Review and/or Approval of Submissions. Where any provision of this Consent Decree requires Mosaic to submit a plan, notification, report, procedure, protocol or other deliverable, the submission shall be subject to either “EPA approval” or “EPA review,” as set forth in Paragraphs 28-31, below. If there is any question as to whether a particular submission

 

35


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

requires EPA approval or review, it shall be submitted for approval subject to EPA’s discretion to treat it as a submission for review. All work plans, reports and other items that are developed and submitted to EPA for approval pursuant to this Consent Decree shall be complete and technically adequate, and shall incorporate all applicable requirements of Appendix 1.

28.      Submissions Subject to EPA Approval. After review of any work plan, report, or other item set forth below that is required to be submitted, or revised and resubmitted to EPA for approval pursuant to this Consent Decree, EPA, after consultation with LDEQ, 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. In the event of disapproval of any portion of the submission, EPA shall include a statement of the reasons for such disapproval in its response. The following submissions required under Appendix 1 are subject to EPA approval:

 

  1.

Groundwater Monitoring Plan (Attachment B, Section III (1) and (2));

  2.

Stack Closure Plan (Attachment D, Section I, Section III (1));

  3.

Initial Stack Closure Plan (Attachment D, Section II (1));

  4.

Corrective Action Plan (Attachment A, (18)) and Attachment B, Section IV (3));

  5.

Interim Stack System Monitoring Program and Monitoring Program Revisions (Attachment C, Section I (6));

  6.

Dike Concerns, including Problems, Proposals to Upgrade or Retrofit Dikes, Submissions of Interim Measures for Dike Stability and Submissions of Proposals to Modify the Existing Dike System (Attachment C, Section II (1), (2), (3) and (5));

  7.

Liners for New Stack Systems Construction: (1) Submission of Construction Quality Assurance Plan for Composite Liner Design; (2) Provision of Liner System Installation Report of Compliance with Construction Quality Assurance Plan after Installation of Liner is Complete; (3) Submission of Documentation of Quality Control Testing of the Liner Construction (Attachment C, Section VI);

  8.

Alternatives Plan and Implementation Schedule for Water Management (Attachment C, Section VII 6(h) and (7)(c));

  9.

Requests for Temporary Deactivation of Stack System on a Yearly Basis (Attachment D, Section IV (1) - (7));

  10.

Use of Closed Phosphogypsum Stack Systems (Attachment D, Section

 

36


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

 

V (5));

  11.

Reduced Long-Term Care Schedule (Attachment D, Section VI (2));

  12.

Submission of outline for a Sampling and Analysis Workplan (Attachment A, (1));

  13.

Submission of Sampling and Analysis Workplan and Sampling and Analysis Report (Attachment A, (2) and (5));

  14.

Submission of Risk Assessment Plan and Report (Attachment A, (18));

  15.

Submission of an Interim Measures Plan and Report (Attachment A, (18));

  16.

Approval to Construct Perimeter Dikes that do not meet minimum 1.5 safety factor (Attachment C, Section III, (1)(e)(ii)):

  17.

Alternate Final Cover (Attachment D, Section III, (7)(c)); and

  18.

Corrective Action Certification Report (Attachment A (18)(a)(iii).

29.      Approval or Conditional Approval. If the submission is approved pursuant to Paragraph 28(a), Mosaic 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 28(b) or (c), Mosaic shall, upon written direction from EPA, take all actions required by the approved plan, report, or other item that EPA determines are technically severable from any disapproved portions, subject to Mosaic’s right to dispute only the specified conditions, the disapproval, or the determination of the technical severability of portions of the submission under Section XI (Dispute Resolution) of this Consent Decree.

30.      Disapproval in Whole or Part.

(a)      If the submission is disapproved in whole or in part pursuant to Paragraph 28(c) or 28(d), Mosaic 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 submission has been previously disapproved, EPA may impose an earlier due-date for resubmission, but not less than fourteen (14) Days. If the resubmission is approved in whole or in part, Mosaic shall proceed in accordance with the provisions of this Paragraph governing approval of submissions.

 

37


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

(b)      If a resubmitted plan, report, or other item, or portion thereof, is disapproved in whole or in part, EPA, after consultation with LDEQ, may again require Mosaic to correct any deficiencies in accordance with the preceding Paragraphs, may itself correct any deficiencies, or may finally disapprove the submission, subject to Mosaic’s right to invoke dispute resolution under Section XI (Dispute Resolution) and the right of EPA and LDEQ to seek stipulated penalties as provided in the following Sub-Paragraph. If the resubmission is approved or corrected in whole or in part, Mosaic shall proceed in accordance with Paragraph 29.

(c)      Any stipulated penalties applicable to the original submission, as provided in Section IX (Stipulated Penalties) of this Consent Decree, shall accrue during the sixty (60) Day period or other agreed upon 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 Mosaic’s obligations under this Consent Decree, the stipulated penalties applicable to the original submission shall be due and payable notwithstanding any subsequent resubmission.

31.      Submissions subject to EPA Review. For submissions set forth below that are subject to EPA review, EPA, in consultation with LDEQ, within 60 Days of receiving the submission may provide written comments on the submission, in whole or in part, or EPA may decline to comment, or may notify Mosaic that comments will be provided at a later date not to exceed 120 Days from the date of submission. If EPA provides written comments, Mosaic within 45 Days of receiving such comments shall modify the submission consistent with EPA’s written comments unless it has invoked Dispute Resolution pursuant to Section XI of the Consent Decree. A decision by EPA to decline to comment does not constitute approval of the submission or waive any obligation by Mosaic to comply with the requirements of this Consent

 

38


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

Decree or any applicable federal, Louisiana, or local laws governing such submissions. The following submissions required by Appendix 1 and this Consent Decree are subject to EPA review:

 

  1. Groundwater Monitoring Well Reports (Attachment B, Section III (3)(a) and (b));
  2.

Inspection of Phosphogypsum Stack Report (Attachment C, Section VII (3));

  3.

Information on Perimeter Dikes (Attachment C, Section II (1));

  4. Report on Final Survey and Record Drawings after Permanent Closure is complete (Attachment D, Section V (2));
  5. Certification of Closure Construction Completion (Attachment D, Section V (3));
  6. Certification of Long-Term Care Completion (Attachment D, Section VI (4));
  7. Notification of Groundwater Sampling Schedule (Attachment B, Section II (3)(d));
  8. Notification of Start Date of Construction of New Dikes (Attachment C, Section III (5)(a));
  9.

Report on Conditions for Temporary Non-emergency Use of the Design Freeboard (Attachment C, Section IV, (2)(b) and (c));

  10. File on Inspection of a New Phosphogypsum Stack System (Attachment C, Section V (4));
  11. Annual Contingency Plan and Training Plan (Attachment C, Section VIII (1) and (2));
  .12. Replacement of Monitoring Device within Sixty (60) Days of Notification to EPA (Attachment D, Section VI (3));
  13. Documentation Demonstrating the Continued Safety and Stability of the Dike (Attachment E, Section II (1));
  14. Expansion Stack 5A alternative liner (Consent Decree ¶ 22(a)(3));
  15.

Submission of Report of Critical Condition and Proposal for Correction (Attachment E, Section I (1) and Section III (1));

  19.

Final Construction Quality Assurance Report (Attachment D, Section III (8));

  20.

  Remedial EDI Plan (Attachment E, Section IV (4)); and

  21.

Corrective Action Work Implementation Plan (Attachment A (18)(a)(ii)(2).

  22.

Submission of a RECAP Evaluation (Attachment B, Section IV); and

  23

New Phosphogypsum Stack System or Lateral Expansion designed with an appropriate safety factor (Attachment C, Section VI, (4);

 

39


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

32.        Correction of Non-Compliance at the Uncle Sam Facility.

(a)        If Mosaic determines, with or without notice from EPA and/or LDEQ, that it is violating, or will violate, any requirement of Section V (Compliance Requirements) of this Consent Decree, other than those set forth in Paragraphs 15(f) (temporary storage of First Saleable Product) and 25 (Financial Assurance obligations governed by Appendix 2 (Financial Assurance)), Mosaic shall submit with its report of the violation, pursuant to Section VIII (Reporting Requirements) of this Consent Decree, and shall subsequently implement, a Correction Plan to rectify the violation, if it has not already corrected the violation by the time of the report. The Correction Plan shall include a schedule for correcting the violation.

(b)  In the event of a violation subject to Paragraph 32(a), Mosaic shall be considered to be in compliance with this Consent Decree for purposes of: (1) continuing to manage wastes that Paragraphs 15 through 18 allow to be input to Upstream Operations or Downstream Operations or managed in BHT Recovery Units or together with Bevill-Exempt Wastes; and (2) assessing Mosaic’s compliance with this Consent Decree under Paragraphs 34, 85, 86 and 87 of this Consent Decree, provided that:

(1)     Mosaic deposits wastes governed by Paragraphs 15-18 only in a Phosphogypsum Stack System subject to the Stack System Requirements set forth in Paragraph 15(a); and

(2)     Mosaic:

(i).      Timely implements and completes its Correction Plan; or

(ii).     Refers an allegation of non-compliance with Section V (Work Requirements) or with a Correction Plan to dispute resolution pursuant to Section XI (Dispute Resolution) and either

   a.        Prevails in the dispute resolution or

 

40


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

b.        Satisfactorily complies with an EPA or judicial directive to correct any instances of non-compliance

(collectively, Continuing Compliance Criteria). Nothing in this Paragraph shall be construed as EPA approval of Mosaic’s correction efforts pursuant to this Paragraph, as a waiver of stipulated penalties for the violation pursuant to Section IX (Stipulated Penalties), or as limiting the rights reserved by Plaintiffs under Section VI (Work Takeover) or Paragraph 88 of this Consent Decree. EPA reserves the right to require, upon written request that a Correction Plan be submitted to EPA for approval in accordance with Paragraphs 27 - 31, above. Mosaic’s compliance with this Paragraph is without prejudice to its rights under Section X (Force Majeure) and Section XI (Dispute Resolution) of this Consent Decree.

33.        Permits. Where any compliance obligation under this Section requires Mosaic to obtain a federal, Louisiana, or local permit, or other form of approval, Mosaic shall submit timely and complete applications and take such actions as are necessary to obtain all such permits or approvals. A request for supplementation by the permitting agency does not constitute a notice or finding that an application was incomplete for the purpose of this Paragraph unless the permitting agency determines that the original application was so deficient as to constitute a material breach of Mosaic’s obligations under this Consent Decree. Mosaic may seek relief under the provisions of Section X (Force Majeure) of this Consent Decree 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 Mosaic has submitted timely and complete applications and has taken such actions as are necessary to timely obtain all such permits or approvals.

 

41


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

34.        Provided that Mosaic remains in compliance with Section V (Compliance Requirements) or the Continuing Compliance Criteria set forth in Paragraph 32 at the Uncle Sam Facility, that Facility shall not be required to operate as a Treatment Storage and Disposal Facility pursuant to Section 3005 of RCRA and its implementing federal and/or Louisiana regulations, with respect to:

           (a) the treatment, storage, transport, management, and disposal of Bevill-Exempt

Wastes that have been commingled with hazardous wastes or otherwise managed in violation of law as alleged in the Complaint,

                       (i) prior to the lodging of this Consent Decree,

                       (ii) prior to completing the compliance projects set forth in Appendix 6 (RCRA Project Narrative and Compliance Schedule) as provided by Paragraph 13, or

                       (iii) during timely implementation of a Correction Plan as set forth in Paragraph 32; and

             (b) wastes that Paragraphs 15 through 18 allow to be input to Upstream Operations or Downstream Operations or managed in BHT Recovery Units or together with Bevill-Exempt Wastes.

 

VI.  WORK TAKEOVER

35.        In the event EPA determines that Mosaic has: (a) ceased implementation of any portion of the Work; or (b) is seriously or repeatedly deficient or late in its performance of the Work; or (c) is implementing the Work in a manner that may cause an endangerment to human health or the environment, EPA, after consultation with LDEQ and with the joint approval of the EPA Region 6 Regional Administrator and the Assistant Administrator for the EPA Office of Enforcement and Compliance Assurance, may issue a written notice (Work Takeover Notice) to

 

42


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

Mosaic. Any Work Takeover Notice issued by EPA shall specify the grounds upon which such notice was issued and shall provide Mosaic a period of thirty (30) Days within which to remedy the circumstances giving rise to EPA’s issuance of such notice.

36.        If, after expiration of the thirty (30) Day period specified in Paragraph 35 of this Section, the Work Takeover Notice has not been withdrawn by EPA and Mosaic has not remedied to EPA’s satisfaction the circumstances giving rise to EPA’s issuance of the Work Takeover Notice, EPA at any time thereafter may undertake Work Takeover by: (a) assuming and/or directing the performance of; (b) seeking the appointment of a receiver to direct the performance of; or (c) accessing Financial Assurance (with the concurrence of LDEQ) to finance the performance of all or any portions of the Work that EPA deems necessary to correct the violations or conditions that triggered the Work Takeover Notice pursuant to Paragraph 35 (Work Takeover). EPA shall notify Mosaic in writing (which writing may be electronic) if EPA determines that implementation of a Work Takeover is warranted under this Section of the Consent Decree. In the event that EPA seeks to appoint a receiver to direct the performance of the Work, Mosaic shall not oppose such appointment on grounds other than lack of competence or conflict of interest, but shall retain its right to challenge the underlying Work Takeover in Dispute Resolution, as set forth in the following Paragraph and Section XI (Dispute Resolution) of this Consent Decree. In implementing any Work Takeover, EPA shall make reasonable efforts not to interfere with Facility operations not directly affected by the conditions that triggered the Work Takeover.

37.        In the event that Mosaic invokes Section XI (Dispute Resolution) of this Consent Decree with respect to EPA’s Work Takeover and/or its selection of options set forth in Paragraph 36 (which must be disputed together with the underlying Work Takeover and pursuant

 

43


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

to Paragraph 76(a) of this Consent Decree), EPA during the pendency of any such dispute may, in its unreviewable discretion, commence and continue a Work Takeover until the earlier of: (a) the date that Mosaic remedies, to EPA’s satisfaction, the circumstances giving rise to issuance of the Work Takeover Notice; or (b) the date that a final decision is rendered in accordance with Section XI (Dispute Resolution) of the Consent Decree requiring EPA to terminate such Work Takeover.

38.        After commencement and for the duration of any Work Takeover, EPA or any appointed receiver shall have immediate access to and benefit of any Financial Assurance provided pursuant to Paragraph 25 of this Consent Decree and Appendix 2 to implement the Work. If EPA or any appointed receiver are unable to access the Financial Assurance, or the Work addressed by the Work Takeover is not covered by Financial Assurance, then any unreimbursed costs incurred by EPA in connection with the Work Takeover shall be considered a financial obligation owed by Mosaic to the United States and collectible in an action to enforce this Consent Decree. Nothing in this Paragraph shall be construed to relieve Mosaic of its obligation to provide adequate Financial Assurance pursuant to Appendix 2. In the event that it is determined in Dispute Resolution that the Work Takeover was not warranted, any unexpended funds in a Stand-by Trust that originated from a letter of credit, surety bond or corporate guarantee shall be used to restore any pre-existing Trust Fund to the pre-Work Takeover level, if necessary, and any balance of unexpended funds shall be released and used to re-establish the original financial mechanism(s).

VII.  BENEFICIAL ENVIRONMENTAL PROJECTS

39.        Within thirty (30) Days after the Effective Date of the Consent Decree, Mosaic shall deposit $1,000,000.00 into an escrow account established and administered by LDEQ, in

 

44


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

accordance with instructions that will be provided by LDEQ within sixty (60) Days of the lodging of this Consent Decree, for the purpose of LDEQ’s conducting the beneficial environmental projects (BEPs) identified in this Section. After January 1, 2020, any funds that remain in this escrow account and that have not been committed to the BEPs identified in this Section will be transferred by LDEQ to the Louisiana Hazardous Waste Clean-Up Fund.

40.        Minerals Toxicity Study and Mineral Criteria Assessment BEP. LDEQ will assess statewide water quality criteria/standards for minerals (e.g., chlorides, sulfates) based upon a thorough review of scientific literature, data from aquatic toxicity tests, and a review of criteria/standards from other states and jurisdictions. BEP funding will be utilized in conducting aquatic toxicity testing that will be utilized in establishing a statewide formula for the development of mineral criteria and/or standards protective of waters of the State. The results of these studies will provide data that may be used by Louisiana to help develop or refine state mineral related standards.

41.        Minerals Toxicity Study and Mineral Criteria Assessment BEP Objectives. The objectives for the BEP referenced in Paragraph 40 are to: (1) Develop a study, including acute and chronic toxicity tests, on representative Louisiana species across a range of hardness values (including low hardness waters) typical of Louisiana; and (2) Conduct toxicity studies to determine acute and chronic effects to calculate ratios and/or genus mean acute values that can be used to help develop State standards for chlorides, sulfates, and/or other appropriate minerals criteria.

42.        Producer-Specific Watershed Nutrient Management Plans BEP. LDEQ, in coordination with the Louisiana State University Agricultural Center, will develop producer-specific master programs and Watershed Nutrient Management Plans (collectively WNMP) to be

 

45


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

utilized by beef cattle, dairy, and poultry producers for the purpose of reducing pollution, such as excess nutrients, into the environment through improved farm practices specific to producer needs. These WNMPs will enhance the Comprehensive Nutrient Management Plans that are available from the United States Department of Agriculture (USDA) by incorporating complementary activities for nutrient management, such as operation and maintenance, tracking, monitoring, and beneficial use.

43.        Producer-Specific Watershed Nutrient Management Plans BEP Objectives. The objectives for the BEP referenced in Paragraph 42 are to: (1) Develop WNMPs to address nutrients, potentially including the completion of an environmental needs assessment to identify the water quality issues for a watershed; and (2) Develop WNMPs for the identified producer-specific commodities in targeted watersheds.

44.        Mosaic’s funding of the escrow account shall not be construed as an endorsement of, and Mosaic reserves all rights to dispute, any methodologies, analyses, conclusions or findings resulting from the BEPs described above.

45.        If Defendant fails to deposit funds in the escrow account in accordance with Paragraph 39, stipulated penalties may be assessed under Section IX (Stipulated Penalties).

VIII.  REPORTING REQUIREMENTS

46.        If Mosaic determines that it has violated or will violate, any requirement of this Consent Decree, Mosaic shall notify EPA and LDEQ of such violation and its likely duration, in writing (unless otherwise directed by EPA or LDEQ), within twelve (12) Days of the date Mosaic first becomes aware of the violation, with an explanation of the likely cause of the violation and of the remedial steps taken, or to be taken, to prevent or minimize such violation. If the cause of a violation cannot be fully explained at the time the report is due, Mosaic shall so

 

46


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

state in the report. Mosaic shall investigate the cause of the violation and shall then submit an amendment to the report, including a full explanation of any identifiable cause(s) of the violation, within thirty (30) Days of the date Mosaic becomes aware of the violation. Nothing in this Paragraph or Paragraphs 47 and 48 relieves Mosaic of its obligation to provide the notice required by Section X of this Consent Decree (Force Majeure).

47.        Periodic Reporting

(a)        Uncle Sam. Within forty-five (45) Days after the end of each calendar-quarter after lodging of this Consent Decree (quarters shall be calculated based on Mosaic’s December 31st end-of-fiscal-year), until the quarter ending after the completion of all the projects listed in Appendix 6 (RCRA Narrative and Compliance Schedule) for the Uncle Sam Facility , Mosaic shall submit to EPA and LDEQ a report for the Uncle Sam Facility for the preceding calendar quarter that shall include (a) the status of any construction or compliance measures described in Appendix 6; (b) completion of milestones set forth in Appendix 6; (c) problems encountered or anticipated, together with implemented or proposed solutions, with projects described in Appendix 6; (d) status of permit applications for projects described in Appendix 6; (e) status of plans for closure and long-term care and status of permit application, as applicable, for closure or long-term care; (f) operation and maintenance difficulties or concerns relating to compliance with Paragraphs 15 and 17 - 18; (g) status of Financial Assurance; (h) a description of any violation of the requirements of this Consent Decree reported under Paragraph 46 and an explanation of the likely cause of such violation and of the remedial steps taken, or to be taken, to prevent or minimize such violation; (i) the log of any temporary use of units in Upstream Operations, Mixed-Use Units or Grandfathered Units for the storage of the First Saleable Product; (j) the log of spills and leaks tracked pursuant to the BMP set forth in Appendix 5; and

 

47


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

(k) identification of any confirmed “critical condition” as defined and reported to LDEQ and/or EPA pursuant to Appendix 1. Thereafter, and for a period of two (2) years, Mosaic shall submit such reports to Plaintiffs on a semi-annual basis. Thereafter, Mosaic shall submit such reports annually until such time as Mosaic submits the Uncle Sam Closure Application pursuant to Appendix 1, Attachments D (Closure of Phosphogypsum Stacks/Stack Systems) and G (Phosphogypsum Stack System Closure Application). Mosaic shall submit its next report within one-hundred-eighty (180) Days after the submission of the Uncle Sam Closure Application, and annually thereafter until this Consent Decree is terminated with respect to the Uncle Sam Facility.

(b)        Faustina. Within forty-five (45) Days after the end of each calendar-quarter after lodging of this Consent Decree (quarters shall be calculated based on Mosaic’s December 31st end-of-fiscal-year), until the quarter ending after the completion of Projects 1 - 5, 7 - 8, and 10 listed in Appendix 6 (RCRA Narrative and Compliance Schedule) for the Faustina Facility, Mosaic shall submit to EPA and LDEQ a report for the Faustina Facility for the preceding calendar quarter that shall include (a) the status of any construction or compliance measures described in Appendix 6; (b) completion of milestones set forth in Appendix 6; (c) problems encountered or anticipated, together with implemented or proposed solutions, with projects described in Appendix 6; (d) status of permit applications for projects described in Appendix 6; (e) status of plans for long-term care and status of permit application, as applicable, for closure or long-term care; (f) operation and maintenance difficulties or concerns relating to compliance with Paragraph 16; (g) status of Financial Assurance; (h) a description of any violation of the requirements of this Consent Decree reported under Paragraph 46 and an explanation of the likely cause of such violation and of the remedial steps taken, or to be taken, to prevent or

 

48


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

minimize such violation; and (i) any notification or reporting pursuant to 40 CFR 265.196(d) or LAC 33:V.1913.D, as set forth in Project 6 in Appendix 6 (RCRA Narrative and Compliance Schedule) for the Faustina Facility. Thereafter, Mosaic shall submit such reports annually until this Consent Decree is terminated with respect to the Faustina Facility.

48.        Whenever any violation of this Consent Decree, or any other event affecting Mosaic’s performance under this Consent Decree or the performance of its Facility, may pose an immediate threat to the public health or welfare or the environment, Mosaic shall, unless otherwise directed, notify EPA and LDEQ in Section XV (Notices) orally or by electronic or facsimile transmission as soon as possible, but no later than twenty-four (24) hours after Mosaic first knew of the event, and shall comply with the requirements of Appendix 1, Attachment E (Imminent and Substantial Endangerment Diagnostic Requirements). Any violation of this notice requirement shall be deemed to terminate on the Day that both Plaintiffs have received actual notice of the violation or event from Mosaic or by other means. This notice requirement does not relieve Mosaic of its obligation to comply with any federal and state laws applicable to the violation or event. This notice requirement is in addition to the requirement to provide notice of a violation of this Consent Decree set forth in the preceding Paragraph.

49.        All reports shall be submitted to the persons designated to receive Notices for Plaintiffs in Section XV (Notices) of this Consent Decree. All notices and submittals to “EPA and/or LDEQ” under this Consent Decree (including Appendices), other than those required by this Section or that are submitted for approval pursuant to Paragraphs 27-31, may be submitted to LDEQ only, provided that a copy of the cover letter identifying the notice or submittal is also sent to EPA. Mosaic also shall supply EPA with a copy of such notice(s) or submittal(s) upon request by EPA.

 

 

49


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

50.        Each report submitted by Mosaic under this Section shall be signed by a responsible corporate official of Mosaic (as defined in 40 C.F.R. § 270.11(a)) and shall include the following certification:

I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.

This certification requirement does not apply to emergency notifications where compliance would be impractical.

51.        The reporting requirements of this Consent Decree do not relieve Mosaic of any reporting obligations required by the RCRA Requirements, or by any other federal, Louisiana, or local law, regulation, permit, or other requirement. However, the reporting requirements of this Consent Decree shall not require Mosaic to re-submit any report, plan or information submitted by Mosaic to EPA and/or LDEQ prior to the Effective Date of this Consent Decree.

52.        Any information provided pursuant to this Consent Decree may be used by the Plaintiffs in any proceeding to enforce the provisions of this Consent Decree and as otherwise permitted by law.

IX.  STIPULATED PENALTIES

53.        Mosaic shall be liable for stipulated penalties to the United States and LDEQ for violations of this Consent Decree as specified below, unless excused under Section X (Force Majeure). A violation includes failing to perform any obligation required by the terms of this Consent Decree, including any work plan or schedule approved under this Consent Decree,

 

50


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

according to all applicable requirements of this Consent Decree and within the specified time schedules established by or approved under this Consent Decree.

54.        Civil Penalty and BEPs. If Mosaic fails to pay the civil penalty and/or fails to submit payment to an escrow account for the BEPs, as required under Sections IV (Civil Penalty) and VII (Beneficial Environmental Projects) of this Consent Decree when due, Mosaic shall pay a stipulated penalty of $1,000 per Day for each Day that the payment is late for the first ten (10) Days, together with Interest. Thereafter, Mosaic shall pay $3,000 per Day for each Day that the payment is late, with Interest. Late payment of the federal civil penalty shall be made in accordance with Section IV (Civil Penalty), Paragraph 10, and late payment of the Louisiana penalty and/or BEP funding shall be made in accordance with Section IV (Civil Penalty), Paragraph 11. Stipulated penalties for late payment of the civil penalty or BEP shall be paid in accordance with Paragraphs 58 - 64, below. All transmittal correspondence shall state that any such payment is for late payment of the civil penalty or BEP due under this Consent Decree, or for stipulated penalties for late payment, as applicable, and shall include the identifying information set forth in Paragraphs 10 or 11, above as applicable.

55.        Compliance Requirements. The following stipulated penalties shall accrue per violation per Day for each violation of the requirements identified in Section V (Compliance Requirements):

 

Penalty Per Violation Per Day            Period of Noncompliance     

$1,000

   1st through 14th Day   

$2,000

   15th through 30th Day   

$3,000

   31st Day and beyond   

(a)         Uncle Sam Facility. Stipulated penalties shall not apply to spills and leaks that are

 

51


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

successfully managed in compliance with the approved BMP set forth in Appendix 5.

56.        Reporting Requirements. The following stipulated penalties shall accrue per violation per Day for each violation of the requirements of Section VIII of this Consent Decree (Reporting Requirements):

 

Penalty Per Violation Per Day                                     Period of Noncompliance     
              $ 750    1st through 14th Day   
              $1,000    15th through 30th Day   
              $2,000    31st Day and beyond   

 

 

57.        Subject to the provisions of Paragraph 30(c), above, and except as otherwise specified in Paragraphs 30(c) and 65(b), stipulated penalties under this Section shall begin to accrue on the Day after performance is due or on the Day a violation occurs, whichever is applicable, and shall continue to accrue until performance is satisfactorily completed or until the violation ceases. Stipulated penalties shall accrue simultaneously for separate violations of this Consent Decree.

58.        Mosaic shall pay stipulated penalties to the United States and to LDEQ within twelve (12) Days of a written demand by either Plaintiff, subject to its right to invoke dispute resolution in accordance with Section XI (Dispute Resolution). Except as provided in Paragraph 45, Mosaic shall pay fifty percent (50%) of the total stipulated penalty amount due to the United States and fifty percent (50%) to LDEQ. The Plaintiff making a demand for payment of a stipulated penalty shall simultaneously send a copy of the demand to the other Plaintiff.

59.        Each Plaintiff, may, in the unreviewable exercise of its discretion, reduce or waive stipulated penalties otherwise due to it under this Consent Decree. The determination by

 

52


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

one Plaintiff not to seek stipulated penalties, or to subsequently waive or reduce the amount it seeks, shall not preclude the other Plaintiff from seeking the full amount of the stipulated penalties owed.

60.        Stipulated penalties shall continue to accrue as provided in Paragraph 57, during any Dispute Resolution, but need not be paid until the following:

(a)        If the dispute is resolved by agreement or by a decision of the United States or LDEQ that is not subject to judicial review or appealed to the Court, Mosaic shall pay accrued penalties determined to be owing, together with Interest, to the United States or LDEQ within thirty (30) Days of the effective date of the agreement or the receipt of the United States’ or LDEQ’s decision or order.

(b)        If the dispute is appealed to the Court and the United States or LDEQ prevails in whole or in part, Mosaic shall pay all accrued penalties determined by the Court to be owing, together with Interest, within sixty (60) Days of receiving the final Court decision.

61.        Mosaic shall pay stipulated penalties owing to the United States in the manner set forth and with the confirmation notices required by Paragraph 10, except that the transmittal letter shall state that the payment is for stipulated penalties and shall state for which violation(s) the penalties are being paid. Mosaic shall pay stipulated penalties owing to LDEQ in accordance with Paragraph 11, except that the transmittal letter shall state that the payment is for stipulated penalties and shall state for which violation(s) the penalties are being paid.

62.        Mosaic shall not deduct stipulated penalties paid under this Section in calculating its Louisiana and federal income tax.

63.        If Mosaic fails to pay stipulated penalties according to the terms of this Consent Decree, Mosaic shall be liable for Interest on such penalties, as provided for in 28 U.S.C. § 1961,

 

53


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

accruing as of the date payment became due. Nothing in this Paragraph shall be construed to limit the United States or LDEQ from seeking any remedy otherwise provided by law for Mosaic’s failure to pay any stipulated penalties.

64.        Subject to the provisions of Section XIII (Effect of Settlement/ Reservation of Rights) of this Consent Decree, the stipulated penalties provided for in this Consent Decree shall be in addition to any other rights, remedies, or sanctions available to the United States or LDEQ for Mosaic’s violation of this Consent Decree or applicable law. Where a violation of this Consent Decree is also a violation of relevant statutory or regulatory requirements, Mosaic shall be allowed a credit for any stipulated penalties paid against any statutory penalties imposed for such violation.

X. FORCE MAJEURE

65.        Force majeure, for purposes of this Consent Decree, is defined as any event arising from causes beyond the control of Mosaic, of any entity controlled by Mosaic, or of Mosaic’s contractors that delays or prevents the performance of any obligation under this Consent Decree despite Mosaic’s best efforts to fulfill the obligation. The requirement that Mosaic exercise best efforts to fulfill the obligation includes using best efforts to anticipate any potential force majeure and best efforts to address the effects of any potential force majeure (1) as it is occurring and (2) following the potential force majeure such that the delay and any adverse effects of the delay are minimized to the greatest extent possible. Force majeure does not include Mosaic’s financial inability to perform any obligation under this Consent Decree.

66.        If any event occurs or has occurred that may delay the performance of any obligation under this Consent Decree, whether or not caused by a force majeure event, Mosaic shall provide notice orally or by electronic or facsimile transmission as soon as possible, as

 

54


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

provided in Section XV (Notices) of this Consent Decree, but not later than seven (7) Days after the time when Mosaic first knew that the event might cause a delay. Within ten (10) Days thereafter, Mosaic shall provide written notice to EPA and LDEQ with an explanation and description of the reasons for the delay; the anticipated duration of the delay; all actions taken or to be taken to prevent or minimize the delay; a schedule for implementation of any measures to be taken to prevent or mitigate the delay or the effect of the delay; Mosaic’s rationale for attributing such delay to a force majeure event if it intends to assert such a claim; and a statement as to whether, in the opinion of Mosaic, such event may cause or contribute to an endangerment to public health, welfare or the environment. Mosaic shall include with any notice all available documentation supporting a claim that the delay was attributable to a force majeure event. Mosaic shall be deemed to know of any circumstance of which Mosaic, any entity controlled by Mosaic, or Mosaic’s contractors knew or reasonably should have known. Failure to comply with the above requirements regarding an event shall preclude Mosaic from asserting any claim of force majeure regarding that event, provided, however, that if EPA, despite the late notice, is able to assess to its satisfaction whether the event is a force majeure under Paragraph 65 and whether Mosaic has exercised its best efforts under Paragraph 65, EPA may, in its unreviewable discretion, excuse in writing Mosaic’s failure to submit timely notices under this Paragraph.

67.        If EPA, after consultation with LDEQ, agrees that the delay or anticipated delay is attributable to a force majeure event, the time for performance of the obligations under this Consent Decree that are affected by the force majeure event will be extended by EPA, after consultation with LDEQ, for such time as is necessary to complete those obligations. An extension of the time for performance of the obligations affected by the force majeure event shall not, of itself, extend the time for performance of any other obligation. If EPA, after consultation

 

55


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

with LDEQ, agrees that the delay is attributable to a force majeure event, EPA will notify Mosaic in writing of the length of the extension, if any, for performance of the obligations affected by the force majeure event.

68.        If EPA, after consultation with LDEQ does not agree that the delay or anticipated delay has been or will be caused by a force majeure event, EPA will notify Mosaic in writing of its decision.

69.        If Mosaic elects to invoke the dispute resolution procedures set forth in Section XI (Dispute Resolution), it shall do so no later than fifteen (15) Days after receipt of EPA’s notice. In any such proceeding, Mosaic shall have the burden of demonstrating by a preponderance of the evidence that the delay or anticipated delay has been or will be caused by a force majeure event, that the duration of the delay or the extension sought was or will be warranted under the circumstances, that best efforts were exercised to avoid and mitigate the effects of the delay, and that Mosaic complied with the requirements of Paragraphs 65 and 66, above. If Mosaic carries this burden, the delay at issue shall not constitute a violation by Mosaic of the affected obligation of this Consent Decree identified to EPA and the Court.

XI.  DISPUTE RESOLUTION

70.        Unless otherwise expressly provided for in this Consent Decree, the dispute resolution procedures of this Section shall be the exclusive mechanism to resolve all disputes arising under or with respect to this Consent Decree. Mosaic’s failure to seek resolution of a disputed issue under this Section shall preclude Mosaic from raising any such issue as a defense to an action by the United States or LDEQ to enforce any obligation of Mosaic arising under this Consent Decree.

 

 

56


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

71.        Informal Dispute Resolution. Any dispute subject to Dispute Resolution under this Consent Decree shall first be the subject of informal negotiations, which may include any third-party assisted, non-binding alternative dispute resolution process agreeable to the Parties. Mosaic shall submit a written Notice of Dispute to both the United States and LDEQ within thirty (30) Days after receiving written notice from EPA of a decision that Mosaic disputes. The dispute shall be considered to have arisen on the later of the dates that the United States or LDEQ receives a written Notice of Dispute. Such Notice of Dispute shall state clearly the matter in dispute. The period of informal negotiations shall not exceed twenty (20) Days from the date that the dispute arises, unless that period is modified by written agreement between the United States and Mosaic. If the Parties cannot resolve a dispute by informal negotiations, then the position of EPA, after consultation with LDEQ, shall be considered binding, unless Mosaic invokes formal dispute resolution procedures as provided in the following Paragraph.

72.        Formal Dispute Resolution. If Mosaic elects to invoke formal dispute resolution, Mosaic shall, within thirty (30) Days after the conclusion of the informal negotiation period, submit to EPA and LDEQ a written Statement of Position regarding the matter in dispute. The Statement of Position shall include, but need not be limited to, any factual data, analysis, or opinion supporting Mosaic’s position and any supporting documentation relied upon by Mosaic.

73.        EPA, after consultation with LDEQ, shall submit its Statement of Position within forty-five (45) Days of receipt of Mosaic’s Statement of Position. The EPA Statement of Position shall include or clearly reference, but need not be limited to, any factual data, analysis, or opinion supporting that position and any supporting documentation relied upon by EPA. Where appropriate, EPA may allow submission of supplemental statements of position by the

 

57


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

Parties to the dispute. The EPA Statement of Position shall be binding on Mosaic unless Mosaic files a motion for judicial review of the dispute in accordance with the following Paragraph.

74.        Unless expressly stated otherwise in this Consent Decree, Mosaic may seek judicial review of the dispute by filing with the Court and serving on the United States and LDEQ, in accordance with Section XV (Notices) of this Consent Decree, a motion requesting judicial resolution of the dispute. The motion must be filed within thirty (30) Days of receipt of the EPA Statement of Position pursuant to the preceding Paragraph. The motion shall contain a written statement of Mosaic’s position on the matter in dispute, including any supporting factual data, analysis, opinion, or documentation, and shall set forth the relief requested and any schedule within which the dispute must be resolved for orderly implementation of the Consent Decree.

75.        The United States, after consultation with LDEQ, shall respond to Mosaic’s motion within the time period allowed by the Local Rules of this Court. Mosaic may file a reply memorandum, to the extent permitted by the Local Rules.

76.        Standard of Review

 (a)        Disputes Concerning Matters Accorded Record Review. In any dispute brought under this Section pertaining to the adequacy or appropriateness of plans, procedures to implement plans, schedules or any other items requiring approval by EPA under this Consent Decree; the adequacy of the Work performed pursuant to this Consent Decree; and all other disputes that are accorded review on the administrative record under applicable principles of administrative law, EPA shall compile an administrative record of the dispute containing all Statements of Position, including supporting documentation and referenced data or information,

 

58


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

and Mosaic shall have the burden of demonstrating, based on the administrative record, that the position of the United States is arbitrary and capricious or otherwise not in accordance with law.

(b)    In any other dispute brought under this Section, Mosaic shall bear the burden of demonstrating that its position complies with and furthers the objectives of this Consent Decree.

77.        The invocation of dispute resolution procedures under this Section shall not, by itself, extend, postpone, or affect in any way any obligation of Mosaic under this Consent Decree, unless and until final resolution of the dispute so provides or unless ordered by the Court. Stipulated penalties with respect to the disputed matter shall continue to accrue from the first Day of noncompliance, but payment shall be stayed pending resolution of the dispute as provided in Paragraph 72. If Mosaic does not prevail on the disputed issue, stipulated penalties shall be assessed and paid as provided in Section IX (Stipulated Penalties).

XII. INFORMATION COLLECTION AND RETENTION

78.        The United States, LDEQ, and their representatives, including attorneys, contractors, and consultants, shall have the right of entry into any of Mosaic’s Louisiana Facilities, at all reasonable times, upon presentation of appropriate identification, to:

 (a)  monitor the progress of activities required under this Consent Decree;

 (b) verify any data or information submitted to the United States or LDEQ in accordance with the terms of this Consent Decree;

 (c)  obtain samples and, upon request, splits of any samples taken by Mosaic or its representatives, contractors, or consultants;

 (d)  obtain documentary evidence, including photographs and similar data;

 (e)  assess Mosaic’s compliance with this Consent Decree; and

 

59


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

 (f)  conduct, direct or review Work pursuant to Section VI (Work Takeover) of this Consent Decree.

79.        Upon request, Mosaic shall provide EPA, LDEQ and their authorized representatives splits of any samples taken by Mosaic. Upon request, EPA and LDEQ shall provide Mosaic splits of any samples taken by EPA, LDEQ, and their authorized representatives.

80.        Mosaic shall retain, and shall require its contractors and agents to preserve, all non-identical copies of all documents, records, or other information (including documents, records, emails or other information in electronic form and including any documents, records, data or other information underlying the submission of any Report required pursuant to Section VIII (Reporting Requirements)) in its or its contractors or agents possession or control, or that come into its or its contractors’ or agents’ possession or control and that relate to Mosaic’s performance of its obligations under this Consent Decree or adherence to the requirements associated with the management of waste materials allowed under Paragraphs 15 through 18 for a period of five (5) years after the creation of such documents, records or other information. This information-retention requirement shall apply regardless of any contrary corporate or institutional policies or procedures. At any time during this information-retention period, upon request by the United States or LDEQ, Mosaic shall provide copies of any documents, records, or other information required to be maintained under this Paragraph.

81.        At the conclusion of the information-retention period provided in the preceding Paragraph, Mosaic shall notify the United States and LDEQ at least ninety (90) Days prior to the destruction of any documents, records, or other information subject to the requirements of the preceding Paragraph and, upon request by the United States or LDEQ, Mosaic shall deliver any such documents, records, or other information to EPA or LDEQ. Mosaic shall not dispose of

 

60


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

materials following the expiration of its five (5) year retention period more often than once a year.

82.        In connection with any request for documents, records, or other information pursuant to this Consent Decree, Mosaic may assert that certain documents, records, or other information are privileged under the attorney-client privilege or any other privilege recognized by federal law, provided that Mosaic shall not assert a legal privilege for any data, records or information (excluding legal advice) generated or received in connection with Mosaic’s obligations pursuant to the requirements of this Consent Decree. If Mosaic asserts a privilege, it shall provide the following: (1) the title of the document, record, or information; (2) the date of the document, record, or information; (3) the name and title of each author of the document, record, or information; (4) the name and title of each addressee and recipient; (5) a description of the subject of the document, record, or information; and (6) the privilege asserted by Mosaic. If Plaintiffs and Mosaic disagree as to whether a particular document or record is privileged, Mosaic shall deliver such document or record to the United States or LDEQ unless it invokes dispute resolution pursuant to Section XI (Dispute Resolution), in which case, Mosaic shall not have an obligation to deliver such document or record until a final determination is made, pursuant to the procedures set forth in Section XI (Dispute Resolution), that such document or record is not privileged.

83.        Mosaic may also assert that information provided pursuant to this Consent Decree is protected as Confidential Business Information (“CBI”) under the criteria and procedures set forth in 40 C.F.R. Part 2 or LAC 33:I.Chapter 5, provided that: (a) Mosaic shall not assert a CBI claim with respect to any physical, sampling, monitoring, or analytical data other than data related to: (i) development of new or modified products; (ii) development of new or modified

 

61


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

production processes; (iii) production materials or analyses collected for quality control or other manufacturing purposes; or (iv) analyses undertaken for competitive business purposes; and (b) Mosaic shall not assert a CBI claim for Financial Assurance information required to be provided pursuant to Paragraphs 10.e, 15(e) and 32 of Appendix 2 of this Consent Decree. If Mosaic claims any information related to Financial Assurance submissions and Cost Estimates is CBI, Mosaic shall submit two versions, one version with the CBI material redacted, and so identified in the document, which will be publicly available, and the second version will contain the CBI material.

84.        This Consent Decree in no way limits or affects any right of entry and inspection, or any right to obtain information, held by the United States or LDEQ pursuant to applicable federal or Louisiana laws, regulations, or permits, nor does it limit or affect any duty or obligation of Mosaic to maintain documents, records, or other information imposed by applicable federal or Louisiana laws, regulations, or permits.

XIII. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS

85.        This Consent Decree resolves the civil claims of the United States and LDEQ against Mosaic and, as to liability arising out of Mosaic’s liability only, The Mosaic Company for the violations at the Facilities alleged in the Complaint filed in this action through the date of the lodging of the Consent Decree. This Consent Decree also resolves such claims, if any, of the United States and LDEQ against the corporate officers, directors, and employees, acting in their capacities as such, of Mosaic or The Mosaic Company, but only as to liability arising out of Mosaic’s liability. For continuing violations alleged in the Complaint, provided that Mosaic complies with this Consent Decree at a Facility, as set forth in Paragraph 87, from the date of lodging of the Consent Decree through its Effective Date, these claims shall also be resolved

 

62


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

through the Effective Date of this Consent Decree, as of the Effective Date, for that Facility; and, provided that Mosaic complies with the Consent Decree at a Facility from the Effective Date of this Consent Decree through the date of termination of this Consent Decree for that Facility pursuant to Section XIX (Termination), these claims shall be finally resolved as of the date the Consent Decree terminates for that Facility.

86.        Provided that Mosaic is in compliance with this Consent Decree, and subject to the reservation below, Plaintiffs covenant not to sue or take administrative action, under Section 3008(a) of RCRA, 42 U.S.C. § 6928(a) or a state law counterpart, seeking to require Mosaic’s Facilities to comply with the RCRA Requirements, with respect to: (a) the generation, treatment, storage, transport, management, and disposal of Bevill-Exempt Wastes that have been commingled with hazardous wastes or otherwise managed in violation of law as alleged in the Complaint, and that are resolved in accordance with Paragraph 85; (b) wastes that Paragraphs 15 through 18 of this Consent Decree allow to be input to Upstream Operations or Downstream Operations or managed in BHT Recovery Units, IGPUs, GPUs, Granulation Sump Ditches or with Bevill-Exempt Wastes; and (c) conditions addressed under Paragraphs 23 and 24. Further, provided that Mosaic is in compliance with this Consent Decree, LDEQ covenants not to sue or take administrative action seeking to require the Phosphogypsum Stack System at Mosaic’s Uncle Sam Facility to comply with otherwise applicable requirements of the Louisiana Solid Waste Management and Resource Recovery Law (La. R.S. 30:2151 et seq.) and the regulations promulgated thereunder (LAC 33:VII, Subpart 1). (The interface of the Louisiana Solid Waste Management and Resource Recovery Law (La. R.S. 30:2151 et seq.) and the regulations promulgated thereunder (LAC 33:VII, Subpart 1) and Defendant’s obligations under this Consent Decree is further addressed in the letter from LDEQ dated September 29, 2015.)

 

63


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

Nothing in this Paragraph, however, shall affect Plaintiffs’ rights to determine and require necessary Corrective Action Work in accordance with Paragraphs 21 and 22(a)(1), respectively, of this Consent Decree, or to restrict Non-CD Corrective Action that may be required at a Facility pursuant to Plaintiffs’ residual authorities under federal, state, and local laws.

87.        The resolution under this Section XIII (Effect of Settlement/Reservation of Rights) of the Plaintiffs’ civil claims set forth in the Complaint and the Plaintiffs’ covenants not to sue are expressly conditioned upon Mosaic’s timely and satisfactory compliance with the requirements of this Consent Decree. For the purposes of this Paragraph (and Paragraphs 85 and 86), and with respect to the wastes that Paragraphs 15 through 18 allow to be input to Upstream Operations or Downstream Operations, managed in BHT Recovery Units, IGPUs, GPUs, Granulation Sump Ditches, or with Bevill-Exempt Wastes, compliance with the Continuing Compliance Criteria set forth in Paragraph 32 constitutes compliance with this Consent Decree.

88.        The United States and LDEQ reserve all legal and equitable remedies available to enforce the provisions of this Consent Decree, and Mosaic reserves all legal and equitable defenses available to it in the defense of any such enforcement. This Consent Decree shall not be construed to limit the rights of the United States or LDEQ to obtain penalties or injunctive relief under the federal and Louisiana environmental statutes or their implementing regulations, or under other federal or Louisiana law regulations or permit conditions, including Section 3008(h) of RCRA, 42 U.S.C. § 6928(h), except as expressly specified in Paragraphs 85 and 86, and Mosaic in any such action shall not assert any defense based upon the contention that such claims raised by the Plaintiffs were or should have been brought in the instant case under principles of waiver, res judicata, collateral estoppel, issue preclusion, claim preclusion, claim-splitting, or other such defenses. The United States and LDEQ further retain all authority and

 

64


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

reserve all rights to take any and all actions authorized by law to protect human health and the environment, including Corrective Action Work and Non-CD Corrective Action, and all legal and equitable remedies to address any imminent and substantial endangerment to the public health or welfare or the environment arising at, or posed by, Mosaic’s Facilities, whether related to the violations addressed in this Consent Decree or otherwise.

89.        This Consent Decree is not a permit, or a modification of any permit, under any federal, State, or local law or regulation. While this Consent Decree resolves the Parties’ dispute regarding the violations alleged in the Complaint as set forth in Paragraph 85, compliance with the terms of this Consent Decree does not guarantee compliance with all applicable federal, State, or local laws or regulations. Except as provided in Paragraphs 34, 85, and 86 of this Consent Decree, Mosaic is not relieved of its obligation to achieve and maintain compliance with all applicable federal, State, and local laws, regulations, and permits; Mosaic’s compliance with this Consent Decree shall be no defense to any action commenced by Plaintiffs pursuant to any such law, regulation, or permit, except as expressly specified in Paragraphs 34, 85 and 86.

90.        This Consent Decree does not limit or affect the rights of the Parties against any third-parties (persons not a Party to this Consent Decree), nor does it limit the rights of third-parties except as otherwise provided by the doctrine of federal preemption or by other applicable principles of law or precedent.

91.        This Consent Decree shall not be construed to create rights or obligations in, or grant any cause of action to, any third-party.

92.        Nothing in the Complaint filed in this action or in this Consent Decree, including the execution and implementation of this Consent Decree, shall constitute an admission by Mosaic of any violation of the RCRA Requirements or of any of the allegations of the

 

65


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

Complaint. Mosaic reserves all rights to dispute the factual and legal representations of the Complaint and Consent Decree except in an action to enforce this Consent Decree by a Party. The terms of this Consent Decree may not be used as evidence in any litigation between the Parties except (a) pursuant to Section XI (Dispute Resolution), (b) in an action to enforce this Consent Decree, or (c) in an action by Plaintiffs in which Mosaic asserts a defense based on this Consent Decree.

XIV. COSTS

93.        The Parties shall bear their own costs of this action, including attorneys’ fees, except that the United States and LDEQ shall be entitled to collect costs (including attorneys’ fees) incurred in any action necessary to access Financial Assurance pursuant to Paragraph 25 and Appendix 2 (Financial Assurance) of this Consent Decree, or to collect any portion of the civil penalty or any stipulated penalties or other costs due under this Consent Decree but not paid by Mosaic.

94.        LDEQ Costs Incurred in Oversight of Consent Decree.

(a)        LDEQ may employ, arrange for, or contract with a qualified person to perform oversight tasks related to the Work performed under this Consent Decree. Mosaic shall bear reasonable and necessary costs incurred by LDEQ for oversight related to the Work performed under this Consent Decree following the Entry Date and as allowed by law. Following the first anniversary of this Consent Decree, LDEQ may propose to increase the Annual Oversight Cost Cap on an annual basis to reflect cost increases; provided, however, such proposed increase shall not exceed the current inflationary rate for the specific year.

 (b)        LDEQ shall keep accurate books and accounts of oversight costs. Such books and accounts may be audited by Mosaic upon written request. Annually from the

 

66


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

Effective Date of this Consent Decree, or at the end of each calendar-quarter if deemed appropriate by LDEQ, LDEQ shall submit to Mosaic an invoice for oversight costs that LDEQ asserts are recoverable under Paragraph 94(a). The invoice shall describe for each person and for each day the oversight work for which LDEQ seeks reimbursement in sufficient detail to document the amount of time spent on oversight work and to describe the oversight work performed during the time documented. If Mosaic disagrees with this invoice on the basis that costs incurred by LDEQ are not reasonable, not necessary, or excessive or the invoice fails to provide sufficient information as described above, then Mosaic may invoke Section XI (Dispute Resolution) of this Consent Decree. Mosaic shall, within sixty (60) calendar Days of receiving the invoice, unless it has invoked Section XI (Dispute Resolution) before this 60 Day period has passed, remit a check or electronic payment for the amount of those costs made payable to the Louisiana Department of Environmental Quality. Checks shall specifically reference the Facility and invoice number, and be mailed to the following address:

Accountant Administrator

Financial Services Division

Office of Management and Finance

Louisiana Department of Environmental Quality

P.O. Box 4303

Baton Rouge, LA 70821-4303

Electronic Payments shall specifically reference the Facility and invoice number and can be made to the following:

 

Bank Name:   JP Morgan Chase
Account Name:   State of Louisiana, Dept. of Environmental Quality
Routing:   XXXXXX021 (ACH) or
  XXXXXX137 (Fed Wire)
Account Number:           XXXXX544

 

67


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

A copy of the check or payment confirmation and transmittal letter shall be mailed to:

Cost Recovery Officer

Office of Environmental Compliance

Remediation Services Division

Louisiana Department of Environmental Quality

P.O. Box 4314

Baton Rouge, LA 70821-4314

This Paragraph shall not prejudice LDEQ’s right to bring an action against any party, including Mosaic, under the Comprehensive Environmental Response, Compensation, and Recovery Act (CERCLA) for recovery of any future costs incurred by LDEQ related to this Consent Decree and not reimbursed by Mosaic.

XV. NOTICES

95.        Unless otherwise specified herein, whenever notifications, submissions, or communications are required by this Consent Decree in accordance with Section VIII (Reporting Requirements) they shall be made electronically, unless otherwise requested by either LDEQ or EPA, and addressed as follows:

 

To the United States:

Chief, Environmental Enforcement Section

Environment and Natural Resources Division

U.S. Department of Justice

Re: DOJ No. 90-7-1-[08388]

To Deborah Reyher:

via email:

Deborah.Reyher@usdoj.gov

via facsimile:

(202) 514-4113 or (202) 514-0097

via regular mail or post office express mail:

Box 7611 Ben Franklin Station

Washington, D.C. 20044-7611

 

68


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

via private overnight service:

601 D Street, NW, 2nd Floor

Washington, D.C. 20004

United States Attorney for the Eastern District of Louisiana

Hale Boggs Federal Building

500 Poydras Street, Suite 210

New Orleans, Louisiana 70130

Phone: (504) 680-3000

Fax: (504) 589-4661

and to EPA, below.

To EPA:

Associate Director

Hazardous Waste Enforcement Branch

U.S. Environmental Protection Agency,

Region 6

1445 Ross Avenue, Suite 1200

Dallas, TX 75202-2733

Phone: (214) 665-6746

Fax: (214) 665-2182

Van Housman and Bethany Russell

Office of Civil Enforcement

Mail Code 2249A

U.S. Environmental Protection Agency

Clinton Building-South

1200 Pennsylvania Ave., NW

Washington, D.C. 20460

Phone: (202) 564-1849

Fax: (202) 564-0019

Housman.van@epa.gov

russell.bethany@epa.gov

To LDEQ:

Celena J. Cage

  Administrator

LDEQ Office of Environmental Compliance-Enforcement Division

Post Office Box 4312

Baton Rouge, LA 70821-4312

Phone: 225 219-3715

Fax: 225- 325-8142

celena.cage@la.gov

 

69


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

Lewis Donlon

Administrator

LDEQ Waste Permits Division

P.O. Box 4313

Baton Rouge, LA 70821-4313

Phone: 225-219-3393

Fax: 225-219-3474

Dutch.donlon@la.gov

Kathy M. Wright and Perry Theriot

Office of the Secretary

Legal Affairs Division

Louisiana Dept. of Environmental Quality

P.O. Box 4302

Baton Rouge, Louisiana 70821-4302

Phone: (225) 219-3985

Fax: (225) 219-4068

Kathy.wright@la.gov

Perry.theriot@la.gov

 

To Mosaic and the Mosaic Company:

David Jellerson

Senior Director of Environmental

Mosaic Fertilizer, LLC

13830 Circa Crossing Drive

Lithia, FL 33547

Patrick van der Voorn

The Mosaic Company on behalf of Mosaic Fertilizer, LLC

Senior Environmental Counsel

Atria Corporate Center, Suite E490

3033 Campus Drive

Plymouth, MN 55441

To Arnold & Porter LLP (Counsel for Mosaic):

Joel M. Gross

Lester Sotsky

Peggy Otum

Eric Rey

Arnold & Porter LLP

555 Twelfth Street, N.W.

Washington, DC 20004-1206

 

70


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

96.        Any Party may, by written notice to the other Parties, change its designated notice recipient or notice address provided above.

97.        Notices submitted pursuant to this Section shall be deemed submitted upon electronic transmission, unless otherwise provided in this Consent Decree or by mutual agreement of the Parties in writing.

XVI.  EFFECTIVE DATE

98.        The Entry Date of this Consent Decree shall be the date of a Final Order by which this Consent Decree is entered by the Court or by which a motion to enter the Consent Decree is granted, whichever occurs first, as recorded on the Court’s docket. The Effective Date of this Consent Decree shall be the later of the Entry Date of this Consent Decree or the Entry Date of the Consent Decree resolving claims by the United States and the Florida Department of Environmental Protection against Mosaic relating to Mosaic’s facilities in Florida. The filing or pendency of an appeal of the Court’s entry of this Consent Decree shall not stay the Effective Date, except as may be otherwise determined pursuant to Paragraph 100 (Modification). In the event that either Consent Decree is not entered by the Court, the Parties shall jointly stipulate to stay any previously entered Consent Decree. Notwithstanding the foregoing, Mosaic hereby agrees that it shall be bound from the date of its execution of this Consent Decree to perform obligations scheduled in this Consent Decree to occur prior to the Effective Date.

XVII.  RETENTION OF JURISDICTION

99.        The Court shall retain jurisdiction over this case until termination of this Consent Decree for both Facilities, pursuant to Section XIX (Termination), for the purpose of resolving disputes arising under this Consent Decree (including disputes under any Trust Agreements

 

71


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

entered pursuant hereto) or entering orders modifying this Consent Decree, pursuant to Sections XI (Dispute Resolution) and XVIII (Modification), or effectuating or enforcing compliance with the terms of this Consent Decree.

XVIII.  MODIFICATION

100.      The terms of this Consent Decree may be modified only by a subsequent written agreement of the Parties to this Consent Decree as set forth herein. Any modifications to the provisions of Appendices 1 through 7, hereto and any other modifications to any other provisions of this Consent Decree that do not constitute a material change to this Consent Decree may be made without approval by the Court upon written agreement between Mosaic and the United States, after consultation with LDEQ. Any modifications to the provisions of Appendix 8 may be made without approval by the Court upon written agreement between Mosaic and LDEQ, after consultation with the United States. Any such changes shall become enforceable under this Consent Decree upon execution by Mosaic and the United States (for changes to the Consent Decree or Appendices 1 through 7) or Mosaic and LDEQ (for changes to Appendix 8), shall be made available to the public by EPA and LDEQ (except to the extent such changes contain information determined to be CBI pursuant to Paragraph 83 and 40 C.F.R. Part 2), and shall periodically be filed by EPA or LDEQ with the Court. Any other modifications agreed to by the Parties shall be effective only upon approval by the Court. Except as otherwise provided in this Paragraph and in Paragraph 102, a Party’s refusal to agree to a modification of this Consent Decree shall be subject to dispute resolution, but a Party seeking judicial review of such a refusal shall bear the burden of demonstrating that it is entitled to the requested modification based on a significant change in factual conditions or the law or other reason that would make inequitable the continued application of the Consent Decree without the modification sought.

 

72


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

101.      In the event that a potential transferee under Section II (Applicability) of this Consent Decree has agreed to become a party to this Consent Decree and subject to all its terms and provisions, it may do so upon written approval of the United States pursuant to Section II (Applicability) of this Consent Decree and Section XVIII (Modification), without further order from the Court, in which event a supplemental signature page will be affixed to this Consent Decree and filed with the Court.

XIX. TERMINATION

102.      Periodic Review of Work Status. At least once every three (3) years, and more often if the Parties so agree, the Parties shall meet to review the status of the Work and to evaluate whether discrete portions of the Work have either been completed or may be accomplished and supervised under an EPA or LDEQ administrative order or permit in lieu of this Consent Decree. If all Parties agree to such a modification, such agreement shall be memorialized in a written modification to this Consent Decree pursuant to Section XVIII (Modification) and shall not require judicial approval. If the Parties agree that such modifications allow this Consent Decree to be terminated as to one or both Facilities, the Parties shall submit, for the Court’s approval, a joint stipulation terminating the Consent Decree for the relevant Facilities. The Parties’ inability to reach an agreement under this Paragraph shall not be subject to dispute resolution or judicial review.

103.      Completion of Work. Within ninety (90) Days after Mosaic concludes that all Work required under this Consent Decree has been fully performed at a Facility, EPA and/or LDEQ may conduct an inspection of the Facility to be attended by EPA, LDEQ and Mosaic at a mutually agreeable time. Following the inspection, and correction of any problems or deficiencies noted by EPA, after consultation with LDEQ, Mosaic shall submit one or more

 

73


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

written reports by a third-party registered professional engineer in the relevant technical field, certifying compliance with Section V (Compliance Requirements) of this Consent Decree that the Work has been completed in full satisfaction of the requirements of this Consent Decree. The reports shall indicate the case name and civil action number, and shall be submitted, together with a request for Acknowledgment of Completion, in accordance with Section VIII (Reporting Requirements) of this Consent Decree. Third-party engineer certification of any of the written reports may be waived at EPA’s discretion, after consultation with LDEQ.

104.      If, after review of the written report(s) and certification and consultation with LDEQ, EPA determines that any portion of the Work has not been completed in accordance with this Consent Decree, EPA will notify Mosaic in writing of the activity(ies) and/or obligation(s) that must be undertaken to complete the Work. EPA will set forth in the notice a schedule for performance of the activity(ies) and/or obligation(s) required under the Consent Decree, or will require Mosaic to submit a schedule for EPA approval pursuant to Section V (Compliance Requirements) of this Consent Decree. Mosaic shall perform all activities described in the notice in accordance with the specifications and schedules established therein, subject to Mosaic’s right to invoke the dispute resolution procedures set forth in Section XI (Dispute Resolution) of this Consent Decree.

105.      If EPA concludes, based on the initial or any subsequent request for an Acknowledgment of Completion by Mosaic, and after reasonable opportunity for review and comment by LDEQ, that the Work has been fully performed in accordance with this Consent Decree, EPA will so notify Mosaic in writing, which notice shall constitute the Acknowledgment of Completion.

 

74


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

106. Termination. After Mosaic has completed the requirements set forth in Paragraphs 102 and 103 of this Section, has obtained an Acknowledgment of Completion, has complied with all other requirements of this Consent Decree, and has paid the civil penalty and any accrued stipulated penalties as required by this Consent Decree, Mosaic may serve upon the United States and LDEQ a Request for Termination, stating that Mosaic has satisfied those requirements, together with all necessary supporting documentation. A Request for Termination may address one or both of Mosaic’s Facilities.

107. Following receipt by the United States and LDEQ of Mosaic’s Request for Termination, the Parties shall confer informally concerning the Request and any disagreement that the Parties may have as to whether Mosaic has satisfactorily complied with the requirements for termination of this Consent Decree. If the United States, after consultation with LDEQ agrees that the Consent Decree may be terminated for one or both Facilities, the Parties shall submit, for the Court’s approval, a joint stipulation terminating the Consent Decree as to the relevant Facilities.

108. If the United States, after consultation with LDEQ, does not agree that the Consent Decree may be terminated as to one or both Facilities, Mosaic may invoke Dispute Resolution under Section XI (Dispute Resolution) of this Consent Decree. However, all time periods and deadlines established under Section XI (Dispute Resolution) shall be extended by sixty (60) Days, or more by the agreement of the Parties.

XX.  PUBLIC PARTICIPATION

109. This Consent Decree shall be lodged with the Court for a period of not less than forty-five (45) Days for public notice and comment in accordance with 28 C.F.R. § 50.7 and La R.S. 30:2050.7. The United States reserves the right to withdraw or withhold its consent if the

 

75


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

comments regarding the Consent Decree disclose facts or considerations indicating that the Consent Decree is inappropriate, improper, or inadequate. Mosaic and The Mosaic Company consent to entry of this Consent Decree without further notice and agree not to withdraw from or oppose entry of this Consent Decree by the Court or to challenge any provision of the Consent Decree, unless the United States has notified Mosaic in writing that it no longer supports entry of the Consent Decree. Further, the parties agree and acknowledge that final approval by LDEQ and entry of this Consent Decree is subject to the requirements of LA. R.S. 30:2050.7, which provides for public notice of this Consent Decree in the newspapers of general circulation and the official journal of the parish in which the Facilities are located, an opportunity for public comment, consideration of any comments, and concurrence by the State of Louisiana Attorney General. Evidence of final approval of this Consent Decree by LDEQ shall be LDEQ’s execution of a Motion to Enter this Consent Decree. LDEQ reserves the right to withdraw or withhold consent and will not join in the filing of a Motion to Enter this Consent Decree if the state Attorney General raises objections or if comments regarding this Consent Decree disclose facts or considerations which indicate that this Consent Decree is inappropriate, improper or inadequate.

XXI.  SIGNATORIES/SERVICE

110.      Each undersigned representative of Mosaic and The Mosaic Company, the Assistant Attorney General for the Environment and Natural Resources Division of the Department of Justice, or her designee, and the Secretary of the Louisiana Department of Environmental Quality certifies that he or she is fully authorized to enter into the terms and conditions of this Consent Decree and to execute and legally bind the Party he or she represents to this document. The undersigned Attorney General of Louisiana is authorized to and as

 

76


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

evidenced either by his signature below or his concurrence letter communicated to LDEQ concurs in the entry of this Consent Decree.

111.      This Consent Decree may be signed in counterparts, and its validity shall not be challenged on that basis. Mosaic and The Mosaic Company agree to accept service of process by mail with respect to all matters arising under or relating to this Consent Decree and to waive the formal service requirements set forth in Rules 4 and 5 of the Federal Rules of Civil Procedure and any applicable Local Rules of this Court including, but not limited to, service of a summons.

XXII. INTEGRATION

112.      This Consent Decree and its Appendices constitute the final, complete, and exclusive agreement and understanding among the Parties with respect to the settlement embodied in the Consent Decree and supersedes all prior agreements and understandings, whether oral or written, concerning the settlement embodied herein. Other than the Appendices, which are attached to and incorporated in this Consent Decree, no other document, nor any representation, inducement, agreement, understanding, or promise, constitutes any part of this Consent Decree or the settlement it represents, nor shall it be used in construing the terms of this Consent Decree.

XXIII. FINAL JUDGMENT

113.      Upon approval and entry of this Consent Decree by the Court, this Consent Decree shall constitute a final judgment of the Court as to the United States, LDEQ, Mosaic and The Mosaic Company. The Court finds that there is no just reason for delay and therefore enters this judgment as a final judgment under Fed. R. Civ. P. 54 and 58.

 

77


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

XXIV. APPENDICES

114.      The following Appendices are attached to and part of this Consent Decree:

Appendix 1 contains the following compliance requirements:

Attachment A (Site Assessment, Reporting, and Corrective Action);

Attachment B (Annual Groundwater Requirements);

Attachment C (Phosphogypsum Stack System Construction and Operational Requirements);

Attachment D (Closure of Phosphogypsum Stacks/Stack Systems);

Attachment E (Critical Conditions and Temporary Measures);

Attachment F (Definitions for Purpose of the Consent Decree);

Attachment G (Phosphogypsum Stack System Closure Application);

Appendix 2 establishes Financial Assurance Requirements;

Attachment A (CFO Certification);

Attachment B (Annual Submittal of Phosphogypsum Stack System Closure and Long Term Care Cost Estimate);

Attachment C (Summary Costs for Phosphogypsum Stack System Closure and Long Term Care);

Attachment D (Financial Mechanisms);

Attachment E (Type B Financial Metrics Charts);

Attachment F (Current Configuration of Operating Facilities’ Phosphogypsum Stack Systems and Planned Expansions);

Attachment G (Summary of Phosphogypsum Stack System Volumes and Closure Areas);

Attachment H (Guarantor’s Representation and Certification);

 

78


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

Attachment I (Executed Phosphogypsum Stack System Closure and Long Term Care Guarantee);

Appendix 3 is the collected Site Maps of the Mosaic Facilities;

Appendix 4 is the Uncle Sam and Faustina Facility Reports;

Appendix 5 is the Mosaic’s current BMP Plan;

Appendix 6 is the RCRA Project Narrative and Compliance Schedule;

Appendix 7 is Mosaic’s Phosphogypsum Stack System Alternative Liner Compliance Requirements, Exemptions and Conditions for the Uncle Sam Facility; and

Appendix 8 is LDEQ Administrative Order on Consent MM-AOA-14-00269.

 

 

Dated and entered this      day of                     , 2015.

 

 

 

UNITED STATES DISTRICT JUDGE

EASTERN DISTRICT OF LOUISIANA

 

 

79


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

WE HEREBY CONSENT to the entry of the Consent Decree in United States et al. v. Mosaic Fertilizer, LLC, Civil Action No.                 , subject to the public notice and comment requirements of 28 C.F.R. § 50.7.

FOR THE UNITED STATES OF AMERICA:

 

Date:     9/29/15                                       /s/ John C. Cruden                    
      JOHN C. CRUDEN
      Assistant Attorney General
      Environment and Natural Resources Division
      United States Department of Justice
      950 Pennsylvania Avenue, NW
      Washington, D.C. 20530
Date:     9/30/15                                       /s/ Deborah M. Reyher             
      DEBORAH M. REYHER
      Senior Counsel
      Environmental Enforcement Section
      Environment and Natural Resources Division
      United States Department of Justice
      P.O. Box 7611, Ben Franklin Station
      Washington, D.C. 20044
      (202) 514-4113

 

80


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

WE HEREBY CONSENT to the entry of the Consent Decree in United States et al. v. Mosaic Fertilizer, LLC, Civil Action No.                 , subject to the public notice and comment requirements of 28 C.F.R. § 50.7.

 

FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:
Date:     Sept. 29, 2015               /s/ Lawrence Starfield FOR                          
      CYNTHIA GILES
      Assistant Administrator
      Office of Enforcement and Compliance Assurance
      United States Environmental Protection Agency
      Washington, D.C. 20460

 

81


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

WE HEREBY CONSENT to the entry of the Consent Decree in United States et al. v. Mosaic Fertilizer, LLC, Civil Action No.                 , subject to the public notice and comment requirements of 28 C.F.R. § 50.7.

 

    FOR THE UNITED STATES OF AMERICA:
Date:     9/30/2015               /s/ Ron Curry                                     
      RON CURRY
      Regional Administrator
      U.S. Environmental Protection Agency,
      Region 6
      1445 Ross Avenue, Suite 1200
      Dallas, TX 75202-2733
Date:     9/29/2015               /s/ Marcia Moncrieffe                        
      MARCIA MONCRIEFFE
      Assistant Regional Counsel
      Regional Counsel
      U.S. Environmental Protection Agency,
      Region 6
      1445 Ross Avenue, Suite 1200
      Dallas, TX 75202-2733

 

82


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

WE HEREBY CONSENT to the entry of the Consent Decree in United States et al. v. Mosaic Fertilizer, LLC (E.D. La.), a civil action, subject to the public notice and comment requirements of LA. R.S. 30:2050.7.

FOR THE LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY:

 

Date:   9-29-15                                                /s/ D. Chance McNeely                    
      D. CHANCE MCNEELY
      Assistant Secretary
      Office of Environmental Compliance
      Louisiana Dept. of Environmental Quality
Date:   9-29-2015                                           /s/ Kathy M. Wright                         
      KATHY M. WRIGHT (LA Bar Roll #30804)
      ELLIOTT VEGA (LA Bar Roll # 21397)
      PERRY THERIOT (LA Bar Roll #19181)
      Office of the Secretary
      Legal Affairs Division
      Louisiana Dept. of Environmental Quality
      P.O. Box 4302
      Baton Rouge, Louisiana 70821-4302
      Phone: (225) 219-3985
      Fax: (225) 219-4068

 

83


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

WE HEREBY CONSENT to the entry of the Consent Decree in United States et al. v. Mosaic Fertilizer, LLC, Civil Action No.                 , subject to the public notice and comment requirements of 28 C.F.R. § 50.7.

 

FOR MOSAIC FERTILIZER, LLC:      
Date:                            /s/ Mark Isaacson                        
      Mark Isaacson
      Senior Vice President and Corporate Secretary
      Mosaic Fertilizer, LLC

 

84


Table of Contents

Mosaic Consent Decree – EPA Region 6 and LDEQ

 

FOR THE MOSAIC COMPANY (as to Sections I (Jurisdiction and Venue), II (Applicability), XI (Dispute Resolution), XIII (Effect of Settlement), XV (Notices), XVI (Effective Date), XVII (Retention of Jurisdiction), XVIII (Modification), XX (Public Participation), XXI (Signatories/Service), XXII (Integration), XXIII (Final Judgment), and Paragraphs 25 and 26 (Financial Assurance)):

 

Date:                            /s/ Marc Isaacson                      

 

85


Table of Contents

APPENDIX 1


Table of Contents

APPENDIX 1- OPERATING AND CLOSURE REQUIREMENTS FOR THE

PHOSPHORIC ACID PRODUCTION INDUSTRY IN LOUISIANA

ATTACHMENT A: SITE ASSESSMENT, REPORTING, AND CORRECTIVE ACTION

SAMPLING AND ANALYSIS WORKPLAN

Defendant’s obligations pursuant to this Attachment A are governed by Paragraph 21 of the Consent Decree.

 

1) The Defendant shall submit to LDEQ and/or EPA for approval an Outline for a Sampling and Analysis Workplan (“Outline”), for carrying out the required monitoring, testing, analysis, and reporting.

 

2) The Defendant shall submit to LDEQ and/or EPA a Sampling and Analysis Workplan (“Workplan”), unless Defendant has already submitted a Sampling and Analysis Workplan that has been approved by LDEQ and/or EPA and is consistent with this Attachment.

 

3) The Sampling and Analysis Workplan shall be designed to determine the presence, magnitude, extent, direction, and rate of movement of any hazardous waste, hazardous waste constituents, and/or constituents of concern (“COC”) as defined by the Louisiana Risk Evaluation and Corrective Action Program (“RECAP”) and EPA (for Radionuclides) within and beyond the Facility boundary. COCs shall be limited to those contaminants that are reasonably likely to be found at the Facility. The Workplan shall document the procedures the Defendant shall use to assess sampling and analysis data that is generated and that relate to the purposes of this Attachment. The Workplan shall also document the procedures the Defendant shall use to conduct those activities necessary to: characterize the source(s) of contamination; characterize the potential pathways of contaminant migration; define the degree and extent of contamination; and identify actual or potential human and/or ecological receptors. The Defendant may implement the work contained in the Workplan in a multi-phased approach. A specific schedule for expeditious implementation of all activities shall be included in the Workplan. At a minimum, the Workplan for assessment shall include the following [All requirements below would be Facility-specific]:

 

  (a) A sediment and/or soil, as appropriate, sampling and analysis section to collect and analyze representative sediment and/or soil samples to determine the nature and extent of potential contamination, both vertically and horizontally. Areas of sampling shall include process areas, areas of historical spills and/or historical contamination, areas of waste management, stormwater and non-Process Wastewater ditches and ponds, and ditches associated with National Pollutant Discharge Elimination System (“NPDES”) outfall(s). The Workplan must define the number, location, and depth of the samples, and the parameters for analysis. The number of samples shall be sufficient to produce a 95% confidence level that the results are representative of the environmental conditions found at each location.

 

1

Attachment A: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents
  (b) A Surface Water (including Run-Off) sampling and analysis section to determine the nature and extent of any contaminated Surface Water flowing from the portions of the Facility adjacent to and down-gradient from the unlined areas of Facility operations (to be defined). The Workplan shall define the number, location, and depth of samples, and the parameters for analysis.

 

  (c) A Groundwater sampling and analysis section to characterize the Groundwater quality and the extent of any Groundwater contamination, both vertically and horizontally, that may be migrating from Defendant’s Facility. This shall include unlined areas, and/or lined areas which do not meet the requirements of Attachment C, within the Facility operations (including the Phosphogypsum Stack System and other impoundments and ponds). The Workplan shall define the number, location, and depth of Groundwater samples (either from existing wells included in the current Groundwater monitoring program, temporary wells, or direct-push technology), and the parameters for analysis.

 

  (d) Upon confirmation of the existence of hazardous waste, hazardous constituents and/or COCs in Groundwater emanating from the Facility’s designated Point(s) of Compliance at concentrations exceeding the applicable RECAP standards, a section addressing a potable well survey within a  12 mile radius of the Facility including a schedule for sampling of each well, and the parameters for analysis shall be included. Upon confirmation of an exceedance of applicable RECAP Groundwater Screening standards in any of the potable wells, the well survey will be extended by  12 mile radial increments in the appropriate direction depending on the results of the initial well survey.

 

  (e) In the event an area of investigation is identified, the ecological checklist (RECAP Form 18) should be completed and included in the plan.

 

  (f) A Project Management Plan.

 

  (g) A Data Collection Quality Assurance Project Plan for new sampling and analysis.

 

  (h) A Data Management Plan for new sampling and analysis.

 

  (i) A timeline for work detailed above and a schedule for the submission of progress reports, including a draft Sampling and Analysis Report, and a final Sampling and Analysis Report.

 

4) Concurrent with the submission of the Sampling and Analysis Workplan, the Defendant shall submit a Health and Safety Plan with respect to the work to be performed.

 

5)

Upon receipt of LDEQ’s and/or EPA’s approval of the Workplan, the Defendant shall implement the approved Workplan pursuant to the terms and schedules contained therein. Upon completion of the Agency-approved sampling activities proposed in the Workplan, the

 

2

Attachment A: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents
  Defendant shall submit to LDEQ and/or EPA for approval a draft Sampling and Analysis Report, pursuant to the requirements and schedule contained in the approved Sampling and Analysis Workplan. Upon approval of the draft Sampling and Analysis Report by LDEQ and/or EPA, the Defendant shall submit a final Sampling and Analysis Report.

 

6) LDEQ and/or EPA acknowledge that the Defendant may have completed some of the tasks required by this Attachment and/or that the Defendant has available pertinent information and data required by this Attachment. This previous work may be used to meet some of the requirements of this Attachment, upon submission to and written approval by LDEQ and/or EPA.

 

7) The Defendant shall for COCs when appropriate to distinguish site-related constituent concentrations from naturally-occurring concentrations or as default screening action levels when the screening action levels are less than the naturally occurring Background Concentration.

ADDITIONAL WORK

 

8) Based on work performed under the Workplan described above, LDEQ and/or EPA may determine that additional monitoring, testing, analysis, and/or reporting is necessary to ascertain the nature and extent of any hazard to human health or the environment that may be presented by the presence or release of hazardous wastes and/or hazardous constituents at or from the Facility. If LDEQ and/or EPA determine that such additional work is necessary, LDEQ and/or EPA will notify the Defendant in writing and specify the basis for its determination that additional work is necessary.

MINIMUM QUALIFICATIONS FOR PERSONNEL

 

9) All work performed by or for the Defendant pursuant to this Attachment shall be under the direction and supervision of an individual who has demonstrated expertise in hazardous waste site investigation. Before any work is performed, the Defendant shall submit to LDEQ and/or EPA, in writing, the name, title, and qualifications of the supervisory personnel and of any contractors or subcontractors to be used in carrying out the terms of this Attachment. Additionally, the Defendant shall ensure that when a license is required, the individual responsible for performing the work under this Attachment shall be licensed.

QUALITY ASSURANCE/QUALITY CONTROL

 

10) All new sampling and analysis conducted under this Attachment shall follow applicable EPA or State standards for sample analysis. The contact person(s), name(s), address(es), and telephone number(s) of the analytical laboratories the Defendant proposes to use must be specified in the applicable workplan.

 

11)

All workplan(s) required under this Attachment shall include data quality objectives for each

 

3

Attachment A: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents
  data collection activity to ensure that data of known and appropriate quality are obtained and that data are sufficient to support their intended use(s).

 

12) The Defendant shall monitor to ensure that high quality data are obtained by its consultant or contract laboratories. LDEQ and/or EPA may reject any data that does not meet the requirements of the approved workplan or approved analytical methods and may require re-sampling and additional analysis.

 

13) The Defendant shall ensure that appropriate chain-of-custody procedures are specified in the workplan. Such procedures shall include, but not be limited to: standardized field tracking reports to establish sample custody in the field prior to shipment, pre-pared sample labels containing all the information necessary for sample tracking; identification of responsible party at a laboratory who is authorized to sign for incoming field samples, obtain documents of shipment, and verify the data entered into the sample custody records; use of sample custody Log consisting of serially numbered standard lab-tracking report sheets; and specification of laboratory sample custody procedures for sample handling, Storage and dispersement for analysis.

 

14) LDEQ and/or EPA may conduct a performance and Quality Assurance/Quality Control (“QA/QC”) audit of the laboratories chosen by the Defendant before, during, or after sample analyses. Upon request by LDEQ and/or EPA, the Defendant shall have its laboratory perform analyses of samples provided by LDEQ and/or EPA to demonstrate laboratory performance. If the audit reveals deficiencies in a laboratory’s performance or QA/QC, re-sampling and additional analysis may be required.

SAMPLING AND DATA/DOCUMENT AVAILABILITY

 

15) The Defendant shall submit to LDEQ and/or EPA the results of all sampling and/or tests and shall maintain records of other related data generated by, or on behalf of, the Defendant pursuant to the requirements of this Attachment.

 

16) The Defendant shall notify LDEQ and/or EPA, in writing or by electronic mail, at least five (5) days in advance of engaging in any field activities at the Facility conducted pursuant to this Attachment. At the request of LDEQ and/or EPA, the Defendant shall provide, or allow LDEQ and/or EPA or its authorized representatives to take, split and/or duplicate any of the samples collected by the Defendant pursuant to this Attachment. Similarly, at the request of the Defendant, LDEQ and/or EPA will allow the Defendant or its authorized representatives to take split and/or duplicate any of the samples collected by LDEQ and/or EPA under this Attachment, provided that such sampling shall not delay LDEQ and/or EPA’s proposed sampling activities. Nothing in this Attachment shall limit or otherwise affect LDEQ’s and/or EPA’s authority to collect samples pursuant to applicable law, including, but not limited to, RCRA and/or CERCLA.

RISK ASSESSMENT AND CORRECTIVE ACTION

 

17)

If Defendant confirms the existence of any hazardous waste, hazardous constituents, or

 

4

Attachment A: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents
  COCs exceeding the higher of either (i) action levels established through either the implementation of the Facility’s 3013 Order, or Appendix A-1, or (ii) background concentrations where appropriate, and (a) such exceedances are found within or at the Facility and (b) confirms such exceedances may be emanating from the Facility in soil, sediment, Surface Water; or in Groundwater at the “Point(s) of Compliance,” (any such exceedances are hereafter referred to as “Exceedance”), then the Defendant shall consult with LDEQ and may either:

 

  a) Pursuant to the applicable provisions of RECAP, cleanup such hazardous waste, hazardous constituents, or COCs; or

 

  b) Conduct a risk assessment to demonstrate that Corrective Action Work is not warranted. Should Defendant choose to conduct a Risk Assessment, it shall submit for approval a Risk Assessment Plan to the appropriate agency, LDEQ or EPA, within forty-five (45) days of confirming the Exceedance. The Risk Assessment Plan shall address both environmental and human receptors potentially affected by the Exceedance and shall contain, but not be limited to the following elements: description of the Facility; scope of the risk assessment; identification and description of the hazardous waste, hazardous constituents or COCs; description of sampling methods and collection strategies; exposure assessment (including identification of exposure pathways); toxicity assessment; and risk characterization. The Defendant shall use the latest edition of the RECAP, which use shall be deemed to satisfy the requirements of this Paragraph 17. If necessary, the Defendant shall contact LDEQ and/or EPA and obtain any publicly available guidance or models that will assist in the development of the Risk Assessment Plan and the subsequent Risk Assessment Report. A Risk Assessment satisfactorily performed pursuant to RECAP and approved by LDEQ or EPA satisfies the requirements of this Subparagraph 17b. If Defendant submits a Risk Assessment Plan, then:

 

  i) The Defendant shall begin implementation of the work under the Risk Assessment Plan within thirty (30) days of written approval by LDEQ and/or EPA of the Risk Assessment Plan; and

 

  ii) The Defendant shall submit a written Risk Assessment Report to LDEQ and/or EPA within ninety (90) days after completion of the work under the Risk Assessment Plan. The Risk Assessment Report must include the following information at a minimum: a description of the risk assessment; a summary of the results of the risk assessment; a summary of the problems encountered in doing the risk assessment; and an explanation of the activities that need to be taken to address the risks identified by the assessment. If the conclusion is that there is no unacceptable risk to human health or the environment and the appropriate RECAP and EPA standards have been met, the report may request a No Further Action At This Time (NFA - ATT) determination for some or all of the areas of investigation, which LDEQ shall process and may grant consistent with RECAP and applicable state law. The Defendant shall contact LDEQ and/or EPA and obtain any publicly available guidance or models that will assist in the development of the Risk Assessment Report.

 

5

Attachment A: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents
18) If LDEQ and/or EPA determine by applying their then-existing rules, standards, criteria, or guidelines and after considering the available data, including, where applicable, the final Sampling and Analysis Report that Defendant submitted in accordance with Paragraph 5, and/or the Risk Assessment Report that Defendant submitted in accordance with Paragraph 17, that an Exceedance exists that presents a risk is present to human health or the environment, the Defendant within ninety (90) Days after notification by LDEQ and/or EPA shall:

 

  a) Submit for approval a Corrective Action Plan to LDEQ and/or the EPA. The Corrective Action Plan must include sections addressing: (1) the identification and evaluation of potential remedial alternatives for the Exceedance that have been identified at the Facility; and (2) those measures or actions appropriate to remediate, control, prevent or mitigate the Exceedance. The Corrective Action Plan shall, as appropriate, address other relevant factors, including, without limitation, cost effectiveness. If necessary, the Defendant may contact LDEQ and/or EPA and obtain any publicly available guidance or models that will assist in the development of the Corrective Action Plan and associated reports. Corrective Action Work under this Paragraph that is performed pursuant to RECAP, and approved by LDEQ, shall be deemed to satisfy the requirements of this Paragraph 18.

 

  i) The Defendant shall begin implementation of the Corrective Action Work under the portion of the Corrective Action Plan addressing the identification and examination of the potential alternative remedies within sixty (60) days after receiving written approval from LDEQ and/or EPA. The Defendant shall, within ninety (90) days after completion of the identification and examination work, submit to LDEQ and/or the EPA a Corrective Action Evaluation Report which includes an evaluation of each remedial alternative, including all information gathered and studies conducted (e.g., bench scale or pilot tests). This Report must contain adequate information, including a cost estimate of each proposed corrective measure, to enable LDEQ and/or EPA to make a decision as to the adequacy and appropriateness of the corrective action selection.

 

  ii) Defendant will be notified by LDEQ and/or EPA, upon review of the Corrective Action Evaluation Report, if no further action is required or which selected remedies need to be implemented at the Facility. If determined that Corrective Action Work is needed, LDEQ and/or EPA will review, evaluate, and approve the selected Corrective Action Work from the Corrective Action Evaluation Report. The LDEQ and/or EPA may reject any alternative provided in the report or direct Defendant to develop a different remedial alternative or corrective action performance standard.

 

  (1) LDEQ and/or the EPA will draft a proposed decision and statement of basis and will seek public comment. LDEQ and/or EPA will consider public comments and any comments submitted by Defendant regarding the proposed corrective measures. LDEQ and/or the EPA will make publicly known the final decision regarding the selected corrective measures.

 

6

Attachment A: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents
  (2) If LDEQ and/or EPA determine that Corrective Action Work is needed, the Defendant shall submit a Corrective Action Work Implementation Plan within one hundred and twenty days (120) days after receiving notification to implement Corrective Action Work as directed by LDEQ and/or EPA. The Corrective Action Work Implementation Plan shall include, at a minimum, sections addressing: engineering design; construction, operation and maintenance; monitoring and performance monitoring; waste management; health and safety plan; schedule; corrective measure goals; reporting requirements; cost estimate(s); and, if required, public participation.

 

  iii) The Defendant shall prepare and submit to LDEQ and/or EPA a Corrective Action Certification Report within forty-five (45) days after completion of the Corrective Action Work. The Corrective Action Certification Report shall contain the following minimum information: a description of the Corrective Action Work completed; summaries of results and documentation of attainment of performance requirements; summaries of all the problems encountered; summaries of accomplishments and/or effectiveness of Corrective Action Work; and a certification of completion signed by the Defendant and by an Engineer skilled in the appropriate technical discipline(s). The Corrective Action Certification Report will be reviewed by LDEQ and/or EPA for adequacy and will be subject to public comment if required. Upon determination that either Corrective Action Work has been completed in accordance with RECAP, LDEQ and/or EPA will issue a No Further Action At This Time (NFA -ATT) determination. Nothing in this section shall preclude the Defendant from requesting a NFA-ATT determination concerning discrete areas where Corrective Action Work concerning that area has been completed, which LDEQ or EPA shall process and may grant pursuant to RECAP and applicable state law.

19) If during the implementation of the Corrective Action Plan, information comes to the attention of the Defendant that waste units or areas of concern may pose an imminent and substantial endangerment to human health or the environment, the Defendant shall notify LDEQ and/or EPA by the next business day.

 

  a) The Defendant, within thirty (30) days of such notification, shall submit for approval to LDEQ and/or EPA an Interim Measures Plan designed to mitigate any imminent and substantial endangerment to human health or the environment. The Interim Measures Plan shall include at a minimum: engineering design; construction, operation and maintenance; monitoring and performance monitoring; waste management; health and safety plan; schedule; corrective measure goals; reporting requirements; and, if required, public participation.

 

  b) The Defendant shall submit an Interim Measures Report to LDEQ and/or EPA after completion of the interim measures conducted under this Consent Decree. The Report shall at a minimum include: a description of interim measures implemented; summaries of results; summaries of problems encountered; and summaries of accomplishments and/or effectiveness of the interim measures.

 

7

Attachment A: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents
  c) Nothing in Paragraphs 17 and 18 above shall restrict EPA’s residual authorities under Paragraph 23 and 82 of the Consent Decree and RCRA.

 

8

Attachment A: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

APPENDIX A-1

Screening Criteria- Action Levels for Assessment of Corrective Action

 

I. Definition

Action levels are conservative health-based concentrations of hazardous wastes and/or hazardous constituents determined to be indicators for the protection of human health or the environment. Action levels shall be set by LDEQ using their Risk Evaluation/Corrective Action Program (RECAP) and/or EPA for all hazardous wastes and/or hazardous constituents identified through Attachment A which LDEQ and/or EPA has reason to believe may have been released in soils, sediments, or Surface Water, or in Groundwater from the Facility into the environment. Should the concentration of hazardous wastes and/or hazardous constituents in soils, sediments, or Surface Water, or in Groundwater (at the Point(s) of Compliance) exceed the RECAP action levels established for any environmental medium by LDEQ, LDEQ and/or EPA may require the Respondent to conduct a Risk Assessment and/or perform Corrective Action to achieve final RECAP standards established pursuant to RECAP. If LDEQ and/or EPA determine that concentrations of hazardous wastes and/or hazardous constituents released from the Facility, below established action levels, may pose a substantial threat to human health or the environment given site-specific exposure conditions, cumulative effects, ecological concerns or other factors, then LDEQ and/or EPA may require a Risk Assessment pursuant to Paragraph 17b of Attachment A.

Action levels shall be concentration levels that satisfy the following criteria.

 

II. Soils

Action levels for COCs in soils shall be derived from the levels established by LDEQ RECAP or EPA’s Regional Screening Levels. In compliance with RECAP, industrial soil levels can be applied for onsite soil as long as the current site use remains industrial.

 

III. Sediment

RECAP Screening Standards and Risk Standards are not available for constituents in sediment. Screening standards and risk standards shall be developed as follows:

1.        Site specific sediment standards to serve as screening standards and action levels shall be developed under RECAP (2003)’s Management Option 3 (or its replacement) and shall address: 1) toxicity to benthic and aquatic organisms, and 2) bioaccumulation and potential risks to ecological receptors and human health.

2.        Constituents of concern (COCs) whose maximum concentration exceeds the site specific screening standard shall be identified as site-related COCs and RECAP (2003) Management Option 3 (or its replacement) risk standards for sediment shall be developed to addressed constituent-specific concerns.

 

9

Appendix A-1: Screening Criteria – Action Levels for Assessment of Corrective Action


Table of Contents
IV. Groundwater

Action levels for COCs in Groundwater at the Point(s) of Compliance shall be concentrations specified as:

1.        Maximum Contaminant Levels (“MCLs”) established at 40 CFR Part 141, or the applicable state law (RECAP calculated levels based on the Groundwater classification of the underlying water bearing zone/zones) or Facility permit requirements for the State in which the Facility is located, these action levels must meet appropriate aquatic water quality criteria if it is determined through the process outlined in Attachment A that Groundwater has the potential to impact Surface Water (Point of Exposure).

2.        For facilities where the MCL is the most stringent standard for individual contaminants, if the Background Concentration exceeds the MCL, representative Natural Background will be the default Groundwater standard, unless the applicable state law or Facility permit is more stringent than Natural Background for that contaminant, in which case the applicable state law or Facility permit will provide the appropriate standard for that contaminant.

 

V. Surface Water

Action levels for COCs in Surface Water shall be specified as:

1.        LDEQ’s Surface Water Quality Criteria

2.        If action levels are not available from the screening values, Ambient Water Quality Criteria as established by the Clean Water Act will be used.

 

10

Appendix A-1: Screening Criteria – Action Levels for Assessment of Corrective Action


Table of Contents

APPENDIX 1- OPERATING AND CLOSURE REQUIREMENTS FOR THE

PHOSPHORIC ACID PRODUCTION INDUSTRY IN LOUISIANA

ATTACHMENT B: GROUNDWATER REQUIREMENTS

I. Establishment of the Point(s) of Compliance/Point(s) of Exposure (Compliance Concentration)

(1) Unless a state-issued permit already specifies the Point(s) of Compliance, Point(s) of Compliance for Groundwater shall be established in the event discharge to the underlying water bearing zones and/or
Aquifer(s) has occurred.

(2) Horizontal and vertical discharge shall be based on the determined Groundwater classification of the impacted water bearing zone(s) and/or Aquifer as established in RECAP.

(3) Point(s) of Exposure (POE) shall be established based on the Groundwater classification of the impacted water bearing zone (s) and or Aquifer(s) as established in RECAP.

(4) Point(s) of Compliance and Point(s) of Exposure shall be modified pursuant to RECAP.

II. Groundwater Monitoring Requirements

(1) All Mosaic Facilities shall comply with Section II (Groundwater Monitoring Requirements), unless LDEQ or EPA issues a permit or order containing or resulting in an approved Groundwater monitoring plan (e.g., Groundwater Sampling and Analysis Plans) for the Facility;

(2) Monitoring Plan Requirements.

(a) Mosaic shall provide LDEQ and/or EPA with a plan containing findings and recommendations for Groundwater monitoring derived from Facility-specific information developed in accordance with (b) below. The Groundwater monitoring plan shall be signed and sealed by the professional geologist or professional Engineer who prepared or approved it. The plan shall show the locations of the proposed background and downgradient monitoring wells, construction details of the monitoring wells, and a water sampling and chemical analysis protocol. The plan shall indicate how to determine background or Natural Background (where available) quality of the Groundwater in the vicinity of the Facility and any deviations in the quality of the receiving Groundwater in the downgradient monitoring wells, except in cases where background levels are already established and agreed upon by LDEQ and/or EPA. LDEQ and/or EPA will evaluate the adequacy of the plan upon submittal.

(b) The following information is generally required unless otherwise specified by LDEQ and/or EPA.

(i) Hydrogeological, physical and chemical data for the Facility, such as:

 

11

Attachment B: Groundwater Requirements


Table of Contents

1. Direction and rate of Groundwater flow, background Groundwater quality (all field verified), and Natural Background Groundwater quality where available;

2. Porosity, horizontal and vertical permeability for the Aquifer(s);

3. The depth to, and lithology of, the first confining bed(s);

4. Vertical permeability, thickness, and extent of any confining beds;

5. Topography, soil information and Surface Water drainage systems surrounding the Facility;

6. Geophysical methods such as ground penetrating radar surveys.

(ii) Disposal rate and frequency, chemical composition, method of discharge, pond volume, spray-field dimension, or other applicable Facility specific information;

(iii) Toxicity of waste;

(iv) Present and anticipated discharge volume and seepage rate to the receiving Groundwater; and physical and chemical characteristics of the Leachate;

(v) Phosphogypsum Stack System water balance;

(vi) Other Pollution sources located within one mile radius of the Facility about which Mosaic has information or knowledge;

(vii) Inventory depth, construction details, and cones of depression of water supply wells or well fields and monitoring wells located within one mile radius of the Facility or potentially affected by the discharge;

(viii) Facility specific economic and feasibility considerations;

(ix) Chronological information on water levels in the monitoring wells and water quality data on water samples collected from the water supply and monitoring wells;

(x) Type and number of waste Disposal/waste Storage facilities within the Facility;

(xi) Chronological information on Surface Water flows and water quality upstream and downstream from the Facility;

(xii) Construction and operation details of waste Disposal/waste Storage facilities;

(xiii) Relevant land use history of construction and land development adjacent to the Facility.

(3) Monitoring Wells.

 

12

Attachment B: Groundwater Requirements


Table of Contents

(a) On a semi-annual basis, or such other approved frequency, Mosaic shall submit reports to LDEQ on all monitoring wells indicating the type, number and concentration of discharge constituents or parameters indicated by the report.

(b) The reports must also include:

1. Monitor well location, construction, and the collection and testing of samples; and

2. Groundwater monitoring data displayed in graphic form for analyzing trends in water quality.

(c) Location of Monitoring Wells to Detect Migration of Contaminants. Unless Mosaic can demonstrate that detection can be obtained by a methodology other than the use of monitoring wells, wells shall be located as required by LAC 33:VII.805.A.2.

(d) When requested LDEQ and/or EPA, Mosaic shall inform LDEQ and/or EPA of the next sampling schedule so that a representative of either Agency may be present.

III. Groundwater Assessment

In the event Mosaic has determined in accordance with the approved Groundwater monitoring plan that there is a statistically significant increase over Background Concentrations determined for one or more naturally occurring parameters or constituents in the groundwater, then Mosaic must submit for approval to LDEQ and/or EPA a RECAP Evaluation drafted in accordance with the applicable RECAP standards. In the RECAP Evaluation, Mosaic must develop, subject to LDEQ and/or EPA approval, appropriate groundwater protection standards in accordance with RECAP and/or the groundwater protection standards for radium as established by EPA for drinking water.

IV. Groundwater-Corrective Action Work

(1) Pursuant to Paragraph 21 of the Consent Decree, and Section III. Groundwater Assessment above, Mosaic shall take Corrective Action Work if LDEQ and/or EPA determines that:

(a) The plume is confirmed at concentration levels exceeding RECAP Limiting Risk Standards or other applicable regulatory standards at the Point(s) of Compliance and/or Point(s) of Exposure, as applicable and/or established under the approved RECAP Evaluation required per Section III; or

(b) The plume is likely in the foreseeable future to threaten to impair the designated use of an underground source of drinking water or Surface Water immediately affected by the Groundwater; or

(c) Within the boundary of the Point(s) of Compliance and/or Point(s) of Exposure, a Statistically Significant increase in COC concentration (including corrosivity) in Groundwater is discovered that LDEQ or EPA determines may present a potential or actual hazard to human health and/or the environment,

 

13

Attachment B: Groundwater Requirements


Table of Contents

(2) In the event (b) or (c) above applies, Mosaic may make a demonstration through a RECAP Management Option 3 process to LDEQ that the plume can be managed through institutional controls to meet alternative Facility-specific RECAP Risk Standards and that the plume will not migrate offsite.

(3) If Corrective Action Work is required pursuant to (1) and Mosaic does not make a satisfactory demonstration under D(2), Mosaic shall submit to LDEQ and/or EPA a Corrective Action Plan pursuant to the requirements of Paragraph 18 of Appendix 1, Attachment A and Paragraph 27 of the Consent Decree. The Corrective Action Plan must provide, at a minimum, the following information:

(a) Direction of the plume movement in relationship to existing and potential sources of drinking water;

(b) Plume size both in the areal and vertical dimensions;

(c) Rate of migration of the plume;

(d) Level of toxicity of the plume;

(e) Rate at which the plume is being attenuated;

(f) Current and projected future use of adjacent ground and Surface Waters affected by the plume;

(g) A detailed description of the activities that are proposed to be taken to prevent further migration of the plume and to address the contamination or release. Groundwater must meet the more stringent of either the maximum contaminant levels (“MCLs”) or established at 40 C.F.R. Part 141 or the applicable Louisiana law or Facility permit requirements1;.

(h) The costs of Corrective Action Work; and

(i) A comparison of the clean up or other Corrective Action Work costs with the benefits to the public of such Corrective Action Work.

(4) If requested by LDEQ and/or EPA, Mosaic will provide within thirty (30) Days, unless

 

 

1 For facilities where the MCL is the most stringent standard for individual contaminants, if the Natural Background exceeds the MCL, representative Natural Background will be the default Groundwater standard, unless Louisiana law or the Facility permit is more stringent than Natural Background for that contaminant, in which case Louisiana law or the Facility permit will provide the appropriate standard for that contaminant.

 

14

Attachment B: Groundwater Requirements


Table of Contents

directed otherwise, any additional information or data needed so as to aid LDEQ and/or EPA in making its Corrective Action assessment.

(5) After Mosaic submits the Corrective Action Plan, Mosaic shall perform the Corrective Action Work pursuant to Attachment A, Paragraph 18, including Mosaic’s submission of a Corrective Action Measures Evaluation Report and a Corrective Action Certification Report in accordance with Paragraph 18 of Attachment A.

 

15

Attachment B: Groundwater Requirements


Table of Contents

APPENDIX 1- OPERATING AND CLOSURE REQUIREMENTS FOR THE

PHOSPHORIC ACID PRODUCTION INDUSTRY IN LOUISIANA

ATTACHMENT C: PHOSPHOGYPSUM STACK SYSTEM CONSTRUCTION AND

OPERATIONAL REQUIREMENTS

I. Phosphogypsum Stack System General Criteria

Phosphogypsum Stack Systems. The purpose of this document is to ensure the physical integrity of impoundments used to manage Phosphogypsum and Process Wastewater generated during the course of production of phosphate fertilizer. This document establishes minimum design, construction, operation, inspection, and maintenance requirements to ensure that Phosphogypsum Stack System impoundments meet critical safety standards and do not cause unplanned releases to the environment. Owners/Operators of Phosphogypsum Stack Systems are required to maintain inspection logs and to develop and maintain plans to respond to emergency conditions.

(1) Performance standards. A Phosphogypsum Stack System shall be designed, constructed, operated, maintained, closed, and monitored throughout its design period to control the movement of waste and waste constituents into the environment so that Groundwater and Surface Water quality standards and criteria will not be violated outside the Point(s) of Compliance specified for the system.

(2) Operation Plan. Within one (1) year of the Effective Date of the Consent Decree, the owner/operator of a Phosphogypsum Stack System shall have an Operation Plan that provides written, detailed instructions for the daily operation of the system. The Operation Plan shall be kept at or near the Facility and shall be accessible to operators of the system.

(3) Groundwater monitoring. The Facility shall perform Groundwater monitoring and reporting as prescribed in Attachment B: Groundwater Requirements, of this Appendix.

(4) Surface Water management. Phosphogypsum Stack Systems shall be operated to provide for the collection, control, recycling and treatment of surface runoff from the systems as necessary to meet the applicable water quality standards of the State of Louisiana.

(5) Leachate management. Any Leachate emanating from a Phosphogypsum Stack System shall be routed to a Cooling/Surge Pond to be contained within the system or recirculated to the production plant or if discharged, treated if required to meet the applicable water quality standards of the State of Louisiana.

(6) Interim Stack System Management Plan (“ISSMP”). Within six (6) months of the Effective

Date of the Consent Decree, the owner/operator of each Phosphogypsum Stack System shall compile and submit an ISSMP to LDEQ and the EPA for approval. The approved ISSMP and subsequent revisions shall be made available to LDEQ and/or the EPA upon request. The

 

16

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

ISSMP shall provide instructions for two (2) years of operation and management of the specific Phosphogypsum Stack System should a shutdown occur such that no phosphoric acid will be produced at the Facility for up to a two-(2)-year period. By July 1 of each following year, the owner/operator shall revise the ISSMP, taking into account the Process Wastewater levels and the existing configuration of the Phosphogypsum Stack System as of June 1 of that year. The ISSMP shall be designed to protect human health and the environment and shall include:

(a) A detailed description of Process Wastewater management procedures that will be implemented so that the Phosphogypsum Stack System operates in accordance with all applicable requirements. The procedures shall address the actual Process Wastewater levels present at the Facility as of June 1 of each year and shall assume that the Facility will receive average annual rainfall during the two-(2)-year planning period;

(b) A detailed description of the procedures to be followed for the daily operation and routine maintenance of the Phosphogypsum Stack System (including required environmental sampling and analyses) as well as for any maintenance or repairs recommended following annual inspections of the system;

(c) Identification of all machinery, equipment and materials necessary to implement the plan as well as actions that would be taken to assure the availability of these items during the planning period;

(d) Identification of the sources of power or fuel necessary to implement the plan as well as the actions that would be taken to assure the availability of power or fuel during the planning period; and

(e) Identification of the personnel necessary to implement the plan, including direct labor required for paragraphs (a) and (b) above, and any necessary direct supervisory personnel, as well as the actions that would be taken to assure their availability and any required training of these personnel.

(7) No ISSMP is required for Phosphogypsum Stack Systems that are closed, that are undergoing closure, or for which an application for a closure permit has been submitted, where permitting requirements apply.

II. Assessment of Existing Perimeter Dikes for Phosphogypsum Stack Systems

(1) Except for Perimeter Dikes that have already been approved by the EPA or LDEQ as meeting or equivalent to the criteria set forth in (1)(b)(i)-(iii) below, within six (6) months of the Effective Date of the Consent Decree, the owner/operator of a Phosphogypsum Stack System shall submit to LDEQ and the EPA documentation that existing Perimeter Dikes have either been:

(a) Assessed and certified by a Third-Party Engineer post January 2005, to have been

 

17

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

constructed or modified to address Freeboard, Perimeter Dike seepage, factors of safety, and slope stability, in accordance with a permit issued by LDEQ in response to an application, where permitting requirements apply; or

(b) Engineered or retrofitted such that they are assessed and certified by a Third-Party Engineer to be in compliance with the following:

(i) Cross section design

(A) Both Inside and Outside Slopes shall be no steeper than two horizontal to one vertical.

(B) The design shall provide positive seepage control features such as:

1. Cut-off trench in natural soil foundations

2. Clay core or other impermeable core material

3. Blanket Drain

4. Chimney Drain and Toe Drain

5. Geomembrane or composite Liner on Inside slope

(C) The top of the Perimeter Dike shall include a roadway that will permit wheeled vehicles. Unless the Perimeter Dike is constructed with compacted clay and is accessible through the crest road, the design shall also incorporate an all-weather roadway near the downstream Toe that will permit wheeled vehicle traffic around the perimeter of the Perimeter Dike for purposes of inspection of the slope, Toe and natural ground beyond the Toe, as well as maintenance.

(ii) Freeboard provisions

(A) The design Freeboard of an above-grade Perimeter Dike shall not be less than five (5) feet unless a design Freeboard of less than five (5) feet is justified based on results of seepage and stability analyses and Wave Run-Up analyses. However, in no event shall the design Freeboard of an above-grade Perimeter Dike be less than three (3) feet.

(iii) Design factors of safety and slope stability

(A) Stability analysis. A seepage or flow net analysis shall be made, when applicable, for use in the stability analysis. The stability analysis shall consider the minimum fluid level as well as the fluid level at the design Freeboard on the upstream slope of the Perimeter Dike, and possible fluctuations of the tail water level.

(B) Design safety factors – The Engineer shall use the following minimum

 

18

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

safety factors: 1.75 for horizontal shear at base of fill; 1.5 for horizontal shear within the fill due to seepage through the outer face; 1.5 for horizontal shear or circular arc failure through the foundation soils; 1.5 for protection against shear failure of any circular arc in either Inside or Outside Slope. It is imperative that water pressure distribution be included in the analyses; or

(c) Evaluated by a Third-Party Engineer who certifies the safety and stability of the Perimeter Dikes in accordance with (1)(b)(iii) of this Section; or

(d) Evaluated by a Third-Party Engineer who certifies the safety and stability of the Perimeter Dikes meet an alternate design safety factor and this alternate design safety factor has been approved by the LDEQ and/or EPA.

(2) Within nine (9) months of a final determination that a Perimeter Dike’s safety and stability cannot be certified in accordance with (1)(b)(iii) of this Section, the owner/operator shall submit to LDEQ and the EPA for approval, a proposal to upgrade or retrofit the Perimeter Dike to comply with the requirements of II.(1)(b) of this Attachment, or to take the Perimeter Dike out of service as soon as practicable but no later than ninety (90) days after a final determination that the Perimeter Dike’s safety and stability cannot be certified and that the Perimeter Dike cannot or will not be upgraded or retrofitted to comply with the requirements of II(1)(b).

(3) The owner/operator of any Perimeter Dike in need of upgrade, retrofit, or de-servicing, shall implement, within six (6) months of LDEQ’s or the EPA’s approval of the proposal submitted in accordance with (2), above, interim measures recommended by a Third-Party Engineer that will ensure the safety and stability of the Perimeter Dike until such time as it is upgraded or retrofitted or taken out of service. These interim measures must be submitted to LDEQ and/or the EPA for approval.

(4) At the time of the assessment performed pursuant to (1)(b) or (1)(c) of this Section, a Third-Party Engineer shall also determine whether the existing system is equipped with Process Wastewater conveyance/containment capabilities that conform to the following design requirements:

(a) Conveyance ditches, pumps, pipes, and hydraulic structures located within a Phosphogypsum Stack System shall have adequate capacity to circulate the Process Wastewater stream(s), if applicable, and to contain or transfer runoff on the Process Watershed upstream of the water control structures resulting from a storm event generating a 100-year rainfall in twenty-four (24) hours while maintaining at the same time the design Freeboard of the Perimeter Dike. If provisions are made to contain some or the entire storm surge resulting from such event within the Phosphogypsum Stack System upstream from the conveyance system or water control structures, then the transfer capacity of the ditches, pumps, pipes, and related structures may be reduced accordingly.

(5) Within one year of a final determination that a system does not meet the design criteria of (4)(a) of this Section, the owner/operator shall submit to LDEQ and/or the EPA for approval, a proposal to modify the system to attain compliance. Such modification shall be completed as soon as practicable, but not later than fourteen (14) months after the owner/operator receives all

 

19

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

necessary governmental permits or other prior approvals, whichever shall later occur.

III. Construction of New Perimeter Dikes

(1) Design.

(a) Site investigation. The general area desired for construction of a Perimeter Dike shall be carefully inspected by an Engineer prior to selection of the exact location for the Perimeter Dike. Areas of uneven natural subsidence, sinkholes, pockets of organic matter, or other unstable soils shall be avoided, unless special provisions are made for their mitigation.

(b) Soil testing. A program of soil sampling and testing adequate to determine the characteristics of the foundation material that will support the proposed Perimeter Dike and of the material to be used for construction of the Perimeter Dike shall be performed. Sampling shall include borings, test pits, or in-place samples from the associated exposed excavation face. All borings and/or test pit explorations shall be logged using a recognized engineering soil classification system, with location and depths of all samples recorded on the Log. Tests to determine in-place densities, shear-strength, and permeabilities of the foundation and embankment soils shall be performed. Tests on foundation soils shall be performed either on undisturbed samples or on the in-place soil. Tests on embankment soils shall be performed on samples remolded to the densities and moisture contents to be used in construction.

(c) Cross section design.

(i) The crest on the top of the Perimeter Dike shall be graded toward the Inside or the Outside Slope. If the Perimeter Dike exceeds ten (10) feet in height and crest runoff is directed toward the Outside Slope, runoff controls shall be used to protect the Outside Slope against erosion. Both Inside and Outside Slopes shall be no steeper than two and one-half (2.5) horizontal to one (1.0) vertical. Seepage control shall be provided by means of a Liner constructed in accordance with Section VI: Construction Requirements for New Phosphogypsum Stack Systems or Lateral Expansions of Existing Phosphogypsum Stack Systems, of this Attachment, placed on the Inside slope of the Perimeter Dike.

(d) Freeboard provisions

(i) The design Freeboard of an above-grade Perimeter Dike shall not be less than five (5) feet unless a design Freeboard of less than five (5) feet is justified based on results of seepage and stability analyses and Wave Run-Up analyses. However, in no event shall the design Freeboard of an above-grade Perimeter Dike be less than three (3) feet.

(e) Design factors of safety and slope stability of Perimeter Dikes.

(i) Stability analysis. A seepage or flow net analysis shall be made, when applicable, for use in the stability analysis. The stability analysis shall consider the minimum fluid level as well as the fluid level at the design Freeboard on the upstream slope of the Perimeter Dike, and possible fluctuations of the tail water level.

 

20

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

(ii) Design safety factors for Perimeter Dikes – The Engineer shall use the safety factors identified in Section VI (Construction Requirements for New Phosphogypsum Stack Systems or Lateral Expansions of Existing Phosphogypsum Stack Systems) for Perimeter Dikes; any safety factor that does not meet a minimum of 1.5 is subject to approval by LDEQ and/or EPA prior to construction of the Perimeter Dike.

(2) Site preparation. In accordance with specifications provided by the Engineer, ground which will become the foundation of Perimeter Dikes shall be stripped of vegetation and organic detritus or residue, including muck, mud, slimes, or other material which would flow or undergo excessive consolidation under heavy loading. All earth foundation surfaces on which fill is to be placed shall be scarified or moistened and compacted prior to spreading of first course of fill material, and the Perimeter Dike base shall be well drained during construction, except when placing hydraulic fill.

(3) Material to be used. Material used for Perimeter Dikes shall be free of extraneous matter that could affect the compactability, density, permeability, or shear strength of the finished Perimeter Dike (e.g. stumps, vegetation, trees, palmettos, debris). Tailings may be used for Perimeter Dike fill when such a completed Perimeter Dike will meet the seepage and structural requirements above.

(4) Process Wastewater control design. Conveyance ditches, pumps, pipes, and hydraulic structures located within a Phosphogypsum Stack System shall have adequate capacity to circulate the Process Wastewater stream(s), if applicable, and to contain or transfer runoff on the Process Watershed upstream of the water control structures resulting from a storm event generating a 100-year rainfall in twenty-four (24) hours, while maintaining at the same time the design Freeboard of the Perimeter Dike. If provisions are made to contain all or part of the storm surge resulting from such event within the Phosphogypsum Stack System upstream from the conveyance system or water control structures, then the transfer capacity of the ditches, pumps, pipes, and related structures may be reduced accordingly.

(5) Methods of construction:

(a) Each new Perimeter Dike shall be constructed to meet or exceed the minimum safety requirements of this Section and the specifications and design for that Perimeter Dike. Appropriate earthmoving equipment shall be used to place materials in Perimeter Dike construction. The soil shall be compacted and density tests shall be performed to ensure that the designed densities are obtained. A representative of the Third-Party Engineer shall be present on the site during construction of the Perimeter Dike and Liner, and during construction and installation of spillways and penetrations through the Perimeter Dike or Liner. LDEQ and the EPA shall be advised of the date on which construction of a new Perimeter Dike will begin.

(b) Areas around any water level control structure pipe, any other conduit, or any surface of discontinuity between materials within the mass of the Perimeter Dike shall be carefully inspected to avoid potential concentration of seepages and to ensure that soils under and around a culvert are uniformly compacted and are in continuous contact with the external culvert surface.

 

21

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

All penetrations through the Liner on the upstream slope of the Perimeter Dike shall be made using water tight joints or connections and shall be capable of maintaining their integrity under anticipated in-use conditions. All pipes and joints in pipes or conduits extending through a Perimeter Dike shall be made leak-proof and shall be constructed of materials suitable for the fluids carried and the load imposed. In order to avoid leaks associated with differential settlement, conduits through Perimeter Dikes shall not be rigidly supported by piles or piers. Backfill around conduits shall be of a density that is equal to or greater than those of the surrounding embankment. Particular attention shall be devoted to the lower third of the conduit.

IV. Operational Requirements for Perimeter Dikes

(1) All Perimeter Dikes shall be operated so as to maintain the design Freeboard, unless temporary incursions into the Freeboard are demonstrated to be safe in accordance with IV(2), below. Each Perimeter Dike shall be inspected as prescribed in this document.

(a) Vegetative cover adequate to inhibit wind and water erosion shall be established and maintained on the Outside Slope of the Perimeter Dike. Such vegetation shall be maintained sufficiently low to permit visual inspection of the soil surfaces and critical areas; or

(b) In areas where historically evapotranspiration exceeds precipitation, an alternative method may be used to inhibit wind and water erosion on the Outside Slope of the Perimeter Dike. The alternative method must be certified by a Third-Party Engineer as providing erosion protection equivalent to that of a vegetative cover; and

(c) The outside Toe of all operational Perimeter Dikes shall be maintained free of trees, shrubs or other woody plant growth whose roots may induce Piping and compromise integrity of the Perimeter Dike.

(2) Temporary Non-emergency Use of Design Freeboard:

(a) To assure system safety and integrity and to reduce the probability of discharge, a Facility seeking to temporarily utilize the design Freeboard of a Perimeter Dike must maintain the safety and stability of the Perimeter Dike. If the Facility decides to seek temporary use of the design Freeboard, it must demonstrate that safety and stability is maintained using the following mechanisms:

1. An inspection of the Facility;

2. Perimeter Dike design and construction information;

3. Results of seepage and stability analyses (including monitoring of seepage pressures within the Perimeter Dike if such monitoring is deemed necessary); and

4. Wind surge and Wave Run-Up analyses.

(b) A report by a Third-Party Engineer shall specify conditions under which such use

 

22

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

may be authorized, such as:

1. Acceptable wind speeds in forecast;

2. Acceptable rainfall levels in the forecast;

3. Increased inspection frequencies; and

4. Weekly monitoring of piezometric levels within the mass of the Perimeter Dike, if and as needed.

(c) This report shall be made available to LDEQ and/or the EPA upon request.

(3) A completed new Perimeter Dike shall be thoroughly inspected prior to the placement of Process Wastewater behind it. Spillways and water level control structures shall be certified by a design Third-Party Engineer as meeting all specifications of the design, and degree of compaction of the fill shall also be certified. Legible photographs, either aerial or ground, may be used to document this initial inspection, but shall not in themselves constitute certification. A complete file describing the items inspected and their condition shall be maintained by the Facility.

(4) All Perimeter Dikes and water control structures shall be inspected weekly. Water level elevations and Freeboard compliance shall be determined at least every 12 hours. Piezometric water levels within the Perimeter Dike shall be measured quarterly if piezometers have been installed. The inspections shall be made by a Qualified Company Employee or contractor employed or retained by the owner/operator of the Perimeter Dike. The findings of each inspection shall be recorded in a Log.

(5) Each Perimeter Dike shall be inspected annually by a Third-Party Engineer with experience in the field of construction and operation of Perimeter Dikes. An annual report pertaining to such an inspection shall be prepared and shall include recommendations and corrective measures taken. The report shall be retained by the owner/operator. The annual inspections shall include:

(a) Analyses of seepage or other significant items shown on all aerial photographs of the Perimeter Dike that have been taken for any reason since the date of the last annual inspection.

(b) Condition of soil surfaces and top and slopes of the Perimeter Dike and in areas within fifty feet (50') downstream from the outside Toe.

(c) Review of all periodic inspection reports to evaluate the effectiveness of maintenance done to the Perimeter Dike during the period since the last annual inspection.

(d) Examination and interpretation of data obtained from any instrumentation installed in the mass of the Perimeter Dike.

(e) Condition of spillway and water level control structures, including all conduits exiting

 

23

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

the Perimeter Dike.

(6) The following items shall be considered as indicating potential trouble areas that must be documented and closely checked on subsequent inspections and repaired as necessary:

(a) Abnormal dead vegetation or damp areas on the downstream slope, at the Toe of slope, or downstream from the Toe of slope that could be indicative of pond water seepage.

(b) Surface erosion, gullying or wave erosion on the upstream slope of the Perimeter Dike.

(c) Surface erosion or gullying on the downstream slope of the Perimeter Dike.

(d) Erosion below any conduit through the Perimeter Dike near or at the Toe of slope of the Perimeter Dike.

V. New Phosphogypsum Stack Systems or Lateral Expansions of Existing Phosphogypsum Stack Systems

(1) Any Lateral Expansion is considered a new Phosphogypsum Stack and must be constructed in accordance with the applicable requirements of Section VI: Construction Requirements for New Phosphogypsum Stack Systems or Lateral Expansions of Existing Phosphogypsum Stack Systems, of this Attachment.

(2) Except for incidental deposits of Phosphogypsum entrained in the Process Wastewater, placement of Phosphogypsum outside the Phosphogypsum Stack footprint is considered a Lateral Expansion of the Phosphogypsum Stack System. For the purpose of this Section, the footprint is defined as the outside edge of the Starter Dikes used to contain the placement of Phosphogypsum in the Phosphogypsum Stack.

(3) Except as provided in Attachment E: Critical Conditions and Temporary Measures, Section IV (Emergency Diversion Impoundment), storage or containment of Process Wastewater outside the footprint of the Phosphogypsum Stack System is considered a Lateral Expansion of the Phosphogypsum Stack System. For the purpose of this paragraph, the footprint is defined as the outside edge of the dams, dikes or ditches used to store or contain Process Wastewater.

(4) A completed new Phosphogypsum Stack System, including the Starter Dike, shall be thoroughly inspected prior to the deposition of Process Wastewater in it. The Liner, spillways and water level control structures shall be certified by a design Third-Party Engineer as meeting all specifications of the design, and the degree of compaction of the fill shall also be certified. Legible photographs, either aerial or ground, may be used to document this initial inspection, but shall not in themselves constitute certification. A complete file describing the items inspected and their condition shall be made available to LDEQ and/or the EPA upon request.

(5) Exceptions:

No person shall dispose of, or store prior to Disposal, any Phosphogypsum except within a

 

24

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

permitted Phosphogypsum Stack System, in States where permitting requirements apply. This provision shall not be construed to prohibit any use or reuse of Phosphogypsum not otherwise prohibited by law.

VI. Construction Requirements for New Phosphogypsum Stack Systems or Lateral Expansions of Existing Phosphogypsum Stack Systems

(1) Minimum design standards. The requirements of this Section are the minimum standards for constructing a new Phosphogypsum Stack System or a Lateral Expansion after the Effective Date of the Consent Decree.

(2) Run-On Control. Install and maintain a Run-On control system capable of preventing flow during peak discharge from at least a twenty-four (24)-hour, 25-year Rainfall Event.

(3) Run-Off Control. Install and maintain a Run-Off management system to collect and control at least the water volume resulting from a twenty-four (24)-hour, 25-year Rainfall Event.

(4) Safety Factor. Any new Phosphogypsum Stack System or Lateral Expansion shall be designed with an appropriate safety factor, as described herein for global stability including the clay starter dike abutting the Stack with the stack raised up to its maximum design height, subject to LDEQ approval. An overall factor of safety of 1.5 for any potential failure surface encompassing the impoundment on top of the Phosphogypsum Stack and passing through the Phosphogypsum slope or bottom Liner interfaces, or extending into earthen material in contact with the bottom Liner (defined as global stability). Alternatively, a global stability factor of safety greater than 1.25 for potential failure surfaces encompassing the impoundment on top of the Phosphogypsum Stack and passing through the Phosphogypsum slope or extending into the natural foundation soils beneath the Phosphogypsum Stack when analyzed using representative normalized Direct Simple Shear (DSS) soil strengths along the failure surface in conjunction with a geotechnical performance monitoring program implemented in accordance with the observational approach. At a minimum, the observational approach shall be based on geotechnical performance monitoring including quarterly measurements of pore water pressures and monthly measurements of lateral displacements in the foundation soils at several representative locations beneath the Active Phosphogypsum Stack slope along with routine evaluation of the monitoring data to determine if remedial actions need to be implemented (e.g. setbacks or flatter incremental slopes) to maintain the design factor of safety which shall be verified and rechecked periodically throughout the Active life of the Phosphogypsum Stack. The design and observational approach shall be conducted by or under the supervision of a licensed third party Engineer experienced in soft ground construction.

(5) Liner and Leachate control systems. Phosphogypsum Stacks shall be constructed with composite liners and Leachate control systems. Auxiliary Holding Ponds and Regional Holding Ponds shall be constructed with HDPE liners 60-mil or thicker. Cooling Ponds shall be constructed with composite liners. Process Wastewater conveyances shall be constructed with liners or pipes.

(a) Phosphogypsum Stack Liners shall be:

 

25

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

1. Constructed of materials that have appropriate physical, chemical, and mechanical properties to prevent failure due to physical contact with the Phosphogypsum, Process Wastewater or Leachate to which they are exposed, climatic conditions, the stress of installation, and other applied stresses and hydraulic pressures that are anticipated during the operational and closure period of the system. The supplier of materials for the Liner components shall provide test information accepted by the Engineer of record, that supports the capabilities of the materials to meet these needs;

2. Installed upon a base and in a geologic setting capable of providing structural support to prevent overstressing of the Liner due to settlements and applied stresses;

3. Constructed so that the bottom of the Liner system is not subject to fluctuations of the Groundwater so as to adversely impact the integrity of the Liner system;

4. Designed to resist hydrostatic uplift if the Liner is located below the seasonal high Groundwater Table; and

5. Installed to cover all earth that could come into contact with the Phosphogypsum, Process Wastewater or Leachate.

(b) Phosphogypsum Stack Liner design standards. Phosphogypsum Stacks shall be constructed atop a composite Liner that consists of a Geomembrane in conjunction with a non-synthetic component:

1. The synthetic component of composite liners shall consist of a 60-mil or thicker High Density Polyethylene (HDPE) or equivalent Geomembrane Liner with a maximum water vapor transmission rate of 0.24 grams per square meter per day as determined by the American Society for Testing and Materials (ASTM) Method E96-80, procedure BW, “Test Methods for Water Vapor Transmission of Materials,” Sections 04.06, 08.03, and 15.09, which document is incorporated herein by reference.

2. The non-synthetic component of the composite Liner shall consist of either of the following:

a. A layer of compacted soil at least eighteen (18) inches thick, placed below the Geomembrane, with a maximum hydraulic conductivity of 1 × 10-7 centimeters per second, constructed in six-inch lifts. The Geomembrane Liner component shall be installed in direct and uniform contact with the compacted soil component to retard Leachate migration if a leak in the flexible membrane Liner should occur. Soil materials used within the top twelve (12) inches of the compacted soil layer immediately below the synthetic Liner shall be free from rigid or sharp objects that could damage or otherwise affect the integrity of the Liner; or

b. A layer of mechanically compacted Phosphogypsum at least twenty-four (24) inches thick, placed above the Geomembrane, with a maximum hydraulic conductivity of 1 × 10-4 centimeters per second. No rigid or sharp objects that could damage the Liner may be

 

26

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

placed within this compacted layer of Phosphogypsum. Such a layer (of mechanically compacted gypsum) shall not be required for any vertical expansion of a Phosphogypsum Stack where Phosphogypsum slurry is discharged into the expansion area within one year of completion of construction.

3. The non-synthetic component of a Phosphogypsum Stack composite Liner will not be required for vertical expansions under the following conditions:

a. where it has been demonstrated to and approved by LDEQ that a synthetic Liner alone or in contact with sedimented gypsum placed in slurry form will be equivalent or superior to a composite Liner designed and installed in accordance with the requirements of this Section VI (Phosphogypsum Stack System Construction Requirements); or

b. where it has been previously demonstrated to and approved by LDEQ that a synthetic Liner in contact with sedimented gypsum placed in a slurry form is equivalent or superior to a composite Liner with twenty-four (24) inches of compacted Phosphogypsum placed above the Geomembrane.

(c) Any proposed composite Liner design shall be accompanied by a detailed construction quality assurance plan, describing in detail how the design will be properly constructed in the field. For composite liners using compacted Phosphogypsum, the quality assurance plan shall place particular emphasis on protection of the Geomembrane during placement and compaction of the Phosphogypsum, and on prompt placement of Phosphogypsum on the Geomembrane. The construction quality assurance plan must be submitted to LDEQ for approval.

(d) The following Liner design standards must be met:

1. Standards for geosynthetic components.

a. Geomembranes shall have factory and field seams whose shear strengths during testing are at least ninety percent (90%) of the specified minimum yield strength for that lining material, and the failure shall occur in the lining material outside the seam area. All field seams must also be visually inspected and pressure or vacuum tested for seam continuity using suitable non-destructive techniques.

b. No large or rigid objects may be placed in the Phosphogypsum Stack System in a manner that may damage the Liner or Leachate collection system and, with the exception of liners installed at the Toe of the Phosphogypsum Stack, in no case shall such objects be placed within ten (10) vertical feet of the Liner or Leachate collection system, unless approved by LDEQ and/or EPA.

c. High density polyethylene (HDPE) Geomembranes shall meet the specification contained in method GRI GM13 or updates thereof.

d. Polyvinyl chloride (PVC) Geomembranes shall meet the specification contained in method PGI 1197 or updates thereof.

 

27

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

e. Interface shear strength of the actual components that will be used in the Liner system shall be tested with method ASTM D5321 or an equivalent test method.

f. In addition, the synthetic Liner material shall be subjected to continuous spark testing or an industry-accepted equivalent test at the production Facility prior to delivery to the site for installation. If the continuous spark testing detects any defect, the tested material must be rejected and not delivered to the site;

(e) Standards for soil components.

1. Soil components of Liner systems shall be constructed to preclude, to the greatest extent practicable, lenses, cracks, channels, root holes, pipes, or other structural inconsistencies that can increase the saturated hydraulic conductivity of the soil component. The design shall illustrate and describe those instances in which over-excavation of permeable areas and backfilling may be necessary to seal the permeable area. The soil component shall be placed and compacted in layers to achieve the design performance.

2. The permeability of soil Liner components shall not be increased above the values specified for the component, as a result of contact with Leachate from the Phosphogypsum Stack System. Compatibility of the soil component and Leachate shall be demonstrated by testing the soil component with actual or simulated Leachate in accordance with EPA Test Method 9100 or an equivalent test method.

3. The soil component of the Liner system may consist of in-situ soils or compacted imported soils, provided they meet the specifications for Soil Liners.

4. Specifications for the soil component of the Liner system shall contain at a minimum:

a. Allowable range of particle size distribution and Atterberg limits, to include shrinkage limit;

b. Placement moisture criteria and dry density criteria;

c. Maximum laboratory-determined saturated hydraulic conductivity, using simulated Leachate as the saturating and testing liquid;

d. Minimum thickness of the soil Liner;

e. Lift thickness;

f. Surface preparation (scarification) for tying lifts together; and

g. Type and percentage of clay mineral within the soil component.

 

28

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

5. The soil Liner shall be placed using construction equipment and procedures that achieve the required saturated hydraulic conductivity and thickness. A field test section shall be constructed using the proposed construction equipment and tested to document that the desired saturated hydraulic conductivity and thickness is achieved in the field.

(f) Liner systems construction quality assurance.

1. Liner systems shall have a construction quality assurance plan to provide personnel with adequate information to achieve continuous compliance with the Liner construction requirements. The plan shall include or refer to specifications and construction methods that use established engineering practices to construct a Liner system and provide for quality control testing procedures and sampling frequencies. Sampling and testing shall be conducted in the field by trained personnel during construction and after construction completion. Such personnel will be under the direction of the construction quality assurance Engineer, to assure the Liner system will comply with the standards. The construction quality assurance Engineer or his designee shall be on-site at all times during construction to monitor construction activities. Construction activities include the time during which the protective layer is installed over the Geomembrane, to ensure that the placement techniques do not cause damage to the Liner system materials.

2. Liner systems shall be installed in accordance with the construction quality assurance plan. Plans that comply with EPA Document EPA/600/R-93/182 or updates thereof shall be presumed to be in compliance with this Section. The following minimum specific elements shall be included in the plan:

a. Responsibility and authority of all organizations and key personnel involved in permitting, designing, constructing, and providing construction quality assurance of the Phosphogypsum Stack System shall be described fully;

b. Minimum qualifications of the construction assurance quality Engineer and supporting personnel shall be in the plan to demonstrate that they possess the training and experience necessary to fulfill their identified responsibilities;

c. Procedures and tests that will be used to monitor the installation of the Liner system components shall be described in detail;

d. The sampling activities, sample size, sample locations, frequency of testing, acceptance and rejection criteria, and plans for implementing corrective measures that may be necessary shall be described; and

e. Reporting requirements for construction quality assurance activities shall be described, including daily summary reports, observation data sheets, problem identification and corrective measures, and final documentation. All such documents shall be included in a final report.

3. A laboratory experienced in the testing of geosynthetics, independent of the Liner manufacturer and installer, shall perform the required testing that must include, at a

 

29

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

minimum, conformance testing for all geosynthetics and geocomposites, and testing of seam shear and peel strength for Geomembranes.

4. The Engineer in charge of construction quality assurance shall provide a signed, sealed final report and record drawings stating that the Liner system has been installed in substantial conformance with the plans and specifications for the Liner system and identifying any significant deviations.

(g) Soil Liner construction quality assurance. In addition to the requirements of (f) above, the following requirements apply to construction of the soil component of Liner systems. All required testing and analysis shall be performed in accordance with generally accepted engineering procedures, such as those promulgated by the ASTM. Parenthetic references to ASTM methods are intended as guidance only.

1. A construction quality assurance/quality control plan shall be prepared for each soil Liner project to outline project specifications and construction requirements. The plan shall specify performance criteria for the soil Liner, and provide quality control testing procedures and minimum sampling frequencies. In addition, the plan shall define the responsibilities of the parties that will be involved in soil Liner construction, and shall present minimum qualifications of each party to fulfill their identified responsibilities.

2. Field and laboratory testing during Liner construction shall be conducted by a qualified soil testing laboratory representing the owner/operator. A qualified field technician representing the owner/operator shall provide full time, on-site inspection during Liner construction. The field technician shall work under the supervision of an Engineer with experience in soil Liner construction.

3. Prior to soil Liner installation, an appropriate borrow source shall be located. Suitability of the Liner construction materials from that source shall be determined in accordance with the following:

(a) If demonstrated field experience is available from at least three (3) prior successful projects of five (5) or more acres each to document that a given borrow source can meet the requirements of the project specifications, then extensive laboratory testing of the borrow source will not be required. However, the source of material shall be geologically similar to and the methods of excavating and stockpiling the material shall be consistent with those used on the prior projects. Furthermore, a minimum of three representative samples from the appropriate thickness of the in-situ stratum or from stockpiles of the borrow material proposed for Liner construction shall be submitted to an independent soil testing laboratory to document through index testing that the proposed material is consistent with the material used on prior successful projects. At a minimum, index testing shall consist of percent fines, Atterberg limits and moisture content determinations.

(b) If demonstrated field experience as defined above is not available or cannot be documented, then the following requirements shall be met:

 

30

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

1. A field exploration and laboratory testing program shall be conducted by an independent soil testing laboratory to document the horizontal and vertical extent and the homogeneity of the soil strata proposed for use as Liner material. A sufficient number of index tests from each potential borrow stratum shall be performed to quantify the variability of the borrow materials and to document that the proposed borrow material complies with specifications. At a minimum, the index tests shall consist of percent fines, Atterberg limits and moisture content determinations.

2. Sufficient laboratory hydraulic conductivity tests shall be conducted on samples representative of the range invariability of the proposed borrow source (ASTM D-5084). For each such sample, test specimens shall be prepared and tested to cover the range of molding conditions (moisture content and dry density) required by project specifications. The hydraulic conductivity tests shall be conducted in triaxial type permeameters. The test specimens shall be consolidated under an isotropic consolidation stress no greater than ten (10) pounds per square inch and permeated with water under an adequate backpressure to achieve saturation of the test specimens. The inflow to and outflow from the specimens shall be monitored with time and the hydraulic conductivity calculated for each recorded flow increment. The test shall continue until steady state flow is achieved and relatively constant values of hydraulic conductivity are measured (ASTM D-5084). The borrow source will only be considered suitable if the hydraulic conductivity of the material, as documented on laboratory test specimens, can be shown to meet the requirements of the project specifications at the ninety-eight percent (98%) confidence level.

3. Prior to full-scale Liner installation, a field test section or test strip shall be constructed at the site above a prepared sub-base. The test strip shall be considered acceptable if the measured hydraulic conductivities of undisturbed samples from the test strip meet the requirements of the project specifications at the ninety-eight percent (98%) confidence level. If the test section fails to achieve the desired results, additional test sections shall be constructed in accordance with the following requirements:

a. The test section shall be of sufficient size such that full-scale Liner installation procedures can be duplicated within the test section;

b. The test section shall be constructed using the same equipment for spreading, kneading and compaction and the same construction procedures (e.g., number of passes, moisture addition and homogenization, if needed) that are anticipated for use during full-scale Liner installation;

4. At a minimum, the Liner test section shall be subject to the following field and laboratory testing requirements:

a. A minimum of five (5) random samples of the Liner construction material delivered to the site during test section installation shall be tested for moisture content (ASTM D-2216), percent fines (ASTM D-1140) and Atterberg limits (ASTM D-4318);

b. At least five (5) field density and moisture determinations shall

 

31

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

be performed on each lift of the compacted Liner test section;

c. Upon completion of the test section lift, the thickness of the lift shall be measured at a minimum of five (5) random locations to check for thickness adequacy; and

d. A minimum of five (5) Shelby tube or drive cylinder (ASTM D-2937) samples shall be obtained from each lift of the test section for laboratory hydraulic conductivity testing. Laboratory hydraulic conductivity testing shall be conducted in triaxial type permeameters (ASTM D-5084). The test specimens shall be consolidated under an isotropic consolidation stress no greater than ten (10) pounds per square inch and permeated with water under an adequate backpressure to achieve saturation of the test specimens. The inflow to and outflow from the specimens shall be monitored with time and the hydraulic conductivity calculated for each recorded low increment. The test shall continue until steady state flow is achieved and relatively constant values of hydraulic conductivity are measured (ASTM D-5084). Alternatively, a sealed double-ring infiltration field test (ASTM D3385) may be used as an alternative to taking drive or Shelby tube samples.

5. Full scale Liner installation may begin only after completion of a successful Liner test section. During Liner construction, documentation of quality control testing shall be maintained and made available to LDEQ and/or the EPA upon request, to document that the installed Liner conforms to approved project specifications. The testing frequencies for quality control testing are specified below; however, during construction of the first five acres of the Liner, these frequencies shall be doubled. Samples shall be obtained from random locations selected by an Engineer. If there are indications of a change in material properties, product quality or construction procedures during Liner construction, additional tests shall be performed to determine compliance.

6. Field testing during Liner installation. The following field tests shall be performed:

a. Prior to the laying of the Liner materials, the Liner sub-base shall be compacted to the specified density. Density tests shall be conducted at a minimum rate of two tests per acre;

b. A minimum of two (2) moisture content and field density determinations shall be conducted per acre per lift of the compacted Liner. The degree of compaction shall be checked using the one-point field Proctor test or other appropriate test procedures; and

c. A minimum of four (4) thickness measurements shall be conducted per acre per lift of the compacted Liner.

7. Laboratory testing during Liner installation. The following laboratory tests shall be performed:

 

32

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

a. Percent fines (ASTM D-1140) of the Liner construction material shall be determined at a minimum frequency of two (2) tests per ace per lift of installed Liner;

b. Atterberg Limits determinations shall be performed on one sample per acre per lift of installed Liner; and

c. Hydraulic conductivity testing of Shelby tube or drive cylinder (ASTM D-2937) samples of the compacted Liner shall be performed at a minimum frequency of one test per acre per lift. Laboratory hydraulic conductivity tests shall be conducted in triaxial type permeameters (ASTM D-5084). The test specimens shall be consolidated under an isotropic consolidation stress no greater than ten (10) pounds per square inch and permeated with water under an adequate backpressure to achieve saturation of the test specimens. The inflow to and outflow from the specimens shall be monitored with time and the hydraulic conductivity calculated for each recorded flow increment. The test shall continue until steady state flow is achieved and relatively constant values of hydraulic conductivity are measured.

8. If the test data from a Liner section does not meet the requirements of the project specifications, additional random samples may be tested from that Liner section. If such additional testing demonstrates that the thickness and hydraulic conductivity meet the requirements of the project specifications at the ninety-five percent (95%) confidence level, that Liner section will be considered acceptable. If not, that Liner section shall be reworked or reconstructed so that it does meet these requirements.

(h) Leachate control system standards.

1. A perimeter underdrain system designed to stabilize the side slopes of the Phosphogypsum Stack shall be installed above the Geomembrane Liner.

2. Perimeter drainage conveyances used in the Leachate control system shall either consist of covered or uncovered ditches that are lined continuously with the Phosphogypsum Stack Liner, or of chemically compatible Leachate collection pipes. Covered ditches shall have maintenance manholes installed at appropriate intervals. Piped systems shall have manholes or appropriate cleanout structures at appropriate intervals unless the Engineer of record certifies and identifies areas where manholes or cleanout structures in piped systems are not feasible.

3. All Toe Drain or Leachate collection systems must be constructed within the lined system.

(i) Liquid containment and conveyance systems.

1. Composite liners shall be used on all liquid containments and conveyances associated with Transport of Phosphogypsum, cooling water, and return of Process Wastewater. Exceptions are pumped flow systems contained in pipes or alternative systems that provide an equivalent degree of protection.

 

33

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

2. Pump and piping systems associated with the transport of Phosphogypsum or Process Wastewater and that cross Surface Waters of the State must be double contained with chemically compatible materials in a manner that assures that all materials under pumped flow are contained within a lined system in the event of a leak or piping system failure.

VII. Requirements for Actively Operated Phosphogypsum Stack Systems

(1) All Active Phosphogypsum Stack compartments, including any noted areas containing critical conditions, as defined below in (4), until corrected, shall be inspected daily. Inactive Phosphogypsum Stack compartments, slopes, collection ditches, and Drain outlets shall be inspected at least weekly and as soon as field conditions allow after storms. Flow from Drain outlets shall be checked quarterly. The total areal coverage of water on the Phosphogypsum Stack shall be estimated each month and the total water inventory on top of the Phosphogypsum Stack shall be estimated annually. The required inspections and estimates shall be carried out by a Qualified Company Employee or contractor employed or retained by the owner/operator of the Phosphogypsum Stack. The results of the required inspections and estimates shall be recorded in a Log that shall be maintained by the owner/operator of the Phosphogypsum Stack.

(2) Where a leak detection system exists, the amount of liquid removed from any such system must be recorded weekly.

(3) Each Phosphogypsum Stack shall be inspected within one year of the Effective Date of the Consent Decree and annually thereafter by a Third-Party Engineer with experience in the field of construction and operation of Phosphogypsum Stacks at the same time that the annual inspection of the associated Perimeter Dike occurs. This annual inspection shall be recorded in a report and shall include an updated aerial photograph and state the area of the top of the Phosphogypsum Stack and the current height and elevation of the Phosphogypsum Stack. The annual inspection report shall include recommendations and corrective measures taken. If corrective measures are not completed by the time of annual submittal, then follow up inspections shall be conducted by the Third-Party Engineer on a quarterly basis with quarterly project reports submitted until completion of all corrective measures. One copy of the annual inspection report shall be submitted to LDEQ and EPA.

(4) Any of the following items shall be considered as indicating a critical condition that requires immediate investigation and may require emergency maintenance action:1

(a) Concentrated seepage (e.g., springs or boils) on the face of a Phosphogypsum Stack slope, at the Toe of the slope, or beyond the Toe of a slope with active signs of Piping at the point of seepage (e.g., a gypsum or soil cone or delta at the point of seepage).

(b) Evidence of slope instability including sloughing, bulging or heaving of the face of the Phosphogypsum Stack or the Toe of the slope.

 

1 These requirements also are listed in Attachment E (Critical Conditions and Temporary Measures).

 

34

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

(c) Lateral movement or subsidence of the slope or crest of the Phosphogypsum Stack.

(d) Formation of new non-shrinkage cracks or enlargement of wide cracks in the surface of the slope or crest of the Phosphogypsum Stack.

(e) Observed or suspected damage to the Liner system.

(f) Drains discharging turbid water.

(g) Concentrated seepage (i.e., springs or boils) in the vicinity of a decant pipe.

(5) In addition to the indicators set forth in (4) above, the following items shall be considered as indicating potential trouble areas that must be documented and closely checked on subsequent inspections and repaired as necessary:

(a) Concentrated seepage (e.g., springs or boils) on the face of a Phosphogypsum Stack or at the Toe of slope without active signs of Piping at the point of seepage.

(b) Previously observed localized sloughing at the Toe of slope of the Phosphogypsum Stack.

(c) Previously observed cracks in the surface of the slope or crest of the Phosphogypsum Stack.

(d) Nonflowing Drains.

(6) Phosphogypsum Stack System Operation Plans.

The following items shall be included in the Operation Plan for each Phosphogypsum Stack System and shall be approved by an Engineer experienced in the construction and operation of Phosphogypsum Stacks:

(a) The method used to raise and operate the Phosphogypsum Stack.

(b) A description of the source and consistency of gypsum used in constructing the Gypsum Dikes and the method used for shaping and/or mechanically working the gypsum.

(c) The overall average exterior slope for raising the Phosphogypsum Stack and the maximum design height of the Phosphogypsum Stack.

(d) The procedures used to assure that pipes used to transport Phosphogypsum to the Phosphogypsum Stack Systems and to return Process Wastewater to the phosphate fertilizer production facilities are operated and maintained in a safe manner.

(e) The procedures used to decant Process Wastewater from the top of the Phosphogypsum Stack.

 

35

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

(f) The location of pumps, spillways, and staff gauges.

(g) Provisions that address emergency measures to be taken in the event of mechanical failure of a pump or in the event of a power failure for any portion of a Phosphogypsum Stack System that relies on pumps or power to operate monitoring equipment or to transfer Process Wastewater and/or rainfall-runoff from low areas to the main Cooling Pond. Such emergency provisions may include:

i. Back-up power (e.g., on-site power; diesel generator, etc.) and/or back-up pump that would be activated in the event of electrical or mechanical failure; or

ii. Sufficient surge storage capacity or emergency surge capacity within the conveyance system to contain the Process Wastewater stream(s), if applicable, as well as runoff from a storm event generating a 100-year rainfall in 24 hours; or

iii. Increased inspection frequencies or continuous monitoring (e.g., remote video camera or automatic water level control device tied to a warning system) to provide early warning of an imminent spill prior to its occurrence; and an emergency action plan that would be undertaken to prevent or contain an accidental spill.

(h) Within six (6) months of the Effective Date of the Consent Decree, a site-specific water management plan shall be prepared and updated annually to reflect changes in Process Watershed area, storm surge, projected water balances, and use of the 110 Acre Reservoir and any other subsequently approved Emergency Diversion Impoundments (EDI) (Attachment E, Section IV). The owner/operator shall address in the plan the possibility and/or feasibility that one or more component areas of the Phosphogypsum Stack System may be closed or otherwise removed from the Phosphogypsum Stack System to reduce the watershed and projected Process Wastewater inventory based on all relevant factors, including the five-year water balance analysis as set forth in (7) below, whether the removal of any component areas can be done without compromising plant operations or operability or integrity of the Phosphogypsum Stack System, the effect of any potential removal areas on the operability of the Phosphogypsum Stack System prior to permanent closure, and any legal or regulatory requirements. The updated plan shall be consistent with water quality based effluent limits applicable to the Facility. This plan shall specify at a minimum, a set of specific actions, including minimum Process Wastewater consumption and transfer rates, that are put into motion when the storage volume, surge capacity, or operating water level(s) of the Cooling/Surge Pond system are determined to be inadequate to contain the rainfall from a storm event generating a 100-year rainfall in twenty-four (24) hours, or where such actions are determined to be necessary based on water balance model results for the rainfall scenarios described in subsection (7) below. The site specific-water management plan and annual updates thereof shall be submitted to LDEQ and/or the EPA.

(i) The adequacy of the Facility’s site-specific water management and action plans and emergency measures shall be based on a five-year water balance analysis as set forth in (7) below.

(7) The water balance analysis shall use the first day of the month that succeeds the month of the

 

36

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

year with the highest long-term average precipitation total as the beginning date for the analysis, unless the EPA and LDEQ approve the use of an alternate date where a larger volume of precipitation or water accumulation (such as snowmelt) is expected. The analysis shall identify the rates of all water inputs and outputs, any manufacturing production changes, and changes in Process Watershed area considered in the analysis. A Third-Party Engineer shall verify the accuracy of the analysis. A summary of the analysis and the water balance analysis results shall be included in the annual updated site-specific water management plan required in (6) above.

(a) The water balance calculations shall be performed for five (5) distinct extreme rainfall scenarios applied for the subsequent five (5)-year period using monthly, or more frequent, input rainfall quantities which shall include:

1. Rainfall corresponding to the highest monthly 100-year Rainfall Event occurring during the annual 100-year Rainfall Event, as defined in Attachment F: : Definitions for Purpose of this Consent Decree, of this Appendix; and

2. Annual rainfall events shall be determined based on a long-term rainfall record from a National Oceanic & Atmospheric Administration or equivalent weather station in the vicinity of the Facility. The five-year rainfall total shall be based on a cumulative five-year rainfall event which has a probability of exceedance of five percent (5%), which shall be considered an equivalent probability as the 100-year Rainfall Event (i.e., a probability of not being exceeded = 99%) for not being exceeded during a five (5)-year period (i.e., [1 – 0.995] = 5%).

(i) Example of the input annual rainfall quantities for each of the five 5-year extreme rainfall scenarios1:

 

     

Rainfall, inches

 

     

Year 1

 

  

Year 2

 

  

Year 3

 

  

Year 4

 

  

Year 5

 

  

Total

 

Scenario 1

  

 

100-year annual rainfall quantity incorporating the highest monthly 100-year Rainfall Event

(Y1)

  

An annual rainfall event which together the preceding or following annual rainfall event, contributes to a 2-year total which has a 5% probability of exceedance

(Y2)

  

An annual rainfall event which together the preceding or following annual rainfall events, contributes to a 3-year total which has a 5% probability of exceedance

(Y3)

  

An annual rainfall event which together the preceding or following annual rainfall events, contributes to a 4-year total which has a 5% probability of exceedance

(Y4)

  

An annual rainfall event contributing to a 5-year total which has a 5% probability of exceedance

(Y5)

  

 

 

5-year cumulative rainfall total determined in accordance with (7)(a)2. of this Section (S)

Scenario 2

   (Y3)    (Y1)    (Y2)    (Y5)    (Y4)    (S)

Scenario 3

   (Y5)    (Y4)    (Y1)    (Y3)    (Y2)    (S)

 

 

37

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

Scenario 4

   (Y2)    (Y3)    (Y4)    (Y1)    (Y5)    (S)

Scenario 5

   (Y4)    (Y5)    (Y3)    (Y2)    (Y1)    (S)

3. The annual rainfall quantities exceeding or less than the long-term average annual rainfall shall be distributed at least amongst the various months of the year, other than the month for the highest monthly 100-year Rainfall Event, in proportion to the normal monthly rainfall amounts determined from the corresponding long-term record.

(b) The water balance analysis for any Phosphogypsum Stack System shall indicate whether the system storage will be less than any of the following water balance targets:

1. At the beginning of the rainy season, the calculated 100-year, 24-hour rainfall event plus one-half the value for the 25-year, 24-hour rainfall event calculated (in inches) for the area where the Facility is located.

2. At the end of the rainy season, the 100-year, 24-hour rainfall event calculated (in inches) for the area where the Facility is located.

3. Water levels that exceed impoundment Maximum Design Levels at any time during a year. After the later of either the two (2) year anniversary of the Effective Date of the Consent Decree or January 1, 2017, if the water balance for any Phosphogypsum Stack System indicates that system storage is less than the water balance targets, the owner/operator must provide reasonable assurance that additional Process Wastewater consumption or management items, not already included as outputs in the water balance analysis, are readily available and capable of maintaining these water balance targets. Use of available storage within an Auxiliary Holding Pond, up to its Maximum Design Levels, may be used to provide this assurance.

(c) After the later of either the two (2) year anniversary of the effective date of the Consent Decree or January 1, 2017, if the water balance indicates that at any time during the five (5)-year modeling period that Process Wastewater levels, in conjunction with additional available Process Wastewater consumption or management items will not meet the water balance targets, the owner/operator must provide additional Process Wastewater consumption or management items, and submit an alternatives plan and implementation schedule for approval by LDEQ and/or the EPA for the additional consumption or management measures within ninety (90) days of submittal of the water balance analysis. The plan and schedule shall include, at a minimum, the following elements:

1. A listing and description of the additional Process Wastewater consumption or management items to be evaluated, including the identification of items that can be rapidly implemented to achieve the water balance targets;

2. A listing of interim measures that can be implemented to prevent an unpermitted release of Process Wastewater in the event that actual rainfall events contribute to Process Wastewater levels exceeding Maximum Design Levels; and

3. A proposed schedule for the evaluation, selection, engineering, design, and

 

38

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

construction, installation or implementation for the items and interim measures needed to increase water consumption, reduce inventories, or any combination of such actions that will result in achievement of the water balance targets.

VIII. Contingency Plans for Operating Phosphogypsum Stack Systems

(1) Within six (6) months of the Effective Date of the Consent Decree, the owner/operator of a Phosphogypsum Stack System shall prepare, and update annually thereafter, a contingency plan to address unplanned releases of Process Wastewater. The elements of such a plan shall address the applicable elements of the “National Response Team’s Integrated Contingency Plan Guidance,” 61 Fed. Reg. 28,641 (June 5, 1996), which elements are incorporated herein by reference and shall demonstrate the ability to mobilize equipment and manpower to respond to emergency situations. The plan shall be maintained at the Facility and be available for inspection by LDEQ and/or the EPA upon request.

(2) Training. The owner/operator of a Phosphogypsum Stack System shall provide annual training in inspection and operations requirements and contingency plan requirements to appropriate personnel. Newly hired personnel shall receive training prior to engaging in inspection or operations activities. A training plan consistent with the requirements of this document shall be maintained at each Facility and be available for inspection upon request. Records demonstrating that appropriate personnel have received the necessary training shall be maintained by the Facility owner/operator for a period of three (3) years.

 

39

Attachment C: Phosphogypsum Stack System Construction and Operational Requirements


Table of Contents

ATTACHMENT D: CLOSURE OF PHOSPHOGYPSUM STACKS/ STACK SYSTEMS

I. Phosphogypsum Stack/Stack Systems Closure

Applicability: The requirements of this Attachment apply, except as specified below, to Active and Inactive Phosphogypsum Stacks and components of the Phosphogypsum Stack System, and to new or expanded components (e.g. Lateral Expansions) of Phosphogypsum Stack Systems when constructed. The requirements of this Attachment will not apply to: (a) a Phosphogypsum Stack System or component thereof that has already undergone permanent closure, (b) a Phosphogypsum Stack System or component thereof that began undergoing permanent closure prior to January 30, 2008, or (c) a Phosphogypsum Stack System or component thereof if an application for Permanent Phosphogypsum Stack System Closure in a manner that satisfies the requirements of this Attachment has been submitted to LDEQ and/or EPA as of the Date of the EPA Notice of Violation. If only a portion of a Phosphogypsum Stack (e.g., lower side slopes) has undergone permanent closure or is undergoing permanent closure pursuant to I(a), (b), or (c) above, only that permanently closed portion of the Phosphogypsum Stack is released from the requirements of this Section.

II. General Requirements for the Initial Phosphogypsum Stack System Closure Plan

Applicability. The following requirements apply to a Phosphogypsum Stack System (or a component thereof).

(1) Initial Phosphogypsum Stack System Closure Plan (Initial Stack Closure Plan). The Initial Stack Closure Plan shall be developed no later than one year after the Effective Date of the Consent Decree unless otherwise specified by the Consent Decree. The Initial Stack Closure Plan shall be submitted by the owner/operator of the operating Phosphogypsum Stack System for approval to the EPA and LDEQ. The following requirements must be incorporated into the Initial Stack Closure Plan:

(a) A description of the physical configuration of the Phosphogypsum Stack System for that period of time for which the closure cost is calculated by the owner/operator in accordance with Paragraph 4(b) of Appendix 2 (Financial Assurance) of this Consent Decree.

(b) A site-specific water management plan describing the procedures to be employed during closure of the Phosphogypsum Stack System to manage the anticipated volume of Process Wastewater and Leachate. The Initial Phosphogypsum Stack Closure Plan shall address the anticipated ponded water inventory at the beginning of the closure period, anticipated closure sequence, water balance during the closure period, Phosphogypsum Stack drainage during the closure period and long-term care period, adequacy of available surge storage capacity through the closure period, treatment or consumption rate (including neutralization, if applicable), and disposition of ponded Process Wastewater and Leachate, both during Phosphogypsum Stack System closing activities and long-term care activities. An independent third- party with water treatment expertise must be used to evaluate the water and its neutralization or consumption requirements for the duration of Phosphogypsum Stack System closure;

 

40

Attachment D: Closure of Phosphogypsum Stacks/Stack Systems


Table of Contents

(c) An estimate of all costs associated with Phosphogypsum Stack System closure, including the costs of closing the Phosphogypsum Stack System (e.g. construction costs, operation/maintenance costs), long-term care activities, and implementation of the site-specific water management plan; and

(d) A description of all construction work necessary to properly undertake Phosphogypsum Stack System closure

(2) Pre-Permanent Closure Phosphogypsum Stack System requirements. The following requirements apply to Phosphogypsum Stacks and components of Phosphogypsum Stack Systems, as applicable, prior to Permanent Deactivation of a Phosphogypsum Stack System (Section III, below).

(a) Owner/operator shall close the side slopes of the Phosphogypsum Stack, in stages, as the Phosphogypsum Stack is raised to its permitted height. The closure will occur at intervals without compromising the integrity and operability of the Phosphogypsum Stack, the Phosphogypsum Stack System, or plant operations or adversely impacting the environment.

(b) Owner/operator shall close components of the Phosphogypsum Stack System (e.g., ponds, ditches, etc.) as those components are no longer needed and can be closed without compromising the operability or integrity of the Phosphogypsum Stack System or plant operations or adversely impacting the environment.

III. Permanent Closure Requirements for Phosphogypsum Stacks/ Stack Systems

(1) At least ninety (90) days before the Permanent Deactivation of a Phosphogypsum Stack System or within thirty (30) days following a decision to permanently cease operations, whichever is later, the owner/operator shall notify EPA or LDEQ and implement the ISSMP. Within two hundred and seventy-five (275) days of implementing the ISSMP, the owner/operator shall submit for approval a closure application including a Permanent Phosphogypsum Stack System Closure Plan, as described below, to LDEQ and the EPA. The Permanent Phosphogypsum Stack System Closure Plan shall include the requirements of (2) through (10) of this Section, or shall contain an explanation of why the requirement is not applicable. Valid information on record in an existing permit or approved Groundwater monitoring plan may be used to satisfy the applicable requirements of this Attachment.

(2) General information report. This report must be submitted for approval to LDEQ and/or the EPA and shall contain:

(a) Identification of the Phosphogypsum Stack System;

(b) Name, address and phone number of primary contact persons;

(c) Identification of persons or consultants preparing this report;

 

41

Attachment D: Closure of Phosphogypsum Stacks/Stack Systems


Table of Contents

(d) Present property owner and Phosphogypsum Stack System operator;

(e) Location by township, range and section, and latitude and longitude of the Phosphogypsum Stack System;

(f) Total acreage of the Phosphogypsum Stack System;

(g) Map of the property as set forth in Appendix 3 (NEED APPENDIX TITLE); and

(h) History of the Phosphogypsum Stack System, including construction dates and a general description of operations.

(3) Area information report. This report details the area in which the Phosphogypsum Stack System is located. The report must use verifiable information. The term “area” means that area that may affect or be affected by the Phosphogypsum Stack System, and at a minimum includes the land within a one-mile radius of the Phosphogypsum Stack System. The report shall be supplemented by maps and cross-section drawings. The following topics shall be addressed in the report:

(a) Topography;

(b) Hydrology, including Surface Water drainage patterns and hydrologic features such as Surface Waters, springs, drainage divides and wetlands;

(c) Geology, including the nature and distribution of lithology, unconsolidated deposits, major confining units and sinkholes;

(d) Hydrogeology, including depth to Groundwater table, Groundwater flow directions, recharge and discharge areas used by public and private wells within one mile of the Phosphogypsum Stack System;

(e) Ground and Surface Water quality;

(f) Land use information. The report shall include a discussion and maps indicating:

1. Identification of adjacent landowners;

2. Zoning;

3. Present land uses; and

4. Roads, highways, right-of-ways, or other easements.

(4) Groundwater monitoring plan and site specific information. The Groundwater monitoring plan and most recent quarterly report submitted in accordance with Attachment B: Groundwater Requirements, Section III (Groundwater Monitoring Requirements), and approved by LDEQ or

 

42

Attachment D: Closure of Phosphogypsum Stacks/Stack Systems


Table of Contents

the EPA.

(5) Assessment report on the effectiveness of existing Phosphogypsum Stack System design and operation. Based on the area information report and the Groundwater monitoring plan, a written assessment shall be prepared that discusses the effects of the Phosphogypsum Stack System on adjacent Groundwater and Surface Waters, and the Phosphogypsum Stack System area. Specific concerns to be addressed are:

(a) Effectiveness and results of the Groundwater monitoring plan; and

(b) Effects of Surface Water runoff, drainage patterns, and existing storm water controls.

(6) Performance standards. This component of the Permanent Phosphogypsum Stack System Closure Plan shall be developed to address the following performance standards.

(a) Stack System Closure shall be designed to protect human health and the environment by:

1. Controlling, minimizing or eliminating the post closure escape of Phosphogypsum, Process Wastewater, Leachate, and contaminated runoff to ground and Surface Waters;

2. Minimizing Leachate generation;

3. Detecting, collecting, and removing Leachate and Process Wastewater efficiently from the Phosphogypsum Stack System and promoting drainage of Process Wastewater and Leachate from the Phosphogypsum Stack;

4. Being compatible with any required Groundwater or Surface Water Corrective Action Work plan;

5. Minimizing the need for further maintenance.

(b) Closure plans for Phosphogypsum Stacks shall include a Final Cover system designed to protect human health and the environment by:

1. Promoting drainage off the Phosphogypsum Stack;

2. Minimizing ponding;

3. Minimizing erosion;

4. Minimizing infiltration into the Phosphogypsum Stack;

5. Functioning with little or no maintenance.

 

43

Attachment D: Closure of Phosphogypsum Stacks/Stack Systems


Table of Contents

(c) Closure of ponds and drainage conveyances storing Process Wastewater and Leachate shall be designed to protect human health and the environment by:

1. Treating or removing from the ponds and drainage conveyances all Process Wastewater and Leachate as soon as practical, either through return of the Process Wastewater and Leachate to the manufacturing process, transfer of Process Wastewater and Leachate to another pond permitted in accordance with this Attachment, in-situ treatment, or by treatment and subsequent discharge of the Process Wastewater and Leachate under an appropriate discharge permit;

2. Placing any sludges removed from a pond, settling basin, or drainage conveyance into an Active Phosphogypsum Stack permitted in accordance with this Attachment, or an Inactive Phosphogypsum Stack undergoing Phosphogypsum Stack System Closure in accordance with this Attachment. The closure plan shall contain a detailed description of procedures for removing or treating the sludges, methods for sampling and testing surrounding soils, and criteria for determining the extent of removal required to satisfy the closure performance standards.

(7) Closure design plan. A closure design plan shall be prepared to meet the performance standards specified in Section III.(6), above, and shall be based on the area information report, Groundwater monitoring plan, and assessment of the effectiveness of the existing Phosphogypsum Stack System design and operation. The closure design plan shall consist of engineering plans and a report on closing procedures that shall apply to the closing of the Phosphogypsum Stack System and the monitoring and maintenance during the long-term care period. The closure design plan shall include the following information:

(a) A plan sheet showing phases of site closing.

(b) Drawings showing existing topography and proposed final elevations and grades.

(c) For Phosphogypsum Stack Systems, Final Cover installation plans showing the sequence of applying Final Cover, including thickness and type of material that will be used. All Phosphogypsum Stack Systems shall have a Final Cover designed to meet the performance standards set forth in (c)1-3, below. Final Cover shall be placed over the entire surface of the Phosphogypsum Stack System. The Final Cover shall be vegetated with drought-resistant species to control erosion, whose root systems will not penetrate any low-permeability barrier layer required on the top gradient (or alternative approved in accordance with the Consent Decree or this Attachment). Water balance calculations, based on available climatic data, shall be prepared that estimate the rates and volumes of water infiltrating the cover systems, collected by any Leachate control system, and migrating out of the bottom of the Phosphogypsum Stack or Liner system. Final Cover may consist of synthetic membranes, soils, or chemically or physically amended soils as specified in (c)1-3, below. Consistent with LAC 33:VII.315.N, the following alternate Final Cover systems specified in III(7)(c)1-3 are approved. Other alternate Final Covers may be submitted for review and approval by LDEQ and/or EPA, provided they meet the minimum criteria specified below.

 

44

Attachment D: Closure of Phosphogypsum Stacks/Stack Systems


Table of Contents

1. Top gradient Final Cover of Phosphogypsum Stacks shall be designed to prevent or minimize ponding and low spots, sustain vegetation, minimize erosion and infiltration, and at a minimum meet one of the performance standards specified in 1.a-c, below.

a. The Final Cover on the top gradient shall consist of a barrier soil layer at least 18 inches thick, emplaced in six (6)-inch thick lifts. A final, eighteen (18)-inch thick layer of soil that will sustain vegetation to control erosion shall be placed on top of the barrier layer. The barrier layer shall have a maximum permeability of 1 × 10-7 cm/sec. If less permeable soils are used, upon approval of LDEQ and/or EPA, the thickness of the barrier layer may be decreased to twelve (12) inches provided that infiltration is minimized to an equivalent degree.

b. A Geomembrane may be used as an alternative to the low-permeability soil barrier for a Final Cover (as referenced in (7)(c)1.a, above), constructed to preclude rainfall infiltration into the Phosphogypsum Stack. A Geomembrane used in Final Cover shall be a semi-crystalline thermoplastic at least forty (40) mils thick, or a non-crystalline thermoplastic at least thirty (30) mils thick, with a maximum water vapor transmission rate of 2.4 grams per square meter per day, have chemical and physical resistance to materials it may come in contact with, and withstand exposure to the natural environmental stresses and forces throughout the installation, seaming process, and settlement of the Phosphogypsum during the closure and long-term care period. A protective soil layer at least twenty-four (24) inches thick, which will sustain vegetation, shall be put on top of the Geomembrane prior to final closure. Material specifications, type of vegetation, installation methods, and compaction specifications shall be adequate to protect the barrier layer from damage during placement of the protective cover, root penetration, resist erosion, and remain stable on the final design slopes.

c. An alternate Final Cover for the top gradient, consisting of a barrier layer, a protective soil layer over the barrier layer and vegetative growth, shall be designed to meet the performance standards for Final Cover and provide, at a minimum, the equivalent degree of protection (e.g., minimize infiltration, erosion, etc.) as would be achieved if the Final Cover conformed with the criteria set forth in Section III(7)(c)1.a and b, above. The request for an alternate Final Cover for the top gradient must be submitted and approved by LDEQ and/or EPA.

2. Side slopes and all other grades, except those grades associated with the top gradient and with Cooling/Surge Ponds, Auxiliary Holding Ponds (AHP), lime treatment sludge ponds within the definition of the Phosphogypsum Stack System, Process Wastewater and Leachate channels (including cooling channels) and ditches, and Toe drainage swales, shall be designed to minimize erosion of the Final Cover material and infiltration. Such designs shall consider the erosion susceptibility of the material proposed for Final Cover relative to historical rainfall patterns for the area, the ability to establish and maintain vegetation and special maintenance procedures proposed to address and minimize infiltration and erosion. In addition, for the side slopes of the Phosphogypsum Stack, the following criteria shall be applicable:

a. The side slopes shall be no steeper than three (3)-feet horizontal run to one (1)-foot vertical rise (3H:1V).

 

45

Attachment D: Closure of Phosphogypsum Stacks/Stack Systems


Table of Contents

b. The Final Cover shall be a minimum of six (6) inches of clay to silty clay soil with a fines content (i.e., percent by dry weight finer than the U.S No. 200 Standard Sieve Size) no less than 30% that can achieve a permeability no greater than 1x10-7 cm/sec.

c. Agricultural lime or dolomitic limestone will be applied, if needed, over the surface of the side slopes and plowed into the upper six (6) to eight (8) inches of the phosphogypsum. The Final Cover, as specified in 2.b, above, will be installed over the amended phosphogypsum.

3. Cover for the side slope swales, if an aspect of the Phosphogypsum Stack closure design, shall be designed to minimize ponding and low spots, and minimize erosion and infiltration, and at a minimum consist of:

(i) A barrier layer which may be either a Geomembrane Liner or re-compacted soil.

(ii) An adequate protective soil layer over the barrier layer that can sustain vegetation.

(iii) Unless an alternative cover is submitted to and approved by LDEQ and/or EPA, the barrier layer and the protective soil layer for the side slope swales shall conform to the minimum criteria specified in Section III(7)(c)1.a&b, above, except that the minimum thickness of the Geomembrane if used in side slope swales shall be 60-mil (e.g. 60-mil HDPE). The alternative cover, if requested, shall be designed to meet the performance standards for Final Cover and provide, at a minimum, the equivalent degree of protection (e.g., minimize infiltration, erosion, etc.) as would be achieved if the Final Cover conformed to the criteria set forth in Section III(7)(c)1.a&b, above.

4. Final Cover for Cooling/Surge Ponds, cooling channels, AHPs, lime treatment sludge ponds within the definition of the Phosphogypsum Stack System, Toe drainage swales, and Process Wastewater and Leachate channels or ditches of the Phosphogypsum Stack System, once the Process Wastewater, Leachate and any sludges removed have been addressed pursuant to Section III(6)(c)1-2 of this Attachment, shall be designed to control, minimize or eliminate the post closure escape of Phosphogypsum, Process Wastewater, Leachate and contaminated runoff to ground and Surface Waters, and also minimize ponding (except in such circumstances where LDEQ approves use of these units for process water storage), minimize infiltration and erosion, and the need for further maintenance. Such a design, depending on the activities under Section III(6)(c)1-2 and the performance standards herein, may require providing a suitable barrier layer (e.g., Geomembrane, re-compacted soil) and an adequate protective soil layer that can sustain vegetation. In addition, the closure design shall at a minimum include material specifications (e.g., soil, fill material), vegetation type, installation methods (e.g., grading, excavation), and compaction specifications adequate to meet the performance standards.

5. The closure design plan shall describe provisions for cover material for long-term care erosion control, filling other depressions, maintaining Berms, vegetation and general maintenance of the Phosphogypsum Stack System, and shall specify the anticipated source and

 

46

Attachment D: Closure of Phosphogypsum Stacks/Stack Systems


Table of Contents

amount of material necessary for proper closure of the Phosphogypsum Stack System.

(d) The type of Leachate control system proposed. The Leachate control system shall be designed to prevent Leachate from causing violations of applicable water quality standards.

(e) Compliance with Groundwater protection requirements. The closure design plan shall demonstrate how the Phosphogypsum Stack System will meet applicable water quality standards of the State where the Facility is located. The Groundwater monitoring plan and sampling schedule may be adjusted for a Phosphogypsum Stack System where Groundwater contamination is not evident or corrective measures have been taken to correct contamination.

(f) The proposed method of stormwater control. This shall include control of stormwater occurring on the Phosphogypsum Stack System. Stormwater or other Surface Water that mixes with Leachate shall be considered to be Leachate and shall be treated to meet the permit or regulatory requirements of the State where the Facility is located, at the point of discharge. The stormwater control plan shall meet the requirements of the State where the Facility is located; however, nothing herein shall be construed to preclude application of the requirements of the appropriate water management district.

(g) The proposed method of access control. The closure design plan shall describe how access to the closed Phosphogypsum Stack System shall be restricted to prevent any future waste dumping or use of the Phosphogypsum Stack System by unauthorized persons. Restricted access shall remain in force until the Phosphogypsum Stack System is stabilized and there is no evidence that the property is being used as an unauthorized dump site.

(h) A description of any proposed final use of the Phosphogypsum Stack System.

(8) Closure construction quality assurance plan. A detailed construction quality assurance plan shall be developed for construction activities associated with the closure of the Phosphogypsum Stack System, including each component of the Final Cover system. The plan shall specify quality assurance test procedures and sampling frequencies. Records shall be kept to document construction quality and demonstrate compliance with plans and specifications. Upon completion of closure activities a final construction quality assurance report shall be submitted to LDEQ and/or EPA, prepared by an Engineer. The final report shall include at least the following information:

(a) Listing of personnel involved in closure construction and quality assurance activities;

(b) Scope of work;

(c) Outline of construction activities;

(d) Quality assurance methods and procedures;

(e) Test results (destructive and non-destructive, including laboratory results); and

 

47

Attachment D: Closure of Phosphogypsum Stacks/Stack Systems


Table of Contents

(f) Record drawings.

(9) Stack System Closure Operation Plan. This component of the Permanent Phosphogypsum Stack System Closure Plan shall:

(a) Describe the actions that will be taken to close the Phosphogypsum Stack System, such as placement of cover, grading, construction of Berms, ditches, roads, retention-detention ponds, installation or closure of wells and boreholes, installation of fencing or seeding of vegetation, protection of on-site utilities and easements;

(b) Provide a time schedule for completion of the closing and long-term care;

(c) Contain appropriate references to the closure design plan, area information report, Groundwater monitoring plan, and other supporting documents;

(d) Provide an Updated Cost Estimate in accordance with Section II Paragraph 4(c)(2) of Appendix 2 (Financial Assurance);

(e) Indicate any additional equipment and personnel needed to complete closure of the Phosphogypsum Stack System; and

(f) Describe any proposed use of the system for water storage or water management.

(10) Certification by an Engineer. Information, plans, and drawings presented in support of a closure plan shall be prepared under the direction of, and certified by, an Engineer. A letter of appointment shall be submitted by the proper company official confirming that the Engineer is authorized to prepare plans and specifications. The Engineer shall be required to make periodic inspections during the closing of the Phosphogypsum Stack System to insure closure is being accomplished according to the Permanent Phosphogypsum Stack System Closure Plan.

(11) Nothing in this Section is intended to preclude the construction of a lined Cooling Pond or AHP on top of an Inactive Phosphogypsum Stack, as long as the pond is constructed in accordance with the applicable provisions of Attachment C: Phosphogypsum Stack System Construction and Operational Requirements, and as long as the design is included in the closure plan. Within such a Cooling Pond, the requirements for minimizing ponding and establishing vegetation cover are not applicable.

IV. Temporary Deactivation of Phosphogypsum Stack System(s)

For purposes of this Section, Mosaic shall request a Temporary Deactivation must be sought when a Phosphogypsum Stack or Phosphogypsum Stack System is Inactive. Mosaic must submit its request for Temporary Deactivation approval within the 275 days from when Mosaic ceased depositing Phosphogypsum within the Phosphogypsum Stack for which the Temporary Deactivation is being sought.

(1) The owner/operator of a Phosphogypsum Stack System may request in writing, a

 

48

Attachment D: Closure of Phosphogypsum Stacks/Stack Systems


Table of Contents

determination by LDEQ in consultation with EPA, that the provisions of Section III: Permanent Closure Requirements for Phosphogypsum Stacks/ Stack Systems, of this Attachment need not apply in limited circumstances to a specific Phosphogypsum Stack System, and shall request approval of a Temporary Deactivation of the Phosphogypsum Stack System. This request must be submitted on a yearly basis. LDEQ in consultation with EPA may authorize a Temporary Deactivation approval for each individual Phosphogypsum Stack or Phosphogypsum Stack System in accordance with this subsection or deny the request for such an approval.

(2) Each request shall set forth at least the following information:

(a) The specific Phosphogypsum Stack System or Phosphogypsum Stack for which approval of a Temporary Deactivation is sought;

(b) A demonstration that current economic or other conditions justify a Temporary Deactivation of the Phosphogypsum Stack or Phosphogypsum Stack System;

(c) An estimate of the duration of the Temporary Deactivation of the Phosphogypsum Stack System, and a demonstration that the Phosphogypsum Stack System is reasonably expected to become Active within this estimated time period; and

(d) The most recent Interim Stack System Management Plan (ISSMP) prepared in accordance with Attachment C: Phosphogypsum Stack System Construction and Operational Requirements, Section I(6) of this Appendix.

(3) If LDEQ determines that other information is necessary to ascertain if a Temporary Deactivation is warranted, the applicant must submit the additional information upon request. The applicant also shall provide any additional such information requested by EPA.

(4) Upon approval of the Temporary Deactivation by LDEQ and/or the EPA, the owner/operator must implement the procedures set forth in the approved ISSMP immediately upon Phosphogypsum Stack System deactivation.

(5) If after review of the information submitted pursuant to (2) and (3) of this Section, LDEQ in consultation with EPA determines that Temporary Deactivation has not been justified by the owner/operator, the owner/operator may continue to operate the Phosphogypsum Stack or Phosphogypsum Stack System or permanently close the Phosphogypsum Stack or Phosphogypsum Stack System in accordance with the provisions of Section III: Permanent Closure Requirements for Phosphogypsum Stacks/ Stack Systems, of this Attachment.

(6) If at any time during the approved Temporary Deactivation period, LDEQ requires information to ascertain if the criteria under (2)(a)-(c) of this Section are being meet, the owner or operator will provide such information within thirty (30) days of the request by LDEQ. The applicant also shall provide any additional such information requested by EPA.

(7) If after review of the information submitted pursuant to (6) of this Section, LDEQ in consultation with EPA determines that the owner or operator has not demonstrated that it still

 

49

Attachment D: Closure of Phosphogypsum Stacks/Stack Systems


Table of Contents

satisfies the criteria specified in (2)(a)-(c), the LDEQ will so notify the owner and/or operator of its determination and the provisions of Section III: Permanent Closure Requirements for Phosphogypsum Stacks/ Stack Systems, of this Attachment will apply.

Nothing in this Paragraph shall limit or affect EPA’s residual authorities to disapprove of a Temporary Deactivation, notwithstanding approval by LDEQ. EPA shall provide notice to Mosaic within 90 days of LDEQ approval if EPA does not concur with that decision

V. Closure Procedures for Phosphogypsum Stacks/ Stack Systems

(1) Closing inspections. LDEQ and/or the EPA may specify in the closure permit for the Permanent Phosphogypsum Stack System Closure Plan which particular closing steps or operations must be inspected and approved by LDEQ and/or the EPA before proceeding with subsequent closure actions.

(2) Final survey and record drawings. A final survey shall be performed, after permanent closure is complete, by an Engineer or a registered third-party land surveyor to verify that final contours and elevations of the Phosphogypsum Stack System are in accordance with the plan as approved by LDEQ and/or the EPA. Aerial mapping techniques that provide equivalent survey accuracy may be substituted for the survey.

(a) The survey or aerial mapping information shall be included in a report along with information reflecting the record drawings of the Phosphogypsum Stack System. Contours should be shown at no greater than five (5)-foot intervals.

(b) The owner/operator shall submit this report to LDEQ and/or the EPA in accordance with the closing schedule.

(3) Certification of closure construction completion. A certification of closure construction completion, signed, dated and sealed by a Third-Party Engineer, shall be provided to LDEQ and/or the EPA upon completion of closure.

(4) Official date of closing. Upon receipt of the documents required in (2) and (3) of this Section, LDEQ and/or the EPA shall acknowledge by letter to the owner/operator that notice of termination of operations and closing of the Phosphogypsum Stack System has been received. The date of this letter shall be the official date of closing for purposes of determining the beginning of the long-term care period.

(5) Use of closed Phosphogypsum Stack Systems. Closed Phosphogypsum Stack Systems, if disturbed, are a potential hazard to public health, Groundwater and the environment. Consultation with and approval by LDEQ and/or the EPA is required before conducting activities that may disturb the closed Phosphogypsum Stack Systems, except for routine maintenance activities.

VI. Long-Term Care for Phosphogypsum Stacks/ Stack Systems

 

50

Attachment D: Closure of Phosphogypsum Stacks/Stack Systems


Table of Contents

(1) Long-term care period. The owner/operator of any Phosphogypsum Stack System shall be responsible for monitoring and maintenance of the Facility, including the requirements of Section III: Permanent Closure Requirements for Phosphogypsum Stacks/ Stack Systems (6)(a) of this Attachment, in accordance with an approved Permanent Phosphogypsum Stack System Closure Plan for fifty (50) years from the date of closing unless a reduced long-term care period is approved by LDEQ and/or the EPA in accordance with VI(2), below. Before the expiration of the long-term care monitoring and maintenance period LDEQ and/or the EPA may extend the time period if it is determined that:

(a) The closure design or closure Operation Plan under the Permanent Phosphogypsum Stack System Closure Plan was ineffective in meeting the standards of this Attachment, or

(b) The extension of the long-term care period is necessary to protect human health and the environment.

(2) Reduced long-term care period. The owner/operator of a Phosphogypsum Stack System may request, in writing, for a reduced long-term care schedule. LDEQ and/or the EPA may approve, within its discretion, the request if the information provided by the owner and/or operator substantiates its claim that the reduced period is sufficient to protect human health and the environment. The request must, at a minimum, demonstrate that the Phosphogypsum Stack System addresses the criteria of (2)(a)-(d), below, and provide any other information relevant to establishing that the reduced period is sufficient to protect human health and the environment:

(a) The Phosphogypsum Stack System has been constructed and operated in accordance with approved standards, and has a Leachate control system and a liner that has controlled, minimized or eliminated releases; and

(b) The Phosphogypsum Stack System has been closed with appropriate Final Cover, that the vegetative cover (or alternative approved in accordance with Section III: Permanent Closure Requirements for Phosphogypsum Stacks/ Stack Systems, (7)(c)2c of this Attachment) has been established, and a Groundwater monitoring system has been installed and is operating as intended; and

(c) The Phosphogypsum Stack System has had no detrimental erosion of the cover system.

(3) Replacement of monitoring devices. If a monitoring well or other device required by the monitoring plan is destroyed or fails to operate for any reason, the Phosphogypsum Stack System owner/operator shall, as soon as possible but no later than seven (7) days after discovery, notify LDEQ and/or the EPA in writing. All inoperative monitoring devices shall be replaced with functioning devices within sixty (60) days of the discovery of the malfunctioning unit unless the owner/operator is notified otherwise in writing by LDEQ and/or the EPA.

(4) Certification of Long-Term Care Completion. A certification of long-term care completion signed, dated and sealed by a Third-Party Engineer, shall be provided by the owner/operator to

 

51

Attachment D: Closure of Phosphogypsum Stacks/Stack Systems


Table of Contents

LDEQ and/or the EPA upon completion of long-term care.

VII. Closure of Unlined Systems in Phosphogypsum Stacks/ Stack Systems

Other than as allowed in Appendix 7 (Phosphogypsum Stack System Alternative Liner Requirements) and Appendix 6 (RCRA Project Narrative and Compliance Schedule Louisiana Facilities), no Phosphogypsum or Process Wastewater shall be placed in an unlined Phosphogypsum Stack System after five (5) years of the Effective Date of the Consent Decree; however, such systems may be used for water storage and water management purposes to facilitate closure. Except for unlined components of the Phosphogypsum Stack System that may continue to be used for water storage and water management purposes to facilitate closure, the closure or lining of unlined systems shall be completed as expeditiously as practicable, but not to exceed five (5) years of the effective date of the Consent Decree. For purposes of this subsection, “unlined” means that the Phosphogypsum Stack System was constructed without an installed Liner meeting those standards outlined in Attachment C: Phosphogypsum Stack System Construction and Operational Requirements, Section VI of this Appendix, or as provided pursuant to Appendix 7 (Phosphogypsum Stack System Alternative Liner Requirements) or Appendix 6 (RCRA Project Narrative and Compliance Schedule Louisiana Facilities).

 

52

Attachment D: Closure of Phosphogypsum Stacks/Stack Systems


Table of Contents

ATTACHMENT E: CRITICAL CONDITIONS AND TEMPORARY MEASURES

I.  Requirements for Perimeter Dikes

(1) If a critical condition is confirmed, LDEQ and the EPA shall be notified immediately and the defective area of any Perimeter Dike shall be inspected daily in accordance with Section VII of Attachment C: Phosphogypsum Stack System Construction and Operational Requirements, until corrective maintenance has cured such defect. A written report of the condition and the actions proposed for its correction shall be made to LDEQ and the EPA within seven (7) days from the time existence of the critical condition is confirmed.

(2) Any of the following items shall be considered as indicating a critical condition that requires immediate investigation and may require emergency maintenance action:

(a) Concentrated seepage on the downstream slope, at the Toe of slope, or downstream from the Toe of slope (e.g., boils, soil cones, springs or deltas).

(b) Evidence of slope instability including sloughing, bulging or heaving of the downstream slope, or subsidence of any Perimeter Dike slope or crest.

(c) Cracking of surface on crest or either face of the Perimeter Dike slope.

(d) General or concentrated seepage in the vicinity of or around any conduit through the Dike.

(e) Observed or suspected damage to the Liner system.

II.   Temporary Measures for Use of Design Freeboard to Prevent Release

(1) Temporary use of the Design Freeboard.

(a) Temporary use of the design Freeboard of a Perimeter Dike or a Gypsum Dike is authorized when the water level is at the design Freeboard and when such use is necessary to prevent the release of untreated Process Wastewater. Such use of the Freeboard shall only be allowed when a Third-Party Engineer has approved such use and when documentation demonstrating the continued safety and stability of the Dike is submitted to LDEQ and/or the EPA. Such documentation shall include a listing of any operational limitations or constraints recommended by the Third-Party Engineer as set forth in this Section together with confirmation that the owner/operator will comply with such recommendations. The Third-Party Engineer shall base his or her recommendations on:

1. An inspection of the Phosphogypsum Stack System;

2. Dike design and construction information;

 

53

Attachment E: Critical Conditions and Temporary Measures


Table of Contents

3. Results of seepage and stability analyses (including monitoring of seepage pressures within the Dike if such monitoring is deemed necessary); and

4. Wind surge and wave run-up analyses.

(b) The report by the Third-Party Engineer shall specify conditions under which such use may be undertaken so as not to jeopardize the integrity of the Dike, such as:

1. Acceptable wind speeds in forecast;

2. Increased inspection frequencies; and

3. Weekly monitoring of piezometric levels within the mass of the Dike, if and as needed.

(c) The Third-Party Engineer shall reevaluate the Phosphogypsum Stack System each time use of the design Freeboard is proposed by the owner/operator. LDEQ and/or the EPA shall be informed of the proposed use and the Engineer’s recommendations prior to or within 24 hours of each such occurrence.

(2) If the Perimeter Dike of the Phosphogypsum Stack System is an above-grade Dike, the system may incorporate an emergency spillway to allow for the controlled release of Process Wastewater during emergencies and to avoid overtopping of the Perimeter Dike. The spillway shall be located so as to minimize the environmental impact of any release to the extent practicable. This provision shall not be deemed to authorize a discharge from the spillway and shall not be construed to limit LDEQ and/or the EPA’s exercise of enforcement discretion in the event that such discharge causes or contributes to a violation of applicable federal and/or state regulations.

III.  Requirements for Actively Operated Phosphogypsum Stack Systems

(1) When a critical condition is suspected during any inspection, the inspector shall ensure that a competent technical representative of the Phosphogypsum Stack System owner/operator is made aware of the condition immediately. If the existence of the critical condition is confirmed, LDEQ and/or the EPA shall be notified immediately. A written report of the condition and the actions proposed for its correction shall be made to LDEQ and/or the EPA within seven (7) days from the time existence of the critical condition is confirmed.

(2) Any of the following items shall be considered as indicating a critical condition that requires immediate investigation and may require emergency maintenance action:

(a) Concentrated seepage (e.g., springs or boils) on the face of a Phosphogypsum Stack slope, at the Toe of the slope, or beyond the Toe of slope with active signs of Piping at the point of seepage (e.g., a gypsum or soil cone or delta at the point of seepage).

(b) Evidence of slope instability including sloughing, bulging or heaving of the face of

 

54

Attachment E: Critical Conditions and Temporary Measures


Table of Contents

the Phosphogypsum Stack or the Toe of the slope.

(c) Lateral movement or subsidence of the slope or crest of the Phosphogypsum Stack.

(d) Formation of new non-shrinkage cracks or enlargement of wide cracks in the surface of the slope or crest of the Phosphogypsum Stack.

(e) Observed or suspected damage to the Liner system.

(f) Drains discharging turbid water.

(g) Concentrated seepage (i.e., springs or boils) in the vicinity of a decant pipe.

IV.  Emergency Diversion Impoundment

(1) An owner/operator may temporarily use an Emergency Diversion Impoundment (EDI) in accordance with the State-issued permit to receive and store discharges of water from the Phosphogypsum Stack System to avoid safety-related problems and/or to avoid or reduce the unpermitted discharge of water from the Phosphogypsum Stack System to Surface Waters of the State.

(2) The 110 Acre Reservoir at the Uncle Sam facility is an EDI. The owner/operator shall apply for approval of any additional EDIs through the LDEQ Solid Waste permitting authority.

(3) The owner/operator must transport water to/from the EDI through an emergency spillway or by pumping where necessary.

(4) Following any emergency discharge into an EDI, and within 60 days after such discharge is initiated, the owner/operator shall submit a detailed remedial plan to LDEQ and/or EPA. After submission of the plan, the owner/operator will initiate all steps necessary in accordance with the plan to remove the discharge from the EDI and remediate the area if necessary to return that impoundment to its prior use.

 

55

Attachment E: Critical Conditions and Temporary Measures


Table of Contents

ATTACHMENT F: DEFINITIONS FOR PURPOSE OF THE CONSENT DECREE

“25-year Rainfall Event” means a rainfall event which is characterized by a mean return period of twenty-five years, i.e., a rainfall event which has a 96% probability for not being exceeded during any given year.

“100-year Rainfall Event” means a rainfall event which is characterized by a mean return period of one hundred years, i.e., a rainfall event which has a 99% probability for not being exceeded during any given year.

“Active” means a Phosphogypsum Stack/system that currently receives Phosphogypsum and/or Process Wastewater.

“Aquifer” means a geologic formation, group of formations, or part of a formation capable of yielding a significant amount of Groundwater to wells, springs or Surface Water.

“Auxiliary Holding Pond (AHP)” means a lined storage pond, designated by the operator and approved by LDEQ and/or the EPA, typically used to hold untreated Process Wastewater. AHPs are intended to increase system storage above that otherwise provided by Cooling/Surge Ponds and are typically located within the footprint of a Phosphogypsum Stack System.

“Background Concentration” has the meaning stated in RECAP.

“Berm” means a shelf that breaks the continuity of the slope of an embankment in order to arrest the velocity of storm water flowing down the face and/or to enhance the stability of the embankment.

“Cooling/Surge Pond” means impounded areas within the Phosphogypsum Stack System, excluding settling compartments atop the Phosphogypsum Stack, that provide cooling capacity, surge capacity, or any combination thereof, for the phosphoric acid Process Wastewater recirculation system including Phosphogypsum Stack transport, runoff, and Leachate water from the Process Watershed.

“Compliance Concentration” has the meaning stated in RECAP. .

“Design Freeboard” means the vertical distance from the water surface, when water levels are at the Maximum Design Level, to the lowest elevation of the top of the surrounding Dike.

“Dike” means a barrier to the flow of Phosphogypsum and Process Wastewater which is constructed of naturally occurring soil (Earthen Dike) or of Phosphogypsum (Gypsum Dike) and which is a component of a Phosphogypsum Stack System.

“Disposal” means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any Solid Waste into or upon any land or water so that such Solid Waste or any constituent thereof may enter other lands or be emitted into the air or discharged into any waters, including Groundwaters, or otherwise enter the environment.

“Drain” means a material more pervious than the surrounding fill which allows seepage water to Drain freely while preventing Piping or internal erosion of the fill material.

“Earthen Dike” means a barrier to the flow of Phosphogypsum and Process Wastewater which is constructed of naturally occurring soil and which is a component of a Phosphogypsum stack system.

“Emergency Diversion Impoundment (EDI)” means an earthen storage area, typically located outside the footprint of a Phosphogypsum Stack System, designated in the Facility’s site-specific water management plan to be used on a temporary basis when necessary to avoid an unpermitted Surface Water discharge resulting from Dike overtopping or other imminent and substantial endangerment identified in Attachment E: Critical Conditions and Temporary Measures.

Engineer” means a person who holds a State-issued license as a Professional Engineer to

 

56

Attachment F: Definitions for the Purpose of the Consent Decree


Table of Contents

engage in the practice of engineering.

“Facility” means the definition of “Facility” in the Consent Decree.

“Final Cover” means the materials used to cover the top and sides of a Phosphogypsum Stack upon closure.

“Freeboard” means the height of the lowest point on the dam or Dike crest, excluding the emergency spillway, above the highest adjacent liquid surface within the impoundment Freeboard shall be determined by generally accepted good engineering practices and shall include, at a minimum, evaluation of Wind Surge, Wave Height, and Wave Run-Up analyses, erosion protection measures, and protection of Dike integrity and inner rim-ditch geometry.

“Geomembrane” means a low-permeability synthetic membrane used as an integral part of a system designed to limit the movement of liquid or gas in the system.

“Groundwater” means water beneath the surface of the ground within a zone of saturation, whether or not flowing through known and definite channels.

“Groundwater Table” means the upper surface of a zone of saturation, where the body of Groundwater is not confined by an overlying impermeable zone.

“Gypsum Dike” means the outermost Dike constructed within the perimeter formed by a Starter Dike for the purpose of raising a Phosphogypsum Stack and impounding Phosphogypsum and/or Process Wastewater. This term specifically excludes any Dike inboard of a rim ditch, any partitions separating Phosphogypsum Stack compartments, or any temporary windrows placed on the Gypsum Dike. A Dike constructed out of Phosphogypsum that constitutes a Perimeter Dike shall be treated as a Perimeter Dike.

“Inactive” means a Phosphogypsum Stack System (i) for which a Temporary Deactivation has not been requested and approved, (ii) that is no longer receiving Phosphogypsum and/or Process Wastewater Process Wastewater, and (iii) in which the owner/operator does not deposit any significant quantity of Phosphogypsum within one year.

“Initial Phosphogypsum Stack System Closure Plan” means the conceptual closure plan that includes some basic elements needed to estimate closure costs and is consistent with the requirements of Appendix 1 (Operating and Closure Requirements for the Phosphoric Acid Production Industry), Attachment D, Section I.

“Inside Slope” means the face of the dam or Dike which will be in contact with the impounded liquids (upstream).

“Lateral Expansion” means the expansion, horizontally, of Phosphogypsum or Process Wastewater storage capacity beyond the permitted capacity (where applicable) and design dimensions of the Phosphogypsum Stack, or Cooling/Surge Ponds, and perimeter drainage conveyances at an existing Facility. Any Phosphogypsum Stack, Cooling/Surge Pond, or perimeter drainage conveyance which is constructed within 2000 feet of an existing Phosphogypsum Stack System, measured from the edge of the expansion nearest to the edge of the footprint of the existing Phosphogypsum Stack System, is considered a Lateral Expansion.

“Leachate” means a liquid or drainable pore water that has passed through or emerged from Phosphogypsum.

“Liner” means a continuous layer of low permeability natural or synthetic materials which controls the downward and lateral escape of waste constituents or Leachate from a Phosphogypsum Stack System.

“Log” means a written record maintained by the owner/operator of a Dike or a Phosphogypsum Stack System that contains a schedule of inspections of system components, the findings of such inspections, and any remedial measures taken in response to such findings.

 

57

Attachment F: Definitions for the Purpose of the Consent Decree


Table of Contents

“Maximum Design Level” means the maximum Process Wastewater elevation when the water level is at the operating design Freeboard for an impoundment as determined using generally accepted good engineering practices, or the minimum Freeboard allowed, for Perimeter Dikes. Generally accepted good engineering practices for determining the permitted operating design Freeboard includes, at a minimum, evaluation of Wind Surge, Wave Height, and Wave Run-Up analyses, erosion protection measures, and protection of Dike integrity and inner rim-ditch geometry.

“New Perimeter Dike” means a Perimeter Dike that is completed after the Effective Date of the Consent Decree.

“Operation Plan” means the Operation Plan required by this Consent Decree.

“Outside Slope” means the face of the dam or Dike which will not be in contact with the impounded liquids (downstream).

“Permanent Deactivation” means the Phosphogypsum Stack System (or component thereof) has ceased receiving and will no longer receive Phosphogypsum and/or Process Wastewater generated from phosphoric acid production operations.

“Perimeter Dike” means the outermost Earthen Dike surrounding a Phosphogypsum Stack System that has not been closed or any other Earthen Dike, the failure of which could cause a release of Process Wastewater outside the Phosphogypsum Stack System. In the case of a vertical expansion, the HDPE lined outermost Dike shall also be considered a Perimeter Dike, even if it is a constructed with Phosphogypsum, if its failure could cause a release of Process Wastewater outside the Phosphogypsum Stack System.

“Permanent Phosphogypsum Stack System Closure Plan” means the plan for Stack System Closure submitted at or prior to closure and prepared in accordance with the requirements of Appendix 1 (Operating and Closure Requirements for the Phosphoric Acid Production Industry), Attachment D, Section III.

“Phosphogypsum” means calcium sulfate and byproducts produced by the reaction of sulfuric acid with phosphate rock to produce phosphoric acid. Phosphogypsum is a Solid Waste within the definition of Section 1004(27) of RCRA, 42 U.S.C. § 6903(27).

“Phosphogypsum Stack” means any defined geographic area associated with a phosphoric acid production plant in which Phosphogypsum is disposed of or stored, other than within a fully enclosed building, container or tank.

“Phosphogypsum Stack System” means the defined geographic area associated with the phosphoric acid production plant in which Phosphogypsum and Process Wastewater is disposed of or stored, together with all pumps, piping, ditches, drainage conveyances, water control structures, collection pools, Cooling/Surge Ponds (including former Cooling/Surge ponds that have been converted to lime treatment sludge ponds), Auxiliary Holding Ponds, Regional Holding Ponds, and any other collection or conveyance system associated with the Transport of Phosphogypsum from the phosphoric acid plant to the Phosphogypsum Stack, its management at the Phosphogypsum Stack, and the Process Wastewater return to the phosphoric acid production. This definition specifically includes Toe Drain systems and ditches and other Leachate collection systems, but does not include conveyances within the confines of the phosphoric acid or fertilizer production plant(s) or Emergency Diversion Impoundments used in emergency circumstances caused by rainfall events of high volume or duration for the temporary storage of Process Wastewater to avoid discharges to Surface Waters of the state.

“Piping” means progressive erosion of soil or solid material within the dam or Dike, starting downstream and working upstream, creating a tunnel into the dam or Dike. Piping occurs when

 

58

Attachment F: Definitions for the Purpose of the Consent Decree


Table of Contents

the velocity of the flow of seepage water is sufficient for the water to Transport material from the embankment.

“Point of Compliance” has the meaning stated in RECAP.

“Point of Exposure” has the meaning stated in RECAP.

“Pollution” means the presence in the outdoor atmosphere or waters of the state of any substances, contaminants, or man-made or man-induced alteration of the chemical, physical, biological or radiological integrity of air or water in quantities or levels which are or may be potentially harmful or injurious to human health or welfare, animal or plant life, or property, including outdoor recreation.

“Process Wastewater” means “Process Wastewater from Phosphoric Acid Production.”

“Process Wastewater from Phosphoric Acid Production.” The following wastestreams constitute Process Wastewater from phosphorus acid production: water from phosphoric acid production operations through concentration to the First Saleable Product1; process wastewater generated from Upstream Operations2 that is used to Transport Phosphogypsum to the Phosphogypsum Stack; Phosphogypsum Stack runoff; process wastewater generated from the uranium recovery step of phosphoric acid production; process wastewater from non-ammoniated animal feed production (including defluorination, but excluding animal feed production) operations that qualify as mineral processing operations based on the definition of mineral processing that the Agency finalized on September 1, 1989, and process wastewater from superphosphate production that involves the direct reaction of phosphate rock with dilute phosphoric acid with a concentration less than Merchant Grade Acid [see 55 Fed. Reg. 2328, January 23, 1990].

“Process Watershed” means the aggregate of all areas that contribute to or generate additional Process Wastewater from direct precipitation, rainfall runoff, or Leachate to a Phosphogypsum Stack, Process Wastewater Cooling/Surge Ponds, or any other storage, collection, or conveyance system associated with the Transport of Phosphogypsum or Process Wastewater for a particular Phosphogypsum Stack System.

“Qualified Company Employee” means an employee trained specifically in the area of their job duties.

“RECAP” means LDEQ’s Risk Evaluation/Corrective Action Program (Oct. 20, 2003 and updates thereof) adopted and incorporated by reference in LAC 33:I.1307.

“Regional Holding Pond” means a Lined storage pond approved by the state agency before use that is typically constructed for the purpose of temporarily storing Process Wastewater from more than one Facility.

“Run-Off” means any rainwater, Leachate, or other liquid that drains over land from any part of a Facility.

“Run-On” means any rainwater, Leachate, or other liquid that drains over land onto any part of a Facility.

“Soil Liner” means a Liner constructed from naturally occurring earthen material. This definition expressly excludes any Liner constructed of synthetic material or Phosphogypsum.

“Solid Waste” means any garbage, or refuse, sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control Facility and other discarded material, including

 

 

1 First Saleable Product is defined in the Consent Decree, Section III, Paragraph l.

2 Upstream Operations is defined in the Consent Decree, Section III, Paragraph hh.

 

59

Attachment F: Definitions for the Purpose of the Consent Decree


Table of Contents

solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations.

“Stack System Closing” means the time at which a Phosphogypsum Stack System ceases to accept wastes, and includes those actions taken by the owner/operator of the Facility to prepare the system for any necessary monitoring and maintenance after closing.

“Stack System Closure” means the cessation of operation of a Phosphogypsum Stack System and the act of securing such a system, including the installation of a Liner, so that it will pose no significant threat to human health or the environment. This includes Phosphogypsum Stack System Closing, long-term care (i.e., monitoring and maintenance) and water management activities associated with Phosphogypsum Stack System Closing and long-term care activities.

“Starter Dike” means the initial Dike constructed at the base of a Phosphogypsum Stack to begin the process of storing Phosphogypsum.

“Statistically Significant” means that a result is not likely to be due to chance alone. For purposes of this Attachment, a significance level of 0.05 or 0.01 should be used in determining statistical significance.

“Storage” means the containment of wastes, either on a temporary basis or for a period of years, in such a manner as not to constitute Disposal of such wastes.

“Surface Water” has the meaning stated in RECAP.

“Temporary Deactivation” means a Phosphogypsum Stack System that will cease or has ceased to accept deposits of Phosphogypsum and/or Process Wastewater on a temporary basis and for which a demonstration has been made in writing to, and approved by, the LDEQ in consultation with EPA, that the Phosphogypsum Stack System is reasonably expected to become Active within an estimated time period.

“Third-Party Engineer” means an Engineer who is not an employee of any entity that owns or operates a phosphate mine or Facility.

“Toe” means the Toe of the dam or Dike is the junction between the face of the dam or Dike and the adjacent terrain.

Toe Drain” is a wedge-shaped Drain supporting the downstream Toe of the dam.

“Transport” means the movement of wastes from the point of generation to any intermediate points, and finally to the point of ultimate Storage or Disposal.

“Waters” include, but are not limited to, rivers, lakes, streams, springs, impoundments, and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface or underground waters. Waters owned entirely by one person other than the state are included only in regard to possible discharge on other property or water. Underground waters include, but are not limited to, all underground waters passing through pores of rock or soils or flowing through in channels, whether manmade or natural.

“Wave Height” means the average height of the waves that may be determined for design purposes as a function of sustained wind speed, effective fetch length, and wind duration. Sustained wind speed shall be determined based on either an estimated 100-year return frequency wind speed adjusted to a sustained wind speed for a 10-minute duration, or a 110 miles per hour (mph) fastest-mile wind speed for locations within 25 miles of the seacoast and a 95 mph fastest-mile wind speed at other inland locations where the fastest-mile wind speeds are adjusted to a sustained wind speed for a 10-minute duration.

“Wave Run-up” means the difference in vertical height between the maximum elevation attained by wave run up or uprush on a slope and the still water elevation at the inboard Toe of the slope.

“Wetlands” means those areas that are defined in 40 C.F.R. § 232.2. Wetlands include, but are

 

60

Attachment F: Definitions for the Purpose of the Consent Decree


Table of Contents

not limited to, swamps, marshes, bogs, and similar areas.

“Wind Surge” means the vertical rise in base water-surface elevation, exclusive of the Wave Height, above the still water elevation, caused by wind-induced stresses and mounding of the water surface in the leeward direction.

 

61

Attachment F: Definitions for the Purpose of the Consent Decree


Table of Contents

APPENDIX 1- OPERATING AND CLOSURE REQUIREMENTS FOR THE PHOSPHORIC ACID PRODUCTION INDUSTRY AT MOSAIC UNCLE SAM AND MOSAIC FAUSTINA

Attachment G: Phosphogypsum Stack System Permanent Closure Application

PART I – INSTRUCTIONS

Phosphogypsum Stack Systems must be closed pursuant to the Consent Decree entered in the United States of America v.                     (Court Name, Civil Action Number:            ), Appendix 1, Attachment D and in accordance with conditions set forth in the Consent Decree. The applicant shall complete and submit this form, certified by the applicant and its Engineer, along with its application for closure of a Phosphogypsum Stack System. This form should be typed or printed. If additional space is needed, separate, properly identified sheets of paper may be attached. All blanks shall be filled or modified N/A (not applicable).

In addition to the information listed on this form, the applicant shall submit all information necessary to evaluate the proposed closure plan to ensure the Phosphogypsum Stack System will pose no significant threat to public health or the environment. A minimum of four copies of this application (preferably in a large binder) shall be submitted to the appropriate LDEQ and Regional Office of the U.S. EPA. Please complete applicable sections of the application for the type of Facility involved.

PART II - GENERAL INFORMATION

 

(1) Application for permanent closure:   ¨ Phosphogypsum Stack;    ¨ Cooling/Surge Ponds;    ¨ other                                                 

(2) Facility name:                                                                                                                                                                                             

(3) Facility RCRA EPA ID No.:

                                                                                                                                                                             

(4) Facility location (main entrance):                                                                                                                                                              

(5) Location coordinates: Latitude                        °                                         ”  Longitude                      °                                             

Section                Township                  Range                 UTMs:    Zone                                      km E                  km N                    

(6) Applicant Name (Operating Authority):                                                                                                                                                    

Street Address & P. O. Box:                                                                                                                                                                             

City:                                                                       County:                                                           Zip:                                                              
Contact Person: Name                                                                                  Phone:                                                                                             
Email:                                                                                           
(7) Authorized Agent/Consultant Name:                                                                                                                                                        
Contact Person Name:                                                                                Phone:                                                                                         
Email:                                                                                           

 

62

Attachment G: Phosphogypsum Stack System Permanent Closure Application


Table of Contents

Street Address & P. O. Box:                                                                                                                                                                             

City:                                                                       County:                                                           Zip:                                                              

Land Owner (if different from applicant):                                                                                                                                                     

Address of Landowner: Street & P. O. Box:                                                                                                                                                   

City:                                                                       County:                                                           Zip:                                                              

PART III - CLOSURE GENERAL REQUIREMENTS

APPLICATIONS AND SUPPORTING INFORMATION SHALL INCLUDE THE FOLLOWING:

 

     Completeness
Check
   Binder Location  
(1) Four copies of the completed application form, all supporting data and reports    ¨                                         
(2) A letter of transmittal to the LDEQ and the EPA    ¨                                         
(3) A table of contents listing the main section of the application    ¨                                         

(4) The application fee where applicable, in check or money order payable to the LDEQ

   ¨                                         
(5) Engineer certification    ¨                                         
(6) Engineer’s letter of appointment if applicable    ¨                                         
(7) Closure plan, Consent Decree Appendix 1, Attachment D    ¨                                         

(8) Copy of any lease agreement, transfer of property agreement with right of entry for long-term care, or any other agreement between operator and property owner by which the closing and long-term care of the Facility may be affected

   ¨                                         

PART IV - CLOSURE PLAN REQUIREMENTS

The following information items must be included in the application or an explanation given if they are not applicable. These are general references. Please see Appendix 1 for the complete requirements of each section.

 

     Completeness
Check
   Binder Location  
(1) General Information Report [Consent Decree Appendix 1,
Attachment D, III, (2)]
   ¨                                         

(a) Identification of the Phosphogypsum Stack System

   ¨                                         

(b) Name, address, and phone number of primary contact person

   ¨                                         

 

63

Attachment G: Phosphogypsum Stack System Permanent Closure Application


Table of Contents
     Completeness
Check
   Binder Location  

(c) Name of person(s) or consultants preparing closure plan

   ¨                                         

(d) Present property owner(s) and operator

   ¨                                         

(e) Locations of main entrance or operators office of the Phosphogypsum Stack System by: township, range, section and latitude and longitude

   ¨                                         

(f) Total acreage of Phosphogypsum Stack System and total acreage of Facility property

   ¨                                         

(g) Legal description of property on which the Phosphogypsum Stack system is located

   ¨                                         

(h) History of Phosphogypsum Stack System construction and operations

   ¨                                         
(2) Area Information Report [Consent Decree Appendix 1,
Attachment D, III, (3)]
   ¨                                         

(a) Topography

   ¨                                         

(b) Hydrology

   ¨                                         

(c) Geology

   ¨                                         

(d) Hydrogeology

   ¨                                         

(e) Ground and Surface Water quality

   ¨                                         

(f) Land use information

   ¨                                         
(3) Ground water monitoring plan containing site specific information
[Consent Decree Appendix 1, Attachment D, III, (4)]
   ¨                                         
(4) Assessment of the effectiveness of existing Phosphogypsum system design and operation [Consent Decree Appendix 1, Attachment D, III, (5)]    ¨                                         

(a) Effectiveness and results of ground water investigation

   ¨                                         

(b) Effects of Surface Water runoff, drainage pattern and existing storm water control

   ¨                                         
     Completeness
Check
   Binder Location  
(5) Performance Standards [Consent Decree Appendix 1, Attachment D, III, (6)]    ¨                                         

(a) Approach used for:

     

 

64

Attachment G: Phosphogypsum Stack System Permanent Closure Application


Table of Contents

1. Controlling, minimizing or eliminating the post closure escape of Phosphogypsum, Process Wastewater, Leachate, and contaminated runoff to ground and Surface Waters

   ¨                                         

2. Minimizing Leachate generation

   ¨                                         

3. Detecting, collecting, and removing Leachate and Process Wastewater efficiently from the Phosphogypsum Stack System and promoting drainage of Process Wastewater from the Phosphogypsum Stack

   ¨                                         

4. Minimizing the need for further maintenance

   ¨                                         

(b) Discussion of approach used to ensure that the Final Cover system is designed to protect human health and the environment:

     

1. Promoting drainage off the Phosphogypsum Stack

   ¨                                         

2 Minimizing ponding

   ¨                                         

3. Minimizing erosion

   ¨                                         

4. Minimizing infiltration into the Phosphogypsum Stack

   ¨                                         

5. Functioning with little or no maintenance

   ¨                                         

(c) Closure of ponds and drainage conveyances storing Process Wastewater

   ¨                                         
(6) Closure design plan [Consent Decree Appendix 1, Attachment D, III, (7)]    ¨                                         

(a) Phasing of site closing

   ¨                                         

(b) Existing topography and proposed final grades

   ¨                                         

(c) Final Cover installation plans

   ¨                                         

(d) Type of Leachate control system proposed

   ¨                                         

(e) Compliance with ground water protection requirements of the LDEQ

   ¨                                         

(f) Proposed method of stormwater control

   ¨                                         

(g) Proposed method of access control

   ¨                                         
     Completeness
Check
   Binder Location  

(h) Proposed final use of Phosphogypsum Stack System property

   ¨                                         
(7) Closure construction quality assurance plan [Consent Decree Appendix 1, Attachment D, III, (8)]    ¨                                         

 

65

Attachment G: Phosphogypsum Stack System Permanent Closure Application


Table of Contents

(a) Listing of personnel involved in closure construction and quality assurance activities

   ¨                                         

(b) Scope of work

   ¨                                         

(c) Outline of construction activities

   ¨                                         

(d) Quality assurance methods and procedures

   ¨                                         

(e) Test results

   ¨                                         

(f) Record drawings

   ¨                                         
(8) Closure Operation Plan [Consent Decree Appendix 1, Attachment D, III, (9)]    ¨                                         

(a) Describe actions which will be taken to close the Phosphogypsum Stack system

   ¨                                         

(b) Time schedule for completion of closure and long term care

   ¨                                         

(c) Equipment and personnel needs to complete closure

   ¨                                         

(d) Appropriate references to design closure plan

   ¨                                         

(e) Proposed use of the system for water storage or water management

   ¨                                         
(9) Engineer certification [Consent Decree Appendix 1, Attachment D, III, (10)]    ¨                                         

PART V - CERTIFICATION BY APPLICANT AND ENGINEER

(1) Applicant

The undersigned applicant or authorized representative* of                                                          is aware that statements made in this form and the attached information are an application for closure approval from the LDEQ and/or the EPA and certifies that the information in this application is true, correct and complete to the best of his knowledge and belief. Furthermore, the undersigned agrees to comply with the requirements of Attachment D of Appendix 1 (Closure Requirements for the Phosphoric Acid Production Industry) of the Consent Decree (Court Name, Civil Action No:.                     ).

*Attach letter of authorization if representative
is not the owner or a corporate officer.

 

                                                                                                
Signature of Applicant or Authorized Representative
                                                                                                
Name and Title
                                                                                                
Date Signed:

 

66

Attachment G: Phosphogypsum Stack System Permanent Closure Application


Table of Contents

(2) Professional Engineer, registered in                 or Public Officer as required in [State code].

This is to certify that the engineering features of this Facility’s Permanent Closure Plan have been designed/examined by me and found to conform to engineering principles applicable to such facilities. In my professional judgment, this Facility’s Permanent Closure Plan, when properly executed, will comply with the requirements of Attachment D of Appendix 1 of the Consent Decree (Civil Action No:.                 ). It is agreed that the undersigned will provide the applicant with a set of instructions of proper maintenance and closure of the Facility.

 

                                                                                                                                                                                                           
Signature       Mailing Address
                                                                                                                                                                                                           
Name and Title (Please type)       City, State, Zip Code
                                                                                                                                                                                                           
State Registration Number       Telephone Number (including area code)
     

(Please affix seal)

                                                                                                        
      Date Signed

 

67

Attachment G: Phosphogypsum Stack System Permanent Closure Application


Table of Contents

APPENDIX 2


Table of Contents

APPENDIX 2: FINANCIAL ASSURANCE

This Appendix sets forth the obligations of Defendant to secure and maintain Financial Assurance, as required under Paragraph 25 of the Consent Decree, including schedules and notice requirements. Submittals requiring EPA approval shall be submitted pursuant to Section V (Compliance), Paragraphs 27-31, and Section XV (Notices) of the Consent Decree. “EPA approval” or “determination” as used in this Appendix shall encompass the approval or determination by LDEQ and such approval or determination may be transmitted by either EPA or LDEQ. An EPA approval or determination shall be subject to dispute resolution pursuant to Section XI (Dispute Resolution) of the Consent Decree, including judicial review, unless this Appendix specifies otherwise. The standard of review regarding any EPA approval or determination under this Appendix (including requirements incorporated by reference) shall be governed by Paragraph 81.a of the Consent Decree. If, in situations where judicial review is not precluded by this Appendix, Mosaic seeks but does not prevail on judicial review of such EPA approval or determination, Mosaic shall pay all costs incurred by the United States and LDEQ in connection with such judicial review, including attorneys’ fees.

Any modification of a time period specified by this Appendix or its Attachments is a non-material modification for purposes of Section XVIII (Modification) of the Consent Decree and may be modified by written agreement of the Parties.

Under this Appendix, when required to provide an originally signed certification by the Chief Financial Officer (“CFO”), unless otherwise specified, another designated corporate officer may provide the signed certification if authority to sign has been assigned or delegated in accordance with corporate procedures and bylaws (“duly designated corporate officer”). Defendant shall use the form provided in Attachment A (“CFO Certification”) of this Appendix for this certification.

I. Definitions

Except as otherwise provided in this Appendix, definitions for the terms presented herein shall be incorporated from LAC 33:V.3703.1 Whenever the terms set forth below are used in this Appendix, the definitions set forth below shall apply. However, the Parties are not bound by these definitions in connection with any matter not relating to Financial Assurance under this Consent Decree.

“Affiliate” shall have the same meaning as set forth in the Statement of Financial Accounting Standards No. 57, Appendix B (Glossary) (Financial Accounting Standards Board - Original Pronouncements, as amended): “A party that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the enterprise.”

“Anniversary Date” shall mean the annual anniversary of the date that Financial Assurance is provided unless otherwise stated in this Appendix. The Anniversary Date for a Self-Assurance

 

1 Louisiana has promulgated financial assurance regulations which have been approved by the U.S. Environmental Protection Agency as part of the State-authorized hazardous waste program under the Resource Conservation and Recovery Act, 42 U.S.C. § 6926.

 

1

Mosaic Appendix 2


Table of Contents

Mechanism shall be ninety (90) Days after the end of the Defendant’s fiscal year. As specified in Paragraph 29.d, the Anniversary Date for Financial Assurance provided pursuant to Paragraph 10.a.(1)(c) shall be March 31.

“Assets” shall mean all existing and all probable future economic benefits obtained or controlled by a particular entity, as represented on the company’s Independently Audited balance sheet.

“Assets located within the United States” shall mean the sum of all Assets located in the United States.

“Certified Public Accountant” or “CPA” shall mean an accountant who has demonstrated the requisite certification requirements of the American Institute of Certified Public Accountants (“AICPA”) and met all statutory and licensing requirements of the State in which (s)he works.

“Closing Facility” shall mean Faustina, as referenced in Paragraph 8(n) of the Consent Decree.

“Closure Plan” shall mean the plan (including, as applicable, the Initial Closure Plan or Permanent Closure Plan) prepared for Phosphogypsum Stack System Closure, Long Term Care, and associated Water Management activities, in accordance with the requirements of Appendix 1, Attachment D of the Consent Decree.

“Control” shall have the same meaning as set forth in the Statement of Financial Accounting Standards No. 57, Appendix B (Glossary) (Financial Accounting Standards Board - Original Pronouncements, as amended): “The possession, direct or indirect, of the power to direct or cause the direction of management and policies of an enterprise through ownership, by contract, or otherwise.”

“Corrective Action” shall have the meaning set forth in the Consent Decree.

“Corrective Action Cost Estimate” shall mean the estimate of the costs at a Facility for Plan Work as set forth in Section IV (Corrective Action) of this Appendix.

“Cost Estimate” shall mean the estimate of the costs for Phosphogypsum Stack System Closure and Long Term Care at a Facility as set forth in Section II of this Appendix. With respect to Faustina, Phosphogypsum Stack System Closure for purposes of this definition of Cost Estimate shall encompass only the closure of: (i) the DAP Recycle Pond and (ii) Cell 38 associated with Pond 11.

“Current Assets” or “CA” shall mean cash or other assets or resources reasonably expected to be realized within one (1) year during the normal operating cycle of the business, as represented on the company’s Independently Audited balance sheet.

“Current Dollars” shall mean U.S. dollars in the year actually received or paid, unadjusted for price changes or inflation.

 

2

Mosaic Appendix 2


Table of Contents

“Current Liabilities” or “CL” shall mean obligations that are reasonably expected to be repaid within one (1) year using existing resources classified as Current Assets, as represented on the company’s Independently Audited balance sheet.

“Current Ratio” shall mean Current Assets divided by Current Liabilities (“CA/CL”).

“Debt-to-Equity Ratio” shall mean the total Liabilities divided by Net Worth (“TL/NW”).

“Defendant” shall mean Mosaic Fertilizer, LLC.

“Environmental Obligations” shall mean obligations both in programs that EPA directly operates, and in programs where EPA has delegated authority to the State or approved a State’s program, that are assured through the use of a financial test and/or guarantee. These obligations include, but are not limited to: liability, closure, post-closure and corrective action cost estimates for hazardous waste treatment, storage, and disposal facilities pursuant to 40 C.F.R. §§ 264.101, 264.142, 264.144, 264.147, 265.142, 265.144 and 265.147; cost estimates for municipal solid waste management facilities pursuant to 40 C.F.R. §§ 258.71, 258.72 and 258.73; cost estimates for industrial or commercial waste facilities; current plugging and abandonment cost estimates for underground injection control facilities pursuant to 40 C.F.R. § 144.62; cost estimates for petroleum underground storage tanks pursuant to 40 C.F.R. § 280.93; cost estimates for PCB facilities pursuant to 40 C.F.R. § 761.65; any financial assurance required under, or as part of an action under, the Comprehensive Environmental Response, Compensation, and Liability Act; and any other environmental obligation assured through a financial test and/or guarantee.

“Exchange” shall mean a place where securities are traded (e.g., New York Stock Exchange).

“Facility” or “Facilities” shall mean Faustina and Uncle Sam, as defined in Paragraph 8(n) of the Consent Decree.

“Financial Assurance” shall mean a written demonstration of financial capability or establishment of a Financial Mechanism (i.e., Third-Party Mechanism(s) or Self-Assurance Mechanism(s)), in compliance with the terms of this Appendix, to implement Phosphogypsum Stack System Closure and Long Term Care in an amount at least equal to the initial Cost Estimate or Updated Cost Estimate, and to provide for Third-Party Liability and Corrective Action as required under this Appendix.

“Financial Assurance Delta” shall mean the Total Cost Estimate less the sum of: (1) the most recent value of the Louisiana Phosphogypsum Trust Fund established in accordance with Appendix 2 of this Consent Decree as represented by the Trustee in its most recent valuation statement to the Grantor, (2) the most recent value of the Florida Phosphogypsum Trust Fund established in accordance with Appendix 2 of the Consent Decree, [insert Consent Decree name and designation], (the “Florida Consent Decree”) as represented by the Trustee in its most recent valuation statement to the Grantor, and (3) the aggregate value of any other Third-Party Mechanism secured to establish Financial Assurance in accordance with Appendix 2 of the two Consent Decrees.

 

3

Mosaic Appendix 2


Table of Contents

“Financial Mechanism” shall mean those mechanisms or instruments specified in this Appendix used to secure funding for an obligation under the Consent Decree.

“GAAP” shall mean U.S. Generally Accepted Accounting Principles.

“Guarantee” or “Corporate Guarantee” shall mean an agreement in which a second entity assumes responsibility for providing the resources to perform (e.g., alternate Financial Assurance) and/or the performance of an obligation if the entity primarily liable fails to perform as set forth in this Appendix 2. The entity providing the Guarantee is the Guarantor.

“Immediate Family” shall have the same meaning as set forth in the Statement of Financial Accounting Standards No. 57, Appendix B (Glossary) (Financial Accounting Standards Board - Original Pronouncements, as amended): “Family members whom a principal owner or a member of management might control or influence or by whom they might be controlled or influenced because of a family relationship.”

“Independent Attorney” shall mean an attorney hired by Defendant to provide the opinion required by Paragraph 10.f. of this Appendix. The Independent Attorney must be licensed and in good standing, have expertise in the areas of law for which the opinion is being rendered, free of control by Defendant (or Defendant’s Guarantor or Related Party), and able to exercise his or her judgment as to the required opinion. Defendant shall waive any claim of attorney-client privilege or work-product doctrine in connection with the Independent Attorney’s provision of the opinion required by Paragraph 10.f., and shall provide EPA with any requested support for the Independent Attorney’s opinion.

“Independent Audit” shall mean an independent assessment (audit) of the fairness by which a company’s financial statements are presented by its management in conformance with GAAP. The audit must be performed by an independent Certified Public Accountant and conform to U.S. Generally Accepted Auditing Standards (“GAAS”). An Independently Audited financial statement is a financial statement that has been subject to such an Independent Audit.

“Intangible Assets” or “IA” shall mean identifiable non-monetary assets lacking physical substance, as defined under GAAP and as accounted for in the company’s Independently Audited financial statements, including but not limited to patents, copyrights, franchises, goodwill, trademarks, and trade names.

“Investment Grade” shall mean a Long-Term Issuer Credit Rating of BBB, or long-term Corporate Family Rating of Baa2, or equivalent, or above assigned by Nationally Recognized Statistical Rating Organization (“NRSRO”).

“Liabilities” shall mean all probable future sacrifices of economic benefits arising from present obligations to transfer assets or provide services to other entities in the future as a result of past transactions or events, as represented on the company’s Independently Audited balance sheet.

“Liquidity Buffer” shall mean the sum of the cash balances and unutilized committed lines of credit of Defendant, its parent and affiliates.

 

4

Mosaic Appendix 2


Table of Contents

“Long Term Care” shall mean those activities required pursuant to Appendix 1, Attachment D, including associated Water Management activities, and shall be substituted for “post-closure” in LAC 33:V. Chapter 37.

“Louisiana Financial Assurance Delta” shall mean the Total Louisiana Cost Estimate less the sum of: (1) the most recent value of the Louisiana Phosphogypsum Trust Fund established in accordance with Appendix 2 of this Consent Decree and as represented by the Trustee in its most recent valuation statement to the Grantor and (2) the aggregate value of any other Third-Party Mechanism secured to establish Financial Assurance in accordance with this Appendix.

“Management” shall have the same meaning as set forth in the Statement of Financial Accounting Standards No. 57, Appendix B (Glossary) (Financial Accounting Standards Board - Original Pronouncements, as amended): “Persons who are responsible for achieving the objectives of the enterprise and who have the authority to establish policies and make decisions by whose objectives are to be pursued. Management normally includes members of the board of directors, the chief executive officer, chief operating officer, vice president in charge of the principal business functions (such as sales, administration, or finance), and other persons who perform similar policymaking functions. Persons without formal titles also may be members of management.”

“Net Present Value” or “NPV” shall mean the total present value of a time series of cash flows.

“Net Worth” shall mean total Assets minus total Liabilities and is equivalent to shareholder’s (or owner’s) equity, as represented on the company’s Independently Audited balance sheet.

“Non-U.S. Corporation” shall mean a legal entity, chartered by a State or government outside the continental United States, Alaska, Hawaii, or U.S. territories.

“Operating Cash Flow” shall mean the net cash provided by operating activities, as determined on a consolidated basis, as accounted for pursuant to GAAP, and as represented on a company’s Independently Audited consolidated statements of cash flows (also referred to as “cash flows provided by operations” or “cash flow from operating activities”).

“Operating Facility” shall mean Uncle Sam, as referenced in Paragraph 8(n) of the Consent Decree.

“Plan Work” shall mean the work required to implement any Risk Assessment Plan, Corrective Action Plan, or Interim Measures Plan pursuant to Paragraphs 17 through 19 of Attachment A of Appendix 1 or pursuant to an agreement entered into, or permit or Order issued, by LDEQ, or any corrective action assessment for the Zone of Discharge, pursuant to Section D of Attachment B of Appendix 1. Plan Work is part of the Work required under the Consent Decree.

“Principal Owners” shall have the same meaning as set forth in the Statement of Financial Accounting Standards No. 57, Appendix B (Glossary) (Financial Accounting Standards Board -

 

5

Mosaic Appendix 2


Table of Contents

Original Pronouncements, as amended): “Owners of record or known beneficial owners of more than 10 percent of the voting interest of the enterprise.”

“Phosphogypsum Stack System Closure” shall mean the closure of the Phosphogypsum Stack System and associated Water Management activities required pursuant to Appendix 1, Attachment D, and shall be substituted for “closure” in LAC 33:V. Chapter 37.

“Related Party” or “Related Parties” shall have the same meaning as set forth in the Statement of Financial Accounting Standards No. 57, Appendix B (Glossary) (Financial Accounting Standards Board - Original Pronouncements, as amended) as that standard may hereafter be modified, which standard currently provides: “Affiliates of the enterprise; entities for which investments in their equity securities would, absent the election of the fair value option under FASB Statement No. 159, The Fair Value Option for Financial Assets for Financial Assets and Financial Liabilities, be required to be accounted for by the equity method by the enterprise; trusts for the benefit of employees, such as pension and profit-sharing trusts that are managed by or under the trusteeship of management; principal owners of the enterprise; its management; members of the immediate families of principal owners of the enterprise and its management; and other parties with which the enterprise may deal if one party controls or can significantly influence the management or operating policies of the other to an extent that one of the transacting parties might be prevented from fully pursuing its own separate interests. Another party also is a related party if it can significantly influence the management or operating policies of the transacting parties or if it has an ownership interest in one of the transacting parties and can significantly influence the other to an extent that one or more of the transacting parties might be prevented from fully pursuing its own separate interests.”

“Representation and Certification” shall mean a document signed by the Guarantor’s CFO as required in Section VIII of this Appendix.

“Self-Assurance Mechanism” shall mean a corporate financial test or a corporate guarantee as set forth in this Appendix.

“Substantial Business Relationship” shall mean the extent of a business relationship necessary under applicable State law to make a guarantee contract issued incident to that relationship valid and enforceable. A “substantial business relationship” must arise from a pattern of recent or ongoing business transactions, in addition to the guarantee itself, such that a currently existing business relationship between the guarantor and the owner or operator is demonstrated to the satisfaction of EPA.

“Tangible Assets” shall mean total Assets minus Intangible Assets.

“Tangible Assets located within the United States” shall mean the sum of all Tangible Assets located in the United States.

“Tangible Net Worth” or “TNW” shall mean total Assets minus Intangible Assets and minus total Liabilities (“(TA-IA)-TL”).

 

6

Mosaic Appendix 2


Table of Contents

“Third Party” shall mean a party that is not a Related Party or a party with a Substantial Business Relationship to the Defendant.

“Third-Party Mechanism” shall mean a trust fund, surety bond, letter of credit, or insurance as set forth in this Appendix.

“Total Cost Estimate” shall mean the sum of the Total Louisiana Cost Estimate plus the Total Florida Cost Estimate, as the latter term is defined in Appendix 2 to the Florida Consent Decree.

“Total Louisiana Cost Estimate” shall mean the sum of the initial Cost Estimates, and thereafter, the sum of the Updated Cost Estimates, for all Phosphogypsum Stack System Closure and Long Term Care activities for all Operating and Closing Facilities, plus five percent (5%) of that cost.

“Trust Agreement” shall mean a signed document that establishes a trust fund. A trust fund is a mechanism in which legal title to property (e.g., cash, investment securities) is transferred from Mosaic Fertilizer, LLC (the “Grantor”) to another party (the “Trustee”) who will hold and administer the property for the benefit of EPA and LDEQ (the “Beneficiaries”).

“Updated Cost Estimate” shall mean a Cost Estimate updated pursuant to Paragraph 4 of this Appendix 2.

“Water Management” shall mean the water management and groundwater monitoring activities required by Appendix 1, Attachment D.

II. Cost Estimate

1.         Unless Defendant has provided the following submission to EPA prior to the Lodging of the Consent Decree and such submission has already been approved by EPA, within thirty-five (35) Days of the Lodging of this Consent Decree, Defendant shall submit to EPA for approval its initial Cost Estimate. In such case, and if the United States thereafter moves for entry of the Consent Decree, such motion shall be deemed approval of such initial Cost Estimate.

a.         The initial Cost Estimate, except as set out below in Paragraph 1.b for Financial Assurance being provided pursuant to Paragraph 10.a(1)(c), shall include a detailed written Cost Estimate for Phosphogypsum Stack System Closure and Long Term Care for each Facility, including but not limited to the cost of cover material, topsoil, seeding, fertilizing, mulching, labor, land surface care, and groundwater monitoring, collection and analysis and any other costs of compliance with Appendix 1, Attachment D. The Cost Estimate shall be calculated based on the point in time when the manner and extent of the operation of the Phosphogypsum Stack System would make the Phosphogypsum Stack System Closure and Long Term Care the most expensive. All Cost Estimates shall be based on what it would cost to hire a Third Party to complete Phosphogypsum Stack System Closure and Long Term Care in that year, except as provided in Paragraph 1.c., below. Defendant shall include as part of its initial Cost Estimate the information specified in Attachments B and C of this Appendix.

b.         If Defendant is providing Financial Assurance in accordance with Paragraph 10.a(1)(c), then the initial Cost Estimate shall consist of a written Cost Estimate in the form specified in Attachments B and C. The Cost Estimate shall be calculated based on the December

 

7

Mosaic Appendix 2


Table of Contents

2011 configuration of the Phosphogypsum Stack System(s) at the Operating Facility and Closing Facility (“Operating and Closing Facilities”) with the configuration of the Phosphogypsum Stack Systems for the Operating and Closing Facilities being updated every five (5) years thereafter (e.g., December 2016, December 2021). All Cost Estimates shall be based on what it would cost to hire a Third Party to complete Phosphogypsum Stack System Closure and Long Term Care in that year, except as provided in Paragraph 1.c., below.

c.         Subject to the conditions for access set forth below, Defendant may, if the conditions of this Paragraph 1.c. are met, provide a Cost Estimate that includes a cost for soil from a borrow area at the Facility, based on information provided by the Defendant describing the soil borrow areas to be used (e.g., location), in lieu of the cost to obtain soil from a Third Party. In that event, Defendant agrees that the United States and LDEQ, in addition to their right to Financial Assurance as set forth in the Consent Decree, shall have the same legal right of access to and use of such soil, and any equipment necessary to access and process such soil, as Defendant would have. Defendant shall confirm with its Updated Cost Estimate submittal required under Paragraph 4, below, that the United States and LDEQ continue to have a right to access and use the soil, that the soil available is sufficient for closure of the Phosphogypsum Stack System, and that Defendant knows of no reasons as to why the United States and LDEQ, or their representatives, could not have access to and use of the borrow area(s) and soil. If, for any reason, Defendant or EPA determines that such access cannot be had, or that the available soil in the borrow area is insufficient for closure of the Phosphogypsum Stack System, then Defendant in its next annual Updated Cost Estimate or ninety (90) Days prior to Phosphogypsum Stack System Closure shall submit to EPA a revised Cost Estimate recalculating the soil cost either: (i) based on the cost of soil from a substitute borrow area at the Facility; (ii) based on the cost of soil and transportation from a substitute borrow area in the vicinity of the Facility on property owned by Mosaic Fertilizer, LLC; or (iii) if such substitute borrow area is not available, as a cost of a Third Party buying the soil for closure of the Phosphogypsum Stack System, and shall provide any additional or alternative Financial Assurance necessary to cover this cost. If Defendant has established Financial Assurance pursuant to Paragraph 10.a(1)(c) of this Appendix, then such additional cost shall be covered by the Corporate Guarantee until such time as the trust fund is fully funded. Nothing in this Paragraph 1.c. shall be construed as transferring to the United States, LDEQ or their representatives any obligation that Defendant may have under the law, including permit requirements, to properly manage, close and/or remediate the soil borrow areas, or otherwise creating such obligations for the United States and/or LDEQ, or their duly designated representatives.

2.         Each Cost Estimate shall be calculated as follows:

a.         In Current Dollars if Defendant provides Financial Assurance under Section III.A (Type A Financial Assurance), below; or

b.         In Current Dollars for Phosphogypsum Stack System Closure and using NPV for Long Term Care if Defendant provides the Financial Assurance pursuant to Section III.B (Type B Financial Assurance), below. NPV shall be calculated using the 30-Year Treasury Constant Maturity Rate, averaged for the previous twelve (12) months (using the average spot rate for each month) from the date of the annual Cost Estimates, and discounted over the time period for which Long Term Care is required.

 

8

Mosaic Appendix 2


Table of Contents

3.         Defendant shall not include in any Cost Estimate any credit for salvage value or a zero cost for handling hazardous waste with potential future value, as set forth in LAC 33:V.3705.A.3-4.

4.         Defendant shall submit the Updated Cost Estimate, together with supporting documentation, to EPA in the following manner:

a.         Defendant shall submit annually to EPA an Updated Cost Estimate reflecting inflationary adjustments to the initial Cost Estimate or prior Updated Cost Estimate, except as set forth in Paragraph 4.c, below. Such adjustment may be made by either method in Paragraph 4.a.(1) or 4a.(2) below, except as otherwise required in this Appendix:

(1) Recalculating the costs, in Current Dollars (i.e., OSWER Directive No. 9476.00- 5, Section 4.4.1); or

(2) Using an inflationary factor derived from the most recent Implicit Price Deflator for the Gross National Product published by the U.S. Department of Commerce in its Survey of Current Business, in the manner as specified by LAC 33:V.3705.B and LAC 33:V.3709.B. If the Cost Estimate is due by the end of February, the Defendant shall: (i) use the Implicit Price Deflator for the Gross National Product published for Q1, Q2 & Q3 of the prior year, calculate the change in the Deflator between Q1 and Q2, and the change in Deflator between Q2 and Q3, take the average of these values, and add this average to the Q3 Deflator to impute a Q4 Deflator; or (ii) if the Implicit Price Deflator for the Gross National Product has not been published for Q3 of the prior year by February 10 of the following year, Defendant shall calculate the change in the published Deflator between Q1 and Q2, adding this value both to the Deflator for Q2 to impute a Q3 Deflator and to the imputed Q3 Deflator to impute a Q4 Deflator. If Defendant calculates imputed Deflators by using an average of the change in Deflators from prior quarters, because the actual Implicit Price Deflator for Q3 or Q4 were not then available, annual inflationary adjustments in subsequent years shall be based on the actual Implicit Price Deflator, as and when published values become available. An example of the inflationary factor calculation is provided in Attachment B of this Appendix.

b.         Defendant shall submit for the Updated Cost Estimate, unless required to provide an Updated Cost estimate pursuant to Paragraph 4.c., below, a supplement to the Initial Closure Plan updating any new information (e.g., revised closure schedule) and Attachments B and C of this Appendix, except that if Defendant is providing Financial Assurance pursuant to Paragraph 10.a.(1)(c), then Defendant shall provide only Attachment B.

c.         Defendant shall:

(1) If providing Financial Assurance other than pursuant to Paragraph 10.a.(1)(c), submit every five (5) years for the annual Updated Cost Estimate, a Cost Estimate with supporting documentation and an updated Initial Closure Plan (if needed), reflecting cost adjustments (e.g., revised treatment protocols, additional studies; treatment costs, material and labor cost increases, etc.) as specified in Paragraph 4.c.(3), below. Defendant shall provide the Updated Cost Estimate and associated documentation five (5) years after the submittal of the initial Cost Estimate (pursuant to Paragraph 1.a. of this Appendix). Defendant shall also provide such an Updated Cost Estimate for a Facility: (i) in the event of a re-evaluation of when the manner and extent of the operation of the Phosphogypsum Stack System makes the Phosphogypsum Stack System Closure and Long Term Care the most expensive; (ii) with the submittal of the Permanent Phosphogypsum Stack System Closure Plan as specified in Appendix

 

9

Mosaic Appendix 2


Table of Contents

1, Attachment D of the Consent Decree; and (iii) thirty (30) Days prior to a Facility transfer with the information requested pursuant to Paragraph 34 of this Appendix.

(2) If providing Financial Assurance pursuant to Paragraph 10.a.(1)(c), submit every five (5) years for the annual Updated Cost Estimate, (i) an updated Initial Closure Plan, including detailed Cost Estimate information consistent with the level of detail in Section 3 (and associated Tables) and Attachment 1 (and associated Tables) of the draft 2012 Initial Closure Plans provided by Defendant to EPA and LDEQ prior to the lodging of the Consent Decree and (ii) Attachments B and C. The updated Initial Closure Plan and Updated Cost Estimate shall reflect cost adjustments (e.g., (as applicable), revised treatment protocols, additional studies; revised programmatic and administrative needs; treatment costs, material, and labor cost increases; etc.) and the configuration of the Phosphogypsum Stack System as of December of the prior year (e.g., stack height, acreage to be closed, number of side slope and/or toe drains, volume of process wastewater, leachate, and sludge (within the Phosphogypsum Stack System) to be managed, updated aerial photographs, updated engineering drawings of the Phosphogypsum Stack System, any new components (e.g., cooling pond, ditches)). Such costs shall be adjusted as specified in Paragraph 4.c.(3) below. Defendant shall provide the Updated Cost Estimate and Initial Closure Plan under this Paragraph in 2017, with subsequent Updated Cost Estimates and updated Initial Closure Plans every five (5) years thereafter (e.g., 2022, 2027). Defendant shall also provide such an Updated Cost Estimate for a Facility: (i) at least sixty (60) Days prior to the Defendant constructing a lateral expansion at a Facility referenced in Paragraph 29.b; (ii) with the submittal of the Permanent Phosphogypsum Stack System Closure Plan as specified in Appendix 1, Attachment D of the Consent Decree; and (iii) thirty (30) Days prior to a Facility transfer with the information requested pursuant to Paragraph 34 of this Appendix, unless such Updated Cost Estimate has been performed for such Facility within the prior two (2) years. The submittal of an Updated Cost Estimate under Paragraph 4.c.(2)(i)&(ii), above, shall not alter the five (5)-year schedule for receipt of an Updated Cost Estimate under this Paragraph.

(3) An Updated Cost Estimate submitted under this Paragraph 4.c. shall be adjusted by recalculating the costs, in Current Dollars, as set forth in Paragraph 4.a.(1), above.

(a) In the event a specific cost needed to prepare the Updated Cost Estimate has been updated pursuant to Paragraph 4.a.(1), above, within one (1) year, Defendant may adjust that specific cost pursuant to Paragraph 4.a.(2), above.

(b) In the event a specific cost needed to prepare the Updated Cost Estimate has not been updated pursuant to Paragraph 4.a.(1), above, within one (1) year and is not otherwise available, then Defendant may utilize the most recent update of that specific cost, and adjust that prior cost pursuant to Paragraph 4.a.(2), above, provided that Defendant identifies the specific cost and includes a brief explanation for adjusting the cost pursuant to Paragraph 4.a.(2), above.

d.        If providing Financial Assurance under Section III.B (Type B Financial Assurance), in addition to Paragraphs 4.a.-4.c., Defendant shall submit with the initial Cost Estimate and Updated Cost Estimate the calculation and documentation for the average discount rate used for the NPV. In addition, the inflation factor to be used to inflate Long Term Care costs for purposes of deriving the NPV of Long Term Care shall be the mathematical average of the calculated inflation factors for each year over a five (5)-year period. Each year’s calculated inflation factor shall be the product of dividing the GDP Deflator for the relevant year by the GDP Deflator for the year immediately prior, beginning with the first year in which the GDP Deflator is an estimate and for each year thereafter until the fifth year. The Gross Domestic

 

10

Mosaic Appendix 2


Table of Contents

Product (GDP) Deflator is as specified in the “GDP (Chained) Price Index” of the Gross Domestic Product Deflators Used in the Historic Tables (Table 10.1), published by the Office of Management and Budget (“OMB”). If the OMB publication is unavailable, in a written agreement not subject to Court approval under Section XVIII (Modification) of the Consent Decree, EPA and Defendant shall identify another method to derive the inflation factor.

e.         Defendant shall submit the Updated Cost Estimate, in accordance with this Paragraph, sixty (60) Days prior to the Anniversary Date of the establishment of the Financial Mechanism, except if otherwise provided herein. If more than one Financial Mechanism is being used to establish Financial Assurance, the Updated Cost Estimate shall be submitted sixty (60) Days prior to the earliest Anniversary Date, for a given calendar year, of a Financial Mechanism. Notwithstanding the foregoing, if Defendant is establishing Financial Assurance pursuant to Paragraph 10.a(1)(c), Defendant shall submit Updated Cost Estimate(s) pursuant to this Paragraph 4.e. as follows: (1) Updated Cost Estimate required pursuant to Paragraph 4.c. by March 31, 2017, and by March 31 every five (5) years thereafter; and (2) Updated Cost Estimate required by Paragraph 4.a. by the end of February in 2018 and in all years thereafter except when the Updated Cost Estimate is provided under 4.e.(1), above.

5.         Notwithstanding the provisions of Section XII (Information Collection and Retention) of the Consent Decree, Defendant shall maintain, or have electronic access to (such that upon request the information can be readily downloaded and printed), at the Facility for the duration of this Consent Decree the Updated Cost Estimate.

III. Financial Assurance for Phosphogypsum Stack System Closure and Long Term Care

6.         Within thirty (30) Days of the Effective Date of the Consent Decree or within thirty (30) Days of EPA’s approval of Defendant’s initial Cost Estimate, whichever is later, and on the first Anniversary Date and annually thereafter, Defendant’s CFO shall provide to EPA an originally signed CFO Certification, together with supporting documentation, confirming that it has established Financial Assurance for Phosphogypsum Stack System Closure and Long Term Care, in an amount no less than the Total Louisiana Cost Estimate and pursuant to the requirements of either Section III.A (Type A Financial Assurance) or Section III.B (Type B Financial Assurance), of this Appendix, at Defendant’s election. If Defendant is providing Financial Assurance pursuant to Paragraph 10.a(1)(c), Defendant’s CFO shall provide a CFO Certification in accordance with Paragraph 29.d of this Appendix within fifteen (15) Days after such Financial Assurance has initially been provided.

7.         Once Defendant establishes either Section III.A (Type A Financial Assurance) or Section III.B (Type B Financial Assurance) (hereinafter also known as Section III.A or Section III.B, respectively) for Phosphogypsum Stack System Closure and Long Term Care, it shall maintain such Financial Assurance pursuant to the requirements of Section III.A or Section III.B, as applicable, unless EPA approves a request to provide Financial Assurance pursuant to the other Section (i.e., Section III.A or Section III.B, as applicable). If Defendant wishes to request such a change in its Financial Assurance as specified above, then Defendant shall submit to EPA for approval: (a) an originally signed CFO Certification, together with supporting documentation, explaining in detail the reasons for the request; and (b) proposed Financial Assurance, compliant with the applicable Section III.A or Section III.B requirements, that can become effective within

 

11

Mosaic Appendix 2


Table of Contents

thirty (30) Days of EPA’s approval. Defendant shall not cancel its existing Financial Assurance for Phosphogypsum Stack System Closure and Long Term Care until it receives EPA’s written approval of Defendant’s request and the alternate Financial Assurance is in effect (e.g., trust fund is funded; insurance policy is in effect). If Defendant is providing Section III.A (Type A Financial Assurance) pursuant to Paragraph 10.a.(1)(c), a request to substitute another form of Section III.A (Type A Financial Assurance), or substitute Section III.B (Type B Financial Assurance), EPA’s approval of such a request, shall not release the Defendant from its obligation to maintain the existing Louisiana Phosphogypsum Trust Fund. EPA’s determination whether to approve Defendant’s request to provide alternate Financial Assurance may take into account Defendant’s ability to promptly comply with the requirements of the other of Section III. A or Section III.B, its financial stability, and other such factors and proposals as Defendant may advance in requesting the change.

A. Type A Financial Assurance

8.         Financial Assurance for Phosphogypsum Stack System Closure and Long Term Care under this Section III.A (Type A Financial Assurance) must comply with the requirements of LAC 33:V.3707.A-I, LAC 33:V.3711.A-I, LAC 33:V.3717, and LAC 33:V.3719, except as clarified and modified in this Section III.A.

9.         Defendant shall use the Cost Estimate generated pursuant to Section II (Cost Estimate), above, in lieu of the cost estimates required pursuant to LAC 33:V.3705 and LAC 33:V.3709 unless otherwise directed in this Appendix, to establish Financial Assurance under this Section III.A. Defendant shall establish Section III.A (Type A Financial Assurance) in an amount at least equal to the Total Louisiana Cost Estimate.

10.        Defendant shall choose from the Financial Mechanisms specified in LAC 33:V.3707.A-F and LAC 33:V.3711.A-F to establish Section III.A (Type A Financial Assurance), provided that, if Defendant is using Third-Party Mechanisms (a trust fund, letter of credit, surety bond, or insurance), the Trustee of any trust fund, or the provider of any letter of credit, surety bond, or insurance shall not be a Related Party to Defendant. Defendant shall word the Financial Mechanism as specified in LAC 33:V.3719 unless EPA provides an alternate form, e.g., to address more than one beneficiary of the Financial Mechanism (i.e., EPA and the State) or as otherwise provided by this Appendix.

  a.         For a trust fund, Defendant shall comply with LAC 33:V.3707.A and LAC 33:V.3711.A, except as modified below:

(1) In lieu of complying with LAC 33:V.3707.A.3-4 and LAC 33:V.3711.3-4, Defendant shall either:

(a) Fully fund the trust within thirty (30) Days of the Effective Date of the Consent Decree or within ten (10) Days of EPA’s approval of Defendant’s initial Cost Estimate, whichever is later;

(b) Submit to EPA for approval an originally signed CFO Certification, together with supporting documentation, explaining in detail Defendant’s inability to immediately fund the trust fund, and including a proposal for a pay-in period of no longer than three (3) years, with at least fifty percent (50%) of the Phosphogypsum Stack System Closure and Long Term Care Cost Estimate to be funded in the first year. Any subsequent request for

 

12

Mosaic Appendix 2


Table of Contents

an extension to an approved pay-in period shall be made at least 180 Days before the close of an approved pay-in period, and shall include an originally signed CFO Certification explaining in detail why a longer pay-in period is needed, together with supporting documentation. Such approvals by EPA shall be in its unreviewable discretion; or

(c) Establish, in accordance with Paragraphs 29 and 30, a trust fund in the amount of one hundred thirteen million, six hundred ninety-six thousand U.S. dollars ($113.696M) for the benefit of EPA and LDEQ, no later than thirty (30) Days after the Effective Date of the Consent Decree or by January 11, 2016, whichever is later. Defendant shall also, to meet its obligations under this Paragraph 10.a.(1)(c), comply with the requirements of Section VIII.A. (Compliance Schedule: Type A Financial Assurance) of this Appendix.2 The signatures of the United States and the State of Louisiana to the Consent Decree shall constitute approval by EPA and LDEQ for Defendant to establish a trust fund pursuant to Section VIII.A (Compliance Schedule: Type A Financial Assurance) of this Appendix.

(2) In lieu of LAC 33:V.3719.A, Defendant shall use the exact wording as specified in Form 1-A, Attachment D of this Appendix, for the Trust Agreement. The Defendant may enter into an addendum to the Trust Agreement (“Addendum”) provided that: (a) the Addendum supplements and does not contain terms that conflict, supersede, revise or alter the terms of the Trust Agreement (or the requirements of Appendix 2); and (b) the Addendum is approved by EPA in advance, such approval is within EPA’s unreviewable discretion. A Trust Agreement must be accompanied by a formal certification of acknowledgement.

(3) Defendant shall update any associated schedules or exhibits of the Trust Agreement, as appropriate, within sixty (60) Days after a change in the amount of the Total Louisiana Cost Estimate.

(4) Defendant or any other person authorized to conduct Phosphogypsum Stack System and Long Term Care activities shall seek reimbursement for itemized invoices pursuant to LAC 33:V.3707.A.10 and LAC 33:V.3711.A.10.

(5) In addition to the requirements of LAC 33:V.3707.A and LAC 33:V.3711.A, unless the Defendant is complying with Paragraph 10.a.(1)(c) and thus subject to Paragraph 30.g, below, Defendant shall pay all expenses incurred by the Trustee in connection with the administration of the trust fund, including reasonable fees for legal services rendered to the Trustee, and compensation of the Trustee.

b.         For a surety bond guaranteeing payment or performance, Defendant shall comply with LAC 33:V.3707.B-C and LAC 33:V.3711.B-C, except that:

(1) In addition to the requirements of LAC 33:V.3707.B.1&C.1 and LAC 33:V.3711.B.1&C.1, Defendant shall provide an originally signed certification from either the Defendant (CFO Certification) or an officer of A.M. Best or an NRSRO, documenting that the surety has at least a “secured” financial strength rating of “A” by A.M. Best or an equivalent rating by the NRSRO.

(2) In lieu of LAC 33:V.3707.B.4.c&C.4.b and LAC 33:V.3711.B.4.c&C.4.b, upon notice to Defendant and the surety of a determination by EPA that Defendant has failed to perform Phosphogypsum Stack System Closure and/or Long Term Care as required by Appendix 1 of this Consent Decree, and following the conclusion of any dispute resolution (which shall not include judicial review) under Section XI (Dispute Resolution) of the Consent Decree, the surety

 

2 If Defendant uses and complies with this option (i.e., provides a trust fund and corporate guarantee), it shall not be subject to the requirements of Paragraph 10, other than this Paragraph 10.a(1)(c), unless otherwise agreed to by the Parties.

 

13

Mosaic Appendix 2


Table of Contents

under the terms of the bond will perform Phosphogypsum Stack System Closure and/or Long Term Care as directed by EPA or will deposit the amount of the penal sum into the stand-by trust fund.

(3) In the event that Defendant must provide alternate Financial Assurance pursuant to LAC 33:V.3707.B.4.c&C.4.b and LAC 33:V.3711.B.4.c&C.4.b, such required approval by EPA shall be subject to dispute resolution pursuant to Section XI (Dispute Resolution) of the Consent Decree, but not judicial review.

c.         For a letter of credit, Defendant shall comply with LAC 33:V.3707.D and LAC 33:V.3711.D, except as modified below:

(1) In addition to the requirements of LAC 33:V.3707.D.1 and LAC 33:V.3711.D.1, as applicable, Defendant shall provide an originally signed CFO Certification documenting that the provider of the letter of credit is a federally insured financial institution.

(2) In lieu of LAC 33:V.3707.D.8 and LAC 33:V.3711.D.9, upon EPA’s notice that Defendant has failed to perform Phosphogypsum Stack System Closure and/or Long Term Care, pursuant to Section VI (Work Takeover) of the Consent Decree, EPA may draw on the letter of credit, pursuant to Section VI (Work Takeover) of the Consent Decree and subject to the dispute resolution provisions set forth in Section VI (Work Takeover) and XI (Dispute Resolution) of the Consent Decree.

(3) In lieu of LAC 33:V.3707.D.2 and LAC 33:V.3711.D.2 and LAC 33:V.3719.D, Defendant shall use the exact wording as specified in Form 3, Attachment D of this Appendix, for the letter of credit and the associated cover letter accompanying the letter of credit.

(4) In the event that Defendant must provide alternate Financial Assurance pursuant to LAC 33:V.3707.D.9 and LAC 33:V.3711.D.10 due to cancellation (i.e., LAC 33:V.3707.D.5 and LAC 33:V.3711.D.5):

(a) In the event that Defendant disputes the cancellation by the issuing financial institution, Defendant shall not seek dispute resolution pursuant to Section IX (Dispute Resolution), including judicial review, of EPA’s determination to draw on the letter of credit;

(b) EPA’s determination to call in the letter of credit due to the adequacy of the alternate Financial Assurance (i.e., EPA does not approve the alternate Financial Assurance) shall be subject to dispute resolution pursuant to Section XI (Dispute Resolution) of the Consent Decree, including judicial review;

(c) Defendant shall not seek release of the funds in the stand-by trust from the letter of credit until the dispute has been resolved in Defendant’s favor or Defendant has provided alternate Financial Assurance that has been approved by EPA; and

(d) EPA shall not direct the Trustee to make reimbursements or payments, until the dispute has been resolved, from: (i) a stand-by trust established for the purpose of accepting funds from a letter of credit; or (ii) that portion of a trust fund which is attributable to a letter of credit that has been drawn upon, unless EPA has invoked Section VI (Work Takeover) of the Consent Decree.

d.         For insurance, Defendant shall comply with LAC 33:V.3707.E and LAC 33:V.3711.E, and shall provide an originally signed certification from either the Defendant (CFO Certification) or an officer of A.M. Best or an NRSRO, documenting that the insurer has at least a “secured” financial strength rating of “A” by A.M. Best or an equivalent rating by the NRSRO. Defendant also shall:

 

14

Mosaic Appendix 2


Table of Contents

(1) Comply with LAC 33:V.3707.E.8 and LAC 33:V.3711.E.8, except that in lieu of LAC 33:V.3707.E.8.a-e and LAC 33:V.3711.E.8.a-e the following conditions are substituted: (a) EPA determines that the Facility has been abandoned; (b) the Work required under this Consent Decree is undertaken by EPA; (c) Phosphogypsum Stack System Closure, partial Phosphogypsum Stack System Closure, or Long Term Care is ordered by EPA or by a U.S. District Court or other court of competent jurisdiction; (d) Defendant is named as debtor in a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code; or (e) the premium due is paid.

(2) Submit annually a Certificate of Insurance and a complete copy of the insurance policy, including amendments and endorsements.

(3) Notify EPA if it has cause to believe that it will not be able to make a premium payment.

(4) Ensure the assignment requirements of LAC 33:V.3707.E.7 and LAC 33:V.3711.E.7 are incorporated into the insurance policy exactly as written, with no additional qualifying conditions.

(5) Ensure that the policy does not allow or offer coverage for liabilities other than those contemplated by the Consent Decree.

e.         For the corporate financial test, Defendant (including Defendant’s Guarantor), shall comply with LAC 33:V.3707.F and LAC 33:V.3711.F, except that:

(1) In lieu of complying with LAC 33:V.3707.F.1.b.i and LAC 33:V.3711.F.1.b.i, Defendant shall use the current rating of either Standard & Poor’s (“S&P”) Long-Term Issuer Credit Rating or Moody’s long-term Corporate Family Rating, which assesses a company’s capacity to meet its long-term (greater than one (1) year) financial commitments, as they come due. The rating must be BBB or greater as issued by S&P, or Baa2 or greater as issued by Moody’s. If Defendant has more than one rating, the lower of the two will be used to meet the criteria in LAC 33:V.3707.F and LAC 33:V.3711.F. If Defendant with multiple ratings discontinues a rating that is below BBB (S&P) or Baa2 (Moody’s), or a rating agency discontinues a rating that is below BBB (S&P) or Baa2 (Moody’s), such that the remaining rating(s) subsequently would enable the Defendant to satisfy the corporate financial test criteria, Defendant shall provide alternate Financial Assurance and shall be disqualified from using the corporate financial test for two (2) years.

(2) The phrase “all Environmental Obligations” is substituted for “current closure and post-closure cost estimates and current plugging and abandonment cost estimates” found in LAC 33:V.3707.F.1 and LAC 33:V.3711.F.1.

(3) The term “assets” specified in LAC 33:V.3707.F.1.a.iv&b.iv and LAC 33:V.3711.F.1.a.iv&b.iv shall be replaced by the term “tangible assets.”

(4) In lieu of complying with LAC 33:V.3707.F.3 and LAC 33:V.3711.F.3, Defendant shall document its satisfaction of the corporate financial test by submitting to EPA within ninety (90) Days after the close of Defendant’s fiscal year, for each year Defendant is providing a Self-Assurance Mechanism:

(a) A letter signed by Defendant’s CFO worded exactly as specified in Form 4-A, Attachment D of this Appendix (“CFO Letter”).

(b) A copy of the independent CPA report on examination of Defendant’s audited financial statements for the latest completed fiscal year that Defendant is using for the basis of the financial test.

(c) A copy of the audited financial statements for the last completed year.

 

15

Mosaic Appendix 2


Table of Contents

(d) A report of procedures and findings from Defendant’s independent CPA, resulting from an agreed-upon procedures engagement performed in accordance with the AICPA Statement on Standards for Attestation Engagements, AT Section 201 – Agreed Upon Procedures Engagements (including AICPA related attestation interpretations), as updated, that describes the procedures performed and related findings, including whether or not differences or discrepancies were found in the comparison of financial information set out in the letter (including attachments and exhibits) from Defendant’s CFO and Defendant’s Independently Audited, year-end financial statements for the last fiscal year, including all attachments. Where differences or discrepancies exist between Defendant’s CFO Letter and Defendant’s Independently Audited year-end financial statements, the report of procedures and findings will reconcile any differences or discrepancies between the values or information represented in Defendant’s CFO Letter and Defendant’s Independently Audited financial statements. Procedures to be performed by the independent CPA shall be in accordance with AT Section 201.

(5) In addition to complying with LAC 33:V.3707.F.6 and LAC 33:V.3711.F.6, if Defendant determines at any time during the fiscal year that it no longer meets or will not meet the requirements of this Paragraph 10.e, Defendant shall provide alternate Financial Assurance pursuant to the requirements of Section III.A (Type A Financial Assurance) and Section VII (Temporary Non-Compliance) of this Appendix. If EPA determines that Defendant has failed to provide alternate Financial Assurance as required by this Paragraph 10.e.(5), such determination by EPA is not subject to dispute resolution pursuant to Section XI (Dispute Resolution) of the Consent Decree, and is not subject to judicial review.

(6) Within thirty (30) Days of notice from EPA that EPA, pursuant to LAC 33:V.3707.F.7 and LAC 33:V.3711.F.7, no longer believes that Defendant meets the requirements of the corporate financial test criteria of Paragraph 10.e., or that EPA disallows the use of the corporate financial test based on qualifications in the opinion expressed by the independent CPA as set out in LAC 33:V.3707.F.8 and LAC 33:V.3711.F.8, Defendant shall establish alternate Financial Assurance as required by LAC 33:V.3707.F.7&8 and LAC 33:V.3711.F.7&8 pursuant to this Section III.A (Type A Financial Assurance). Defendant’s failure to timely establish alternate Financial Assurance is not subject to Section VII (Temporary Non-Compliance) of this Appendix. EPA’s determination to disallow the Financial Assurance provided by the Self-assurance Mechanism based on the Defendant’s (or Defendant’s Guarantor’s) independent CPA’s adverse or disclaimer opinion based on examination of the financial statement’s shall be subject to dispute resolution under Section XI (Dispute Resolution) of the Consent Decree, but shall not be subject to judicial review.

(7) In addition to complying with LAC 33:V.3707.F and LAC 33:V.3711.F, Defendant shall:

(a) If more than sixty percent (60%) of Defendant’s tangible assets are in the form of one (1) or more note receivables from one (1) or more Related Parties, submit to EPA, when providing the information required by Paragraph 10.e.(4), above, and LAC 33:V.3707.F.5 and LAC 33:V.3711.F.5, an originally signed CFO Certification together with a list of each note receivable, the name of the Related Party and a description (along with any necessary documentation) of the Related Party’s financial strength, to demonstrate that each Related Party maintains the financial strength to meet its obligation to the Defendant.

 

16

Mosaic Appendix 2


Table of Contents

(b) On a quarterly basis, using the sum of the most recent four (4) quarters’ financial statements (including balance sheets, income statements, and cash flow statements), reviewed by an independent CPA, evaluate Defendant’s ability to meet the criteria of the corporate financial test.

f.         For the Corporate Guarantee, Defendant shall comply with LAC 33:V.3707.F.10 and LAC 33:V.3711.F.11, as modified by Paragraph 10.e. above, and shall meet the requirements specified below:

(1) Defendant may use a Non-U.S. Corporation as Guarantor only if the following conditions are met: (a) the Non-U.S. Corporation has identified a registered agent for service of process in the State in which the facility covered by the Guarantee is located and in the State in which it has its principal place of business; (b) Defendant submits to EPA a written legal opinion from an Independent Attorney, prior to the execution of the Guarantee, confirming that a Guarantee executed as required under this Section by the non-U.S. Guarantor is a legally valid and an enforceable obligation in the State(s); (c) the Non-U.S. Corporation provides Independently Audited financial statements in conformance with GAAP; (d) the total amount of the Non-U.S. Corporation’s present and proposed Guarantee’s (including self-guarantees) to cover all Environmental Obligations in the United States shall not exceed twenty-five percent (25%) of the Non-U.S. Corporation’s tangible net worth in the United States; and (e) the written Guarantee reflects the Non-U.S. Corporation’s (Guarantor’s) agreement to comply with the reporting requirements required under the Consent Decree and that within thirty (30) Days of executing the Guarantee the Guarantor will establish a stand-by trust with a financial institution within the continental United States, Alaska, or Hawaii.

(2) Defendant shall use the exact wording as specified in Form 5-A, Attachment D of this Appendix, for the Corporate Guarantee. The certified copy of the Corporate Guarantee must accompany the items sent to EPA, in accordance with Section XV (Notices) of the Consent Decree, as specified in Paragraph 10.e.(3) of this Appendix.

11.         If Defendant seeks to provide:

a.         More than one Third-Party Mechanism to demonstrate Financial Assurance for Phosphogypsum Stack System Closure and Long Term Care, pursuant to LAC 33:V.3707.G and LAC 33:V.3711.G, Defendant shall submit to EPA an originally signed CFO Certification verifying that the Third-Party Mechanisms do not incorporate terms subrogating one Financial Mechanism to another, i.e., designating a prioritization for the release of the funds or the payment of a claim. EPA, if the need arises, will determine in its unreviewable discretion the priority for the release of funds or payment of a claim.

b.         A Financial Mechanism establishing Financial Assurance at more than one Facility pursuant to LAC 33:V.3707.H and LAC 33:V.3711.H, Defendant:

(1) Shall not provide a single trust fund or insurance policy to cover the multiple Facilities in different States, but shall provide each affected State with its own distinct trust fund or insurance policy;

(2) May use the same letter of credit or surety bond for multiple Facilities provided that the following conditions are met: (a) the Facilities’ EPA Identification Numbers, names, addresses, and the Phosphogypsum Stack System Closure and Long Term Care Cost Estimate(s) associated with each particular Facility are clearly specified in the Financial Mechanism; and (b) the Financial Mechanism clearly states that there can be a release of funds for a specified Facility

 

17

Mosaic Appendix 2


Table of Contents

without requiring the entire obligation covered by the Financial Mechanism to be placed in the stand-by trust(s); and

(3) Shall not release funds designated for one or more Facilities in another State except upon written agreement of EPA, Defendant, and the affected State(s).

c.         If Defendant is providing Financial Assurance pursuant to Paragraph 10.a.(1)(c), Defendant will comply with the requirements of Paragraph 29.c. in lieu of the requirements set forth in Paragraphs 11.a. and 11.b., above.

B.  Type B Financial Assurance

12.         Financial Assurance under this Section III.B (Type B Financial Assurance) must comply with the requirements of LAC 33:V.3707.A-B&D-I, LAC 33:V.3711.A-B&D-I, LAC 33:V.3717, and LAC 33:V.3719, except as clarified and modified in this Section III.B (including Attachment E). Defendant shall use the Cost Estimates generated pursuant to Section II (Cost Estimate), above, in lieu of the cost estimates required pursuant to LAC 33:V.3705 and LAC 33:V.3709 unless otherwise directed by this Appendix, to establish Financial Assurance under this Section III.B. Defendant shall provide Section III.B (Type B Financial Assurance) in an amount at least equal to the Total Louisiana Cost Estimate.

13.         The options and requirements for Type B Financial Assurance depend upon Defendant’s threshold rating, which shall be based on: (a) current S&P Long-Term Issuer Credit Rating of AAA through BB-; (b) current Moody’s Corporate Family Rating of Aaa though Ba3; or (c) an equivalent current rating from an NRSRO that assesses a company’s capacity to meet its long-term (greater than one (1) year) financial commitments, as they come due. If Defendant has more than one rating, it shall use the lowest rating to determine its threshold rating.

14.         A Defendant that qualifies to use a Self-Assurance Mechanism based on its threshold rating and Attachment E shall use only one Self-Assurance Mechanism. When required under Attachment E to provide a Third-Party Mechanism in combination with a Self-Assurance Mechanism, Defendant shall use a trust fund unless permitted to substitute another type of Third-Party Mechanism pursuant to Paragraphs 16 and 17, below. Defendant shall meet the minimum threshold amount specified in Attachment E to be funded in, or covered by, a Third-Party Mechanism.

15.         Defendant shall use the Financial Mechanisms specified in LAC 33:V.3707.A-B&D-F and LAC 33:V.3711.A-B&D-F to establish Type B Financial Assurance as set out in Attachment E and below, provided that, if Defendant is using Third-Party Mechanisms (a trust fund, letter of credit, surety bond guaranteeing payment, or insurance), the Trustee of any trust fund, or the provider of any letter of credit, surety bond guaranteeing payment, or insurance shall not be a Related Party to Defendant. Defendant shall word the Financial Mechanism as specified in LAC 33:V.3719, unless EPA provides an alternate form, e.g., to address more than one beneficiary of the Financial Mechanism (i.e., EPA and the State). Defendant shall also comply with the requirements of LAC 33:V.3707.A.7-8, B.7, D.7 & E.9 and LAC 33:V.3711.A.7-8, B.7, D.7 & E.9 , except that the corpus of the trust fund, the penal sum of the payment surety bond, the value of the letter of credit, or the limit of liability of the insurance policy shall not be reduced to reflect reductions in the Cost Estimates until such time as the Updated Cost Estimate is equivalent to the

 

18

Mosaic Appendix 2


Table of Contents

corpus of the trust fund, the penal sum of the payment surety bond, the value of the letter of credit, or the limit of liability of the insurance policy. In addition, Defendant shall comply with the requirements of LAC 33:V.3707.A.10&E.5 and LAC 33:V.3711.A.11&E.9, except as provided for in Paragraph 19 of this Appendix. If Financial Assurance is provided by multiple Third-Party Mechanisms pursuant to Paragraph 17 of this Appendix, the individual value of the Third-Party Mechanisms shall not be reduced to reflect any reductions in the Cost Estimate until such time as the Updated Cost Estimate is equivalent to the sum of the total obligations covered by the Third-Party Mechanisms.

a.         For a trust fund, Defendant shall comply with LAC 33:V.3707.A and LAC 33:V.3711.A, except that:

(1) In lieu of complying with LAC 33:V.3707.A.3-4 and LAC 33:V.3711.A.3-4, Defendant shall fully fund the trust within thirty (30) Days of the Effective Date of the Consent Decree or within ten (10) Days of EPA’s approval of Defendant’s initial Cost Estimate, whichever is later, as specified in Paragraph 5. If Defendant is unable to fully fund the trust fund, Defendant within ten (10) Days of EPA’s approval of the initial Cost Estimate shall submit to EPA for approval an originally signed CFO Certification, together with supporting documentation, explaining in detail Defendant’s inability to immediately fund the trust fund, and including a proposal for a pay-in period of no longer than three (3) years, with at least fifty percent (50%) of the initial Cost Estimate to be funded in the first year. Any subsequent request for an extension to an approved pay-in period shall be made at least 180 Days before the close of an approved pay-in period, and shall include an originally signed CFO Certification explaining in detail why a longer pay-in period is needed, together with supporting documentation.

(2) In lieu of LAC33:V.3719.A, Defendant shall use the exact wording as specified in Form 1-A, Attachment D of this Appendix, for the Trust Agreement. The Defendant may enter into an addendum to the Trust Agreement (“Addendum”) provided that: (a) the Addendum supplements and does not contain terms that conflict, supersede, revise or alter the terms of the Trust Agreement (or the requirements of Appendix 2); and (b) the Addendum is approved by EPA in advance, such approval is within EPA’s unreviewable discretion. The Trust Agreement must be accompanied by a formal certification of acknowledgment.

(3) Defendant shall update Schedule A of the Trust Agreement within sixty (60) Days after a change in the amount of the Cost Estimate.

(4) In addition to the requirements of LAC 33:V.3707.A and LAC 33:V.3711.A, Defendant shall pay all expenses incurred by the Trustee in connection with the administration of the trust fund, including fees for legal services rendered to the Trustee and compensation of the Trustee.

(5) Defendant or any other person authorized to conduct Phosphogypsum Stack System and Long Term Care activities shall seek reimbursement for itemized invoices pursuant to LAC 33:V.3707.A.10 and LAC 33:V.3711.A.11.

b.         For a surety bond guaranteeing payment, Defendant shall comply with LAC 33:V.3707.B and LAC 33:V.3711.A.11.B, except that:

(1) In addition to the requirements of LAC 33:V.3707.B.1 and LAC 33:V.3711. B.1, Defendant shall provide an originally signed certification from either the Defendant (CFO Certification) or an officer of A.M. Best or an NRSRO, documenting that the surety has at least a “secured” financial strength rating of “A” by A.M. Best or an equivalent rating by the NRSRO.

(2) In lieu of LAC 33:V.3707.B.4.b and LAC 33:V.3711.B.4.b, upon notice to Defendant and the surety of a determination by EPA that Defendant has failed to perform

 

19

Mosaic Appendix 2


Table of Contents

Phosphogypsum Stack System Closure and/or Long Term Care as required by Appendix 1 of this Consent Decree, and following the conclusion of any dispute resolution (which shall not include judicial review) under Section XI (Dispute Resolution) of the Consent Decree, the surety under the terms of the bond will deposit the amount of the penal sum into the stand-by trust fund.

(3) In the event that Defendant must provide alternate Financial Assurance pursuant to of LAC 33:V.3707.B.4.c and LAC 33:V.3711.B.4.c, such required approval by EPA shall be subject to dispute resolution pursuant to Section XI (Dispute Resolution) of the Consent Decree, but not judicial review.

c.        For a letter of credit, Defendant shall comply with LAC 33:V.3707.D and LAC 33:V.3711.D, except that:

(1) In addition to the requirements of LAC 33:V.3707.D.1 and LAC 33:V.3711.D.1, Defendant shall provide an originally signed CFO Certification documenting that the provider of the letter of credit is a federally insured financial institution.

(2) In lieu of LAC 33:V.3707.D.8 and LAC 33:V.3711.D.9, upon notice to Defendant of a determination by EPA that Defendant has failed to perform Phosphogypsum Stack System Closure and/or Long Term Care as required by Appendix 1 of this Consent Decree and following the conclusion of any dispute resolution (which shall not include judicial review) under Section XI (Dispute Resolution) of the Consent Decree, EPA may draw on the letter of credit

(3) In the event that Defendant must provide alternate Financial Assurance pursuant to LAC 33:V.3707.D.9 and LAC 33:V.3711.D.10, such required approval by EPA shall be subject to dispute resolution pursuant to Section XI (Dispute Resolution) of the Consent Decree, but not judicial review.

d.        For insurance, Defendant shall comply with LAC 33:V.3707.E and LAC 33:V.3711.E, and shall provide an originally signed certification from either the Defendant (CFO Certification) or an officer of A.M. Best or an NRSRO, documenting that the insurer has at least a “secured” financial strength rating of “A” by A.M. Best or an equivalent rating by the NRSRO. Defendant also shall:

(1) Comply with LAC 33:V.3707.E.8 and LAC 33:V.3711.E.8, except that in lieu of LAC 33:V.3707.E.8.a-e and LAC 33:V.3711.E.8.a-e the following conditions are substituted: (a) EPA determines that the Facility has been abandoned; (b) the Work required under this Consent Decree is undertaken by EPA; (c) Phosphogypsum Stack System Closure, partial Phosphogypsum Stack System Closure, or Long Term Care is ordered by EPA or by a U.S. District Court or other court of competent jurisdiction; (d) Defendant is named as debtor in a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code; or (e) the premium due is paid.

(2) Submit annually a Certificate of Insurance and a complete copy of the insurance policy, including amendments and endorsements.

(3) Notify EPA if it has cause to believe that it will not be able to make a premium payment.

(4) Ensure that the assignment requirements of LAC 33:V.3707.E.8 and LAC 33:V.3711.E.8 are incorporated into the insurance policy exactly as written, with no additional qualifying conditions.

(5) Ensure that the policy does not allow or offer coverage for liabilities other than those contemplated by the Consent Decree.

e.        For the corporate financial test and Corporate Guarantee, Defendant (and Defendant’s Guarantor) shall comply with LAC 33:V.3707.F and LAC 33:V.3711.F, except that:

 

20

Mosaic Appendix 2


Table of Contents

(1) The phrase “all Environmental Obligations” is substituted for “current closure and post-closure cost estimates and current plugging and abandonment cost estimates” found in LAC 33:V.3707.F.1 and LAC 33:V.3711.F.1.

(2) In lieu of complying with LAC 33:V.3707.F.1.a-b and LAC 33:V.3711.F.1.a-b, Defendant shall:

(a) Meet the corporate financial test criteria specified in Attachment E which corresponds to Defendant’s rating threshold as specified in Paragraph 13, above. If a Defendant with multiple ratings discontinues, or S&P, Moody’s, or an NRSRO discontinues, the lower of the ratings, Defendant shall for a period of two (2) years commencing on Defendant’s fiscal year-end apply the criteria and requirements of Attachment E (and this Paragraph) as if the lower rating were in effect. If during that two (2) year period, a change in Defendant’s other rating(s) results in Defendant not satisfying the corporate financial test or becoming subject to a more stringent set of corporate financial test criteria under Attachment E, Defendant shall provide Financial Assurance as specified in Paragraphs 15.e.(4)(a) and 18.

(b) Calculate the three (3)-year rolling average specified in Attachment E for the Debt-to-Equity Ratio (TL/NW), Current Ratio, or the Operating Cash Flow metric (“OCF metric”) as follows: (i) TL/NW is a three (3)-year rolling average of total liabilities divided by three (3)-year rolling average of net worth; (ii) CA/CL is a three (3)-year rolling average of current assets divided by three (3)-year rolling average of current liabilities; and (iii) OCF metric is a three (3)-year rolling average of operating cash flow, except for a Defendant with an S&P rating of BB-, Moody’s rating of Ba3 or an equivalent rating from an NRSRO who shall calculate the OCF metric annually.

(c) Not use the OCF metric to demonstrate Financial Assurance if Defendant has a negative cash flow for that fiscal year.

(3) In lieu of complying with LAC 33:V.3707.F.3 and LAC 33:V.3711.F.3, Defendant shall document its satisfaction of the corporate financial test by submitting to EPA within ninety (90) Days after the close of Defendant’s fiscal year, for each year Defendant is providing a Self-Assurance Mechanism:

(a) A letter signed by Defendant’s CFO worded exactly as specified in Form 4-B, Attachment D of this Appendix.

(b) A copy of the independent CPA report on examination of Defendant’s audited financial statements for the latest completed fiscal year that Defendant is using for the basis of the financial test.

(c) A copy of the audited financial statements for the last completed year.

(d) A report of procedures and findings from Defendant’s independent CPA, resulting from an agreed-upon procedures engagement performed in accordance with the AICPA Statement on Standards for Attestation Engagements, AT Section 201 - Agreed Upon Procedures Engagements (including AICPA related attestation interpretations), as updated, that describes the procedures performed and related findings, including whether or not differences or discrepancies were found in the comparison of financial information set out in the letter (including attachments and exhibits) from Defendant’s CFO and Defendant’s Independently Audited, year-end financial statements for the last fiscal year, including all attachments. Where differences or discrepancies exist between Defendant’s CFO Letter and Defendant’s Independently Audited year-end financial statements, the report of procedures and findings will reconcile any differences or discrepancies between

 

21

Mosaic Appendix 2


Table of Contents

the values or information represented in Defendant’s CFO Letter and Defendant’s Independently Audited financial statements. Procedures to be performed by the independent CPA shall be in accordance with AT Section 201.

(4) In addition to complying with LAC 33:V.3707.F.6 and LAC 33:V.3711.F.6, if Defendant determines at any time during the fiscal year that:

(a) It no longer meets or will not meet the requirements of this Paragraph 15.e. (including the loss of a threshold rating except as provided by Paragraph 15.e.(2)(a), above), Defendant shall within ten (10) Days send written notice to EPA of this determination, by certified mail, stating the basis for such a determination. If Defendant cannot re-establish compliance with the requirements of this Paragraph 15.e. pursuant to Section VII (Temporary Non-Compliance) and/or Section VIII.B (Compliance Schedule: Type B) of this Appendix, the Defendant, within thirty (30) Days of its notice to EPA as specified above, shall provide alternate Financial Assurance for Phosphogypsum Stack System Closure and Long Term Care pursuant to Paragraph 18, below.

(b) Its threshold rating requires Defendant to change from one set of corporate financial test criteria under Paragraph 15.e.(2), above, and Attachment E (e.g., CFT Criteria A) to a more stringent set of corporate financial test criteria (e.g., CFT Criteria C), Defendant shall notify EPA within ten (10) Days of the change in corporate financial test criteria and within thirty (30) Days of such notice shall submit to EPA a revised corporate financial test or Corporate Guarantee based on the most recent evaluation conducted under Paragraph 15.e.(6)(c), below, demonstrating compliance with the more stringent corporate financial test criteria. To the extent necessary, Defendant shall at the same time make a contribution to the Third-Party Mechanism to comply with the minimum threshold amount specified in the corporate financial test requirements in Paragraph 15.e.(2), above.

(c) If EPA determines that Defendant has failed to provide alternate Financial Assurance as required, or complied with Paragraphs 15.e.(4)(a) and (4)(b), such determination by EPA is not subject to dispute resolution pursuant to Section XI (Dispute Resolution) of the Consent Decree, and is not subject to judicial review.

(5) Within thirty (30) Days of notice by EPA that EPA, pursuant to LAC 33:V.3707.F.7 and LAC 33:V.3711.F.7, no longer believes that Defendant meets the corporate financial test criteria in Paragraph 15.e.(2), above, or that EPA disallows the use of the corporate financial test based on qualifications in the opinion expressed by the independent CPA as set forth in LAC 33:V.3707.F.8 and LAC 33:V.3711.F.8, Defendant shall provide alternate Financial Assurance as required by LAC 33:V.3707.F.7&8 and LAC 33:V.3711.F.7&8 pursuant to Paragraph 18 of this Appendix. Defendant’s failure to timely provide alternate Financial Assurance is not subject to Section VII (Temporary Non-Compliance) of this Appendix. EPA’s determination to disallow the Financial Assurance provided by the Self-Assurance Mechanism based on the Defendant’s (or Defendant’s Guarantor’s) independent CPA’s adverse or disclaimer opinion based on examination of the financial statement’s shall be subject to dispute resolution under Section XI (Dispute Resolution) of the Consent Decree, but is not subject to judicial review.

(6) In addition to complying with LAC 33:V.3707.F and LAC 33:V.3711.F, Defendant shall:

(a) If Defendant with an S&P rating of BB-, Moody’s rating of Ba3, or an equivalent NRSRO rating, receives a negative outlook posted on one or more of its ratings, or receives a qualified opinion from an independent CPA, or is delisted from an Exchange

 

22

Mosaic Appendix 2


Table of Contents

for any reason other than: (i) Defendant’s decision to take the company into private ownership, or (ii) a transaction which results in the acquisition of Defendant (or Defendant’s ultimate parent corporation) by another company subjecting Defendant to Section X (Business Transactions) of this Appendix, then Defendant shall within ten (10) Days of such an event send written notice by certified mail of such event to EPA, and within thirty (30) Days of such notice shall provide an alternate form of Financial Assurance, in compliance with Paragraph 18 of this Appendix. In the event that the delisting is due to Defendant’s decision to take the company into private ownership Defendant may continue to provide Financial Assurance using the Financial Mechanism(s) already in place if, within twenty (20) Days of the delisting, it provides documentation to EPA from S&P, Moody’s or the NRSRO confirming that Defendant meets a current S&P Long-Term Issuer Credit Rating, Moody’s long-term Corporate Family Rating, or equivalent current rating from an NRSRO, as specified in Paragraph 13 of this Appendix.

(b) If more than sixty percent (60%) of Defendant’s tangible assets are in the form of one (1) or more note receivables from one (1) or more Related Parties, submit to EPA, when providing the information required by Paragraph 15.e.(3), above, and LAC 33:V.3707.F.5 and LAC 33:V.3711.F.5, an originally signed CFO Certification by the Defendant’s CFO together with a list of each note receivable, the name of the Related Party and a description (along with any necessary documentation) of the Related Party’s financial strength, to demonstrate that each Related Party maintains the financial strength to meet its obligation to the Defendant.

(c) On a quarterly basis prepare and use financial statements (including balance sheets, income statements, and cash flow statements), reviewed by an independent CPA, to evaluate Defendant’s ability to meet the criteria of the corporate financial test. To meet the criteria involving rolling averages, the averages shall be based on the results as of the end of the same quarter for the prior years (i.e., a three (3)-year rolling average evaluated at the end of the first quarter for Year X shall include the results from the first quarter of Year X-2 and X-1). In addition, Operating Cash Flow for this evaluation shall be based on the results from the most recent four (4) quarters (i.e., for a first quarter analysis, the Operating Cash Flow shall be based on the results from the second quarter of the previous year through the first quarter of the current year). The same adjustment shall be made for the OCF metric for prior periods if the criteria involve the use of a rolling average.

(d) If Defendant with a S&P rating of BBB- through BB, a Moody’s rating of Baa3 through Ba2, or an equivalent rating from an NRSRO receives a negative outlook posted on one or more of its ratings, or receives a qualified opinion rendered by an independent CPA, Defendant within twenty (20) Days of such event shall submit to EPA a revised corporate financial test based on the most recent evaluation conducted under Paragraph 15.e.(6)(c), above.

f.        For the Corporate Guarantee, Defendant shall comply with LAC 33:V.3707.F.10 and LAC 33:V.3711.F.11, and shall meet the requirements specified below, if applicable.

(1) Defendant may use a Non-U.S. Corporation as a Guarantor only if the following conditions are met: (a) Non-U.S. Corporation meets the requirements of Paragraph 10.f. of this Appendix, and (b) Non-U.S. Corporation has a current rating for either the S&P long-term issuer credit rating of AAA through BBB, Moody’s long-term corporate family rating of Aaa though

 

23

Mosaic Appendix 2


Table of Contents

Baa2 or an equivalent rating from an NRSRO that assesses a company’s capacity to meet its long-term (greater than one (1) year) financial commitments, as they come due.

(2) Defendant shall use the exact wording as specified in Form 5-A, Attachment D of this Appendix, for the Corporate Guarantee. The certified copy of the Corporate Guarantee must accompany the items sent to EPA, in accordance with Section XV (Notices) of the Consent Decree, as specified in Paragraph 15.e.(3) of this Appendix.

16.        Defendant may submit annually, for EPA approval, a request to use a letter of credit, surety bond guaranteeing payment, or insurance in lieu of the trust find required under Paragraph 14, above. Defendant shall include in its request documentation demonstrating compliance with Financial Assurance under this Subsection III.B. Defendant may not rely upon the letter of credit, payment surety bond, or insurance to establish compliance with this Appendix until EPA has approved the Third-Party Mechanism. Defendant shall comply with the letter of credit, payment surety bond, or insurance requirements of Paragraph 15 of this Appendix, as applicable. Defendant shall also demonstrate compliance with Paragraph 11 of this Appendix. EPA’s determination whether or not to accept Defendant’s request is subject to dispute resolution pursuant to Section XI (Dispute Resolution) of the Consent Decree, but is not subject to judicial review.

17.        Defendant may submit annually, for EPA approval, a request to use multiple Third-Party Mechanisms (i.e., trust fund, letter of credit, surety bond guaranteeing payment, and insurance) in conjunction with a Self-Assurance Mechanism, together with supporting documentation, to demonstrate Financial Assurance for Phosphogypsum Stack System Closure and Long Term Care. Defendant shall not rely upon the additional Third-Party Mechanism to establish compliance with this Consent Decree until EPA has approved the additional Third-Party Mechanism. Defendant shall also demonstrate compliance with Paragraph 11 of this Appendix. EPA’s determination whether or not to accept Defendant’s request is subject to dispute resolution under Section XI (Dispute Resolution) of the Consent Decree, but is not subject to judicial review.

18.        If Defendant at any time becomes ineligible to rely on a Self-Assurance Mechanism pursuant to this Section III.B, and cannot re-establish such eligibility pursuant to Section VII (Temporary Non-Compliance) and/or Section VIII.B (Compliance Schedule: Type B) of this Appendix, then Defendant shall establish alternate Financial Assurance based on Current Dollars by: (a) maintaining the existing Financial Assurance in the trust fund (or as approved, other Third-Party Mechanism) as established pursuant to Paragraph 14; (b) providing additional Financial Assurance using Third-Party Mechanism(s) pursuant to Paragraphs 10.a-d, except for Paragraph 10.a.(1)(c); and (c) meeting the requirements of Paragraph 11 of this Appendix when providing more than one Financial Mechanism. If Defendant meets the above requirements and EPA approves the alternate Financial Assurance (including the termination of a Corporate Guarantee if provided), Defendant does not need to meet the requirements of Paragraph 15 of this Appendix. Defendant shall continue to be subject to Section III.B (Type B Financial Assurance), as set forth in this Paragraph 18, unless EPA approves a request to change to Section III.A (Type A Financial Assurance) pursuant to Paragraph 6 of this Appendix.

 

24

Mosaic Appendix 2


Table of Contents

19.        If the Total Louisiana Cost Estimate at the commencement of Defendant’s fiscal year is less than or equal to the value of the following Third-Party Mechanism(s), trust fund or insurance, then Defendant, may draw upon the Third-Party Mechanism(s) to pay for Phosphogypsum Stack System Closure and Long Term Care. Otherwise, Defendant shall first draw upon the resources of the Self-Assurance Mechanism before drawing upon a Third-Party Mechanism to pay for Phosphogypsum Stack System Closure or Long Term Care. If EPA approves the use of multiple Third-Party Mechanisms under Paragraph 17, above, EPA will designate the priority for drawing on the Third-Party Mechanisms and EPA’s designation shall not be subject to dispute resolution pursuant to Section XI (Dispute Resolution) of the Consent Decree, and shall not be subject to judicial review.

IV. Financial Assurance for Corrective Action

20.        If EPA is the primary Agency responsible for implementing Corrective Action under the Consent Decree, the Defendant shall comply with this Section and upon EPA request and to the extent of EPA’s authority under applicable law, shall also provide financial assurance for related, third party liability. If EPA is not the primary Agency responsible for implementing Corrective Action under the Consent Decree, Financial Assurance for Corrective Action shall be governed by the terms of Paragraph 25 of the Consent Decree.

21.        Defendant shall, within thirty (30) Days of receiving approval by EPA of any Risk Assessment Plan or Interim Measures Plan required pursuant to Paragraphs 17 or 19 in Attachment A of Appendix 1 of the Consent Decree, provide a detailed written Corrective Action Cost Estimate for the work required under the applicable Plan (“Plan Work”). Defendant shall, within twenty (20) Days of EPA’s approval of the Corrective Action Cost Estimate, demonstrate and provide to EPA Financial Assurance for the Plan Work in accordance with the requirements of Section III.A (Type A Financial Assurance), except for Paragraph 10.a.(1)(c), of this Appendix as applied to the Plan Work. If Defendant wishes to seek a waiver of all or part of the Financial Assurance, or wishes to propose an alternative form or reduced amount of Financial Assurance, Defendant shall submit a request to EPA explaining the basis for the proposed waiver, or alternative or reduced Financial Assurance, together with supporting documentation. Until such time as EPA approves the proposed waiver, or alternate or reduced Financial Assurance in writing, Defendant shall provide Financial Assurance in the amount of the approved Corrective Action Cost Estimate in accordance with Section III.A (Type A Financial Assurance), except for Paragraph 10.a.(1)(c), of this Appendix as applied to the Plan Work.

22.        Within thirty (30) Days of receiving written approval by EPA of any Corrective Action Plan required pursuant to Paragraph 18 of Attachment A of Appendix 1 of the Consent Decree, or any corrective action assessment by EPA for the Zone of Discharge required pursuant to Section D of Attachment B of Appendix 1 of the Consent Decree, Defendant shall submit to EPA for approval a proposed Financial Assurance Plan to implement the applicable Plan Work. The proposed Financial Assurance Plan shall include, as appropriate:

a.        A Corrective Action Cost Estimate for each stage of the Plan Work.

b.        A proposed Financial Mechanism, or set of Mechanisms, to provide Financial Assurance for the Plan Work, selected from the options set forth in Section (Type A Financial Assurance), except for Paragraph 10.a.(1)(c), of this Appendix (e.g., trust fund, surety bond,

 

25

Mosaic Appendix 2


Table of Contents

insurance, letter of credit, corporate financial test, or Corporate Guarantee) as applied to the Plan Work. If Defendant wishes to propose an alternate form or reduced amount of Financial Assurance, wishes to provide Financial Assurance in phases corresponding to the estimated costs for each stage of Plan Work or wishes to seek a waiver of all or part of the Financial Assurance required under this Section IV, Defendant shall submit a request to EPA explaining the basis for the proposed alternate, reduced or phased Financial Assurance, or the waiver of all or part of the Financial Assurance, together with supporting documentation, for approval.

c.        A proposed schedule (on at least a semi-annual basis) to update the Corrective Action Cost Estimate pursuant to Paragraph 22.b., above, to reflect inflationary adjustments and/or changes to the Plan Work.

23.        Within thirty (30) Days of EPA’s approval of Defendant’s Financial Assurance Plan, Defendant shall provide Financial Assurance for the Plan Work in an amount no less than the approved Corrective Action Cost Estimate, and in accordance with the Financial Assurance Plan approved by EPA.

V. Financial Assurance for Third Party Liability

24.        Within thirty (30) Days of the Effective Date of the Consent Decree, and on the first Anniversary Date and annually thereafter, Defendant’s CFO shall provide to EPA a Financial Mechanism for Third Party Liability along with an originally signed CFO Certification, together with supporting documentation, confirming that it has established Financial Assurance to compensate a third-party for bodily injury or property damage that might result from sudden accidental or non-sudden accidental occurrences associated with the Phosphogypsum Stack System Closure or Long Term Care at the Facility (“Financial Assurance for Third Party Liability”). If Defendant is providing Financial Assurance for Phosphogypsum Stack System Closure and Long Term Care pursuant Paragraph 10.a.(1)(c), Defendant shall, notwithstanding the schedules set forth in Paragraph 25, provide the Financial Mechanism and information required for Third Party Liability in accordance with the schedule and deadlines in Paragraph 29.d. The Financial Assurance for Third Party Liability shall comply with LAC 33:V.3715, except as provided in Paragraph 25, below, and in lieu of complying with LAC 33:V.3715.E Defendant shall maintain such Financial Assurance for the duration of Phosphogypsum Stack System Closure or Long Term Care. If Defendant wishes to propose an adjustment to the amount of Financial Assurance pursuant to LAC 33:V.3715.C, Defendant shall submit to EPA for approval an originally signed CFO Certification and, as set forth in LAC 33:V.3715.C, explaining the basis for the proposed adjustment, together with supporting documentation. Until such time as EPA approves the adjusted Financial Assurance in writing, Defendant shall provide Financial Assurance for Third Party Liability as required herein. Nothing in this Paragraph shall be construed to waive or limit EPA’s right, pursuant to LAC 33:V.3715.D, to adjust the level of Financial Assurance required in LAC 33:V.3715.A&B. EPA’s determination of whether or not to approve Defendant’s request under LAC 33:V.3715.C is subject to dispute resolution under Section XI (Dispute Resolution) of the Consent Decree, but not judicial review.

25.        Defendant’s Financial Assurance for Third Party Liability shall comply with LAC 33:V.3715.A-B&F-J, and LAC 33:V.3719.G,H.2 & I-N, except as otherwise provided in the F.A.C., and as modified by this Paragraph. If Defendant is using a trust fund, letter of credit, or

 

26

Mosaic Appendix 2


Table of Contents

surety bond, the Trustee of any trust fund, or the provider of any letter of credit, or surety bond shall not be a Related Party to Defendant. Defendant shall word the Financial Mechanism as specified in LAC 33:V.3719, except the term “facility” shall substitute for the phrase “hazardous waste facility,” and unless EPA provides an alternate form.

a.        For a surety bond or for insurance, Defendant shall demonstrate that the surety and the insurer have at least a “secured” financial strength rating of “A” by A.M. Best or an equivalent rating by an NRSRO. Such demonstration shall be in the form of an originally signed certification from either the Defendant (CFO Certification) or an officer of A.M. Best or the NRSRO.

b.        For a letter of credit, Defendant shall ensure that the provider of the letter of credit is a federally insured financial institution.

c.        For the corporate financial test, Defendant shall:

(1) In lieu of LAC 33:V.3715.F.1.b.i, use the current rating for either the S&P Long-Term Issuer Credit Rating or Moody’s long-term Corporate Family Rating which assesses a company’s capacity to meet its long-term (greater than one (1) year) financial commitments, as they come due.

(2) In lieu of the provision at LAC 33:V.3715.F.3, demonstrate that it meets the corporate financial test by submitting the following to EPA thirty (30) Days after the Effective Date of the Consent Decree, and on the first Anniversary Date and annually thereafter:

(a) A letter signed by Defendant’s CFO and as worded in LAC 33:V.3719.G (“CFO TPL Letter”).

(b) A copy of the independent CPA’s report on examination of Defendant’s audited financial statements for the latest completed fiscal year.

(c) A copy of the Independently Audited financial statements for the last completed year.

(d) A report of procedures and findings from Defendant’s independent CPA, resulting from an agreed-upon procedures engagement performed in accordance with the AICPA Statement on Standards for Attestation Engagements, AT Section 201 - Agreed Upon Procedures Engagements (including AICPA related attestation interpretations), as updated, that describes the procedures performed and related findings, including whether or not differences or discrepancies were found in the comparison of financial information included in the letter (including attachments and exhibits) from Defendant’s CFO and Defendant’s Independently Audited, year-end financial statements for the last fiscal year, including all attachments. Where differences or discrepancies exist between Defendant’s CFO TPL Letter and Defendant’s Independently Audited year-end financial statements, the report of procedures and findings will reconcile any differences or discrepancies between the values or information represented in Defendant’s CFO TPL Letter and Defendant’s Independently Audited financial statements. Procedures to be performed by the independent CPA shall be in accordance with AT Section 201.

d.        For a Corporate Guarantee, Defendant shall comply with LAC 33:V.3715.G, and as modified by Paragraph 25.c., and shall meet the requirements specified below:

(1) Submit the documents required under Paragraph 25.c.(2) to EPA thirty (30) Days after the Effective Date of the Consent Decree, and on the first Anniversary Date and annually thereafter;

(2) Use the exact wording as specified in Form 6-A, Attachment D of this Appendix, for the CFO TPL Letter; and

 

27

Mosaic Appendix 2


Table of Contents

(3) Provide a written Guarantee using the exact wording specified in Form 6-B, Attachment D of this Appendix.

VI. Information Gathering

26.         For purposes of Appendix 2, information gathering shall be governed by Paragraphs 26 and 88 of the Consent Decree unless otherwise specified in this Appendix.

VII. Temporary Non-Compliance

27.         If Defendant determines that it has violated or may violate any requirement of this Appendix, Defendant shall follow the procedures below. Any dispute raised by Defendant regarding EPA’s refusal to approve a plan under this Paragraph shall not prohibit EPA from accessing or collecting on existing Financial Assurance. Defendant shall be deemed to be without Financial Assurance for purposes of enforcement (but not for accessing or collecting Financial Assurance should it be necessary) if Defendant fails to meet a compliance schedule or the terms of a compliance plan under this Appendix.

a.        For all non-compliances or anticipated non-compliances, except for those associated with Paragraph 31 of this Appendix, Defendant shall within ten (10) Days of the non-compliance determination submit to EPA an originally signed CFO Certification together with supporting documentation, explaining in detail the nature of the violation and stating whether or not the non-compliance can be rectified by Defendant within thirty (30) Days. If Defendant does not believe that it can rectify the non-compliance within thirty (30) Days, then within ten (10) Days of its notice Defendant shall submit to EPA for approval a plan and schedule for correcting the violation. If applicable, such a plan shall include additional or alternate Financial Assurance. In the event that alternate or additional Financial Assurance is a component of the plan and schedule, then the Financial Assurance shall be provided as soon as possible, but no later than sixty (60) Days after Defendant’s notice of the Defendant’s non-compliance. Defendant may request additional time to provide the alternate or additional Financial Assurance and such request shall include a detailed explanation and supporting documentation. EPA’s determination of whether or not to approve Defendant’s plan and schedule for correcting the violation(s) is subject to dispute resolution under Section XI (Dispute Resolution) of the Consent Decree, including judicial review, except that the time frames for notices and submissions under Section XI (Dispute Resolution) of this Consent Decree shall be reduced by half for any plan requiring alternate or additional Financial Assurance.

b.        For all non-compliances or anticipated non-compliances under Paragraph 31, except for Paragraphs 31.j. through 31.m. of this Appendix, Defendant shall within ten (10) Days of the non-compliance determination submit to EPA an originally signed CFO Certification together with supporting documentation, explaining in detail the nature of the violation and stating whether or not the non-compliance can be rectified by Defendant within thirty (30) Days. If Defendant does not believe that it can rectify the non-compliance within thirty (30) Days, then within ten (10) Days of its notice Defendant shall submit to EPA for approval a plan and schedule for correcting the violation. In the event that alternate or additional Financial Assurance is to be provided by a Third-Party Mechanism, then the Financial Assurance shall be provided as soon as possible, but no later than sixty (60) Days after Defendant’s notice of the Defendant’s non-compliance. Defendant may request additional time to provide the alternate or additional

 

28

Mosaic Appendix 2


Table of Contents

Financial Assurance and such request shall include a detailed explanation and supporting documentation. EPA’s determination of whether or not to approve Defendant’s plan and schedule for correcting the violation(s) is subject to dispute resolution under Section XI (Dispute Resolution) of the Consent Decree, including judicial review except that the time frames for notices and submissions under Section XI (Dispute Resolution) of this Consent Decree shall be reduced by half for any plan that requires alternate or additional Financial Assurance.

c.         If Defendant is unable to provide alternate Financial Assurance as required by Paragraphs 31.j. through 31.m., and Defendant requests additional time to secure and provide alternate Financial Assurance under Paragraphs 31.j. through 31.m., Defendant shall submit to EPA for approval a plan and schedule for providing such alternate Financial Assurance. Such plan may include the continued role of the Guarantor under a Corporate Guarantee.

(1) The proposed plan and schedule shall provide that the Alternate Financial Assurance will be established as soon as possible by no later than sixty (60) Days after notice of the non-compliance. Defendant may request additional time to provide the alternate Financial Assurance and such request shall include a detailed explanation and supporting documentation.

(2) In the event that the proposed plan and schedule includes a continued role for the Guarantor under a Corporate Guarantee, Defendant shall submit with the plan updated information under Paragraph 31.h from the Guarantor, and a CFO Certification from the Guarantor’s CFO certifying as to the amount of financial resources that the Guarantor expects to have available for the next fiscal year to either perform Phosphogypsum Stack Closure and Long Term Care activities at the Operating and Closing Facilities or to provide alternate Financial Assurance. Such certification shall be required annually, and submitted along with the information provided under the Corporate Guarantee.

(3) EPA’s determination of whether or not to approve Defendant’s plan and schedule for providing alternate Financial Assurance, as required by Paragraphs 31.j, 31.l, and 31.k for an EPA decision based on an independent CPA’s adverse or qualified opinion, is subject to dispute resolution under Section XI (Dispute Resolution) of the Consent Decree, including judicial review except that Defendant shall seek any such judicial review in Court within seven (7) Days after the conclusion of the dispute resolution period, and the position of EPA shall become effective unless stayed or modified by the Court within twenty (20) Days of the conclusion of the dispute resolution period. EPA’s determination of whether or not to approve Defendant’s plan and schedule for providing alternate Financial Assurance as required by Paragraphs 31.k. (except for EPA decision based on an independent CPA’s adverse or qualified opinion) and 31.m. is subject to dispute resolution under Section XI (Dispute Resolution) of the Consent Decree, including judicial review. The time frames for notices and submissions under Section XI (Dispute Resolution) of this Consent Decree shall be reduced by half.

28.        Defendant shall not be subject to stipulated penalties pursuant to Section IX (Stipulated Penalties) of the Consent Decree for temporary non-compliance with this Appendix provided that: (a) Defendant complies with the notice and submittal requirements of Paragraph 27, above; (b) EPA approves the plan and schedule for correcting the violation, including any additional or alternative Financial Assurance; (c) Defendant within ten (10) Days of EPA’s approval commences the correction of the violation in accordance with the approved schedule, including if applicable the establishment of any additional or an alternate form of Financial Assurance; and (d) EPA determines that Defendant’s violation is not due to Defendant’s lack of diligence or good faith (the burden of proving this shall rest with Defendant).

 

29

Mosaic Appendix 2


Table of Contents
VIII.   Compliance Schedule

A.        Type A Financial Assurance

29.        In the event that the Defendant establishes Financial Assurance pursuant to Section III.A (Type A Financial Assurance), Paragraph 10.a.(1)(c), Defendant shall meet the following:

a.        Defendant shall:

(1) Deposit $113.696 Million into a trust fund (“Louisiana Phosphogypsum Trust Fund”) that shall be set up in accordance with Paragraph 30, below, for the Phosphogypsum Stack System Closure of the Operating Facility and for the Long Term Care at the Operating and Closing Facilities no later than thirty (30) Days after the Effective Date of the Consent Decree or by January 11, 2016, whichever is later; and

(2) Provide an executed Corporate Guarantee, in accordance with Paragraph 31, below, in the amount represented by the Louisiana Financial Assurance Delta. The signed Guarantee is attachment to this Appendix (Attachment I) and will be in effect as of the Effective Date of the Consent Decree.

b.        For each Facility:

(1) Financial Assurance provided by Defendant pursuant to this Section VIII.A shall apply only to and shall satisfy all requirements concerning Financial Assurance for Phosphogypsum Stack System Closure and Long Term Care under this Consent Decree with respect to:

(a) The current configuration of the Phosphogypsum Stack System at the Operating and Closing, as reflected in Attachment F, Exhibit F-1 (i.e., existing Phosphogypsum Stack System), including any increase in height within that configuration and its current footprint up to its design height, and

(b) Any planned lateral expansion(s) of the existing Phosphogypsum Stack System at the Operating Facilities as identified by the Defendant in 2015 (i.e., Attachment F, Exhibit F-2, and identified in Attachment G: Baseline as “Planned Future Expansion Closure Area”) (“Planned Expansion”): (i) that qualifies as a “Covered Expansion” under Paragraph 29.b.(2) below, and (ii) that becomes part of the Phosphogypsum Stack System configuration (i.e., fully-engineered and constructed) upon and in accordance with any requisite approvals by LDEQ pursuant to the laws and regulations of Louisiana. Nothing in this Paragraph or in the Consent Decree shall be construed to limit, alter or supersede the permitting and approval authorities of LDEQ with respect to the permitting or timing and conditions of the Planned Expansion(s).

(2) The Planned Expansion(s) shall be a Covered Expansion if it meets either of the following criteria, below, to be determined at the time the Planned Expansion(s) is fully engineered and the information required by Paragraph 29.b.(3), below, has been submitted (the “Determination Date”):

(a) The Total Phosphogypsum Volume3 in the Phosphogypsum Stack System anticipated at the Determination Date (calculated pursuant to Paragraph 29.b.(3), below) is not more than two point five percent (2.5%) greater than the Total Phosphogypsum Volume anticipated in 2015 (as specified in the Attachment G: Baseline), and the

 

3 Total Phosphogypsum Volume is utilized herein as an approximate surrogate for pore water volume.

 

30

Mosaic Appendix 2


Table of Contents

anticipated Total Future Closure Area at the Determination Date (calculated pursuant to Paragraph 29.b.(3), below) is not more than three percent (3%) greater than the Total Future Closure Area anticipated in 2015 (as specified in Attachment G: Baseline); or

(b) The sum of the following is not more than five percent (5%):

    (i) The percent (%) change between the Total Phosphogypsum Volume anticipated at the Determination Date (calculated pursuant to Paragraph 29.b.(3), below) and the Total Phosphogypsum Volume anticipated in 2015 (as specified in the Attachment G: Baseline), and

    (ii) The percent (%) change between the Total Future Closure Area anticipated at the Determination Date (calculated pursuant to Paragraph 29.b.(3), below) and the Total Future Closure Area anticipated in 2015 (as specified in the Attachment G: Baseline).

(c) Defendant shall, in making the calculations required by Paragraph 29.b.(2)(b), above, substitute zero (“0”) for a negative percentage that may be generated when comparing the Total Phosphate Volume or the Total Future Closure Area as of the Determination Date to the 2015 baseline.

(3) Defendant shall submit to EPA information regarding the Planned Expansion(s) at the Operating Facility as follows:

(a) If Defendant has not provided the information regarding the Planned Expansion(s) at the Operating Facility identified by Defendant in 2015, using the form in Attachment G, prior to the Effective Date of the Consent Decree, then Defendant shall submit such information to EPA (the “Attachment G: Baseline”) within thirty (30) Days of the Effective Date of the Consent Decree to use as a baseline in determining if the Planned Expansion(s) once fully engineered is a Covered Expansion.

(b) Defendant shall submit updated information regarding the Planned Expansion using the form in Attachment G (the “Attachment G: Updated”), within 45 (forty-five) Days of the time that a Planned Expansion has been fully-engineered. The information submitted shall be used to determine if the Planned Expansion as fully engineered is a Covered Expansion. Attachment G: Updated shall include the following adjustments, if applicable:

(i) If Defendant has not installed a liner as identified in the 2015 baseline as reflected in Attachment G: Baseline at the corresponding average stack elevation prior to activation of the Planned Expansion, then the Total Phosphogypsum Volume shall be revised in the Attachment G: Updated to account for the lack of the liner by adding in the corresponding values of phosphogypsum volume deducted for that anticipated liner as previously calculated and reflected in the Attachment G: Baseline in the column labelled “Phosphogypsum Volume to be Added if Proposed HDPE Liner is Not Installed at Elevation 100’(acre-feet).”

(ii) If Defendant has, after 2015, either lined or closed an isolated section of the Phosphogypsum Stack System or has installed a liner for such section that had not been identified in the 2015 Attachment G, the volume of phosphogypsum beneath the liner at the time of liner installation may be reduced at the rate of eight percent (8%) annually for the period following the installation of the liner until the Determination Date, when calculating the Total Phosphogypsum Volume on the Updated Attachment G.

 

31

Mosaic Appendix 2


Table of Contents

(iii) If Defendant, after 2015, closes a portion of the stack top area or slope area earlier than scheduled to be closed, the corresponding area(s) may be deducted from the Total Future Closure Area in the Updated Attachment G, provided there are no then-planned lateral or vertical expansions that would require re-activating the closed areas.

(4) Notwithstanding the adjustments in Paragraph 29.b.(3)(b), above, a Planned Expansion shall not be considered a Covered Expansion if the total area of the Planned Expansion as fully engineered exceeds the area of the Planned Expansion as specified in Attachment F (Figure F-2) and the Attachment G: Baseline (i.e., “Future Expansion Closure Area”) by more than eight percent (8%).

(5) Defendant shall provide financial assurance under applicable State law and regulations for:

(a) Any new Phosphogypsum Stack, new Phosphogypsum Stack System, or new expansion of a Phosphogypsum Stack System (i.e., any lateral expansions, increased height above the design height as of 2015, new cooling pond or other form of expansion, in each case to the extent not identified in Attachment F); and

(b) A Planned Expansion that exceeds the criteria for a Covered Expansion. The financial assurance shall be in an amount equal to the difference in the (i) costs of Phosphogypsum Stack System Closure and Long Term Care between the Planned Expansion as anticipated in 2015 (see Attachment G: Baseline, “Planned Future Expansion Closure Area” and “Planned Future Expansion Phosphogypsum Volume”) for the Operating Facility and (ii) and the fully-engineered, actual build of the Planned Expansion, as permitted by LDEQ, and as reflected in Attachment G: Updated (i.e., “Expansion Closure Area” and “Expansion Phosphogypsum Volume”). This financial assurance, unless otherwise agreed to by LDEQ in its sole discretion, is due within ninety (90) Days of submitting the Attachment G: Update.

(6) Defendant shall not use the Financial Mechanisms demonstrating Financial Assurance under this Consent Decree (e.g., Financial Mechanisms specified in Paragraph 29.a. of this Appendix) or that may be required in Paragraphs 27 or 31 of this Appendix, in establishing or demonstrating compliance with any financial assurance required pursuant to any federal or State law or regulations. Defendant is not precluded from relying on such Financial Mechanisms in satisfying any financial metric or test utilized for financial assurance when permitted under a federal or State law or regulation.

(7) Defendant shall archive and maintain the Computer Aided Design (“CAD”) files, for the Operating Facility, which contain the underlying information for the values specified in Attachment G: Baseline. Defendant shall maintain the CAD files until Phosphogypsum Stack System Closure and Long Term Care, pursuant to a Permanent Closure Plan, has been implemented at the New Wales Facility. Defendant shall provide access to the CAD files, or provide the CAD files, within thirty (30) Days of the EPA’s request.

c.        Defendant shall first draw upon its own resources or a Guarantor’s resources (as set forth in Paragraph 31), before requesting any reimbursement or release from the Louisiana Phosphogypsum Trust Fund or any other Third-Party Mechanism established pursuant to this Section VIII to pay for the Phosphogypsum Stack System Closure and/or Long Term Care at the Operating and Closing Facilities. If EPA approves additional Third-Party Mechanisms, as set out in Section III.A (Type A Financial Assurance) of this Appendix (e.g., insurance), EPA will

 

32

Mosaic Appendix 2


Table of Contents

determine the priority for drawing on the Third-Party Mechanisms and such determination is not subject to dispute resolution pursuant to Section XI (Dispute Resolution) of the Consent Decree and is not subject to judicial review.

d.        Within forty five (45) Days of the trust fund being established and funded as set forth in Paragraph 29.a., above, or by March 31 of the calendar year in which the trust fund is established and funded, whichever is later, and on or before the Anniversary Date in the following calendar year and annually thereafter, Defendant shall provide to EPA an originally signed CFO Certification in the form attached hereto as Attachment A from the Defendant’s CFO together with supporting documentation, confirming that it has established Financial Assurance for Phosphogypsum Stack System Closure and Long Term Care at the Operating and Closing Facilities in a total amount no less than the Total Louisiana Cost Estimate. The Anniversary Date under this Section XVIII.A. of the Appendix shall be March 31.

30.        Defendant shall with respect to the Louisiana Phosphogypsum Trust Fund comply with the requirements of Paragraph 10.a.(1)(c), and the following requirements of LAC 33:V.3707.A.1-2, 7 & 9-11 and LAC 33:V.3711.A.1-2, 7 & 9-12, as applicable and as modified below:

a.        In addition to the applicable requirements of LAC 33:V.3707.A.1 and LAC 33:V.3711.A.1, Defendant shall:

(1) When replacing an existing Trustee with a successor (“Successor Trustee”) use the following criteria listed below. Notwithstanding the criteria for a Successor Trustee, EPA and LDEQ reserve all legal and equitable rights under the law to take any action to protect its interests in the trust fund.

(a) The Successor Trustee identified by the Defendant must be the Trust Department of a Bank or a professional Trustee, be able to hold trust assets in secure custody, not be subject to a conflict of interest, be able to account for trust assets and income to the Grantor, Beneficiaries and tax authorities as required by law, maintain records of trust transactions, and meet the responsibilities of a Trustee established by State and federal law.

(b) In establishing that the Successor Trustee can meet the criteria listed in Paragraph

30.a.(1)(a), above, Defendant shall consider at a minimum the Successor Trustee’s trust management experience, the length of time served as a Trustee, the investment experience of the Successor Trustee and whether the Successor Trustee is regulated, bonded and insured.

(2) Prior to terminating the Trustee, Defendant shall consult with EPA explaining the purpose or benefit of such termination and identifying the proposed Successor Trustee. If the Defendant terminates the Trustee, Defendant shall provide notice to EPA and LDEQ when providing notice to the Trustee.

(3) Defendant has proposed, and EPA and LDEQ have approved, Russell Investments as the initial Trustee of the Louisiana Phosphogypsum Trust Fund.

b.         In lieu of LAC 33:V.3719.A, Defendant shall use the exact wording as specified in Form 1-B, Attachment D of this Appendix, for the Trust Agreement. The Defendant may enter into an addendum to the Trust Agreement (“Addendum”) provided that: (a) the Addendum supplements and does not contain terms that conflict, supersede, revise or alter the terms of the Trust Agreement (or the requirements of Appendix 2); and (b) the Addendum is approved by EPA in advance, such approval is within EPA’s unreviewable discretion. EPA has approved an

 

33

Mosaic Appendix 2


Table of Contents

Addendum included as Form 2, Attachment D of this Appendix. The Trust Agreement must be accompanied by a formal certification of acknowledgement.

c.        In accordance with Paragraph 10.a.(1)(c) (and in lieu of LAC 33:V.3707.A.3-4 and LAC 33:V.3711.A.3-4), and as specified in Paragraph 29.a., above, Defendant shall deposit $113.696 Million into the Louisiana Phosphogypsum Trust Fund for the benefit of EPA and LDEQ. Payments from the Louisiana Phosphogypsum Trust Fund shall be in accordance with the reimbursement procedures set forth in Paragraph 30.d., below, or the release procedure set forth in Paragraph 30.e., below, and the Trust Agreement.

d.        Defendant shall, when requesting reimbursement from the Louisiana Phosphogypsum Trust Fund, meet the requirements of LAC 33:V.3707.A.3-4 and LAC 33:V.3711.A.11 except as modified below:

(1) Defendant shall not seek reimbursement from the Louisiana Phosphogypsum Trust Fund for Phosphogypsum Stack System Closure at the Closing Facilities in Louisiana.

(2) Defendant shall not seek reimbursement from the Louisiana Phosphogypsum Trust Fund for Phosphogypsum Stack System Closure and/or Long Term Care related-costs for the Operating Facility and Long Term Care related-costs for the Closing Facilities unless the value of the Louisiana Phosphogypsum Trust Fund equals or exceeds the Total Louisiana Cost Estimate at the time reimbursement is sought. Defendant may, when the Louisiana Phosphogypsum Trust Fund value equals or exceeds the Total Louisiana Cost Estimate, seek reimbursement for Phosphogypsum Stack System Closure and/or Long Term Care at the Louisiana Facilities related-costs only if sufficient funds are available to cover the Total Louisiana Cost Estimate.

(3) Defendant shall not seek reimbursement from the Louisiana Phosphogypsum Trust Fund for taxes paid on the Louisiana Phosphogypsum Trust Fund unless the value of the Louisiana Phosphogypsum Trust Fund equals or exceeds the Total Louisiana Cost Estimate at the time reimbursement is sought. When the Louisiana Phosphogypsum Trust Fund value equals or exceeds the Total Louisiana Cost Estimate, Defendant may seek reimbursement for taxes paid on the Louisiana Phosphogypsum Trust Fund only if sufficient funds are available to cover the Total Louisiana Cost Estimate and Defendant complies with the requirement of Paragraph 30.g., below.

(4) For any initial reimbursement each year, Defendant shall submit a Total Louisiana Cost Estimate in accordance with Paragraph 4.c. (i.e., a Cost Estimate reflecting cost adjustments), and for any subsequent reimbursement in that year, submit a Total Louisiana Cost Estimate if there has been any significant cost adjustments and/or changes to the Louisiana Phosphogypsum Stack System.

(5) In addition, Defendant shall when seeking reimbursement from the Louisiana Phosphogypsum Trust Fund direct the Trustee to provide EPA with a current (i.e., as of a date within seven (7) Days of the date Defendant is requesting the reimbursement) accounting of the Louisiana Phosphogypsum Trust Fund.

e.        Defendant shall when requesting release of funds from the Louisiana Phosphogypsum Trust Fund meet the requirements of LAC 33:V.3707.A.7 and LAC 33:V.3711.A.7&10, except as modified below:

(1) Defendant shall not seek release of funds from the Louisiana Phosphogypsum Trust Fund unless the value of the Louisiana Phosphogypsum Trust Fund equals or exceeds the Total Louisiana Cost Estimate at the time release is sought.

(2) Defendant may seek a release of funds when the Louisiana Phosphogypsum Trust Fund value equals or exceeds the Total Louisiana Cost Estimate only if sufficient funds are available to cover the Total Louisiana Cost Estimate.

 

34

Mosaic Appendix 2


Table of Contents

(3) Defendant shall, when seeking a release of funds from the Louisiana Phosphogypsum Trust Fund, direct the Trustee to provide EPA with a current (i.e., as of a date within seven (7) Days of Defendant’s request for the release) accounting of the Louisiana Phosphogypsum Trust Fund.

f.        Defendant when seeking termination of the Louisiana Phosphogypsum Trust Fund shall comply with LAC 33:V.3707.A.11 and LAC 33:V.3711.A.12, and Defendant shall not seek termination of the Louisiana Phosphogypsum Trust Fund until all Phosphogypsum Stack System Closure and Long Term Care activities have been completed and certified pursuant to Attachment D, Appendix 1 of the Consent Decree, for all Operating and Closing Facilities.

g.        Defendant shall pay all taxes of any kind that may be assessed or levied against or with respect to the Louisiana Phosphogypsum Trust Fund. Defendant shall also pay all expenses (e.g., brokerage commissions, accounting services, reasonable fees for legal services rendered to the Trustee, the compensation of the Trustee, costs incurred by the Sub-advisors, penalties, and all other proper charges and disbursements of the Trustee) incurred by the Trustee in connection with the administration and management of the Louisiana Phosphogypsum Trust Fund. Defendant may pay such taxes and expenses by establishing a trust fund account (“T&E Trust Fund Account”), to be accessed by the Trustee, into which Defendant shall transmit sufficient funds in advance of the date by which the Trustee is required to pay such taxes and/or expenses. The T&E Trust Fund Account shall be established and maintained by the Trustee as a separate and distinct fund from the Louisiana Phosphogypsum Trust Fund. The T&E Trust Fund Account shall be established on the date that the Louisiana Phosphogypsum Trust Fund is established pursuant to the Consent Decree. At no time shall there be reimbursement for taxes from the Louisiana Phosphogypsum Trust Fund except in accordance with Paragraph 30.d., above, and not if such reimbursement will deplete the corpus (i.e., principle and income) of the Louisiana Phosphogypsum Trust Fund such that the value of the Louisiana Phosphogypsum Trust Fund no longer equals or exceeds the Total Louisiana Cost Estimate. In addition, if Defendant seeks reimbursement for taxes under Paragraph 30.d., there shall by no reimbursement from the Louisiana Phosphogypsum Trust Fund for penalties owed to the Internal Revenue Service or the State’s Tax Commission.

h.        Defendant shall direct the Trustee and shall ensure that EPA receives, in writing, the following information specified in Paragraphs 30.h.(1)-(3), below. Defendant shall confirm the information has been received by EPA within five (5) Days of the date due and, if such information has not been received by EPA, Defendant shall provide the information within twenty (20) Days of the date the information is due to EPA; provided that if Defendant does not have all the referenced information in its possession, it shall so notify EPA within twenty (20) Days of the date the information is due and shall also identify the steps it is taking to obtain access to any such information it does not have.

(1) Semi-annual trust fund account statements reporting on the growth of the Louisiana Phosphogypsum Trust Fund and a list of the investments (including the applicable rating).

(2) In connection with all requests for reimbursement or release from the Louisiana Phosphogypsum Trust Fund, a current (i.e., as of a date within seven (7) Days of Defendant’s request) accounting of the fund or subaccount as appropriate.

(3) In the event that Defendant Guarantor’s Liquidity Buffer falls below $1 Billion, quarterly Louisiana Phosphogypsum Trust Fund account statements and a list of the investments (including the applicable rating).

 

35

Mosaic Appendix 2


Table of Contents

i.        Defendant shall direct the Trustee to invest and re-invest the principal and income of the Louisiana Phosphogypsum Trust Fund with the express purposes of achieving full funding (i.e., the value of the Louisiana Phosphogypsum Trust Fund equals or exceeds the Total Louisiana Cost Estimate) as soon as possible, consistent with prudent investment practices, and managing the risk levels of such investments to preserve such principal and income as set forth in this Paragraph 30.i. Defendant shall direct the Trustee to invest and re-invest only in a combination of Investment Grade corporate securities, Investment Grade municipal securities, and U.S. Treasury Securities, as specified below in Paragraphs 30.i.(1)-(2) (and as set out in Schedule C of the Trust Agreement), except for funds deposited from a letter of credit that shall be invested as specified by Paragraph 30.k., below. Defendant may direct the Trustee, upon EPA written approval that is not subject to dispute resolution pursuant to Section XI (Dispute Resolution) of the Consent Decree and is not subject to judicial review, to consider investment in other types of securities or financial vehicles. Nothing in this Paragraph 30.i. shall alter or waive the rights of EPA or LDEQ to protect their interest in the Louisiana Phosphogypsum Trust Fund.

(1) Such investment shall be: (a) no less than forty percent (40%) of the Louisiana Phosphogypsum Trust Fund shall be U.S. Treasury Securities; (b) commencing twelve (12) months after the Effective Date, no more than five percent (5%) of the Louisiana Phosphogypsum Trust Fund shall consist of U.S. Treasury Securities with maturities less than three (3) years (not including U.S. Treasury Securities originally purchased with a maturity greater than ten (10) years, and then held to maturity) and all other U.S. Treasury Securities shall have maturities of three (3) years or more; (c) no more than fifteen percent (15%) of the Louisiana Phosphogypsum Trust Fund in Investment Grade corporate or municipal securities with ratings by a NRSRO of BBB/Baa2 (or the equivalent); and (d) the balance that remains of the Louisiana Phosphogypsum Trust Fund in Investment Grade corporate or municipal securities with ratings by a NRSRO of at least BBB+/Baa1 (or the equivalent) or above.

(2) For purposes of this Paragraph 30.i.(2), if a security is rated at different levels by different NRSROs, the lower of the ratings shall be utilized. In the event of a downgrading of one or more investments of the Louisiana Phosphogypsum Trust Fund, resulting in either: (i) the Louisiana Phosphogypsum Trust Fund holds one or more corporate or municipal securities rated lower than BBB, Baa2 or the equivalent, or (ii) the portion of the Louisiana Phosphogypsum Trust Fund invested in corporate or municipal securities rated BBB, Baa2 or the equivalent exceeds fifteen percent (15%), the Trustee shall have a reasonable and prudent period of time to take steps to conform to the requirements of this Paragraph, 30.i.

j.        After the Louisiana Phosphogypsum Trust Fund’s value equals or exceeds the Total Louisiana Cost Estimate, the Louisiana Phosphogypsum Trust Fund shall be invested only in U.S. Treasury Securities unless EPA in its unreviewable discretion agrees otherwise and the Parties modify this Appendix in accordance with Section XVIII (Modification) of the Consent Decree. At such time, the Trustee shall be afforded a reasonable and prudent period of time to dispose of securities other than U.S. Treasury Securities and to acquire the additional U.S. Treasury Securities.

k.        Defendant shall direct the Trustee to invest funds deposited into the stand-by trust (i.e., Louisiana Phosphogypsum Trust Fund) from the letter of credit into accounts or investments that have no penalty for immediate withdrawals.

l.        Defendant shall review the Guarantor’s Liquidity Buffer at the close of every month, and if Defendant determines that such Liquidity Buffer has fallen below $1 Billion, then within five (5) Days of the beginning of the following month, Defendant shall direct the Trustee

 

36

Mosaic Appendix 2


Table of Contents

through amended instructions under the Trust Agreement (i.e., Schedule D, Exhibit B) to provide EPA and LDEQ with quarterly Louisiana Phosphogypsum Trust Fund account statements and a list of the securities (including the applicable rating). In addition, Defendant shall notify EPA within five (5) Days of such a determination (i.e., the Liquidity Buffer has fallen below $1 Billion), and that the Trustee will be submitting quarterly account statements.

m.        Defendant shall provide the Trustee a copy of this Appendix 2 (and all the attachments).

31.        Defendant, in lieu of Paragraph 10.f., shall meet the requirements of LAC 33:V.3707.F.10 and LAC 33:V.3711.F.11, as applicable, and as modified below. Defendant shall comply with only those requirements of LAC 33:V.3707.F.1-8 and LAC 33:V.3711.F.1-8, as referenced in of LAC 33:V.3707.F.10 and LAC 33:V.3711.F.11, that are set forth in this Paragraph 31.

a.        Defendant shall provide a written Corporate Guarantee, as specified below, to cover that portion of its Financial Assurance obligation not covered by the Louisiana Phosphogypsum Trust Fund established pursuant to Paragraph 30, above.

b.        Defendant shall, pursuant to of LAC 33:V.3707.F.10 and LAC 33:V.3711.F.11 and as herein modified, obtain a Corporate Guarantee from a direct or higher-tier parent corporation of the Defendant, a firm whose parent corporation is also the parent corporation of the Defendant, or a firm with a Substantial Business Relationship with the Defendant. If the Guarantor’s parent corporation is also the parent corporation of the Defendant, the letter from the CFO specified in Paragraph 31.h.(4), below, shall describe the value received in consideration of the Guarantee. If the Guarantor is a firm with a Substantial Business Relationship with the Defendant, the CFO Letter must describe this Substantial Business Relationship and the value received in consideration of the Guarantee.

c.        Defendant shall maintain the Guarantee until such time as: (1) the value of the Louisiana Phosphogypsum Trust Fund plus the amount of the letter of credit equals or is greater than the Total Louisiana Cost Estimate, (2) Defendant directs the Trustee to provide EPA with a current (i.e., as of a date within five (5) Days of Defendant’s request) accounting of the Louisiana Phosphogypsum Trust Fund; and (3) EPA affirms in writing to the Defendant that the value of the Louisiana Phosphogypsum Trust Fund plus the amount of the letter of credit equals or is greater than the Total Louisiana Cost Estimate.

d.        Defendant shall, in lieu of LAC 33:V.3719.H as referenced in of LAC 33:V.3707.F.10 and LAC 33:V.3711.F.11, provide a written Guarantee using the exact wording specified in Form 5-B, Attachment D of this Appendix. A copy of the executed Guarantee shall accompany the items listed in Paragraph 31.h., below.

e.        Defendant shall provide a Corporate Guarantee that, pursuant to of LAC 33:V.3707.F.10.a and LAC 33:V.3711.F.11.a except as herein modified, requires that if Defendant fails to perform Phosphogypsum Stack System Closure and/or Long Term Care in accordance with the Initial Closure Plan and/or Permanent Closure Plan and other applicable requirements under the Consent Decree whenever required to do so, the Guarantor shall undertake such performance or establish alternate Financial Assurance in accordance with Section III.A (Type A Financial Assurance), except for Paragraph 10.a.(1)(c), in the name of the Defendant in the amount at least equal to the Louisiana Financial Assurance Delta.

f.        Defendant shall provide a Corporate Guarantee that requires Defendants’ Guarantor to provide a Representation and Certification as worded in Attachment H of this Appendix.

 

37

Mosaic Appendix 2


Table of Contents

g.        Defendant shall provide a Guarantee that requires the Guarantor to send notice to Defendant and EPA within five (5) Days of determining that: (1) the Guarantor is unable to provide a Representation and Certification; (2) the Guarantor becomes aware of changes in the Guarantor’s financial condition that would invalidate or otherwise be inconsistent with the terms of the existing Representation and Certification; (3) the Guarantor becomes aware of changes in the Guarantor’s Total Cost Estimate that would invalidate or otherwise be inconsistent with the terms of the Representation and Certification; or (4) the Guarantor is unable to meet the conditions of the Guarantee. Defendant and the Guarantor agree that: (i) such notice shall be admissible in evidence in any litigation between the Parties and create a presumption that the Guarantor cannot provide the required Representation and Certification, and that the Guarantor cannot perform Phosphogypsum Stack System Closure and/or Long Term Care at the Operating and Closing Facilities or establish alternate Financial Assurance in accordance with Section III.A (Type A Financial Assurance) in an amount that is at least equal to the Financial Assurance Delta and (ii) Defendant and the Guarantor may rebut this presumption only by clear and convincing evidence. Such Guarantee shall also include that any notice by the Guarantor of its inability to provide the Representation and Certification, or notice of Guarantor’s inability to comply with the requirements of the Guarantee, incorporates a statement by the Guarantor of the value of the guaranteed obligations that the Guarantor lacks the financial resources to cover. In the event that the Guarantor provides such notice, Guarantor shall make available financial resources to the Defendant so that the Defendant can meet its Financial Assurance obligation under the Consent Decree.

h.        Defendant shall provide a Guarantee, in lieu of LAC 33:V.3707.F.3&5 and LAC 33:V.3711.F.3&5 except as herein modified, that includes information required in Paragraph 31.h.(1)-(8), below. The information required in Paragraph 31.h.(1)-(8) shall be submitted to EPA, in accordance with the schedule and deadlines in Paragraph 29.d.,of each year the Guarantor is providing a Guarantee. Defendant Guarantor’s failure to timely submit the information required below shall not excuse Defendant from providing Financial Assurance.

(1) The value of the Guarantor’s: (a) assets located in the United States; (b) Tangible Assets located in the United States; and (c) the Liquidity Buffer. This information shall be captured in the Guarantor’s CFO Letter as required under Paragraph 31.h.(4), below.

(2) If more than sixty percent (60%) of the Guarantor’s tangible assets are in the form of one or more note receivables from one or more Related Parties, an originally signed certification from the Guarantor’s CFO together with a list of each receivable, the name of the Related Party, and a description (along with any necessary documentation) of the Related Parties financial strength to demonstrate that each Related Party maintains the financial strength to meet its obligation to the Guarantor. Such information shall accompany the Guarantor’s CFO Letter required in Paragraph 31.h.(4), below.

(3) A list of the “Environmental Obligations” and associated cost estimates for the obligations covered by a financial test or guarantee of the Guarantor. The information shall be captured in the Guarantor’s CFO Letter as required under Paragraph 31.h.(4), below.

(4) A letter signed by Guarantor’s CFO worded exactly as specified in Form 4-C, Attachment D of this Appendix (CFO Letter).

(5) A copy of the independent CPA report on examination of the Guarantor’s audited financial statements for the latest completed fiscal year that Guarantor is providing the Corporate Guarantee.

(6) A copy of Guarantor’s audited financial statements for the last completed year.

 

38

Mosaic Appendix 2


Table of Contents

(7) A Representation and Certification signed by the Guarantor’s CFO worded exactly as specified by Attachment H of this Appendix. Such Representation and Certification shall accompany the Guarantor’s CFO Letter required in Paragraph 31.h.(4), above.

(8) A report of procedures and findings from the Guarantor’s independent CPA, resulting from an agreed-upon procedures engagement performed in accordance with the AICPA Statement on Standards for Attestation Engagements, AT Section 201 - Agreed Upon Procedures Engagements (including AICPA related attestations interpretations), as updated, that describes the procedures performed and related findings, including whether or not differences or discrepancies were found in the comparison of specified financial information set out in the letter (including attachments and exhibits to the extent specified in the letter) from the Guarantor’s CFO and the Guarantor’s Independently Audited, year-end financial statements for the last fiscal year, including all attachments. Where differences or discrepancies exist between Guarantor’s CFO Letter and the Guarantor’s Independently Audited year-end financial statements, the report of procedures and findings shall reconcile any differences or discrepancies between the values or information represented in the Guarantor’s CFO Letter and the Guarantor’s Independently Audited financial statements. The independent CPA’s report on agreed-upon procedures shall also confirm the firm’s values represented in Section I, Paragraphs 11 and 12, and in Sections II, line items 3 and 5 of the Guarantor’s CFO Letter are calculated correctly pursuant to the requirements under Section I, Paragraphs 11 and 12, and Section II, of the Guarantor’s CFO Letter and are in accordance with GAAP. Procedures to be performed by the independent CPA shall be in accordance with AT Section 201.

i.         Defendant shall provide a Guarantee that requires that the Guarantor provide notice that it is a debtor in a voluntary or involuntary proceeding under Title 11 (Bankruptcy) U.S. Code.

j.         Defendant shall send notice to EPA within five (5) Days of the Defendant’s determination that the Guarantor is unable to meet its obligations under Recital 2 of the Guarantee. Defendant shall, in the event Defendant’s Guarantor is unable to meet its obligations under Recital 2 of the Guarantee as determined by the Defendant or as provided in notice by the Guarantor, provide alternate Financial Assurance in accordance with this Appendix (except for Paragraph 10.a(1)(c)), in an amount no less than the Louisiana Financial Assurance Delta. Defendant shall provide such alternate Financial Assurance within thirty (30) Days of its determination or having received notice from the Guarantor. Defendant shall not seek dispute resolution pursuant to Section XI (Dispute Resolution) of the Consent Decree, and shall not seek judicial review, regarding its determination or the Guarantor’s notice that the Guarantor is unable to meet the obligations of Recital 2 or that the Defendant is required to provide alternate Financial Assurance. In the event that Defendant cannot provide alternate Financial Assurance within thirty (30) Days, Defendant may seek pursuant to Paragraph 27.c., above, a compliance plan and schedule.

k.         Defendant shall, in the event EPA notifies Defendant that the Guarantor no longer meets its obligations under Recital 2 of the Guarantee or pursuant to of LAC 33:V.3707.F.8 and LAC 33:V.3711.F.8 is disallowed from continuing as a Guarantor because an independent CPA has issued in the report on examination of the Guarantor’s audited financial statements an adverse opinion or a disclaimer of opinion, provide alternate Financial Assurance in an amount no less than the Louisiana Financial Assurance Delta. Defendant shall provide alternate Financial Assurance within thirty (30) Days of EPA’s notice. In the event that Defendant cannot provide alternate Financial Assurance within thirty (30) Days, Defendant may request, pursuant to

 

39

Mosaic Appendix 2


Table of Contents

Paragraph 27.c., above, a compliance plan and schedule. Dispute resolution and judicial review shall proceed pursuant to Section XI (Dispute Resolution), as modified below:

(1) In the event that Defendant seeks judicial review of an EPA determination that the Guarantor no longer meets its obligations under Recital 2 of the Guarantee:

(a) The standard of review shall be that set forth in Paragraph 81.a. of the Consent Decree; and

(b) If the United States prevails, the Defendant or Guarantor shall immediately provide alternate Financial Assurance in accordance with EPA’s Statement of Position or as directed by the Court in its resolution of the dispute.

(2) In any dispute resolution, including judicial review, of EPA’s determination that the Guarantor can no longer continue as the Guarantor based on an adverse opinion or disclaimer of opinion by the Guarantor’s independent CPA, the following conditions shall apply in addition to those set forth in Paragraph 31.k.(1)(a) and (b), above:

(a) Defendant shall not contend that the adverse opinion or disclaimer of opinion was invalid or erroneous when issued, and shall have the burden of demonstrating by clear and convincing evidence that the conditions giving rise to the adverse opinion or disclaimer of opinion no longer exist;

(b) The time periods specified in Section XI (Dispute Resolution) of the Consent Decree shall be as follows: (i) Notice of Dispute, under Paragraph 76 of the Consent Decree, shall be submitted within seven (7) Days of receiving an EPA determination that Defendant disputes; (ii) the period of informal negotiations shall not exceed ten (10) Days; (iii) Defendant’s written Statement of Position, pursuant to Paragraph 77 of the Consent Decree, shall be submitted within seven (7) Days after the conclusion of the informal negotiation period; and (iv) EPA’s Statement of Position, pursuant to Paragraph 78 of the Consent Decree, shall be submitted within twenty (20) Days of receipt of Defendant’s Statement of Position;

(c) Defendant’s (or Guarantor’s) obligation to provide alternate Financial Assurance in accordance with EPA’s Statement of Position shall become effective seven (7) Days after the conclusion of the formal dispute resolution period specified in Paragraph 31.k.(2)(b), above, unless Defendant seeks judicial review prior to that date. Defendant shall not seek judicial review after that date;

(d) In the event that Defendant seeks judicial review, Defendant’s (or Guarantor’s) obligation to provide alternate Financial Assurance in accordance with EPA’s Statement of Position shall become effective twenty-one (21) Days after the conclusion of the formal dispute resolution period, unless modified or stayed by the Court prior to that date;

(e) Defendant shall not subsequently seek a stay by the Court; and

(f) If the Court has not acted upon Defendant’s petition by the date that Defendant’s (or Guarantor’s) obligation to provide alternate Financial Assurance becomes effective, Defendant shall immediately dismiss with prejudice its petition for judicial review and Defendant (or Guarantor) shall provide the required alternate Financial Assurance.

l.         Defendant shall establish within thirty (30) Days alternate Financial Assurance for the Financial Assurance Delta if any of the following occurs: (1) the Guarantor does not provide a Representation and Certification as required; (2) the Guarantor provides notice that it is unable to provide the Representation and Certification; (3) the Guarantor becomes aware of changes in the Guarantor’s financial condition that would invalidate or otherwise be inconsistent with the terms of the Representation and Certification; (4) the Guarantor becomes aware of changes in the Total

 

40

Mosaic Appendix 2


Table of Contents

Cost Estimate that would invalidate or otherwise be inconsistent with the terms of the Representation and Certification; or (5) the Guarantor is unable to meet the conditions of the Guarantee. Such alternate Financial Assurance shall be established in accordance with Section III.A. (Type A Financial Assurance), except for Paragraph 10.a.(1)(c). In the event that Defendant cannot provide alternate Financial Assurance within thirty (30) Days, Defendant may seek pursuant to Paragraph 27.c., above, a compliance plan and schedule.

m.         Defendant shall, in the event that EPA determines and notifies the Defendant that the Guarantor is unable to provide a valid or adequate Representation and Certification as required by the Guarantee, provide alternate Financial Assurance in an amount no less than the Louisiana Financial Assurance Delta. Defendant shall provide alternate Financial Assurance within thirty (30) Days of EPA’s determination and notice. In the event that Defendant cannot provide alternate Financial Assurance within thirty (30) Days, Defendant may seek pursuant to Paragraph 27.c., above, a compliance plan and schedule. In the event that Defendant seeks judicial review of EPA’s determination under this Paragraph 31.m., and the United States prevails, the Defendant or Guarantor shall provide alternate Financial Assurance as directed by the Court in the resolution of the dispute.

n.         Defendant shall, if the Guarantor cancels the Guarantee (Attachment I), provide alternate Financial Assurance in accordance with Section III.A (Type A Financial Assurance) of Appendix 2, except that such alternate Financial Assurance for the Guarantee shall not (unless EPA, in its sole unreviewable discretion, approves) be provided pursuant to Paragraph 10.a.(1)(c).

o.         Defendant shall provide a Guarantee, in accordance with LAC 33:V.3707.F.10.b-c and LAC 33:V.3711.F.11.b-c, and modified as follows: (1) alternate Financial Assurance under the terms of the Guarantee shall be in accordance with Section III.A (Type A Financial Assurance) of Appendix 2; and (2) such alternate Financial Assurance for the cancelled Guarantee shall not be provided pursuant to Paragraph 10.a.(1)(c). In addition, Defendant shall provide a Guarantee which states that the Guarantor shall not assign, transfer, delegate, or convey the obligations or terms of this Guarantee to its successor, another person or entity, or a corporate affiliate, unless after notice to EPA, EPA, in its unreviewable discretion, approves the change in Guarantor.

p.         Defendant shall provide the Guarantor a copy of the Consent Decree, including all Appendices.

q.         Defendant shall when required to provide information to any governmental entity regarding obligations under federal and state law that are assured through the use of a financial test or a guarantee, include the Financial Assurance coverage provided for by the Guarantee required pursuant to this Section VIII.A (Compliance Schedule: Type A Financial Assurance) of the Appendix. In addition, Defendant’s Guarantee shall require that the Guarantor, when required to provide information to any governmental entity regarding obligations under federal and state law that are assured through the use of a financial test or guarantee, to include the Financial Assurance coverage provided for by the Guarantee required pursuant to this Section VIII.A of this Appendix.

B.         Type B Financial Assurance

32.         In the event that a Defendant providing Financial Assurance pursuant to Section III.B (Type B Financial Assurance) notifies EPA pursuant to Paragraph 15.e.(4), above, that Defendant (or Defendant’s Guarantor) no longer satisfies the corporate financial test criteria due to

 

41

Mosaic Appendix 2


Table of Contents

information that has come to its attention pursuant to Paragraph 15.e.(6)(c), above, Defendant within ten (10) Days of such notice shall provide additional or alternate Financial Assurance as set forth below:

a.         If Defendant fails to satisfy the corporate financial test criteria and requirements of Paragraph 15.e., above, for each quarter in a given fiscal year (not including the fourth quarter (i.e., fiscal year-end)), except as provided in Paragraph 32.b., below, Defendant shall increase the face value or the corpus of the Third-Party Mechanism by twenty-five percent (25%). If Defendant can satisfy the corporate financial test criteria by the fiscal year-end (i.e., in its annual submission pursuant to Paragraph 15.e.(3), above) and Defendant’s quarterly review under Paragraph 15.e.(6)(b) for the following fiscal year does not result in notification from Defendant that it does not satisfy the corporate financial test, Defendant can request and EPA will authorize the release of funds or a reduction in the value of the Third-Party Mechanism commensurate with the contemporaneous Cost Estimate and requirements of Paragraph 15.e. of this Appendix.

b.         If Defendant fails to satisfy the corporate financial test criteria and requirements of Paragraph 15.e., above, for any two (2) consecutive quarters in a given fiscal year (not including the fourth quarter (i.e., fiscal year-end)), Defendant shall provide alternate Financial Assurance in accordance with Paragraph 18 of this Appendix. If Defendant can satisfy the corporate financial test criteria by the fiscal year-end (i.e., in its annual submission pursuant to Paragraph 15.e.(3)) and its annual submissions pursuant to Paragraph 15.e.(3), above, for the following two (2) fiscal years do not trigger Paragraphs 15.e.(4) or 15.e.(5), above, EPA upon Defendant’s request will authorize a release of the funds or a reduction in the value of the Third-Party Mechanism(s) so that the value of the Third-Party Mechanism is commensurate with the minimum threshold funding for a Third-Party Mechanism as specified in Attachment E plus an additional twenty-five percent (25%) of the Cost Estimate.

c.          Defendant shall be deemed to be without Financial Assurance for purposes of enforcement (but not for accessing or collecting Financial Assurance should it be necessary) if Defendant fails to meet a compliance schedule. Failure to timely comply with a compliance schedule or to provide alternate Financial Assurance pursuant to this Section VIII.B (Compliance Schedule: Type B Financial Assurance) is not subject to the provisions of Section VII (Temporary Non-Compliance) of this Appendix.

IX. Business Transactions

33.         No transfer of ownership or operation of a Facility shall relieve Defendant of its Financial Assurance obligations under this Consent Decree, except as provided by this Section X (Force Majeure) and Section II (Applicability) of the Consent Decree.

34.         At least thirty (30) Days prior to any transfer, Defendant shall submit to EPA information explaining the proposed transfer in detail and stating whether Defendant requests the transfer of its Financial Assurance responsibilities to the Transferee pursuant to Section II (Applicability) of the Consent Decree and Paragraph 35.b, below.

35.         In the event of a transfer of a Facility’s ownership or operation:

a.         If Defendant is to retain its Financial Assurance obligations upon the transfer of the Facility, Defendant, based on a Cost Estimate in Current Dollars, shall establish and fund a trust fund, or obtain a surety bond or letter of credit in accordance with this Appendix. Any

 

42

Mosaic Appendix 2


Table of Contents

existing trust fund established pursuant to Paragraph 10.a.(1)(c) shall remain in place. Defendant shall provide EPA the appropriate documentation evidencing the trust fund, surety bond, or letter of credit by the date of the Facility transfer. If using a trust fund, the portion of funds vested in the trust fund that are not required to meet annual withdrawals shall be invested in U.S. Treasury Bills, or market-based notes and bills that achieve an investment goal or preservation of principle and guarantee an inflation-adjusted rate of return no less than the 30-Year Treasury Constant Maturity Rate average for the previous twelve (12) months from the date of the annual Cost Estimate. If Defendant wishes to propose alternate Financial Mechanism(s) in lieu of the trust fund, surety bond, or letter of credit, Defendant at least thirty (30) Days prior to the transfer shall submit an originally signed CFO Certification from the Defendant’s CFO, together with supporting documentation, explaining the compelling reasons why the proposed alternate Financial Mechanism is being requested and is an equivalent substitute for the trust fund, surety bond, or letter of credit. Upon EPA’s approval, which shall be subject to dispute resolution pursuant to Section XI (Dispute Resolution) of the Consent Decree but shall not be subject to judicial review, Defendant shall establish the approved Financial Assurance. If by the date of the transfer, EPA does not approve such a request or the Defendant has not put in place the approved Financial Assurance, then Defendant shall fully fund the trust fund or obtain a surety bond or letter of credit, as described above.

b.         If Transferee agrees to assume Defendant’s Financial Assurance obligations, Defendant shall submit to EPA for approval an originally signed certification by Transferee’s CFO, together with supporting documentation, explaining in detail its ability to provide Financial Assurance pursuant to the requirements of this Appendix (except for Paragraph 10.a.(1)(c)) and agreeing to provide the Financial Assurance if approved by EPA pursuant to Section II (Applicability) of the Consent Decree. Defendant shall comply with the requirements of Paragraph 35.a., above, until: (1) EPA has approved Transferee’s proposed Financial Assurance; (2) the United States, after consultation with Louisiana, consents to the transfer of obligations pursuant to Section II (Applicability) of the Consent Decree; (3) Transferee has established the approved Financial Assurance; and (4) EPA has given its consent for Defendant to terminate its Financial Assurance. If Defendant is providing Financial Assurance pursuant to Paragraph 10.a.(1)(c) of this Appendix, and if the Transferee is acquiring all of the Defendant’s Operating and Closing Facilities in Louisiana, then the Louisiana Phosphogypsum Trust Fund (see Paragraph 30.b), and if still in existence, the required Guarantee (see Paragraph 31.c) and the required letter of credit, will be the Financial Assurance subject to Paragraph 35.b.(4) that may be terminated.

36.         If Defendant is providing Financial Assurance through the use of any Financial Mechanism other than the exclusive use of a fully funded trust fund in Current Dollars, in the event of a business transaction that results, or Defendant determines will result, in an adverse material change to Defendant’s financial or corporate structure such that Defendant or its successor (or a Guarantor of Defendant or its successor) has insufficient operating cash flow or Tangible Assets to cover the long-term (greater than one (1) year) financial liabilities as represented on the Defendant’s or successor’s audited balance sheet and to comply with the Financial Assurance requirements of this Consent Decree, Defendant shall provide notice to EPA within fourteen (14) Days of identifying such adverse material change and comply with the requirements for Financial Assurance in Paragraph 35.a., above.

 

43

Mosaic Appendix 2


Table of Contents

37.         If Defendant becomes a private company, Defendant shall provide, in addition to the CFO Letter in Attachment D (Forms 4), a full accounting of its financial condition and a certification from the CFO that the Defendant expects to have sufficient operating cash flow or Tangible Assets located in the United States to cover long-term (greater than one (1) year) financial liabilities as represented in the audited financial statements and to comply with the Financial Assurance requirements of this Consent Decree Defendant shall make such a certification as long as Defendant provides a Self-Assurance Mechanism a part of its Financial Assurance.

X. Reservation of Rights

38.         If EPA determines at any time that the Financial Assurance provided by Defendant no longer satisfies the requirements of this Consent Decree, it shall notify Defendant. EPA may base this determination on Defendant’s failure to provide notices or documentation required by this Appendix as well as on a substantive evaluation of Defendant’s Financial Assurance. Within thirty (30) Days of written notice from EPA that Defendant’s Financial Assurance no longer satisfies the requirements of this Consent Decree, Defendant shall submit to EPA for approval revised or alternate Financial Assurance that satisfies the requirements of this Consent Decree. Defendant shall not cancel the existing Financial Assurance until the revised or alternate Financial Assurance has been approved by EPA and EPA has provided written consent permitting Defendant to cancel the existing Financial Assurance. Failure to timely provide alternative Financial Assurance as required by this Section (or any Paragraph of this Appendix that references this Section) is not subject to the provisions of Section VII of this Appendix. EPA’s determination shall be subject to dispute resolution pursuant to Section XI (Dispute Resolution) of this Consent Decree, but not judicial review, and the time frames for notices and submissions under the dispute resolution process shall be reduced by half (e.g., under Informal Dispute Resolution Defendant shall submit its Notice of Dispute within fifteen (15) Days). In the event that Defendant is providing Financial Assurance pursuant to Paragraph 10.a.(1)(c), and there is a conflict between this Paragraph 38 and Paragraph 31, then the provisions of Paragraph 31 shall control, except that the time frames for notices and submissions under Section XI (Dispute Resolution) of this Consent Decree shall be reduced by half unless otherwise specified in Paragraph 31 of this Appendix.

 

44

Mosaic Appendix 2


Table of Contents

Attachment A


Table of Contents

The following is the form of the Chief Financial Officer’s (“CFO”) certification that shall be used when required under Appendix 2 of the Consent Decree.

Chief Financial Officer Certification

I hereby certify as the Chief Financial Officer [or insert, as appropriate, “a duly designated corporate officer”] of Mosaic Fertilizer, LLC, under penalty of law, in accordance with the requirements of [insert the specific Section/Paragraph of Appendix 2] of the Consent Decree entered by the [insert the District Court designation and case information] that [insert the substance of the certification being made and any additional information that is relevant for the certification]. Based on my inquiry of persons directly responsible for gathering the information for this certification (and any attached documentation), the information submitted is, to the best of my knowledge and belief, true accurate and complete. I am aware that there are significant penalties for submitting false information, including possible fine and imprisonment for knowing violations.

[If required under Appendix 2 as part of the CFO Certification.] I have attached as supporting documentation: [insert a description of/information on the supporting documentation.]

 

Date:     
Name:     
Title:     
Company:     
Address:     
Telephone Number:     
E-mail:     

 

Mosaic

Appendix 2, Attachment A


Table of Contents

Attachment B


Table of Contents

Attachment B

PHOSPHOGYPSUM STACK SYSTEM

CLOSURE AND LONG TERM CARE COST ESTIMATE

 

Date:

          Date of Review:     
        Reviewer Signature:      

INSTRUCTIONS:

1.         The Phosphogypsum Stack System Closure and Long Term Care Cost Estimate is to be adjusted annually. Such adjustments may be made by either: (i) use of an inflationary factor (an “Inflation Adjustment”), or (ii) by recalculating the costs in Current Dollars reflecting cost adjustments (e.g., revised treatment protocols, treatment costs, additional studies, material and labor cost) (a “Recalculated Adjustment”). See Paragraph 4.a., Appendix 2, Consent Decree. This form shall be used to provide the information regarding the adjustments to the Cost Estimate and submitted annually as directed in Section II (Cost Estimate) of Appendix 2, of the Consent Decree, unless otherwise specified in Appendix 2 or the Consent Decree.

2.         The annual update to the Cost Estimate shall be a Recalculated Adjustment performed pursuant to Paragraph 4.c. Appendix 2 in 2017 and every five years thereafter. In other years, the update may be either an Inflation Adjustment or a Recalculated Adjustment performed pursuant to Paragraph 4.a. of Appendix 2.

3.         This form shall also be used when required to provide an Updated Cost Estimate as set out in Appendix 2. For example, this form shall be used for an Updated Cost Estimate that is to be provided at least sixty (60) days prior to constructing a lateral expansion at an Operating Facility (see Paragraph 4.c.(2)(i) of Appendix 2).

4.         Fill in all sections, below, as appropriate. If using the inflationary factor, fill in Section II.A, below. If recalculating the costs in Current Dollars, fill in Section II.B, below.

5.         This form is to be sent to the appropriate individual(s) identified in Section XV (Notices) of the Consent Decree.

6.         All Cost Estimates entered on this form may be rounded to the nearest hundred thousand dollars.

I.         GENERAL INFORMATION

 

Facility Name:

       EPA ID #:         

Facility Address:

             

Owner/Operator:

             

Mailing Address:    

             
             

II.         COST ESTIMATE ADJUSTMENT

Please check below the appropriate boxes identifying the type of Cost Estimate adjustment under this Section. In addition, Defendant shall complete Attachments B-1 and, if needed, Attachments B-2 and B-3, unless providing Financial Assurance pursuant to Paragraph 10.a.(1)(c) of Appendix 2, in which case Defendant need not provide Attachments B-2 and B-3 and need only provide Attachment B-1 when providing the Updated Cost Estimate pursuant

 

Mosaic

Appendix 2, Attachment B


Table of Contents

to Paragraph 4.c.(2). Requirements under the Consent Decree for Cost Estimate are found in Appendix 2, Section II, of the Consent Decree.

¨          A.         Inflation Adjustment to Cost Estimate

The Cost Estimate may be adjusted for inflation by using an inflation factor. Please follow the instructions below in each subsection to derive the inflation factor that must be used when adjusting the Cost Estimate for inflation. If providing Financial Assurance pursuant to Appendix 2, Subsection III.A, of the Consent Decree, complete subsections A(1)-(2), below. If providing Financial Assurance pursuant to Appendix 2, Subsection III.B of the Consent Decree, complete subsections A(1) & (3), below. Use of an inflation factor may only occur when there is a Phosphogypsum Stack System Closure and Long Term Care Cost Estimate and a periodic re-evaluation of the Cost Estimate is not required under Section II of Appendix 2 (e.g., Paragraph 4.c.).

Inflation Factor

When adjusting for inflation to update the current dollar Cost Estimate in subsection A(1) and A(2), below, the inflation factor must be derived from the most recent Implicit Price Deflator for Gross National Product (“Deflator”) published by the U.S. Department of Commerce in its Survey of Current Business. The inflation factor is the result of dividing the latest published annual Deflator by the Deflator in effect at the time of the latest current dollar Cost Estimate. Attachment B, Exhibit 1 provides information (and examples) to use when deriving the imputed deflators for the annual inflationary adjustments under Appendix 2. See also Appendix 2, Paragraphs 4.a.(1) and 4.a.(2), of the Consent Decree. (For additional information and guidance see 40 C.F.R. §§ 264.142(b)(1)&(2) and 264.144(b)(1)&(2).)

 

[x] Latest Published or Imputed Quarterly Deflator

              

 (see Attachment B, Exhibit 1 (insert value from Cell 4E):

             

[y] Quarterly Deflator in effect at the time of the latest current

 dollar Cost Estimate ([identify the Deflator date]):

             

[x] ÷ [y] Inflation Factor:

             

¨        (1)          Adjusted Phosphogypsum Stack System Closure Cost Estimate – Current Dollars

The adjustment under this subsection is based on the latest Recalculated Adjustment for the Phosphogypsum Stack System Closure Cost Estimate dated             . Phosphogypsum Stack System Closure and associated Water Management costs represented in this subsection are in Current Dollars. To update the Phosphogypsum Stack System Closure Cost Estimate for inflation take the latest Phosphogypsum Stack System Closure and the associated Water Management costs, multiplying each cost by the most recent inflation factor, then add together the two resulting costs. Complete the steps as instructed, placing the information in the line items designated below. See Appendix 2, Paragraphs 4.a.(1) and 4.a.(2), of the Consent Decree. (For additional information and guidance see 40 C.F.R. §§ 264.142(b)(1)&(2).)

 

Phosphogypsum Stack System Closure cost (latest):

             

Associated Water Management cost (latest):

             

 

Phosphogypsum Stack System

Closure cost (latest current dollar

cost estimate)

    Inflation Factor      Inflation Adjusted Phosphogypsum

Stack System Closure cost

    X        =    

Associated Water Management

cost (latest current dollar

cost estimate)

    Inflation Factor      Inflation Adjusted Associated
                Water Management cost
    X        =    

 

Mosaic

Appendix 2, Attachment B


Table of Contents
Inflation Adjusted Phosphogypsum

Stack System Closure cost

     Inflation Adjusted Associated

Water Management cost

     Phosphogypsum Stack System

Closure Cost Estimate

    

+

       =    

¨        (2)          Adjusted Long Term Care Cost Estimate – Current Dollars

The adjustment under this subsection is based on the latest Recalculated Adjustment for the Long Term Care Cost Estimate dated             , for all years of Long Term Care remaining. Long Term Care and associated Water Management costs represented in this subsection are in Current Dollars. To update the Long Term Care Cost Estimate for inflation take the latest Long Term Care and the associated Water Management costs, multiplying each cost by the most recent inflation factor, then add together the two resulting costs. Complete the steps as instructed, placing the information in the line items designated below. See Appendix 2, Paragraphs 4.a(1) and 4.a(2), of the Consent Decree. (For additional information and guidance see 40 C.F.R. §§ 264.144(b)(1)&(2).)

 

Long Term Care cost (latest):

             

Associated Water Management cost (latest):

             

 

Long Term Care cost

(latest current dollar cost estimate)

    Inflation Factor      Inflation Adjusted Long Term
         Care cost
   

X

         =       
Associated Water Management

cost (latest current dollar cost estimate)

    Inflation Factor      Inflation Adjusted Associated

Water Management cost

   

X

         =       

 

Inflation Adjusted Long Term

Care cost

     Inflation Adjusted Associated Water Management cost      Long Term Care Cost Estimate (Current Dollars)
     +        =    

¨        (3)          Adjusted Long Term Care Cost Estimate – Net Present Value

The adjustment is based on the latest Long Term Care Cost Estimate dated             , for all years of Long Term care remaining. Long Term Care and associated Water Management costs represented in this subsection are in NPV. To update the Long Term Care Cost Estimate for inflation, complete the following steps as instructed and place the information in the line items designated below:

 

  (i) To determine the Long Term Care and associated Water Management Costs in Current Dollars, calculate the costs as instructed in subsection A(2), above, filling in the necessary information.
  (ii) To inflate forward the current Long Term Care and associated Water Management costs for all remaining years of Long Term Care, adjust the costs as instructed in Attachment B-2, adjusting each year’s costs by the inflation factor specified in Attachment B-2. (For additional reference information, see Paragraph 4.d., Appendix 2, of the Consent Decree.)
  (iii) Using each year’s adjusted costs due to inflation, place the information from Attachment B-2 in the corresponding line items located in Attachment B-3.
  (iv)

Following the instructions for Attachment B-3 to determine the present value of Long Term Care and associated Water Management costs for each year. To derive the net present value dollars for inflation adjusted Long Term Care, add each year’s present value for Long Term Care costs; to

 

Mosaic

Appendix 2, Attachment B


Table of Contents
  derive the net present value dollars for the inflation adjusted associated Water Management, add each year’s present value for the associated Water Management costs.
  (v) Insert, below, the inflation adjusted Long Term Care and associated Water Management costs in net present value; these totals must be taken from Attachment B-3. To obtain the Long Term Care Cost Estimate (NPV), add together the inflation adjusted Long Term Care and associated Water Management costs in net present value.

 

Inflation Adjusted Long Term Care costs (NPV)

(total of Column [C] of Attachment B-3):

       

Inflation Adjusted Associated Water Management costs (NPV)

(total of Column [E] of Attachment B-3):

       

Long Term Care Costs Estimate (NPV):

       

Cost Estimate Using Inflation Factor

To determine the totals costs to be covered by Financial Assurance, add together the Phosphogypsum Stack System Closure Cost Estimate and the appropriate Long Term Care Cost Estimate (subsection A(2) or A(3) of this Attachment). The sum of the two Cost Estimates will provide the Total Cost Estimate.

 

Phosphogypsum Stack System Cost Estimate:

      

Long Term Care Cost Estimate

    

                ([identify the subsection]):

      

Total Cost Estimate Financial Assurance Under [identify Subsection of Appendix 2]:

      

¨         B.         Recalculated Adjustment to Cost Estimate

If performing a Recalculated Adjustment, and providing Financial Assurance pursuant to Section III.A, Appendix 2, of the Consent Decree, submit the certification from the independent qualified professional engineer (box 1). If recalculating the costs, which are in Current Dollars, and providing Financial Assurance pursuant to Section III.B, Appendix 2, of the Consent Decree, submit the certification from the independent qualified professional engineer (box 1) and the certification from [insert Defendant’s name] (box 2), with the calculations underpinning Long Term Care and associated Water Management costs in present value.

¨             (1)         Certification by Third-party Engineer

This is to certify that the estimate of Phosphogypsum Stack System Closure and Long Term Care costs specified below and in Attachment B-1, pertaining to the engineering features of this Phosphogypsum Stack System, have been examined by me and found to conform to engineering principles applicable to such systems. In my professional judgment, the Cost Estimate is a true, correct and complete representation of the estimated financial liabilities for Phosphogypsum Stack System Closure and Long Term Care of the facility as of [date], performed in accordance with the methodology set forth in Section II, Appendix 2, of the Consent Decree

 

(a)    Phosphogypsum Stack System Closure Cost Estimate:     
       1.        Phosphogypsum Stack System Closure costs ($ [insert current costs])   
       2.    Associated Water Management costs ($ [insert current costs])   
(b)    Long Term Care Cost Estimate:     
       1.    Long Term Care costs ($ [insert current costs])   
       2.    Associated Water Management costs ($ [insert current costs])   
(c)    Total Cost Estimate:   
   (Add lines (a) and (b), above.)     

 

Signature of Engineer

     Florida Registration Number (affix seal)                             
      

 

Mosaic

Appendix 2, Attachment B


Table of Contents

Name & Title (please type)

 

 

 

 

Mailing Address

 

Telephone Number

 

Engineer E-Mail Address

¨         (2)         Certification by [insert Defendant’s name]

The present value for the Long Term Care and associated Water Management costs, as represented below and in Attachments B-2 and B-3, has been calculated by [insert Defendant’s name] is in accordance with the requirements of the Consent Decree and is represented in the Chief Financial Officer’s letter (Attachment C, Appendix 2, of the Consent Decree), as calculated in this Attachment. It is understood that Attachment B-2 (Adjusting Long Term Care and Associated Water Management Costs to Calculate Current (Then-Year) Dollars) and Attachment B-3 (Present Value of Long Term Care and Associated Water Management), shall be submitted to the EPA [and State], whenever [insert Defendant’s name] is required to, or determines to, recalculate the Cost Estimate. [Note: The independent Certified Public Accountant (“CPA”) has, as part of the CPA’s report under Paragraph 15.e.(3)(d), Appendix 2, reviewed calculations in Attachment B-2 and B-3.]

The costs to be used in Attachments B-2 and B-3 have been based on the Long Term Care and associated Water Management costs certified by the independent qualified professional engineer, above, in subsection B(1).

[Instructions: To fill in the information below, obtain the Long Term Care Cost Estimate by adding together, from Attachment B-3, the total present value dollars for Long Term Care costs (column [C] of Attachment B-3) and to total present value dollars for associated Water Management costs (column [E] of Attachment B-3). Insert the Long Term Care and associated Water Management costs as parenthetical information.]

 

(a)    Long Term Care Cost Estimate (NPV):     
   1.    Long Term Care costs ([insert total from column [C] of   
      Attachment B-3])   
   2.    Associated Water Management costs ([insert total from column [E]   
      of Attachment B-3])   
(b)    Total Cost Estimate:     
   (Add line B(1)(a), Phosphogypsum Stack System Closure Cost Estimate   
   and line B(2)(a), Long Term Care Cost Estimate (NPV).)   

 

Signature of [insert Defendant’s name] Representative

Name & Title (please type)

Telephone Number

 
 

Mailing Address

 

E-Mail Address

 

Mosaic

Appendix 2, Attachment B


Table of Contents

Attachment B, Exhibit 1


Table of Contents

Attachment B, Exhibit 1: For use in deriving imputed deflators for annual inflationary adjustments submitted within 60 days following each calendar year-end.

 

     (A)    (B)    (C)    (D)    (E)
     Quarter    Published Deflator    Change    Average Change    Imputed Deflator
1       Q1                    
2       Q2                    
3       Q3 (imputed, if actual
not yet published)
                   
4       Q4 (imputed, if actual
not yet published)
                   

Instructions: See also Examples 1 and 2, below.

 

  1. The fiscal quarters for the prior year are listed in Column (A). The first entry in this column is Q1 of the prior year, and the last entry in this column is Q4 of the prior year.

 

  2. Add the published quarterly deflators into Column (B). Do not add any deflators to this column, if they have not yet been published.

 

  3. For each published deflator in Column (B), add the change from the previous quarter in column (C). For example, to calculate the change for Q2, subtract the published deflator value for Q1 from the published deflator value in Q2. Column (C) should include entries only for quarters for which a published deflator is available.

 

  4. The value for Column (D) is calculated as the average of all entries in Column (C). Enter this value once, in the row with the latest published quarterly deflator.

 

  5. Add the value in Column (D) to the latest published quarterly deflator to calculate the following imputed quarterly deflator in Column (E). (The entries in this column will correspond to the quarters for which there are no published quarterly deflators.) To impute quarterly deflators for more than one quarter, continue adding the value in Column (D) to each imputed quarterly deflator to calculate the quarterly deflator for the next year.

Example 1: Imputing a Deflator when Q1 through Q3 Deflators are published, but Q4 Deflator is not

 

      (A)    (B)    (C)    (D)    (E)
      Quarter    Published Deflator    Change    Average Change    Imputed Deflator
1    Q1 2013    106.324               
2    Q2 2013    106.608    0.284          
3    Q3 2013    107.044    0.436    0.360     
4    Q4 2013                   107.404

This example assumes that the latest published quarterly deflator is Q3 2013. The imputed quarterly deflator for Q4 2013 is found in Cell 4E, 107.764.

Example 2: Imputing a Deflator when Q1 through Q2 Deflators are published, but Q3 and Q4 Deflators are not

 

      (A)    (B)    (C)    (D)    (E)
      Quarter    Published Deflator    Change    Average Change    Imputed Deflator
1    Q1 2013    106.324               
2    Q2 2013    106.608    0.284    0.284     
3    Q3 2013                   106.892
4    Q4 2013                   107.176

This example assumes that the latest published quarterly deflator is Q2 2013. Because there are only two quarters with published deflators in Column (B), the values in Column (C) and Column (D) are the same. The value in Cell D2 is added to Cell B2 to derive the imputed deflator for Q3 2013 (see Cell E3). To derive the imputed deflator for Q4 2013, the value in Cell D2, is added to imputed deflator for Q3 2013 (Cell E3) to derive the imputed deflator for Q4 2013 (Cell E4).

 

Mosaic

Attachment B, Exhibit 1


Table of Contents

Attachment B-1


Table of Contents

Attachment B-1: Instructions

Attachment B-1 (and associated Forms 1-3) provides a framework that summarizes the types of activity, quantity (or volume), and costs associated Phosphogypsum Stack System Closure (Form 1), Long Term Care (Form 2) and the associated Water Management activities (Form 3). The information to be captured in the Exhibits and submitted in accordance with Section II (Cost Estimate), Appendix 2 of the Consent Decree, is Facility specific and, therefore, as appropriate, the line item information in the Exhibits shall be adjusted accordingly, as well as any other information or assumptions provided in (or accompanying) the Exhibits.

In general, the costs for the associated Water Management activities are broken out based on which activities are associated with Phosphogypsum Stack System Closure and which activities are associated with Long Term Care. In additions to listing out the activity, and costs, any assumptions, comments descriptions or relevant information (e.g., adjusted for inflation) needed to explain the costs shall be included. For example, specifying the estimated hours per week for an activity; yearly salary for an on-site engineer tasked with Long Term Care activities; assumptions for mowing the grassed stacks; assumptions for the identified contingency; and what costs are captured by administrative costs.

 

Mosaic

Appendix 2, Attachment B-1 (Instructions)


Table of Contents
Attachment B-1    Form 1                    

A. GYPSUM STACK AT CLOSURE

 

Activity    Quantity    Unit    Unit Cost    Total Cost

1. Top Grading and Cover

           

1a. General Excavation and Fill

      yd3       $0

1b. Dewatering, Fine Grading & Compaction

      acres       $0

1c. 40-mil HDPE Liner Materials

      acres       $0

1d. 40-mil HDPE Liner Installation

      acres       $0

1e. 24” Thick Soil Cover

      yd3       $0

1f. Grassing by Seeding

        acres         $0

1g. Subtotal

      acres       $0
           

 

2. Side Slope Grading and Cover

           

2a. General Excavation and Fill

      yd3       $0

2b. Fine Grading & Compaction

      acres       $0

2c. Dolomite Addition

      acres       $0

2d. Grassing by Seeding Incl.Maint. & Watering

        acres         $0

2e. Subtotal

      acres       $0
           

 

3. Side Slope Drains

      lineal ft       $0
           

 

4. Toe Drain

      lineal ft       $0
           

 

5. Side Slope Drainage Swale

           

5a. Grading & Compaction

      acres       $0

5b. 40-mil HDPE Textured Liner Materials

      acres       $0

5c. 40-mil HDPE Textured Liner Installation

      acres       $0

5d. 24” Thick Soil Cover

      yd3       $0

5e. Grassing by Seeding & Sodding

        acres         $0

5f. Subtotal

      acres       $0
           

 

6. Toe Drainage Swale