- Charlie Crist gg . Florida Department i . . i? Envr ronmental Protection rerr Southeast District Office . 400 North Congress Avenue, Suite 200 501(- West Palm Beach, Florida 33401-29|3 Secretary Aus 115.2008 DHL 3 9220676 Mr. Thomas Eriksen AV-Miami-Dade County Montenay Power Corporation Miami-Dade Resources Recovery 6990 NW 97th Ave. 9 Miami, FL 33178 RE: Proposed Settlement by Consent Order in the Case of State of Florida Department of Environmental Protection vs. Miami-Dade Resources Recovery Facility Facility ID No.: 0250348 OGC Pile No.: 08-1652 Dear Mr. Eriksen: Enclosed for _your signature is a proposed Consent Order in the above styled case. Please note that paragraphs 20 and 22pof the Consent Order allows the option to resolve the case via a Pollution _Prevention Projector an in-kind penalty project, respectively, in lieu of making a cash civil penalty payment. Nevertheless, paragraph 16 of the Consent Order requires a cash payment of $5,750.00, which represents costs and expenses incurred by the Department during the investigation of this matter and the preparation and tracking of the Consent Order. Please sign, date and return this Consent Order to the Department of Environmental Protection at the letterhead address within 30 days of receipt of this correspondence. After the Depa1tment's receipt of the signed Consent Order, the Department will countersign the document and tile it with the Clerk of the Department, at which point it will be returned to you as iinal and effective. Thank you for your cooperation in this matter. Please contact Allen Rainey at 561-681-6623 if you have any questions regarding the enclosed Consent Order. Sine rely, /0 kLong trict Director utheast District MW Enclosure: Proposed Consent Order, OGC File No. 08-1652 cc: Dianne Spingler, DARM, DEP, Tallahassee Sheila Schneider, DARM, DEP, Tallahassee Cristina Llorens, DEP, West Palm Beach Air Enforcement Files, DEP, West Palm Beach - Air Program Archboard 'More ?655 i_ifri1i'_ de/1 slate. U. us BEFORE THE STATE OF FLORIDA - DEPARTMENT OF ENVIRONMENTAL PROTECTION PU*-This Consent Order is entered into between the State of Florida Department of Environmental Protection ("Depa1tment") and Montenay Power Corp. ("Respondent"), to reach _settlenfient ofcertain matters, at issue between the Department and theRespondent. The Department finds and the Respondent admits the following: l. The Department is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of Chapter 403, Florida Statutes ("Fla. and the rules promulgated thereunder, which are codified in Title 62 of the Florida Administrative Code ("Fla. Admin. Code"). The Department has jurisdiction over the matters addressed in this Consent Order. - 2. Miami-Dade County ("County") owns the Miami-Dade County Resources Recovery Facility ("Facility"), which is located at 6990 NW 97th Avenue in Miami-Dade County, Florida, Latitude 25? 50' 06" North and Longitude 80? 21? 30" West. The Respondent operates the Facility forthe County. 3. The Respondent is a "person" as defined in Section Fla. Stat. 4. The Facility combusts municipal solid waste and generates electricity. The Facility's four emissions units ("Units are subject to the requirements for State of Florida Depar ,ent of Environmental Protection vs. Mc .enay Power Corp. OGC File No. 08-1652 7 Page 2 of 28 "municipal waste combustors" promulgated by the U.S. Environmental Protection Agency in 40 Code of Federal Regulations Part 60, Subpart Cb, which is adopted as a State regulation in Rule Fla. Admin. Code. 5. The Respondent currently operates the Facility under Title Air Operation Permit Revision No. 0250348-009-AV ("Permit"), which became effective on May 23, 2008. The Respondent formerly operated under Initial Title Air Operation Permit 0250348-001-AV ("Permit 001), Title Vi Air Operation Permit Revision No. 0250348-004-AV ("Permit 004"), Title Air Operation Permit Renewal No. 0250348- 005-AV ("Permit 005") and Title Air Operation Permit Revision No. 0250348-007-AV ("Permit -which became effective on August 12, 2001, November 17, 2004 and May 28, 2007, respectively. All Permits incorporate the applicable requirements in 40 CFR Part 60, Subpart Cb. 6. The Department monitors the Facility for compliance with the Permit. Based on information provided by the Respondent through correspondence, the annual statement of compliance, annual compliance tests, and data from the continuous emissions monitoring systems the Department has identified the following violations of Section 403.161, Florida Statutes, which prohibits the failure to comply with any permit or rule that is lawfully issued or adopted by the Department. Activated Carbon Injection Violations 7. Condition B.ll5(2) of Permit 001, of Permit 004 and Permit 005, and of Permit 007 required the Respondent to set the carbon injection system operating parameters to the levels documented during performance tests. State of Florida Depa, ment of Environmental Protection vs. M, _-enay Power Corp. OGC File No. 08-1652 Page 3 of 28 7 8. On October 25, 2006, the Respondent informed the Department that it discovered deviations in its carbon injection system records. Review of the Respondent's records revealed that between January 1, 2003, and December 31, 2006, the Respondent was required to set the injection rates so as to inject approximately 2,330,116 pounds of carbon, but only approximately 1,439,362 pounds of carbon was injected during this timeframe. This represents a shortage of 890,754 pounds of carbon. 9. Condition of Permit 001, of Permit 004 and Permit 005, and of Permit 007 required the Respondent to estimate the total carbon usage at the Facility on a quarterly basis using two independent methods involving the weight of carbon delivered to the Facility, the average rate injected by the system and the hours of operation. 10. On October 25, 2006, the Respondent informed the Department that it inaccurately estimated the total carbon usage at the Facility. Review of the Respondent's records revealed that the Respondent failed to comply with Conditions and of its Permits for 12 calendar quarters by failing to compute the correct weight of carbon delivered to the Facility. The failures occurred during the first, second and third quarters of 2003; the second and third quarters of 2004; the first, third and fourth quarters of 2005; the first, second and third quarters of 2006; and the third quarter of 2007. Dioxins/Furans Emission Violations 11. Specific Condition A33 of Permit 007 limits dioxins/furans emissions to (1) 30 nanograms per dry standard cubic meter (total mass of tetra- through octa- chlorinated dibenzo-p-dioxins and dibenzofurans) corrected to 7 percent oxygen State of Florida Depar ,rent of Environmental Protection vs.. _.enay Power Corp. OGC File No. 08=1652 Page 4 of 28 ("ng/dscm 7% and (2) 0.000038 tons per year. Stack testing results for Unit 3 dated December 17, 2007, showed dioxins/furans emissions of 31.347 ng/dscm 7% O2, which is above the emissions limiting standard. The Respondent suggested that a water tube leak in the waterwall serving Unit 3 may have contributed to the excess dioxins/furans emissions. The _leak was repaired on January 8, 2008, and follow-up testing of Unit 3 on January 26, 2008, demonstrated compliance with the emissions limiting standard. 12. The Department received the 8 Respondent's December 17, 2007 dioxins/furans stack test results on February 1, 2008, which is one day later than the forty-five-day deadline specified by Rule Fla. Admin. Code. 3 -- Carbon Monoxide Emission Violations 13. Specific Condition A35 of Permit 007 limits carbon monoxide emissions to (1) 200 parts per million by volume, measured at the combustor outlet in conjunction' with a measurement of oxygen concentration, corrected to 7 percent oxygen, dry basis ("ppmv 7% calculated as a 24~hour block average geometric mean and (2) 267.7 tons per year. On February 21, 2008, the CO CEMS for Unit 2 recorded an average of 328.6 7% O2, which is above the emissions limiting standard. 14. Having reached a resolution of the matter the Respondent and the Department mutually agree and it is, ORDERED: 15. Within 30 days ofthe effective date of this Consent Order, the Respondent shall pay to the Department a CIVIL PENALTY of Four Hundred Eighty-tive Thousand Three Hundred Twenty-two dollars in settlement of the matters addressed State of Florida Depar talent of Environmental Protection vs. Power Corp. OGC File No. 08-1652 Page 5 of 28 in this Consent Order and for violations of Section 403.161, Fla. Stat. The Respondent shall pay the civil penalty in accordance with the procedures described in paragraph 17, unless the Respondent elects to off-set this amount by implementing a pollution prevention project or in-kind penalty project as provided in paragraphs 20 - 23. 16. In addition to the CIVIL PENALTY, the Respondent shall also pay Five Thousand Seven Hundred Fifty Dollars for the costs and expenses incurred by the Department during the investigation of the matter and for preparation and tracking of this Consent Order. The Respondent shall pay the Department's costs and expenses in accordance with the procedures described in paragraph 17, Within 30 days after the Department executes this Consent Order. i 17. Payment of the civil penalty and the costs and expenses shall be made by cashier's check or money order. The instrument shall be made payable to the Department of Environmental Protection and shall include thereon the OGC number 'assigned to this Consent Order (OGC No. 08-0442) and the notation "Ecosystem Management and Restoration Trust Fund." The payment shall be sent to -the Director of District Management at the Florida Department of Environmental Protection, 400 North Congress Avenue, Suite 200, West Palm Beach, Florida 33401. 18. Within 270 days of the effective date of this Consent Order, the Respondent shall install lime and carbon flow monitors for the carbon injection system that provide real-time carbon injection data to the Respondent's computers and shall report completion of the monitor installations and the status of performance of the monitors to the Department. The carbon injection data shall be accessible by Department computers via the Internet. Such accessibility shall include any software for installation State of Florida Depai of Environmental Protection vs. Power Corp. . OGC Pile No. 08-1652 Page 6 of 28 on Department computer systems if the data is not viewable through traditional Internet browser software. 19. Within 270 days of the effective date of this Consent Order, the Respondent shall install an automated sampling system to monitor dioxins/furans and shall report completion of the installation and the status of performance of the system to the Department. 20. In lieu of making cash payment of $485,322.00 in civil penalties as set forth in paragraph 15, the Respondent may elect to off-set this amount by implementing a pollution prevention project, which must be approved by the Department. A pollution prevention project must be either a source reduction, waste minimization, or on~site recycling project. If the Respondent chooses to implement a pollution prevention project, the Respondent shall notify the Department of its election .by certified mail within 15 days of the effective date of this Consent Order. Notwithstanding the election to implement a pollution prevention project, the Respondent must pay the remaining $5,570.00 in costs and expenses within 30 days of the effective date of the Consent Order. 21. lf the Respondent elects to implement a pollution prevention project as provided in paragraph 20, then the Respondent shall comply with all of the requirements and time frames in Exhibit A entitled "Pollution Prevention Projects." 8 22. In lieu of making cash payment of $485,322.00 in civil penalties as set forth in paragraph 15 or implementing a pollution prevention project as set forth in paragraphs 20 - 21, the Respondent may elect to off-set this amount by implementing an in-kind penalty project, which must be approved by the Department. An in-kind project State of Florida Depai .-.lent of Enviromnental Protection vs. Mc. -tenay Power Corp. OGC Pile No. 08-1652 Page 7 of 28 must be either an environmental enhancement, environmental restoration or a capital/facility improvement project. The Department may also consider the donation of environmentally sensitive land as an in-kind project. The value of the in-kind penalty project shall be at least one and a half times the civil penalty, which in this case is the equivalent of $727,983.00 If the Respondent chooses to implement an in-kind project, the Respondent shall notify the Department of its election by certified mail within 15 days of the effective date of this Consent Order. Notwithstanding the election to implement an in-kind project, payment ofthe remaining $5,750.00 in costs and expenses must be paid within 30 days of the effective date of the Consent Order. 23. If the Respondent elects to implement an in-kind penalty project as provided in paragraph 22, then the Respondent shall comply with all of the requirements and time frames in Exhibit entitled "In-Kind Projects." In-kind penalty projects that may be performed by the Respondent may include, but are not limited to, the followingf Installation of a CEMS for mercury. 3 Installation 'of a system accessible by Department computers that provides real-time pollutant data for mercury, opacity, carbon monoxide, sulfur dioxide, oxygen, and nitrogen oxides via the Internet. Such accessibility shall include any software for installation on Department computer systems if the data is not viewable through traditional Internet browser software. 24. In consideration of and in exchange for the Respondents commitment and agreement to: (1) make payment of the civil penalty identified in paragraph 15 or implement a pollution prevention project or in-kind penalty project as provided in paragraphs 20 - 23: (2) pay the Department's costs and expenses identified in paragraph State of Florida Depai of Environmental Protection vs. Power Corp. OGC Pile No. 08-1652 Page 8 of 28 16; and (3) adhere to the other requirements ordered by this Consent Order, the Department hereby conditionally waives its right to sue the Respondent for addressed by this Consent Order. This waiver is conditioned' upon the Respondents complete compliance with all of the terms of this Consent Order. If the Respondent fails to comply with any of the terms and conditions of this Consent Order, the conditions of the waiver will be considered not to have been met and the waiver will not become effective. The Respondent acknowledges and agrees that in no event shall this paragraph be construed to apply as a waiver by the Department to undertake causes of action not addressed by this Consent Order . 25", 6 6 The Respondent agrees not to assert any claims of waiver and/or estoppel against the Department in the event the Respondent fails to comply with any requirement of this Consent Order and the Department, as a result thereof, elects to pursue the Respondent for corrective actions and/or civil penalties in a court of competent jurisdiction. 26. The terms and conditions set forth in this Consent Order may be enforced in a court of competent jurisdiction pursuant to Sections 120.69 and 403.121, Fla. Stat. Failure to comply with the terms of this Consent Order shall constitute a violation of Section Fla. Stat., and subject Respondent to the judicial imposition of damages, civil penalties up to $10,000 per day per violation, and criminal penalties. 27. 'Persons who are not parties to this Consent Order, but whose substantial interests are affected by this Consent Order, have a right, pursuant to Sections 120.569 and 120.57, Fla. Stat., to petition for an administrative hearing on it. The petition must contain the information set forth below and must be filed (received) at the Department's State of Florida Depa, ,arent of Environmental Protection vs. ,tenay Power Corp. OGC File No. 08-1652 Page 9 of 28 Office of General Counsel, 3900 Commonwealth Boulevard, 35, Tallahassee, Florida 32399-3000 within 21 days of receipt of this notice. A copy of the petition must also be mailed at the time of filing to the District Office named above at the address indicated. Failure to file a petition within the 21 days constitutes a waiver of any right such person has to an administrative hearing pursuant to Sections 120.569 and l20.57, Fla. Stat. The petition shall contain the following information: The Department's identification number for the Consent Order and the county in which the subj ect matter or activity is located; The name, address, and telephone number of each petitioner; the name, address, and telephone number of the petitioner's representative, if any, which shall be the address for service purposes; A statement of how and when each petitioner received notice of the Consent Order; 9 A statement of how each petitioner's substantial interests are affected by the Consent Order; A statement of the material facts disputed by petitioner, if any; A statement of which rules or statutes petitioner contends require reversal or modification of the Consent Order; I A statement of facts' which petitioner contends warrant reversal or modification of the Consent Order, including an explanation of how the A alleged facts relate to the specific rules or statutes; and A statement of the relief sought by petitioner, stating precisely the action petitioner wants the Department to take with respect to the Consent Order. State of Florida Depaiairent of Environmental Protection vs. l\/lcntenay Power Corp. OGC File No. 08-1652 Page 10 of 28 If a petition is filed, the administrative hearing process is designed to formulate agency action. Accordingly, the Department's final action may be different from the position taken by it in this notice. Persons whose substantial interests will be affected by any decision of the Department with regard to the subject Consent Order have the right to petition to become a party to the proceeding. The petition must conform to the requirements specified above and be filed (received) within 21 days of receipt of this notice in the Office of General Counsel at the above address ofthe Department. Failure to petition within the allowed time frame constitutes a waiver of any right such person has to request a hearing under Sections 120.569 and 120.57, Fla. Stat., and to participate as a party to this proceeding. Any subsequent intervention will only be at the approval of the presiding officer upon motion filed pursuant to Rule 28-106.205, Fla. Admin. Code. A person whose substantial interests are affected by the Consent Order may file a timely petition for an administrative hearing under Sections 120.569 and 120.57, Fla. Stat., or may choose to pursue mediation as an alternative remedy under Section 120.573, Pla. Stat., before the deadline for filing a petition. Choosing mediation will not adversely affect the right to a hearing if mediation does not result in a settlement. The procedures for pursuing mediation are set forth below. Mediation may only take place if the Department and all the parties to the proceeding agree that mediation is appropriate. A person may pursue mediation by reaching a mediation agreement with all parties to the proceeding (which include the Respondent, the Department, and any person who has filed a timely and sufficient petition for a hearing) and by showing how the substantial interests of each mediating party are affected by the Consent Order. The agreement must be filed in (received by) 4 State of Florida Depar _,nent of Environmental Protection vs. -uenay Power Corp. OGC File No. 08-1652 Page ll of 28 the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, MS #35, Tallahassee, Florida 32399-3000, within 10 days after the deadline as set forth above for the filing of a petition. The agreement to mediate must include the following: The names, addresses, and telephone numbers of any persons who may attend the mediation; The name, address, and telephone number of the mediator selected by the parties, or a provision for selecting a mediator Within a specified time; The agreed allocation 3 of the costs and fees associated with the mediation; The agreement of the parties on the confidentiality of discussions and documents introduced during mediation; The date, time, and place of the first mediation session, or a deadline for holding the first session, if no mediator has yet been chosen; The name of each party's representative who shall have authority to settle or recommend settlement; Either an explanation of how the substantial interests of each mediating party will be affected by the action or proposed action addressed in this notice of intent or a statement clearly identifying the petition for hearing that each party has already filed, and incorporating it by reference; and, The signatures of all parties or their authorized representatives. State of Florida Depai _"rent of Environmental Protection vs. l\/lc _tenay Power Corp. OGC File No. 08-1652 Page 12 of 28 As provided in Section 120.573, Fla. Stat., the timely agreement of all panties to mediate will toll the time limitations imposed by Sections 120.569 and l20.57, Fla. Stat., for requesting and holding an administrative hearing. Unless otherwise agreed by the parties, the mediation must be concluded within sixty days of the execution of the agreement. If mediation results in settlement of the administrative dispute, the Department must enter a final order incorporating the agreement of the parties. Persons whose substantial interests will be affected by such a modified final decision of the Department have a right to petition for a hearing only in accordance with the requirements for such petitions set forth above, and must therefore file their petitions within 21 days of receipt of this notice. If mediation terminates without settlement of the dispute, the Department shall notify all parties in writing that the administrative hearing processes under Sections 120.569 and 120.57, Fla. Stat., remain available for disposition of the dispute, and the notice will specify the deadlines that then will apply for challenging the agency action and electing remedies under those two statutes. 28. The sale or conveyance of the Facility, or the property upon which the Facility is located, shall not relieve the Respondent of the obligations imposed in this Consent Order. In the event of a sale or conveyance of the Facility or of the property upon which the Facility is located, if all of the requirements of this Consent Order have not been fully satisfied, the Respondent shall, at least 30 days prior to the sale or conveyance of the property or Facility: notify the Department of such sale or conveyance; provide the name and address of the purchaser(s), operator(s), and any other person(s) in control of the Facility; and provide a copy of this Consent Order with all attachments to the purchaser(s). State of Florida Depa_ _rent of Environmental Protection vs. Ivr .tenay Power Corp. OGC File No. 08-1652 Page 13 of 28 29. The Respondent shall allow all authorized representatives of the Department access to the property and Facility at reasonable times for the purpose of determining compliance with the terms of this Consent Order, Department rules and the statutes the Department is empowered to enforce. 30. All submittals and payments required by this Consent Order to be submitted to the Department shall be sent to the Florida Department of Environmental Protection, 400 North Congress Avenue, Suite 200, West Palm Beach, Florida 33401. 31.g This Consent Order is a settlement of the Department's civil 'and administrative authority arising under Florida law to resolve the matters addressed herein. This Consent Order is not a settlement of any criminal liabilities that may arise under Florida law, nor is it a settlement of any violation that may be prosecuted criminally or civilly under federal law. 32. The Department hereby expressly reserves the right to initiate appropriate legal action to prevent or prohibit any violations of applicable statutes, or the rules promulgated thereunder, that are not specifically addressed by the terms of this Consent Order. . 33. Entry of this Consent Order does not relieve the Respondent of the need to comply with applicable federal, state or local laws, regulations or ordinances. 34. No modifications of the terms of this Consent Order shall be effective until reduced to writing and executed by the Respondent and the Department. 35. The Respondent acknowledges and waives its right to an administrative hearing pursuant to Sections 120.569 and l20.57, Fla. Stat., on the terms of this Consent Order. The Respondent acknowledges its right to appeal the terms of this Consent Order State of Florida of Environmental Protection vs. Moi .nay Power Corp. OGC File No. 08-1652 Page 14 of 28 pursuant to Section 12068, Fla. Stat., and waives that right upon signing this Consent Order. 36. This Consent Order is a final order of the Department pursuant to Section Fla. Stat., and it is final and effective on the date tiled withithe Clerk ofthe Department unless a Petition for Administrative Hearing is filed in accordance with Chapter 120, Fla. Stat. Upon the timely filing of a petition this Consent Order will not be effective until further order of the Department. 151% THE Tom Ericlcson, Acting Facility Manager Date Montenay Power Corp. FOR DEPARTMENT USE ONLY DONE AND ENTERED this day of 2008 in West Palm Beach, Florida. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION I ack Long Date District Director Southeast District FILED, on this date, pursuant to ?120.52, Fla. Stat., with the designated Department Clerk, receipt of which is hereby acknowledged. Clerk Date Copies furnished to: Air Enforcement Files, DEP, West Palm Beach Aliki Moncriei Office of General Counsel Cindy Phillips, DARM, Tallahassee Ray Gordon, Miami-Dade DERM (gordorgagmiamidadegov) Lee Casey, Miami-Dade Solid Waste Management (Lel@miamidacle.gov) State of Florida Depanment of Environmental Protection vs. Mc-. _.nay Power Corp. OGC File No. 08-1652 Page 15 of 28 Exhibit A Pollution Prevention Projects I. Introduction 1. Pollution Prevention (P2) is a process improvement that reduces the amount of pollution that enters the enviromnent by conserving resource (including water, raw materials, chemicals, and energy) use, or by reducing waste (including domestic and industrial Wastewater, solid and hazardous waste, and air emissions). A P2 project must reduce pollution or Waste within the process beyond what is required by federal, state, or local law, in order to be eligible for civil penalty offset under this Consent Order. For every creditable $1.00 spent on the Department approved P2 project, the Respondent shall receive a credit of $1.00 against the portion of the civil penalty that can be offset. Whereas'P2 projects are evaluated on the basis of the amount of pollution they eliminate, P2 projects usually have the added benefit of reducing production and disposal costs and regulatory oversight. 2. A P2 project can be classified as source reduction, waste minimization, and on-site recycling. Source reduction provides the greatest P2 benefit, While on-site recycling provides the least. These categories are defined further below. 3. Because P2 projects must be designed to reduce waste at the Facility, P2 projects do not include projects that involve off-site recycling. ln addition, P2 projects do not involve treatment prior to discharge, or disposal by landfilling or incineration. A. Source Reduction A 1. A source reduction project replaces materials or processes that produce pollution with materials or processes that cause less pollution. The ideal situation is to State of Florida Departi, .nt of Environmental Protection vs. Moi ,ay Power Corp. OGC File_No. O8-1652 Page 16 of 28 produce goods or' services with no pollution. Source reduction has the most benetit for the environment among the P2 project options and usually requires the greatest change in the production process. B. Waste Minimization l. A Waste minimization project reduces the generation of unusable by- products (air emissions, wastewater, or solid or liquid wastes). Waste minimization strategies involve reducing resource use and minimizing waste generation on site that result in a net decrease in the release of chemicals to the environment. C. On-Site Recycling On-site recycling projects reuse materials that are the source of pollution. Process materials are reused directly or indirectly in the original or some other process within the Facility. II. The P2 Project Approval Process l. ln order to adequately evaluate the P2 project options, the Department must understand the Facility processes, material use, waste streams, options available, projects proposed, and estimated waste and cost savings. 2. The P2 project is typically implemented in a tive-step process. First, the Respondent must prepare and obtain the approval of a P2 Opportunity Assessment (Assessment). Second, the Respondent must prepare and obtain the approval of a P2 Project Plan (Project Plan) based upon the findings in the Assessment. Third, the Respondent must construct or implement the approved Project Plan. Fourth, the Respondent must submit a P2 Final Report (Final Report) to the Department that summarizes the P2 modifications or improvements, benetits, and allowable costs. State of Florida Depal _rent of Environmental Protection vs. Mc _-may Power Corp. OGC File No. 08-1652 Page l7 of28 Finally, the Department approves or disapproves the offset of the penalty. All of these steps and the timeframes are discussed in detail below. A. The P2 Opportunity Assessment l. Within 30 days of the effective date of this Consent Order, the Respondent shall submit an Assessment to the Department for review and approval. The Assessment provides the basis for identifying, comparing, and evaluating P2 opportunities at the Facility. The Assessment should be divided into two sections: a. i An audit of current Facility practices and their associated waste streams, that shall identify where improvements can be made and provide a baseline for measuring changes, and b. A complete evaluation of all available options for improvement regardless of their feasibility, a feasibility determination and an environmental determination of acceptable options. These options are then evaluated for economic and technical practicality, and environmental benefit. 2. The Assessment shall include a table by which all the processes can be compared. The table shall include brief descriptions of the processes, P2 options, resources consumed, waste streams, and P2 benefits. The table shall be supplemented by more in-depth descriptions that will allow the Department to evaluate the P2 options for each process. Because the P2 project will be evaluated by the amount of pollutants removed from the enviromnent, the comparative units shall be in weight per unit time or volume per unit time. Concentrations are not appropriate units. The time unit used to calculate the amount of pollutants removed should be sufficiently large to average out abnormalities. All waste should be considered, including solid and hazardous wastes, State of Florida of Environmental Protection vs. Mo- _.nay Power Corp. OGC File No. 08-1652 Page 18 of 28 wastewater, and air emissions. Raw materials, water, chemicals, and energy use should be similarly examined. 3. The Current Facility Practices section ofthe Assessment shall include: a. Location and name of the Facility and a brief description of what is done there; b. Contact information for personnel who provided information, analysis, background data, or expertise forthe Assessment; c. Identification and description of processes or operations producing Waste streams; cl. Mass balances that identify and quantify input' materials for each process, materials consumed during each process, and Waste streams produced from each process; e. Simple flow charts or diagrams for each process; and f. Supporting documentation such as waste profile sheets. 4. The Improvement Options Evaluation section of the Assessment shall include a comprehensive list of the following P2 options and their corresponding considerations for each process that produces a Waste stream: a. Process Elimination - Can an acceptable product be achieved without this process? b. Process Substitution - Can an acceptable product be achieved with a cleaner process? c. Input Material Substitution - Can a less polluting chemical or substance be used in the process? State of Florida Depai _l cient of Environmental Protection vs. Mt _.enay Power Corp. OGC File No. O8-1652 Page l9 of28 5. d. Waste Reduction - Can the process be run with less Waste? e. In-process Recycling/Reuse - Can used process materials be used instead of virgin materials in the same process? f. Out>>process Recycling/Reuse - Can used process materials, instead of virgin materials, be reused in another process Within the Facility? g. Waste Segregation - Will the segregation of wastes result in any usable Waste products? h. Improved Maintenance - Can Facility operations be run more efficiently with improved equipment maintenance? i. Improved Operational Procedures and/or Scheduling - Will improving Facility operational procedures and/ or scheduling reduce the generation of waste? j. Improved Equipment Layout, Piping and or Automation - Will upgrading Facility process equipment reduce the generation of waste? The Pollution Prevention Opportunity Assessment section of the Assessment shall also consider and record all P2 options. This consideration shall include: changes; a. A description of each process; b. A description of any P2 option considered for each process; c. The technical feasibility of each P2 option; d. The approximate cost of implementing process modifications or e. A quantitative description ofthe materials and wastes to be reduced; State of Florida Department of Environmental Protection vs. Momenay Power Corp. OGC File No. 08-1652 Page 20 of 28 f. A quantitative description of any waste streams that will increase; g. Other benefits such as economic return; and h. Supporting documentation such as Material Safety data Sheets material purchasing and use records, waste stream analytical test results, recycling, treatment or disposal records, or vendor information on proposed new equipment. 6. The Department will review the Assessment and either approve or disapprove with comments. If the Department disapproves the Assessment, the Respondent shall resubmit the Assessment that is responsive to the comments. If after one re~submittal the Assessment is not approvedor if the Respondent does not resubmit, the Respondent shall pay the balance of the allowable amount of the civil penalty in accordance with the Consent Order. B. P2 Project Plan l. Within 60 days of approval of the Assessment, the Respondent shall submit a. detailed P2 Proj ect Plan based on the approved Assessment, particularly section ll, Pollution Prevention Opportunity Assessment. The Project Plan shall describe in detail the current operation of the particular process that will be part of the P2 Project. The process description will aid in the P2 Project's design and provide a benchmark for measuring the P2 Project's success. The Project Plan shall include four sections: background information, project description, environmental and economic benefits, and a schedule for implementation. 2. The Background section ofthe Project Plan shall include the following: a. Flow diagram of the process, State of Florida Depart. _lent of Environmental Protection vs. Mr _enay Power Corp. OGC File No. 08-1652 Page 21 of 28 b. Mass balance ofthe process; and c. Current operating costs including material procurement, maintenance, operation, utilities, and waste disposal, costs. 3. The Project section of the Project Plan shall include the following: a. Description of process modification; b. Any modifications to the flow diagram; c. Mass balance for the new process; d. Itemized costs of implementing the project including the design, capital equipment, installation, testing, training, and total project cost; e. Costs of operating and maintaining the project once it is complete; and Documentation that supports the costs such as vendor literature and price quotes, research, endorsements. 4. The Environmiental and Economic Benefts section of the Project Plan shall describe in detail for each material use and waste stream eliminated or reduced, for each material use and waste stream created or increased: a. Type of material or waste; b. Mass (weight or volume) reduction/increase in materials and wastes per unit time; c. Mass (weight or volume) reduction/increase in materials and wastes per unit of production; d. Method of material re-use/waste management; e. Expected financial incentives and monetary gains; State of Florida Department of Environmental Protection vs. Mcntenay Power Corp. OGC File No. O8-1652 - Page 22 of 28 f. Supporting documentation. 5. The Schedule for Implementation section ofthe Project Plan shall contain a brief discussion of the steps necessary to implement the project and expected dates of completion. The schedule shall include milestones, anticipated problems and options, and the project completion date. The implementation should take no longer than six months from approval of the Proj ect Plan. 6. The Department will review the Project Plan and either approve or disapprove with comments. lf the Department disapproves the Project Plan, the Respondent shall resubmit a Project Plan that is responsive to the comments. If after one re-submittal the Project Plan is not approved or if the Respondent does not resubmit, the Respondent shall pay the balance of the allowable amount of the civil penalty in accordance with the Consent Order. C. Implementation of the P2 Project Plan l. Within 30 days of approval of the P2 Project Plan, the Respondent shall begin implementation ofthe P2 Project in accordance with the approved schedule. D. Progress and Final Reports 1. Within 90 days of approval of the Project Plan, the Respondent shall submit a progress report to the Department that describes the Respondents progress in implementing the P2 Project and meeting the requirements in the .Project Plan and includes a list of equipment ordered, purchased, and/or installed. 2. Within l80 days of approval of the Project Plan, the Respondent shall submit to the Department a Final Report that includes the following: State of Florida Department of Environmental Protection vs. Power Corp. OGC File No. O8-1652 Page 23 of 28 a. An update on the information required in the Environmental and Economic Benefits section of Project Plan; i b. A description of the methods used to quantify wastes; c. An expense report, receipts, and other documents itemizing costs expended on preparing and implementing the project, which are described in section E. 3. The Department shall review the Final Rep.ort and determine: a. Whether the project has been implemented in accordance with the approved P2 Proj ect Plan; and b. Which expenses apply toward pollution prevention credits. 4. If the P2 Proj ect Plan is approved by the Department and properly implemented, a $1.00 pollution prevention credit for each $1.00 spent on applicable costs will be applied against the portion of the civil penalty that canibe offset. E. Final Accounting and Civil Penalty Offset l. The following costs are allowable to offset the allowable amount of the civil penalty: a. Preparation of the P2 Project; b. Design of the P2 Project; c. Installation of equipment for the P2 Proj ect; d. Construction of the P2 Project; e. Testing ofthe P2 Project; f. Training of staff concerning the implementation of the P2 Proj ect; and State of Florida of Environmental Protection vs. Mcmenay Power Corp. OGC File No. 08-1652 Page 24 of 28 g. Capital equipment needed for the P2 Project. 2. The following costs shall not apply toward P2 credit: a. Costs incurred in conducting a waste audit; b. Maintenance and operation costs involved in implementing the P2 Project; c. Monitoring and reporting costs; . d. Salaries of employees who perform their job duties; e. Costs expended to bring the Facility into compliance with current law, rules and regulations; f. Costs associated with a P2 Project that is not implemented; g. Costs associated with a P2 Project that has not been approved by the Department; and h. Legal costs. 3. If any balance remains after the entire P2 credit is applied to the allowable portion of the civil penalty, Respondent shall pay the difference within 30 days of written notification by the Department to the Respondent that the balance is due. 4. The Department may terminate the P2 Project at any time during the development or implementation of it, if the Respondent fails to comply with the requirements in this document, act in good faith in preparing and implementing the project, or develop and implement the P2 Project in a timely manner. The Respondent may terminate the P2 Proj ect at any time during its development or implementation. State of Florida Department of Environmental Protection vs. Power Corp. OGC File No. 08-1652 Page Project is terminated for any reason, Respondent shall pay the full balance of the allowable portion of the civil penalty within 30 days of Written demand by the Department. 6. Any public statement, oral or Written, in print, film, or other media, made by Respondent making reference to the P2 Project ,Plan shall include the following language, "This project was undertaken in connection with the Florida Department of Environmental Protection for violations of Florida's environmental laws." State of Florida Department of Environmental Protection vs. Power Corp. OGC File No; 08-1652 Page 26 of 28 Exhibit In-Kind Projects l. Introduction A An in-kind project a. Within 60 days of the effective date of this Consent Order, the Respondent shall submit, by certified mail, a detailed in-kind project proposal to the Department for evaluation. The proposal shall include a summary of benefits, proposed schedule for implementation and documentation of the estimated costs which are expected to be incurred to complete the project. These costs shall not include those incurred in developing the proposal or obtaining approval from the Department for the in-kind project. A b. If the Department requests additional infomation or clarification due to a partially incomplete in-kind project proposal or requests modifications due to deficiencies with Department guidelines, the Respondent shall submit, by certified mail, all requested additional information, clarification, and modifications within l5 days of receipts of written notice. i c. lf upon review of the in-kind project proposal, the Department determines that the project cannot be' accepted due to a substantially incomplete proposal or due to substantial deficiencies with minimum Department guidelines, the Respondent will be notified in writing of the reason(s) which prevent the acceptance of the proposal. Within 30 days of receipt of this written notice, the Respondent shall correct and redress all of the matters at issue and submit a new proposal by certified mail. In the event the revised proposal is not approved by the Department, the Respondent shall make cash payment of State of Florida Department of Environmental Protection vs. Mc-__--nay Power Corp. OGC File No. 08-1652 Page 27 of 28 the civil penalties as set forth in paragraph 15 of this Consent Order within 30 days of Department notice. d. Within 120 days of the effective date of this Consent Order, the Respondent shall obtain approval for an in-kind project from the Department. If an in- kind project proposal is not approved by the Department within 120 days of the effective date of this Consent Order, then the Respondent shall make cash payment of the civil penalties as set forth in paragraph 15 of this Consent Order within 30 days of Department notice. e. Within 180 days of obtaining approval for the in-kind proposal, or in accordance with the approved schedule submitted pursuant to paragraph the Respondent shall complete the entire in-kind project. f. During the implementation of the in-kind project, the Respondent shall place appropriate sign(s) at the project site indicating that the Respondent's involvement with the project is the result of a Department enforcement action. The Respondent may remove the sign(s) after the project has been completed, however the Respondent shall not post any sign(s) at the site indicating that the reason for the project was anything other than a Department enforcement action. 2 g. Within 15 days of completing the in-kind project, the Respondent shall notify the Department, by certified mail, of the project completion and request a verification letter from the Department. The Respondent shall submit supporting information verifying that the project was completed in accordance with the approved proposal and documentation showing the actual costs incurred to complete the project. State of Florida Depara _.cnt of Environmental Protection vs. Moi. -snay Power Corp. OGC File No. 08-1652 Page 28 of`28 These costs shall not include those incurred in developing the proposal or obtaining approval from the Department for the project. h. If upon review of the notification of completion, the Department determines that the project cannot be accepted due to a substantially incomplete notification of completion or due to substantial deviations form the approved in-kind project, the Respondent will be notified in writing of the reason(s) that 'prevent acceptance of the project. Within 15 days of receipt of this written notice, the Respondent shall correct and redress all of the matters at issue and submit a new notification of completion by certified mail. . In the event the Respondent fails 'to timely submit any requested information to the Department, fails to complete implementation of the in-kind project or otherwise fails to comply with any provision of Exhibit B, the in-kind penalty project option shall be forfeited and the entire amount of civil penalties shall be due from the Respondent to the Department within 30 days of Department notice. If the in-kind penalty project is terminated and the Respondent timely remits the $437,522.00 penalty, no additional penalties shall be assessed under paragaph 15 of this Consent Order for failure to complete the requirement of Exhibit B. 95036620933 TI HMTM Si ESSFI N-HON) |qep,oEe J,cl oseq suojipuoo pu: same ED |dcle E03 5 Qc.-1 'e 6 CIEIALI. I A. A15 mn 3 ml: Imp"-I an gmSFSUE "--'?13 :l?I I - HI Cl' El EIA 30031 ooze :RECEIPT Waybill #2 28502998055 Rate Estimate: 3.38 Protection: Not Required To{Compenvg_: Description: htontenegf ower Corporation 5990 l'~lW El?'th Avenue 'Weight (ips): El Dimensions: El El at IJ l'o1ierni FL 331?8 STATES Level: Ground (Est. Attention To: Mr. Thomas Eriksen delivery in 1 business cley[s]] F'hone#: Specael Svc: Sent Baal: B. Guttmen Phone 551 -B81 -E716 Date Printed: SM 5:2008 Bill Shipment To: Sender Bill To Acct: TT91 USBET DHL Signature (optional) Route Date Time For Tracking, please goto or call 1-800-225-5345 Thank you for shipping with DHL Create new shipment View pending shipments Print waybill shipmentdocuments/ 1abeldoc.asp 8/1 5/2008 DHL: Cret delivery signature d="ai1 Page 1 of 1 .f - i 1e_ Welcome back, Brenda Guttman View DHL.com profile View Online Billing account Logout Track Track by number Contac DHL USA Home Delivery signature detail Signature details for 28602998056 6//fp Summary details Help Current Status v' Shipment Delivered by f@fefef\C@ Delivered on 8/18/08 9:56 am Get delivery signature -|-rack DHL Same Day Service Delivered to Receptionist Shipments signed for by What is this? Receiver information MONTENAY POWER CORPORATIO Miami, FL 33178 United States Track new shipment Tracking detail provided by DHL: 8/21/2008 11:54:29 AM You are authorized to tracking systems solely to track shipments tendered by or for you to DHL. Any other use of DHL tracking systems and information is strictly prohibited. DHL Global About DHL Newsroom Contact Sitemap Privacy Policy Copyright (C) 2008 DHL International, Ltd. All Rights Reserved. DHL Global Print this page El View Tracking Detail E-mail Delivery Signature New to Registration is quick and easy. registered user, you'll have acce and tools to help you ship your and efficiently. Register now Monitor your shipmer Try out DHL ProView""' for shipl and event notifications for grour air express packages associate/ account (first time users will nee and add their accounts). 8b0Llf DHL 8/21/2008