United States of America v. Cemex Construction Materials South LLC, No. 2:2012cv02020 - Document 9 (D. Ariz. 2013)

Court Description: CONSENT DECREE, within 30 Days after the Effective Date of this Consent Decree, Defendant shall pay the sum of $90,000 as a civil penalty; 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 andDefendant (see document for complete details). Signed by Judge Frederick J Martone on 1/18/13. (REW)
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United States of America v. Cemex Construction Materials South LLC 1 Doc. 9 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) vs. ) ) Cemex Construction Materials South,) ) LLC, ) ) Defendant. ) ) United States of America, No. CV-12-2020-PHX-FJM CONSENT DECREE 16 17 18 19 20 21 22 23 24 25 26 27 28 Dockets.Justia.com 1 TABLE OF CONTENTS 2 3 I. JURISDICTION AND VENUE ...................................................................................-1- 4 II. APPLICABILITY........................................................................................................ -2- 5 III. DEFINITIONS ...........................................................................................................-3- 6 IV. CIVIL PENALTY ......................................................................................................-5- 7 V. COMPLIANCE REQUIREMENTS ...........................................................................-6- 8 VI. REPORTING REQUIREMENTS .............................................................................-6- 9 VII. STIPULATED PENALTIES ....................................................................................-9- 10 VIII. FORCE MAJEURE ...............................................................................................-11- 11 IX. DISPUTE RESOLUTION .......................................................................................-13- 12 X. INFORMATION COLLECTION AND RETENTION ............................................-15- 13 XI. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS ................................-16- 14 XII. COSTS ....................................................................................................................-17- 15 XIII. NOTICES ..............................................................................................................-17- 16 XIV. EFFECTIVE DATE ..............................................................................................-19- 17 XV. RETENTION OF JURISDICTION........................................................................-20- 18 XVI. MODIFICATION.................................................................................................. -20- 19 XVII. TERMINATION ..................................................................................................-20- 20 XVIII. PUBLIC PARTICIPATION ...............................................................................-21- 21 XIX. SIGNATORIES/SERVICE ...................................................................................-21- 22 XX. INTEGRATION .....................................................................................................-22- 23 XXI. FINAL JUDGMENT............................................................................................. -22- 24 XXII. APPENDIX.…………………………………………………………………....-22- 25 26 27 28 i 1 Plaintiff United States of America, on behalf of the United States Environmental 2 Protection Agency (“EPA”), has filed a complaint in this action concurrently with this 3 Consent Decree alleging that Defendant CEMEX Construction Materials South, LLC 4 (“CEMEX”) violated provisions of Regulation III, Rule 316 of the Maricopa County Air 5 Quality Department (“MCAQD”) Rules and Regulations, which under Section 113(b)(1) 6 of the Clean Air Act (“Act”), 42 U.S.C. § 7413(b)(1), constitutes a federally enforceable 7 violation of the Arizona State Implementation Plan. 8 9 The Complaint against Defendant alleges that at Defendant’s aggregate mining and processing and concrete production facility located in Mesa, Arizona, Defendant 10 failed to permanently mount watering systems at required locations, to install the required 11 pressure control systems at cement silos, and to properly install a wheel washer. 12 Defendant does not admit any liability to the United States arising out of the 13 transactions or occurrences alleged in the Complaint, and denies all of the alleged 14 violations. 15 The Parties recognize, and the Court by entering this Consent Decree finds, that 16 this Consent Decree has been negotiated by the Parties in good faith and will avoid 17 litigation between the Parties and that this Consent Decree is fair, reasonable, and in the 18 public interest. 19 NOW, THEREFORE, before the taking of any testimony, without the adjudication 20 or admission of any issue of fact or law except as provided in Section I, and with the 21 consent of the Parties, IT IS HEREBY ADJUDGED, ORDERED, AND DECREED as 22 follows: I. JURISDICTION AND VENUE 23 24 1. This Court has jurisdiction over the subject matter of this action, 25 pursuant to 28 U.S.C. §§ 1331, 1345, and 1355, and Section 113(b) of the Act, 42 U.S.C. 26 § 7413(b), and over the Parties. Venue lies in this District pursuant to Section 113(b) of 27 the Act, 42 U.S.C. § 7413(b), and 28 U.S.C. §§ 1391(b) and (c) and 1395(a), because the 28 violations alleged in the Complaint are alleged to have occurred in, and Defendant -1- 1 conducts business in, this judicial district. For purposes of this Decree, or any action to 2 enforce this Decree, Defendant consents to the Court’s jurisdiction over this Decree and 3 any such action and over Defendant and consents to venue in this judicial district. 2. 4 For purposes of this Consent Decree, Defendant agrees that the 5 Complaint states claims upon which relief may be granted pursuant to Section 113(b)(1) 6 of the Act, 42 U.S.C. § 7413(b)(1). II. APPLICABILITY 7 3. 8 9 10 The obligations of this Consent Decree apply to and are binding upon the United States, and upon Defendant and any successors, assigns, or other entities or persons otherwise bound by law. 4. 11 No transfer of ownership or operation of the Facility, whether in 12 compliance with the procedures of this Paragraph or otherwise, shall relieve Defendant of 13 its obligation to ensure that the terms of the Decree are implemented. Until this Consent 14 Decree is terminated pursuant to the provisions of Section XVII, Defendant shall provide 15 a copy of this Consent Decree to the proposed transferee and shall simultaneously 16 provide written notice of the prospective transfer, together with a copy of the proposed 17 written agreement, to the United States, in accordance with Section XIII of this Decree 18 (Notices) at least 30 Days prior to such transfer. Any attempt to transfer ownership or 19 operation of the Facility without complying with this Paragraph constitutes a violation of 20 this Decree. 21 5. Defendant shall provide a copy of this Consent Decree to all 22 officers, employees, and agents whose duties might reasonably include compliance with 23 any provision of this Decree, as well as to any contractor retained to perform work 24 required under this Consent Decree. Defendant shall condition any such contract upon 25 performance of the work in conformity with the terms of this Consent Decree. 26 6. In any action to enforce this Consent Decree, Defendant shall not 27 raise as a defense the failure by any of its officers, directors, employees, agents, or 28 contractors to take any actions necessary to comply with the provisions of this Consent -2- 1 Decree. III. DEFINITIONS 2 7. 3 Terms used in this Consent Decree that are defined in the Act or in 4 regulations promulgated pursuant to the Act shall have the meanings assigned to them in 5 the Act or such regulations, unless otherwise provided in this Decree. Whenever the 6 terms set forth below are used in this Consent Decree, the following definitions shall 7 apply: a. 8 9 “Active Facilities” shall mean all commercial and/or industrial Nonmetallic Mineral Processing Plants and/or Rock Product Processing Plants, 10 that are operating as of the Effective Date of this Consent Decree or that commence 11 operations thereafter until this Consent Decree is terminated pursuant to Section XVII, 12 and are located in Maricopa County, Arizona, and owned or operated by Defendant; b. 14 “Consent Decree” or “Decree” shall mean this Decree and the States in this action; 15 16 “Complaint” shall mean the complaint filed by the United c. 13 Appendix attached hereto; d. 17 “Day” shall mean a calendar day unless expressly stated to be 18 a business day. In computing any period of time under this Consent Decree, where the 19 last day would fall on a Saturday, Sunday, or federal holiday, the period shall run until 20 the close of business of the next business day; e. 22 Protection Agency and any of its successor departments or agencies; g. 25 26 “EPA” shall mean the United States Environmental South, LLC; 23 24 “Defendant” shall mean CEMEX Construction Materials f. 21 “Effective Date” shall have the definition provided in Section XIV; 27 28 -3- h. 1 “Facility” shall mean Defendant’s aggregate mining and 2 processing and concrete production facility located at 1901 North Alma School Road in 3 Mesa, Maricopa County, Arizona; i. 4 5 Department and any of its successor departments or agencies; j. “Nonmetallic Mineral Processing Plant” shall mean any 234 of Rule 316; 8 9 “Nonmetallic Mineral” shall have the definition at Section k. 6 7 “MCAQD” shall mean the Maricopa County Air Quality facility utilizing any combination of equipment or machinery that is used to mine, 10 excavate, separate, combine, crush, or grind any Nonmetallic Mineral including, but not 11 limited to, lime plants, coal-fired power plants, steel mills, asphalt plants, concrete plants, 12 Portland cement plants, raw material storage and distribution, and sand and gravel plants. 13 Rock Product Processing Plants are included in this definition; l. “Paragraph” shall mean a portion of this Decree identified by 16 m. “Parties” shall mean the United States and Defendant; 17 n. “Pressure Control System” shall mean a system in which 14 15 an Arabic numeral; 18 loads of Nonmetallic Minerals and cement are moved in the proper sequence, at the 19 correct time, and at the desired speed through use of valves that control the direction of 20 air flow, regulate actuator speed, and respond to changes in air pressure; o. 21 22 meaning as in Rule 316; p. 23 24 27 28 “Rule 316” shall mean MCAQD Regulation III (Control of Air Contaminants), Rule 316 (Nonmetallic Mineral Processing); q. “Section” shall mean a portion of this Decree identified by a r. 25 26 “Rock Product Processing Plant” shall have the same “Silo” shall mean an elevated storage container with or roman numeral; without a top that releases material through the bottom; -4- 1 s. “State” shall mean the State of Arizona; and 2 t. “United States” shall mean the United States of America, 3 acting on behalf of EPA. IV. CIVIL PENALTY 4 8. 5 Within 30 Days after the Effective Date of this Consent Decree, 6 Defendant shall pay the sum of $90,000 as a civil penalty. If payment is late, Defendant 7 shall also pay interest accruing from the date on which the Consent Decree is lodged with 8 the Court through the date of payment, at the rate specified in 28 U.S.C. § 1961 as of the 9 date of lodging, in addition to stipulated penalties pursuant to Section VII (Stipulated 10 Penalties). 9. 11 Defendant shall pay the civil penalty due by FedWire Electronic 12 Funds Transfer (“EFT”) to the U.S. Department of Justice in accordance with written 13 instructions to be provided to Defendant, following entry of the Consent Decree, by the 14 Financial Litigation Unit of the U.S. Attorney’s Office for the District of Arizona, 405 15 West Congress Street, Suite 4800, Tucson, Arizona 85701-5040, (520) 620-7300. At the 16 time of payment, Defendant shall send a copy of the EFT authorization form and the EFT 17 transaction record, together with a transmittal letter, which shall state that the payment is 18 for the civil penalty owed pursuant to the Consent Decree in United States v. CEMEX 19 Construction Materials South, LLC, and shall reference the civil action number and DOJ 20 case number 90-5-2-1-10139, to the United States in accordance with Section XIII of this 21 Decree (Notices); by email to acctsreceivable.CINWD@epa.gov; and by mail to: 22 EPA Cincinnati Finance Office 23 26 Martin Luther King Drive 24 Cincinnati, Ohio 45268 25 10. Defendant shall not deduct any penalties paid under this Decree 26 pursuant to this Section or Section VII (Stipulated Penalties) in calculating its federal 27 income tax. 28 -5- V. COMPLIANCE REQUIREMENTS 1 11. 2 No later than 60 Days after the Effective Date or upon commencing 3 operations at a facility, whichever is earlier, Defendant shall install and operate automatic 4 Pressure Control Systems on all operating cement Silo filling processing/loading 5 operations controls of Active Facilities. In accordance with Rule 316 Section 303.2(d), 6 each such Pressure Control System shall be designed to shut off automatically cement 7 Silo filling processes/loading operations if pressure from a delivery truck is excessive, as 8 defined in any applicable Operation and Maintenance (“O&M”) Plan. 12. 9 Permits. Where any compliance obligation under this Section 10 requires Defendant to obtain a federal, state, or local permit or approval, Defendant shall 11 submit timely and complete applications and take all other actions necessary to obtain all 12 such permits or approvals. Defendant may seek relief under the provisions of Section 13 VIII of this Consent Decree (Force Majeure) for any delay in the performance of any 14 such obligation resulting from a failure to obtain, or a delay in obtaining, any permit or 15 approval required to fulfill such obligation, if Defendant has submitted timely and 16 complete applications and has taken all other actions necessary to obtain all such permits 17 or approvals. VI. REPORTING REQUIREMENTS 18 13. 19 20 a. Initial Compliance Status Report Within 75 Days after the Effective Date, Defendant shall 21 submit to EPA a report that shall include the status of the compliance requirements of 22 Paragraph 11, including, at a minimum, a listing of Active Facilities, the number of 23 cement Silos at each Active Facility, and confirmation that a Pressure Control System is 24 installed on each such cement Silo. This confirmation should include a description of 25 each such Pressure Control System, showing that it is a “Pressure Control System” within 26 the meaning of this Decree and that its installation and operation fulfills the requirements 27 of Paragraph 11. 28 -6- 1 b. The report shall also include a description of any non- 2 compliance at the Active Facilities with the requirements of this Consent Decree 3 (including the absence of or failure to operate an automatic Pressure Control System on 4 any cement Silo at the Active Facilities) and an explanation of the violation’s likely cause 5 and of the remedial steps taken, or to be taken, to correct, prevent, or minimize such 6 violation. If the cause of a violation cannot be fully explained at the time the report is 7 due, Defendant shall so state in the report. Defendant shall investigate the cause of the 8 violation and shall then submit an amendment to the report, including a full explanation 9 of the cause of the violation, within 30 Days of the Day Defendant becomes aware of the 10 cause of the violation. Nothing in this Paragraph or the following Paragraph relieves 11 Defendant of its obligation to provide the notice required by Section VIII of this Consent 12 Decree (Force Majeure). 14. 13 Additional Compliance Status Report a. 14 Twelve months after the submission of the report required 15 under Paragraph 13, Defendant shall submit to EPA a report that describes, for the Active 16 Facilities, the status of Paragraph 11’s requirement to operate automatic Pressure Control 17 Systems. 18 b. The report shall also include a description of any non- 19 compliance, since the date of the initial compliance status report, at the Active Facilities 20 with the requirements of this Consent Decree (including the absence of or failure to 21 operate an automatic Pressure Control System on any cement Silo at the Active 22 Facilities) and an explanation of the violation’s likely cause and of the remedial steps 23 taken, or to be taken, to correct, prevent, or minimize such violation. If the cause of a 24 violation cannot be fully explained at the time the report is due, Defendant shall so state 25 in the report. Defendant shall investigate the cause of the violation and shall then submit 26 an amendment to the report, including a full explanation of the cause of the violation, 27 within 30 Days of the Day Defendant becomes aware of the cause of the violation. 28 Nothing in this Paragraph or the following Paragraph relieves Defendant of its obligation -7- 1 2 to provide the notice required by Section VIII of this Consent Decree (Force Majeure). 15. Whenever any violation of this Consent Decree or any other event 3 affecting Defendant’s performance under this Decree, or the performance of the Active 4 Facilities, may pose an immediate threat to the public health or welfare or the 5 environment, Defendant shall notify EPA orally or by electronic or facsimile 6 transmission as soon as possible, but no later than 24 hours after Defendant first knew of 7 the violation or event. This procedure is in addition to the requirements set forth in the 8 preceding Paragraph. 9 10 11 16. All reports shall be submitted to the persons designated in Section XIII of this Consent Decree (Notices). 17. Each report submitted by Defendant under this Section shall be 12 signed by an official of the submitting party and include the following certification: 13 I certify under penalty of law that this document and all 14 attachments were prepared under my direction or supervision 15 in accordance with a system designed to assure that qualified 16 personnel properly gather and evaluate the information 17 submitted. Based on my inquiry of the person or persons who 18 manage the system, or those persons directly responsible for 19 gathering the information, the information submitted is, to the 20 best of my knowledge and belief, true, accurate, and 21 complete. I am aware that there are significant penalties for 22 submitting false information, including the possibility of fine 23 and imprisonment for knowing violations. 24 This certification requirement does not apply to emergency or similar notifications where 25 compliance would be impractical. 26 27 18. The reporting requirements of this Consent Decree do not relieve Defendant of any reporting obligations required by the Clean Air Act or implementing 28 -8- 1 regulations, or by any other federal, state, or local law, regulation, permit, or other 2 requirement. 3 19. Any information provided pursuant to this Consent Decree may be 4 used by the United States in any proceeding to enforce the provisions of this Consent 5 Decree and as otherwise permitted by law. VII. STIPULATED PENALTIES 6 20. 7 Defendant shall be liable for stipulated penalties to the United States 8 for violations of this Consent Decree as specified below, unless excused under Section 9 VIII (Force Majeure). A violation includes failing to perform any obligation required by 10 the terms of this Decree, including any work plan or schedule approved under this 11 Decree, according to all applicable requirements of this Decree and within the specified 12 time schedules established by or approved under this Decree. 21. 13 14 Late Payment of Civil Penalty If Defendant fails to pay the civil penalty required to be paid under Section IV of 15 this Decree (Civil Penalty) when due, Defendant shall pay a stipulated penalty of $500 16 per Day for each Day that the payment is late. 17 22. Compliance Requirement 18 The following stipulated penalties shall accrue for each failure to timely install or 19 to operate a Pressure Control System as required by Paragraph 11: 20 Penalty Per Violation Per Day Period of Noncompliance 21 $500 1st through 14th Day 22 $650 15th through 30th Day 23 $800 31st Day and beyond 24 23. 25 The following stipulated penalties shall accrue per violation per Day for each 26 Reporting Requirements violation of the reporting requirements of Section VI of this Consent Decree: 27 28 -9- 1 Penalty Per Violation Per Day Period of Noncompliance $100 2 1st through 14th Day 3 $150 15th through 30th Day 4 $200 31st Day and beyond 5 24. Stipulated penalties under this Section shall begin to accrue on the 6 Day after performance is due or on the Day a violation occurs, whichever is applicable, 7 and shall continue to accrue until performance is satisfactorily completed or until the 8 violation ceases. Stipulated penalties shall accrue simultaneously for separate violations 9 of this Consent Decree. 10 11 25. Defendant shall pay any stipulated penalty within 30 Days of receiving the United States’ written demand. 26. 12 The United States may in the unreviewable exercise of its 13 discretion, reduce or waive stipulated penalties otherwise due it under this Consent 14 Decree. 15 16 17 27. Stipulated penalties shall continue to accrue as provided in Paragraph 24, 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 18 EPA that is not appealed to the Court, Defendant shall pay accrued penalties determined 19 to be owing, together with interest, to the United States within 30 Days of the effective 20 date of the agreement or the receipt of EPA’s decision or order. 21 b. If the dispute is appealed to the Court and the United States 22 prevails in whole or in part, Defendant shall pay all accrued penalties determined by the 23 Court to be owing, together with interest, within 60 Days of receiving the Court’s 24 decision or order, except as provided in subparagraph c, below. 25 c. If any Party appeals the District Court’s decision, Defendant 26 shall pay all accrued penalties determined to be owing, together with interest, within 15 27 Days of receiving the final appellate court decision. 28 - 10 - 1 28. Defendant shall pay stipulated penalties owing to the United States 2 in the manner set forth and with the confirmation notices required by Paragraph 9, except 3 that the transmittal letter shall state that the payment is for stipulated penalties and shall 4 state for which violation(s) the penalties are being paid. 5 29. If Defendant fails to pay stipulated penalties according to the terms 6 of this Consent Decree, Defendant shall be liable for interest on such penalties, as 7 provided for in 28 U.S.C. § 1961, accruing as of the date payment became due. Nothing 8 in this Paragraph shall be construed to limit the United States from seeking any remedy 9 otherwise provided by law for Defendant’s failure to pay any stipulated penalties. 10 30. Subject to the provisions of Section XI of this Consent Decree 11 (Effect of Settlement/Reservation of Rights), the stipulated penalties provided for in this 12 Consent Decree shall be in addition to any other rights, remedies, or sanctions available 13 to the United States for Defendant’s violation of this Consent Decree or applicable law. 14 Where a violation of this Consent Decree is also a violation of Rule 316, Defendant shall 15 be allowed a credit, for any stipulated penalties paid, against any statutory federal 16 penalties imposed for such violation. VIII. FORCE MAJEURE 17 18 31. “Force majeure,” for purposes of this Consent Decree, is defined as 19 any event arising from causes beyond the control of Defendant, of any entity controlled 20 by Defendant, or of Defendant’s contractors, that delays or prevents the performance of 21 any obligation under this Consent Decree despite Defendant’s best efforts to fulfill the 22 obligation. The requirement that Defendant exercise “best efforts to fulfill the 23 obligation” includes using best efforts to anticipate any potential force majeure event and 24 best efforts to address the effects of any such event (a) as it is occurring and (b) after it 25 has occurred to prevent or minimize any resulting delay to the greatest extent possible. 26 “Force majeure” does not include Defendant’s financial inability to perform any 27 obligation under this Consent Decree. 28 32. If any event occurs or has occurred that may delay the performance - 11 - 1 of any obligation under this Consent Decree, whether or not caused by a force majeure 2 event, Defendant shall provide notice orally or by electronic or facsimile transmission to 3 EPA, within 72 hours of when Defendant first knew that the event might cause a delay. 4 Within seven Days thereafter, Defendant shall provide in writing to EPA an explanation 5 and description of the reasons for the delay; the anticipated duration of the delay; all 6 actions taken or to be taken to prevent or minimize the delay; a schedule for 7 implementation of any measures to be taken to prevent or mitigate the delay or the effect 8 of the delay; Defendant’s rationale for attributing such delay to a force majeure event if it 9 intends to assert such a claim; and a statement as to whether, in the opinion of Defendant, 10 such event may cause or contribute to an endangerment to public health, welfare or the 11 environment. Defendant shall include with any notice all available documentation 12 supporting the claim that the delay was attributable to a force majeure. Failure to comply 13 with the above requirements shall preclude Defendant from asserting any claim of force 14 majeure for that event for the period of time of such failure to comply, and for any 15 additional delay caused by such failure. Defendant shall be deemed to know of any 16 circumstance of which Defendant, any entity controlled by Defendant, or Defendant’s 17 contractors knew or should have known. 33. 18 If EPA agrees that the delay or anticipated delay is attributable to a 19 force majeure event, the time for performance of the obligations under this Consent 20 Decree that are affected by the force majeure event will be extended by EPA for such 21 time as is necessary to complete those obligations. An extension of the time for 22 performance of the obligations affected by the force majeure event shall not, of itself, 23 extend the time for performance of any other obligation. EPA will notify Defendant in 24 writing of the length of the extension, if any, for performance of the obligations affected 25 by the force majeure event. 34. 26 If EPA does not agree that the delay or anticipated delay has been or 27 will be caused by a force majeure event, EPA will notify Defendant in writing of its 28 decision. - 12 - 1 35. If Defendant elects to invoke the dispute resolution procedures set 2 forth in Section IX (Dispute Resolution), it shall do so no later than 15 Days after receipt 3 of EPA’s notice. In any such proceeding, Defendant shall have the burden of 4 demonstrating by a preponderance of the evidence that the delay or anticipated delay has 5 been or will be caused by a force majeure event, that the duration of the delay or the 6 extension sought was or will be warranted under the circumstances, that best efforts were 7 exercised to avoid and mitigate the effects of the delay, and that Defendant complied with 8 the requirements of Paragraphs 31 and 32, above. If Defendant carries this burden, the 9 delay at issue shall be deemed not to be a violation by Defendant of the affected 10 obligation of this Consent Decree identified to EPA and the Court. IX. DISPUTE RESOLUTION 11 12 36. Unless otherwise expressly provided for in this Consent Decree, the 13 dispute resolution procedures of this Section shall be the exclusive mechanism to resolve 14 disputes arising under or with respect to this Consent Decree. 15 37. Informal Dispute Resolution. Any dispute subject to dispute 16 resolution under this Consent Decree shall first be the subject of informal negotiations. 17 The dispute shall be considered to have arisen when one Party sends the other Party a 18 written Notice of Dispute. Such Notice of Dispute shall state clearly the matter in 19 dispute. The period of informal negotiations shall not exceed 20 Days from the date the 20 dispute arises, unless that period is modified by written agreement. If the Parties cannot 21 resolve a dispute by informal negotiations, then the position advanced by the United 22 States shall be considered binding unless, within 20 Days after the conclusion of the 23 informal negotiation period, Defendant invokes formal dispute resolution procedures as 24 set forth below. 25 38. Formal Dispute Resolution. Defendant shall invoke formal dispute 26 resolution procedures, within the time period provided in the preceding Paragraph, by 27 serving on the United States a written Statement of Position regarding the matter in 28 dispute. The Statement of Position shall include, but need not be limited to, any factual - 13 - 1 data, analysis, or opinion supporting Defendant’s position and any supporting 2 documentation relied upon by Defendant. 3 39. The United States shall serve its Statement of Position within 45 4 Days of receipt of Defendant’s Statement of Position. The United States’ Statement of 5 Position shall include, but need not be limited to, any factual data, analysis, or opinion 6 supporting that position and any supporting documentation relied upon by the United 7 States. The United States’ Statement of Position shall be binding on Defendant, unless 8 Defendant files a motion for judicial review of the dispute in accordance with the 9 following Paragraph. 10 40. Defendant may seek judicial review of the dispute by filing with the 11 Court and serving on the United States, in accordance with Section XIII of this Consent 12 Decree (Notices), a motion requesting judicial resolution of the dispute. The motion 13 must be filed within 10 Days of receipt of the United States’ Statement of Position 14 pursuant to the preceding Paragraph. The motion shall contain a written statement of 15 Defendant’s position on the matter in dispute, including any supporting factual data, 16 analysis, opinion, or documentation, and shall set forth the relief requested and any 17 schedule within which the dispute must be resolved for orderly implementation of the 18 Consent Decree. 19 41. The United States shall respond to Defendant’s motion within the 20 time period allowed by the Local Rules of this Court. Defendant may file a reply 21 memorandum, to the extent permitted by the Local Rules. 22 42. Standard of Review 23 Except as otherwise provided in this Consent Decree, in any dispute brought under 24 Paragraph 38, Defendant shall bear the burden of demonstrating that its position complies 25 with this Consent Decree and that it is entitled to relief under applicable principles of law. 26 The United States reserves the right to argue that its position is reviewable only on the 27 administrative record and must be upheld unless arbitrary and capricious or otherwise not 28 in accordance with the law, and Defendant reserves the right to oppose this position. - 14 - 43. 1 The invocation of dispute resolution procedures under this Section 2 shall not, by itself, extend, postpone, or affect in any way any obligation of Defendant 3 under this Consent Decree, unless and until final resolution of the dispute so provides. 4 Stipulated penalties with respect to the disputed matter shall continue to accrue from the 5 first Day of noncompliance, but payment shall be stayed pending resolution of the dispute 6 as provided in Paragraph 27. If Defendant does not prevail on the disputed issue, 7 stipulated penalties shall be assessed and paid as provided in Section VII (Stipulated 8 Penalties). X. INFORMATION COLLECTION AND RETENTION 9 44. 10 The United States and its representatives, including attorneys, 11 contractors, and consultants, shall have the right of entry into any of the Active Facilities 12 covered by this Consent Decree, at all reasonable times, upon presentation of credentials, 13 to: a. 15 in accordance with the terms of this Consent Decree; c. assess Defendant’s compliance with this Consent Decree. similar data; and 20 21 obtain documentary evidence, including photographs and d. 18 19 verify any data or information submitted to the United States Decree; 16 17 monitor the progress of activities required under this Consent b. 14 45. Until five years after the termination of this Consent Decree, 22 Defendant shall retain, and shall instruct its contractors and agents to preserve, all non- 23 identical copies of all documents, records, or other information (including documents, 24 records, or other information in electronic form) in its or its contractors’ or agents’ 25 possession or control, or that come into its or its contractors’ or agents’ possession or 26 control, and that relate in any manner to Defendant’s performance of its obligations under 27 this Consent Decree. This information-retention requirement shall apply regardless of 28 any contrary corporate or institutional policies or procedures. At any time during this - 15 - 1 information-retention period, upon request by the United States, Defendant shall provide 2 copies of any documents, records, or other information required to be maintained under 3 this Paragraph. 4 46. Defendant may also assert that information required to be provided 5 under this Section is protected as Confidential Business Information (“CBI”) under 40 6 C.F.R. Part 2. As to any information that Defendant seeks to protect as CBI, Defendant 7 shall follow the procedures set forth in 40 C.F.R. Part 2. 8 9 47. 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 pursuant to 10 applicable federal laws, regulations, or permits, nor does it limit or affect any duty or 11 obligation of Defendant to maintain documents, records, or other information imposed by 12 applicable federal or state laws, regulations, or permits. 13 14 XI. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS 48. This Consent Decree resolves the civil claims of the United States 15 for the violations alleged in the Finding and Notice of Violation issued to Defendant on 16 September 10, 2010 (Docket No. R9-10-17) (attached as the Appendix to this Consent 17 Decree) and in the Complaint filed in this action through the date of lodging. 18 49. The United States reserves all legal and equitable remedies available 19 to enforce the provisions of this Consent Decree, except as expressly stated in Paragraph 20 48. This Consent Decree shall not be construed to limit the rights of the United States to 21 obtain penalties or injunctive relief under the Act or implementing regulations, or under 22 other federal laws, regulations, or permit conditions, except as expressly specified in 23 Paragraph 48. The United States further reserves all legal and equitable remedies to 24 address any imminent and substantial endangerment to the public health or welfare or the 25 environment arising at, or posed by, the Facility or Active Facilities, whether related to 26 the violations addressed in this Consent Decree or otherwise. 27 28 50. This Consent Decree is not a permit, or a modification of any permit, under any federal, State, or local laws or regulations. Defendant is responsible for - 16 - 1 achieving and maintaining complete compliance with all applicable federal, State, and 2 local laws, regulations, and permits; and Defendant’s compliance with this Consent 3 Decree shall be no defense to any action commenced pursuant to any such laws, 4 regulations, or permits, except as set forth herein. The United States does not, by its 5 consent to the entry of this Consent Decree, warrant or aver in any manner that 6 Defendant’s compliance with any aspect of this Consent Decree will result in compliance 7 with provisions of the Act, 42 U.S.C. § 7401 et seq., or with any other provisions of 8 federal, State, or local laws, regulations, or permits. 9 51. This Consent Decree does not limit or affect the rights of Defendant 10 or of the United States against any third parties, not party to this Consent Decree, nor 11 does it limit the rights of third parties, not party to this Consent Decree, against 12 Defendant, except as otherwise provided by law. 13 14 52. This Consent Decree shall not be construed to create rights in, or grant any cause of action to, any third party not party to this Consent Decree. XII. COSTS 15 16 53. The Parties shall bear their own costs of this action, including 17 attorneys fees, except that the United States shall be entitled to collect the costs 18 (including attorneys fees) incurred in any action necessary to collect any portion of the 19 civil penalty or any stipulated penalties due but not paid by Defendant. XIII. NOTICES 20 21 54. Unless otherwise specified herein, whenever notifications, 22 submissions, or communications are required by this Consent Decree, they shall be made 23 in writing and addressed as follows: 24 25 26 27 28 - 17 - 1 To the United States: 2 3 Chief, Environmental Enforcement Section 4 Environment and Natural Resources Division 5 U.S. Department of Justice 6 Box 7611 Ben Franklin Station 7 Washington, DC 20044-7611 8 Re: DOJ No. 90-5-2-1-10139 9 10 and 11 12 David H. Kim 13 Office of Regional Counsel 14 U.S. Environmental Protection Agency 15 Region IX 16 75 Hawthorne Street (ORC-3) 17 San Francisco, CA 94105 18 19 To EPA: 20 21 David H. Kim 22 Office of Regional Counsel 23 U.S. Environmental Protection Agency 24 Region IX 25 75 Hawthorne Street (ORC-3) 26 San Francisco, CA 94105 27 28 - 18 - 1 To Defendant: 2 3 Mitchell Klein 4 Polsinelli Shughart 5 One East Washington, Suite 1200 6 Phoenix, Arizona 85004-2568 7 8 Agustin Figueroa 9 Regional Environmental Manager 10 CEMEX 11 4646 E. Van Buren Street, Suite 250 12 Phoenix, Arizona 85008 13 14 CEMEX 15 929 Gessmer Road 16 Suite 1900 17 Houston, Texas 77024 18 Attention: General Counsel 19 20 21 22 55. Any Party may, by written notice to the other Parties, change its designated notice recipient or notice address provided above. 56. Notices submitted pursuant to this Section shall be deemed 23 submitted upon mailing, unless otherwise provided in this Consent Decree or by mutual 24 agreement of the Parties in writing. XIV. EFFECTIVE DATE 25 26 57. The Effective Date of this Consent Decree shall be the date upon 27 which this Consent Decree is entered by the Court or a motion to enter the Consent 28 Decree is granted, whichever occurs first, as recorded on the Court’s docket. - 19 - XV. RETENTION OF JURISDICTION 1 58. 2 The Court shall retain jurisdiction over this case until termination of 3 this Consent Decree pursuant to Section XVII for the purpose of resolving disputes 4 arising under this Decree or entering orders modifying this Decree, pursuant to Sections 5 IX and XVI, or effectuating or enforcing compliance with the terms of this Decree. XVI. MODIFICATION 6 59. 7 The terms of this Consent Decree may be modified only by a 8 subsequent written agreement signed by all the Parties. Where the modification 9 constitutes a material change to this Decree, it shall be effective only upon approval by 10 11 the Court. 60. Any disputes concerning modification of this Decree shall be 12 resolved pursuant to Section IX of this Decree (Dispute Resolution), provided, however, 13 that, instead of the burden of proof provided by Paragraph 42, the Party seeking the 14 modification bears the burden of demonstrating that it is entitled to the requested 15 modification in accordance with Federal Rule of Civil Procedure 60(b). XVII. TERMINATION 16 17 61. After Defendant has completed the installation requirement of 18 Section V (Compliance Requirements), complied with the operation requirement of 19 Section V for at least one year, completed the requirements of Section VI (Reporting 20 Requirements), and paid the civil penalty and any accrued interest and stipulated 21 penalties as required by this Consent Decree, Defendant may serve upon the United 22 States a Request for Termination, stating that Defendant has satisfied those requirements, 23 together with all necessary supporting documentation. 24 62. Following receipt by the United States of Defendant’s Request for 25 Termination, the Parties shall confer informally concerning the Request and any 26 disagreement that the Parties may have as to whether Defendant has satisfactorily 27 complied with the requirements for termination of this Consent Decree. If the United 28 - 20 - 1 States agrees that the Decree may be terminated, the Parties shall submit, for the Court’s 2 approval, a joint stipulation terminating the Decree. 3 63. If the United States does not agree that the Decree may be 4 terminated, Defendant may invoke Dispute Resolution under Section IX of this Decree. 5 However, Defendant shall not seek Dispute Resolution of any dispute regarding 6 termination, under Paragraph 38 of Section IX, until 60 Days after service of its Request 7 for Termination. XVIII. PUBLIC PARTICIPATION 8 9 64. This Consent Decree shall be lodged with the Court for a period of 10 not less than 30 Days for public notice and comment in accordance with 28 C.F.R. 11 § 50.7. The United States reserves the right to withdraw or withhold its consent if the 12 comments regarding the Consent Decree disclose facts or considerations indicating that 13 the Consent Decree is inappropriate, improper, or inadequate. Defendant consents to 14 entry of this Consent Decree without further notice and agrees not to withdraw from or 15 oppose entry of this Consent Decree by the Court or to challenge any provision of the 16 Decree, unless the United States has notified Defendant in writing that it no longer 17 supports entry of the Decree. XIX. SIGNATORIES/SERVICE 18 19 65. Each undersigned representative of Defendant and the Assistant 20 Attorney General for the Environment and Natural Resources Division of the Department 21 of Justice certifies that he or she is fully authorized to enter into the terms and conditions 22 of this Consent Decree and to execute and legally bind the Party he or she represents to 23 this document. 24 66. This Consent Decree may be signed in counterparts, and its validity 25 shall not be challenged on that basis. Defendant agrees to accept service of process by 26 mail with respect to all matters arising under or relating to this Consent Decree and to 27 waive the formal service requirements set forth in Rules 4 and 5 of the Federal Rules of 28 Civil Procedure and any applicable Local Rules of this Court including, but not limited - 21 - 1 to, service of a summons. XX. INTEGRATION 2 67. 3 This Consent Decree constitutes the final, complete, and exclusive 4 agreement and understanding among the Parties with respect to the settlement embodied 5 in the Decree and supercedes all prior agreements and understandings, whether oral or 6 written, concerning the settlement embodied herein. No other document, nor any 7 representation, inducement, agreement, understanding, or promise, constitutes any part of 8 this Decree or the settlement it represents, nor shall it be used in construing the terms of 9 this Decree. XXI. FINAL JUDGMENT 10 68. 11 Upon approval and entry of this Consent Decree by the Court, this 12 Consent Decree shall constitute a final judgment of the Court as to the United States and 13 Defendant. XXII. APPENDIX 14 15 69. The Appendix, the September 8, 2010, Finding and Notice of 16 Violation in the Matter of CEMEX Materials, LLC (Docket No. R9-10-17), is attached to 17 and part of this Consent Decree. 18 19 20 21 22 23 24 25 26 27 28 - 22 - y 1 IT IS ORDERED APPROVING the consent decree (doc. 7). 2 DATED this 18th day of January, 2013. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPENDIX t:~I'~ I`"I:~ `I't~.'1~~S ~C~I(~'° ~~ tt~e ?`~1'a€:icy €~f } } ~;1 ~~ ~z~ z it, a:~ ;?~:rnex~ ~"}" ~. ~_ (~~R `~I(~L~.' ~I't:):t~ ) T~Z~~ '~:r~~a ~c~ ~,~c~te ~ ~~~~i)~~' ~~r~a~ t€~ se;~t~~i "~ f 'icalt~~ ~:`.1~Sr, i~ iss~: .~~`` t~ Clg~a .~r <~t ~t~e "l~~t"),~ ~~..C. § 7~13~~}~1;~. tc~ ~,l~~l`~ (~~~ri~ls, ~~~'~"-`C 'i~~ r~i 3~ii~~r~~ cifthe,t~et ~ t.~ ~` . laiv 1c>~~.t€; ~ : ,~~~~w ~ :~€~ ~. 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'.I: e c~~vr~er a.1c~~ ~t€~~ ~ ~ ~:~te ~~~~~i j~= gel ~~~~ ~ t~ ~: rr ~'~~i itv ~~its ~~~din~ t~~ pave ~a lie rc~a~~~-aysi a~~~t~ ~~r~ ~ ~~r~~:~~ ~ tx~ tl~e ~ 1~~. s ~. ctirr,~ ~tl"~.~,~°~ c€~~ ~~~ cs ~`~~.<.t~tI~ ~~u~:. ~ I ~ z~~s~i~~ t~.x~ t~~ ~~-~~.~!or r c~.ir~t ~~ r~€~~~n~a~t~~~ c rr~i~~c~ ~1 p;rc~cessing plant, r~c~;~~r ~e~~; p~° ~€::~~ r~.~; lit ~~~t~~ less tl~r~ ~ i Sri ~ ` ilia ~~~ ~~~.t'~~;~te trucks, rni~cer tr~at~ :~~ a~~ z'a~ [~~:t~ tic € ~ c~ t~~ ~a;~.ve i l~ t~;~ t . ~~~~ ~~~€~ z~a~a~ ~~.c~ lie rc~v~ ~ S ic::~ ill i ~t 1, .~a~~t~i~~... ~:t~c~ use a r~~~~g~ ~ r~~tc, c ~ r:~ r ~r ~t~ar ~rtt-r~- €~~` ~c ~~}~s~~ r, car trek a~ t~. '`I°~ l c ~~~ rnc~ I ns t ~~a ~~? e i ~i€~r ~ e ~:~~ ~~~t that Ieads tc~ ' ~ ~ ~~~k~ ~ xa~~d~~v;~~=~ ~.~~~ ~~~~;ssi~sl~ ~~ ~~he pu~~c. If aul.`t~~~.ss rca~ds ~ t~rz~T tie c~~ i~~ ~t c~ t ~ ~~ t~l ~, f ~ i ~t~ p its 9 i ~~~ u~lz~: r~~ciw~y~I s~:v~~ i r ~~~l ~~~i it ~~ ~~~er c~~' I ~ t r~~ ir~~ ~~~° ~~r r i~ i ~: r ~~~ fa ~~~ ~~ ~~tc~tri c~s~~ l ec ~°~~~ 1., r~.~~ ,~3r caus ed r~~k t i t ~~ ~ cl ,~ et ~d < ~ (~ fi t 1€~ ~;, s~s.~~~ t~ ~tl~., a~ia~~~~~c~, ~c~ ~:~s h2. ~'c~rz~ t~ ~~~~ce t t~: ~~t.. ~~cticax~ 37.~a~4~ c~f''~r1~;€,~I):~~~~~ ~i ~.r€~~~c~~;~ ~:t t~ ~av4r a~.P~r c~~z~tz~r c~ ~c~rnrr~crc di tic#~€~r ~t ~ r~c~ et~ll c rz~ineral rc~ essi ~ ~1~nt:~ 1 ~ rack prtat ~:t:. p~°c~ces~ir~ ~al~t ~~ t ~ ~~~ ~z~zt f~f~ a~~'~~t tr~c ~; ray ~~r true,ztr~€~' r ~a ~e~ i-ruc~ ~ ati ; ~ ~ ~~i ~t;~ t~ ~ ~ c~~~t.~ ~~~r~ 1 ~ r~3 :sf~a~~d r s acc~s~~ } tc~ t ie. ~~~ l~r~ll ira~ ~l, rr~~intaan, ~~ we ~ gavel ~<~~ ~'i~€~. ~ ~ e ~ ~ ~Ie ~rat~, w~e~l i~~x, €~~ trci~.~~i~~° tt~ ~aav~c~ a~~i~. r~~~~~ys'pave~ ~z~~~~€~ ~~:~.~~~il ~c~ ~.e }~u~~~ic~ if Za~tl~ac.~;~ rt~a~ b~,t~ ``~~; r~.~~ 6~~~ ~~ ~i~, d~~~t~~~ ash c~ ~ r~~e:l, r€~c ,€~ ~~ ~ ~: r~ac tI`~ t i~ ~ ~ t e~ ~ i ~~~ :r ~~ with ~ ~ r ~~ i c: e~ ~, q t r~ t~~; t~~ €~ir~t~ ~r~: ~t~v ~J ~~~ ~~ ~, ~~ (:) ~~~:~ ~ a Sa~ti~>z~. ~} . ~~: ~'~VI:~ At;~}T~ aal~ ~~ ~ 1~ r~: ~r~~ t it r~aal~ rec r€ ~ s ~. ~ ~ i ~~ ~~s tl~~i c:rrt~~rci~ ~n~rr i:~t~°~a ~€~z~~:ta1~~c tninr~~ r~a~~~sir~~ }~.~~a€a~~: ~~~s~r~~ ~t~t i ~ctx~ ~~ ri ~~~.i aa~~l~r r c~~ser~`t~~z, ~nclt~ir~. ~ 1 ~ I~~srs c~`~rat~~2(~)t~~ ~ atc ~per~ti€.~ (~~~ ~, dry, ~:,~ratzal},{3~ ~~r€~u~;lap t ~:r ~a~T €:s~" ~i~ ram ~t tc:r.~~ ~ ~n~tu€~in ~r~ ,;.~~; x ~t~r cc ~~ t tcs sl ~ (~ ~'r~l ~ c~ Ica ~; ' °:~t ~~~aic ~~ er ~~~ vc~lze ~~~i~ti~. ccs~~~°~te r€~d~~ed € rc~ ~e~ ~r dad y (t~~zx5 ez~ ~~~}~ ~~~ ~rc~~~rr~~ t~' ~~~z'e~ate ~n n~~ ~a° :~y~ (t€~n~ :r c~~a~'}; ~~} a ~.~~~it «~`~ a~ ~?~ i~ ram ~t~;ri~i ~cl~z~ia~ sa~~d, ~~gre~;aL~, ~.~r~tY ~ ~~~Z ~i~X~~~e e a ~tt~y}a a~~ ~7 i~~r fa~ilitie~ 11~~t cl~irr~..#~s t~~ ~ Csf~ ~~;~°~ ~f~: tr .~: ~~ ~ ~; r tic ~, ~.c~l~~r ~~: c> it~a~ t ~~ ~`i i.ty ~ ~~~ ~y ~ntt~ ~ avc~ lb3.i~ ~~ ~ act clp~zv~. are ~~ ~:.~~ ~ ~. ~~~ tie ~l~g ~~~:r ta~'~~~c:t ~~~lcl~ ~~tix~~; tl~~ s~~il~t~< ~~4~. ~S ti~z~ ~:3, ~ ~ ~> ~~~ !~ ale ~~.t rc~~ide;~ ~~~i~ t ~; c~~~i~~z° ~~~t! r ca e~at+a~ ofr a<~t~;r~~ tr~~ ~c~ r~str~ic~., ~~?~~~.r~te p.~ant~, ~~:i~c3r ~~i~z c~~r~rai:~rz~ .~~t~t ~~t.l r~sst~r~ s:c~r~~:r~4 syst~zn «~i ~~rnent s~.~t~ ~iz~ Src~~..~.~sinlc~a~~ c~p~r~ic~r~ cc~n~rol ~ ~+l~ut tiff~u~ e ~.~i€~ra i~` yes re fra~t €~~li.v~r~ tr c.: ~> e ~~~si~~~m cc~ ~r~i t ~r~. C :~I : ;;~ e ~a~;e~ a 4 t #: ill tiz°~ ~ r~ ~~y~ ~ ~~ i ~ r~~t cc, t~a~ ~c ~t~~ ~:~ t~~ ~~ : ~ ~) ~a~d ~ t~ ~~~r c~ aer~t~~r Q a gavel rni~~i gl roc~ssir~ rr~ ~~. ~ bitch ~+~rtc~et~ pP t:, ~a ~~} ~e tr~.~ ~ni~c cc~n~retc 1 ~. .'~. ` Ise F ~; lit ~ "~~a~~~~ r~i~a s~ c Pc~r ~~ ~~ a~~~t~c~r rt~~ ~c~~c;t ~rrc~~~~~t~~ p~t'~ ~z~ ~$s:ir~~c l~~- ~S.C~t~: ~;Fal'~I~;:~ ~ ~ `° er~c~~r" ~s that tee i d~~'z~ i :~r~ ~~~:.ti ~e ~~.~. ~ c~ " ~1 3~~. 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"~:~ ~ ~; ~=~+ l~t~d ~ ~ic~ ~ 3f~1. ~~}~ ~t~~ '~6 by f~ilin~. tc~ ~rfc~r~~~ ~~~=ie~ tai ~ ~c~ l rr~~~~;tc ° tits ~'€~r s ~r~ ~,rt ~,r~v~ ~~ x<~l c~n~ ~t c ~a~i~ity. ~, ~z c~~~ ~Ia~~t 1~ ~ 1 ril ~~,~.t.~.`~lE~ ~°~~;t~d :~e~t~~ ~~9~.}~f <.;~CC ~.i~~ t ~~t~~ ~ pssur~ r..c~ntr~l sysem ~~. cerr~~~t ~i~ :~Il~ ~s~r~~~~~a~~ ~c~~~~~~ t ~~ ~~ ra~ces~n~.~lc~c~in tc c~r~c;r~~e ~~t. ~~s c~,~a~:l ~~~ ~~cr~;tc~ p1~nt ~ ~^€:.~l.~ #z.~ ~~ €~s.~€;d !c~ ~- -rsf`~ s ~Ser~.~:cx~~ i. rarecr~;:ft~~s c~~~v~ry ~c°~ ~Qt~EIt~E~'~C ~~~c~~~ P ~.~~~ ) t~~ 1~~:~ rc~~~~ ~ ~ ~~~ ~~ ~r~ time der ~ ~ e~~ir~ti as ~`~~~1~~~~in~ t~Z.~ ~~~ ~~f'ts~ iss~~annr.~ c~fthis h~("~ ~t rra~~~, r~~ (~ }_: caf ~~~u~ re~;arc~ t€,~ ~e ic~l.t€~~~4 i.~~ i~~ c~~~Wk~° r~~rn ~~il~~u`~c; n .~.r ~r~is~ra~; ~ -~ ~.~i~~ ~~;tra~iv ~ ~ ~ ~} frsr c~~c° ~:Iti~s cif' ~ .~:~ tc~ ~?,~~)f~ }der ~iay t~f v~~la~ttci~, ~?r i~ti~n~ ~ ~F~) ~~~r irajr~~~~e z~e]i~~ c~ ~;~ x c~~ ~~ar ~c;~€ v~cal~~ca: ~a~r~~It~~ c~~~a~t ~c~re tls~ ~7, 7~~~~~~~~~, ~~ ~~t,c?~' ~~c~u~re~ts €~ftl~c I~' c s~:u~ni t~ ~ ti pity rd~t~ x~ ~ ~~~i ~c,~~t~ ~a~as~~ t ~ ~l'. .£~a =i.th ~ ~ ~ b~' ~"~~1~. ~. ? t~. l ~»3 ..1~~r~h~r c~~~, car and ~~rsan ~ ~a ~1 c ra~rin~ y vii~l~~~s any ~sl~' ~° ear it re ~tire~z~e~at t ote than 3f} c~s~ys ~ 'ter t4~e t~at~ ~ 1~ ~su~s~cc c~~`t~a~ I~QV, ~~ctio 113(c~ proxi es fir criminal ~n~.lt es €~r i prisanre~ent, ~,r c~th. ~~~a,~cl~r setic~r~ ~t~~(a},l~ z~~;c~1~i€~~ }~r~~az7~~la~t~c t~~~reu~~r ~4 ...~. ~'~-t ~2), ~~~~! Fix ~ Live tJrcier 1173 ,ft~cili~ies try be used in f~.d:~ral ~~~n~r~~t~, ~raz~.ts. a~a~. Iv~,ns e xn ~`u11 cca~nglian ~ v~ith fihe ~c~ end a~~ re~;ulat razes prramul~atec~ p~rst~a~at to it. ~'ical~i~n c~1' ~t~t ~~ r~It i~ t.~ ~bj~t ~'~iity ber~~ cD~~~€~ ~~li~it~le fc~r ~r~r°ci~tac~~t i.r~ ~ ~c3~rsz~ t~c~ t2~~:~, r~a~ts car I~>~rt. "~'~~I i',E;I>~I.tT~',~S~E ~1~iEl"+~~'~" SRI ~ct~c~ ~ 13~c~{:() c~ftta .~t st~~ s €~Zat ~1~ ~c~rr~i~~ str~tc~r ear ~ r~u~~, ~s ~~a r~ ri~t,~a ~ a1I, 'sr~ deter in r~~ `t ip. a~r~c7unt cat y ~r3al~ 'tc~ b~ as~~ss~.d. take i ~€s c~ar~~idt~r~tic~n (i a~~itic~n tc~ such ether fact x~ ~s,~ustice ~a~ r~~~ red the sire c~f't e b~asincs~, ~; ~ ~ t}~ .~ t ie ~u~i~~~ss, ~~z~ v~c~l~~~r'~ ~'~~.11 c~.~ ~rli~ e.c x~t.~~ end n~mic inxp~ct ~~ft ie c~c~ faith ~tt~~~~ is tc~ ~c>zt~~1y, Cl~~; r~ur;~ti€~r~ c~f'ta~ vie~latic~n ~s e~t~blis~~d ~i~• av crec~it~l~ e~Pi~l~nc ~in~~uc~irz evic~.~:~~ c~#:er than t~a~ a~ lac~ala~e test m~thod~, payment by the v~~l~tor ref penalties rev°iaus~y asstssed fir the sa y vi la~s~ ;~e e ~~tr~~i ~i ~t of ncs c~~rs ar~~e, ~znc~ fi ~ ~~~i~ s ~:~~ r~f'~e i 3at~i.can: ~S~ctia 1. ~:~~~j~2) ~~'~e ~.ct: allu~°s tie 1~.d~n ~tistratc~r c~~ ~ c;~~ rt t~ each dL~~ t~f'vic~ ~.t can. Fir tie :~~'~~ z~~ ~ 5~s:; a ~~e alty ft~r r~asas~ ~f~eter~ni ~n~; the r~ i~b~r c~f~~~ cif cric~latic~ , There ~l~e S i~~~s~ ` ie sh~~=z~~ teat:tie csa d ~t ~r ~e~~ts ~;z~ri~ .ri~~ tc~ hz~ v~ ~t~~~t axe l k.~ly ts~ ~~~ ec~z~t ~z ed ar r~c~u~r~c~ fast the date ~t leis l~i(?V, f~,~'A sY~~ll ~r~s~une tai ti~ys €~f vi.c~lat.ic~n t~ in~..l e ~~ date c~1: ~kzi I~t~~' and ~~c ~z~zci ~v r ay ~ er~.after until the ~is~latar ~~ta~i~i~la~s t~ ~ ~ca~at~~~~.tc~us r.~a ~~ anc~ lea ~ ~e~~ra a~~i~~~c~, ~;x~e t ~c~ fi~~ ~~tent that tl-~e ~ ~al~.t~~r €~ xcrve ~S a r~ €~~t eran~.~ ~ `t evidence that tl~~,r~ ~~e i~t~r~f~n~~ Maus l2 i ~; vu i~~ ~i~a ~icalatic~~ c~ rr c~ car sz~t t1~ ~~i~~~ t tin was ~~t ~ ~zr~ ~r~~ r~~~t ~~i~~~; z~n rr~~; ~r~ ~~ fizr~ €~'~fi~tc~~~, t ~ ~ t~. ~~~ c~.r ~°s~ ~~~es t~~ t~ ~. ~zns~ . try ~~~:t ~. °~~~ cr~'t~ ~~c~~~~ca, ~ ~° ~~~rs~ ~i r~~~,. ~,~~~;~ ~~ r ~~~ ~ r~ ~t~~ e'~i~~ts ~~ t ~b r ~z t `c~~ a ~ ~~t~ nc~ must b~ z~~cie art ~ t~ { ~l} aye cifz~ece~ t ~~ '~~ai Thy .r c ~.si : car ~ Ica ~n~~ gar cat r in ~z~~~~~ t c~nr~r ar~~; the ~' r ~ : u1 ~~: avid ~. Kim {t?:I~.~ - ) C)i~~ce ~>f R~ic~~ ~,v~~~s~l t.'`s..C;~irr~~r~t~ I~r~~~c~;t~€ai~ 7~ .1-~.~~arr~ ~°~~t ~:~~c:}~, I2eicst~ X415) `~2- 1 ? ~.)~~. t~l'~1 .~ ~lT(~r~11 ~i.r~~~r. t?~ir° I~~~i.~~a ~~ c~i~~ 9 ~~. ~ i ~,x .
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