Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

__________________________________________

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

COMMONWEALTH OF PENNSYLVANIA )

Department of Corrections

)

Department of General Services

)

Defendants.

)

________________________________________ )

Civil Action No.

COMPLAINT The United States of America, by authority of the Attorney General of the United States and at the request of the Administrator of the United States Environmental Protection Agency ("EPA"), brings this action against Defendants, the Commonwealth of Pennsylvania's Department of Corrections ("PA Department of Corrections") and the Commonwealth of Pennsylvania's Department of General Services ("PA Department of General Services") (collectively referred to as the "Defendants"), and alleges as follows:
INTRODUCTION 1. This is a civil action for civil penalties and injunctive relief pursuant to Section 113(b) of the Clean Air Act, as amended, 42 U.S.C. § 7413(b)(the

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 2 of 22
"Act"), for violations by Defendants of the Act, the requirements established in the Commonwealth of Pennsylvania's State Implementation Plan ("SIP") that was developed pursuant to Section 110(a) of the Act, 42 U.S.C. § 7410(a), and the requirements established in operating permits issued pursuant to Title V of the Act, 42 U.S.C. §§ 7661-7661f.
JURISDICTION AND VENUE 2. This Court has jurisdiction over the subject matter of this action pursuant to Section 113(b) of the Act, as amended, 42 U.S.C. § 7413(b), and 28 U.S.C. §§ 1331, 1345 and 1355. 3. Venue is proper in this District pursuant to Section 113(b) of the Act, 42 U.S.C. § 7413(b), and 28 U.S.C. §§ 1391(b), and 1395(a) because many of the violations giving rise to this action occurred in this District, and because three of the facilities that are the subject of this Complaint are located in this District. 4. Pursuant to Section 113(b) of the Act, as amended, 42 U.S.C. § 7413(b), notice of the commencement of this action has been given to the Pennsylvania Department of Environmental Protection.
DEFENDANTS 5. Defendants, PA Department of Corrections and PA Department of
2

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 3 of 22
General Services, are Departments of the Commonwealth of Pennsylvania and as such are persons, as defined by Section 302(e) of the Act, 42 U.S.C. § 7602(e).
6. The PA Department of General Services owns and PA Department of Corrections operates each of the following four facilities: the State Correctional Institution at Muncy ("Muncy Facility") in Lycoming County, Muncy, Pennsylvania; the State Correctional Institution at Rockview ("Rockview Facility") in Centre County, Bellefonte, Pennsylvania; the State Correctional Institution at Huntingdon ("Huntingdon Facility") in Huntingdon County, Huntingdon, Pennsylvania; and the State Correctional ]Institution at Laurel Highlands ("Laurel Highlands Facility") in Somerset County, Somerset, Pennsylvania;
7. At all relevant times herein, PA Department of Corrections has operated and PA Department of General Services has owned the Muncy Facility, the Rockview Facility, the Huntingdon Facility, and the Laurel Highlands Facility.
8. The Pennsylvania Department of Environmental Protection (“PADEP”) has issued several permits for the emission sources at the Rockview Facility, one of which is a Title V operating permit, #TV-14-00005, issued and effective on June 25, 2004 ("Rockview Title V Permit"). The Rockview Title V Permit incorporates as restrictions 25 Pa. Code §§ 123.11 and 123.41 of the federally enforceable Commonwealth of Pennsylvania SIP ("Pennsylvania SIP") at the Rockview Facility.
3

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 4 of 22
9. PADEP has issued several permits for the emission sources at the Laurel Highlands Facility, one of which is a Title V operating permit #TV-56-00257, issued and effective on January 26, 2000 ("Laurel Highlands Title V Permit"). The Laurel Highlands Title V Permit incorporates as restrictions 25 Pa. Code §§ 123.11 and 123.41 of the federally enforceable Pennsylvania SIP at the Laurel Highlands Facility.
10. PADEP has issued several permits for the emission sources at the Huntingdon Facility, one of which is a Title V operating permit #TV-31-05001, issued on July 12, 2005 and effective on August 1, 2005 ("Huntingdon Title V Permit"). The Huntingdon Title V Permit incorporates as restrictions 25 Pa. Code §§ 123.11 and 123.41 of the federally enforceable Pennsylvania SIP at the Huntingdon Facility.
STATUTORY FRAMEWORK 11. As set forth in Section 101(b)(1) of the Act, 42 U.S.C. § 7401(b)(1), the Act is designed to protect and enhance the quality of the nation's air so as to promote the public health and welfare and the productive capacity of its population. 12. Section 109 of the Act, 42 U.S.C. § 7409, requires EPA to promulgate regulations establishing primary and secondary national ambient air quality standards ("NAAQS") for certain air pollutants. The primary NAAQS must be sufficient to protect the public health, allowing an adequate margin of safety, and the secondary
4

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 5 of 22
NAAQS must be sufficient to protect the public welfare from any known or anticipated effects associated with the presence of the air pollutant in the ambient air. Under Section 110(a) of the Act, 42 U.S.C. § 7410(a), each state is required to adopt and submit to EPA for approval a SIP which provides for the attainment and maintenance of each such NAAQS.
13. On May 31, 1972 (37 Fed. Reg. 10889-91), pursuant to Section 110(a) of the Act, 42 U.S.C. § 7410(a), EPA approved the Pennsylvania SIP (40 C.F.R. § 52.2020), which includes Sections 123.11,123.41,127.25, and 127.444 of Title 25 of the Pennsylvania Code, 25 Pa. Code §§ 123.11,123.41,127.25, and 127.444.
14. Pursuant to Section 302(q) of the Act, 42 U.S.C. § 7602(q), an applicable implementation plan is the implementation plan, or most recent revision thereof, which has been approved by EPA pursuant to Section 110 of the Act, 42 U.S.C. § 7410, or promulgated by EPA pursuant to Section 110(c) of the Act, 42 U.S.C. § 7410(c), and which implements the relevant requirements of the Act.
15. 40 C.F.R. § 52.23 provides, inter alia, that any failure by a person to comply with any provision of 40 C.F.R. Part 52, or with any approved regulatory provision of a SIP, shall render such person in violation of the applicable SIP, and subject to an enforcement action pursuant to Section 113 of the Act, 42 U.S.C. § 7413.
5

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 6 of 22
16. Title V of the Act, 42 U.S.C. §§ 7661-7661f, establishes an operating permit program for certain sources, including "major sources." Pursuant to Section 502(b) of the Act, 42 U.S.C. § 7661 a(b), EPA promulgated regulations implementing the requirements of Title V and establishing the minimum elements of a permit program to be administered by any state or local air pollution control agency. 57 Fed. Reg. 32250 (July 21, 1992). These regulations are codified at 40 C.F.R. Part 70. U.S. EPA promulgated final approval of the Pennsylvania Title V program on August 29, 1996. 40 C.F.R. Part 70, Appendix A. Pennsylvania's Title V program became effective on that date. 61 FR 39597. The Pennsylvania regulations governing the Title V permitting program are located at 25 Pa. Code §§ 127.401-127.464
17. Section 502(a) of the Act, 42 U.S.C. § 7661a(a), and 25 Pa. Code § 127.444 have at all relevant times made it unlawful for any person to violate any requirement of an operating permit issued under Title V or to operate except in compliance with a permit issued by a permitting authority under Title V.
18. Section 113(a)(1) of the Act, 42 U.S.C. § 7413(a)(1), provides that: Whenever, on the basis of any information available to the Administrator, the Administrator finds that any person has violated or is in violation of any requirement or prohibition of an applicable implementation plan or permit, the Administrator shall notify the person and the State in which the plan applies of such finding. At any time after the expiration of 30 days following the date on which such notice of a violation is issued, the Administrator may...
6

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 7 of 22
* * * (C) bring a civil action in accordance with subsection (b) of this section. 19. Section 113(a)(3) of the Act, 42 U.S.C. § 7413(a)(3), provides that "[e]xcept for a requirement or prohibition enforceable under the preceding provisions of this subsection, whenever, on the basis of any information available to the Administrator, the Administrator finds that any person has violated, or is in violation of, any other requirement or prohibition of this subchapter... the Administrator may... bring a civil action in accordance with subsection (b) of this section ...." 20. Section 113(b) of the Act, 42 U.S.C. § 7413(b), authorizes the Administrator to initiate a judicial enforcement action for a permanent or temporary injunction and/or for civil penalties against any person whenever such person has violated, or is in violation of, any requirement or prohibition of an applicable implementation plan, and other requirements of the Act.
NOTICES 21. EPA issued a Notice of Violation to Defendants for the Muncy Facility for violations of the Act and the Pennsylvania SIP on July 16, 2006. EPA issued Notices of Violation to Defendants for the Rockview Facility for violations of the Act and the Pennsylvania SIP on August 15, 2006 and October 22, 2007.
7

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 8 of 22
EPA issued a Notice of Violation to Defendants for the Huntingdon Facility for violations of the Act and the Pennsylvania SIP on March 12, 2008. EPA issued a Notice of Violation to Defendants for the Laurel Highlands Facility for violations of the Act and the Pennsylvania SIP on September 21, 2004.
22. The United States has provided notice of the violations of the Act and the Pennsylvania SIP alleged herein to PADEP in accordance with Section 113 of the Act, 42 U.S.C. § 7413.
23. The 30-day period established in Section 113, 42 U.S.C. § 7413, between the notices of violation provided by the United States and the commencement of this civil action has elapsed.
FIRST CLAIM FOR RELIEF (Visible Emissions Violations at the Muncy Facility) 24. The allegations of paragraphs 1 through 23 above are realleged and fully incorporated herein by reference. 25. From at least February 7, 2006, the Muncy Facility has emitted pollutants, including particulate matter, while owned and operated by Defendants. The sources of these pollutants include the Muncy Facility's three coal-fired boilers. 26. The Pennsylvania SIP restricts visible emissions from sources at the
8

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 9 of 22
Facility, including, but not limited to, the Muncy Facility's coal-fired boilers. At all times relevant herein, Section 123.41 of Title 25 of the Pennsylvania Code, 25 Pa. Code § 123.41, has provided, in relevant part, as follows: "A person may not permit the emission into the outdoor atmosphere of visible air contaminants in such a manner that the opacity of the emission is either of the following: (1) Equal to or greater than 20% for a period or periods aggregating more than 3 minutes in any 1 hour. (2) Equal to or greater than 60% at any time."
27. At all relevant times, the Muncy Facility has been subject to 25 Pa. Code §123.41.
28. From at least February 7, 2006, Defendants have repeatedly violated the requirements of 25 Pa. Code § 123.41 by emitting or permitting the emission of visible emissions that have exceeded the visible emission limits established by 25 Pa. Code § 123.41.
29. Unless restrained by an order of this Court, the violations of the Act alleged in this First Claim for Relief will continue.
30. As provided in Section 113(b) of the Act, 42 U.S.C. § 7413(b), the violations set forth above subject Defendants to injunctive relief and civil penalties of up to $32,500 per day for each such violation occurring after March 15, 2004, and $37,500 per day for each such violation occurring on or after
9

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 10 of 22
January 12, 2009 pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461, as amended by 31 U.S.C. § 3701 . See 73 Fed. Reg. 75346 (Dec. 11, 2008).
SECOND CLAIM FOR RELIEF (Particulate Matter Emissions Violations at the Muncy Facility) 31. The allegations of paragraphs 1 through 30 above are realleged and fully incorporated herein by reference. 32. From at least February 7, 2006, the Muncy Facility has emitted pollutants, including particulate matter, while owned and operated by Defendants. The sources of these pollutants include the Muncy Facility's three coal-fired boilers. 33. The Pennsylvania SIP restricts particulate matter emissions from sources at the Facility, including, but not limited to, the Muncy Facility's coal-fired boilers. At all times relevant herein, Section 123.11 of Title 25 of the Pennsylvania Code, 25 Pa. Code § 123.11, has provided, in relevant part, that a person may not permit the emission into the outdoor atmosphere of particulate matter from a combustion unit in excess of the rate of 0.4 pound particulate matter per million British Thermal Units ("lb. PM/MM Btu") of heat input. 34. At all relevant times, the Muncy Facility has been subject to 25 Pa. Code §123.11.
10

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 11 of 22
35. From at least February 7, 2006, Defendants have repeatedly violated the requirements of 25 Pa. Code § 123.11 by emitting or permitting the emission of particulate matter emissions that have exceeded the particulate matter limits established by 25 Pa. Code §123.11.
36. Unless restrained by an order of this Court, the violations of the Act alleged in this Second Claim for Relief will continue.
37. As provided in Section 113 (b) of the Act, 42 U.S.C. § 7413(b), the violations set forth above subject Defendants to injunctive relief and civil penalties of up to $32,500 per day for each such violation occurring after March 15, 2004, and $37,500 per day for each such violation occurring on or after January 12, 2009 pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461, as amended by 31 U.S.C. § 3701 . See 73 Fed. Reg. 75346 (Dec. 11, 2008).
THIRD CLAIM FOR RELIEF (Visible Emissions Violations at the Rockview Facility) 38. The allegations of paragraphs 1 through 37 above are realleged and fully incorporated herein by reference. 39. From at least April 25, 2006, the Rockview Facility has emitted pollutants, including particulate matter, while owned and operated by Defendants. The sources of these pollutants include the Rockview Facility's three coal-fired
11

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 12 of 22
boilers. 40. The Pennsylvania SIP at 25 Pa. Code § 123.41 restricts visible
emissions from sources at the Facility, including, but not limited to, the Rockview Facility's coal-fired boilers.
41. At all relevant times, the Rockview Facility has been subject to 25 Pa. Code § 123.41.
42. From at least April 25, 2006, Defendants have repeatedly violated the requirements of 25 Pa. Code § 123.41 by emitting or permitting the emission of visible emissions that have exceeded the visible emission limits established by 25 Pa. Code § 123.41.
43. Unless restrained by an order of this Court, the violations of the Act alleged in this Third Claim for Relief will continue.
44. As provided in Section 113(b) of the Act, 42 U.S.C. § 7413(b), the violations set forth above subject Defendants to injunctive relief and civil penalties of up to $32,500 per day for each such violation occurring after March 15, 2004, and $37,500 per day for each such violation occurring on or after January 12, 2009 pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461, as amended by 31 U.S.C. § 3701 . See 73 Fed. Reg. 75346 (Dec. 11, 2008).
12

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 13 of 22
FOURTH CLAIM FOR RELIEF (Particulate Matter Emissions Violations at the Rockview Facility) 45. The allegations of paragraphs 1 through 44 above are realleged and fully incorporated herein by reference. 46. From at least June 13, 2007, the Rockview Facility has emitted pollutants, including particulate matter, while owned and operated by Defendants. The sources of these pollutants include the Rockview Facility's three coal-fired boilers. 47. The Pennsylvania SIP at 25 Pa. Code § 123.11 restricts particulate matter emissions from sources at the Facility, including, but not limited to, the Rockview Facility's coal-fired boilers. 48. At all relevant times, the Rockview Facility has been subject to 25 Pa. Code § 123.11. 49. From at least June 13, 2007, Defendants have repeatedly violated the requirements of 25 Pa. Code § 123.11 at coal-fired boiler #1 by emitting or permitting the emission of particulate matter emissions that have exceeded the particulate matter limits established by 25 Pa. Code §123.11. 50. Unless restrained by an order of this Court, the violations of the Act alleged in this Fourth Claim for Relief will continue. 51. As provided in Section 113(b) of the Act, 42 U.S.C. § 7413(b), the
13

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 14 of 22
violations set forth above subject Defendants to injunctive relief and civil penalties of up to $32,500 per day for each such violation occurring after March 15, 2004, and $37,500 per day for each such violation occurring on or after January 12, 2009 pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461, as amended by 31 U.S.C. § 3701 . See 73 Fed. Reg. 75346 (Dec. 11, 2008).
FIFTH CLAIM FOR RELIEF (Visible Emissions Violations at the Laurel Highlands Facility) 52. The allegations of paragraphs 1 through 51 above are realleged and fully incorporated herein by reference. 53. From at least July 16, 2005, the Laurel Highlands Facility has emitted pollutants, including particulate matter, while owned and operated by Defendants. The sources of these pollutants include the Laurel Highlands Facility's three coalfired boilers. 54. The Pennsylvania SIP at 25 Pa. Code § 123.41 restricts visible emissions from sources at the Facility, including, but not limited to, the Laurel Highlands Facility's coal-fired boilers. 55. At all relevant times, the Laurel Highlands Facility has been subject to 25 Pa. Code § 123.41. 56. From at least July 16, 2005, Defendants have repeatedly violated the requirements of 25 Pa. Code § 123,41 by emitting or permitting the emission of
14

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 15 of 22
visible emissions that have exceeded the visible emission limits established by 25 Pa. Code § 123.41.
57. Unless restrained by an order of this Court, the violations of the Act alleged in this Fifth Claim for Relief will continue.
58. As provided in Section 113(b) of the Act, 42 U.S.C. § 7413(b), the violations set forth above subject Defendants to injunctive relief and civil penalties of up to $32,500 per day for each such violation occurring after March 15, 2004, and $37,500 per day for each such violation occurring on or after January 12, 2009 pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461, as amended by 31 U.S.C. § 3701 . See 73 Fed. Reg. 75346 (Dec. 11, 2008).
SIXTH CLAIM FOR RELIEF (Particulate Matter Emissions Violations at the Laurel Highlands Facility)
59. The allegations of paragraphs 1 through 58 above are realleged and fully incorporated herein by reference.
60. From at least July 16, 2005, the Laurel Highlands Facility has emitted pollutants, including particulate matter, while owned and operated by Defendants. The sources of these pollutants include the Laurel Highlands Facility's three coalfired boilers.
15

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 16 of 22
61. The Pennsylvania SIP at 25 Pa. ,Code § 123.11 restricts particulate matter emissions from sources at the Facility, including, but not limited to, the Laurel Highlands Facility's coal-fired boilers.
62. At all relevant times, the Laurel Highlands Facility has been subject to 25 Pa. Code § 123.11.
63. From at least July 16, 2005, Defendants have repeatedly violated the requirements of 25 Pa. Code § 123.11 by emitting or permitting the emission of particulate matter emissions that have exceeded the particulate matter limits established by 25 Pa. Code §123.11.
64. Unless restrained by an order of this Court, the violations of the Act alleged in this Sixth Claim for Relief will continue.
65. As provided in Section 113(b) of the Act, 42 U.S.C. § 7413(b), the violations set forth above subject Defendants to injunctive relief and civil penalties of up to $32,500 per day for each such violation occurring after March 15, 2004, and $37,500 per day for each such violation occurring on or after January 12, 2009 pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461, as amended by 31 U.S.C. § 3701 . See 73 Fed. Reg. 75346 (Dec. 11, 2008).
16

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 17 of 22
SEVENTH CLAIM FOR RELIEF (Visible Emissions Violations at the Huntingdon Facility) 66. The allegations of paragraphs 1 through 65 above are realleged and fully incorporated herein by reference. 67. From at least February 27, 2008, the Huntingdon Facility has emitted pollutants, including particulate matter, while owned and operated by Defendants. The sources of these pollutants include the Huntingdon Facility's four coal-fired boilers. 68. The Pennsylvania SIP at 25 Pa. Code § 123.41 restricts visible emissions from sources at the Facility, including, but not limited to, the Huntingdon Facility's coal-fired boilers. 69. At all relevant times, the Huntingdon Facility has been subject to 25 Pa.Code § 123.41. 70. From at least February 27, 2008, Defendants have repeatedly violated therequirements of 25 Pa. Code § 123.41 by emitting or permitting the emission of visible emissions that have exceeded the visible emission limits established by 25 Pa. Code § 123.41. 71. Unless restrained by an order of this Court, the violations of the Act alleged in this Seventh Claim for Relief will continue. 72. As provided in Section 113(b) of the Act, 42 U.S.C. § 7413(b), the
17

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 18 of 22
violations set forth above subject Defendants to injunctive relief and civil penalties of up to $32,500 per day for each such violation occurring after March 15, 2004, and $37,500 per day for each such violation occurring on or after January 12, 2009 pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461, as amended by 31 U.S.C. § 3701 . See 73 Fed. Reg. 75346 (Dec. 11, 2008).
EIGHTH CLAIM FOR RELIEF (Violations of Title V Operating Permits at Rockview, Laurel Highlands and
Huntingdon) 73. The allegations of paragraphs 1 through 72 above are realleged and fully incorporated herein by reference. 74. The Pennsylvania SIP also includes 25 Pa. Code §127.444, which provides that "[a] person may not cause or permit the operation of a source subject to this article unless the source and air cleaning devices identified in the application for the plan approval and operating permit and the plan approval issued to the source are operated and maintained in accordance with specifications in the application and conditions in the plan approval and operating permit issued by the Department." 75. The Pennsylvania SIP includes 25 Pa. Code § 127.25, which provides that "[a] person may not permit the operation of a source subject to § 127.11
18

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 19 of 22
(relating to plan approval requirements), unless the source and air cleaning devices identified in the application for the plan approval and the plan approval issued to the source, are operated and maintained in accordance with specifications in the application and conditions in the plan approval issued by the Department. A person may not cause or permit the operation of an air contamination source subject to this chapter in a manner inconsistent with good operating practices."
76. The Rockview Title V Permit, the Laurel Highlands Title V Permit, and the Huntingdon Title V Permit incorporate 25 Pa. Code §§ 123.11 and 123.41 of the federally enforceable Pennsylvania SIP as restrictions on the Rockview Facility, the Laurel Highlands Facility, and the Huntingdon Facility.
77. As alleged above, Defendants have repeatedly violated the requirements of 25 Pa. Code §§ 123.11 and 123.41 by emitting or permitting the emission of visible emissions that have exceeded the visible emission limits established by 25 Pa. Code § 123.41 and by emitting or permitting the emission of particulate matter in excess of the particulate matter emission limits in 25 Pa. Code § 123.11 at the Rockview Facility and the Laurel Highlands Facility.
78. Since April 25, 2006 for the Rockview Facility and since July 16, 2005 for the Laurel Highlands Facility, Defendants have repeatedly violated the Rockview Title V Permit and the Laurel Highlands Title V Permit by repeatedly
19

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 20 of 22
violating the requirements of 25 Pa. Code §§ 123.11 and 123.41 by emitting particulate matter in excess of the Pennsylvania SIP limit on particulate matter and by emitting visible emissions in excess of the Pennsylvania SIP limit on visible emissions at the Rockview Facility and the Laurel Highlands Facility.
79. As alleged above, Defendants have repeatedly violated the requirements of 25 Pa.Code § 123.11 by emitting or permitting the emission of particulate matter in excess of the particulate matter emission limits in 25 Pa. Code §123.11 at the Huntingdon Facility.
80. Since February 27, 2008, Defendants have repeatedly violated the Huntingdon Title V Permit by repeatedly violating the requirements of 25 Pa. Code § 123.41 by emitting visible emissions in excess of the Pennsylvania SIP limit on visible emissions at the Huntingdon Facility. Defendants’ violations of the Rockview Title V Permit, the Laurel Highlands Title V Permit and the Huntingdon Title V Permit are violations of Section 502 of the Act, 42 U.S.C. § 7661a, and 25 Pa. Code §§ 127.25 and 127.444 of the Pennsylvania SIP.
81. Unless restrained by an order of this Court, the violations of the Act alleged in this Eighth Claim for Relief will continue.
82. As provided in Section 113(b) of the Act, 42 U.S.C. § 7413 (b), the violations set forth above subject Defendants to injunctive relief and civil
20

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 21 of 22
penalties of up to $32,500 per day for each such violation occurring after March 15, 2004, and $37,500 per day for each such violation occurring on or after January 12, 2009 pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461, as amended by 31 U.S.C. § 3701 . See 73 Fed. Reg. 75346 (Dec. 11, 2008).
PRAYER FOR RELIEF WHEREFORE, based upon all the foregoing allegations, the United States of America requests that this Court: 1. Permanently enjoin Defendants from operating the Muncy Facility, the Rockview Facility, the Laurel Highlands Facility and the Huntingdon Facility, except in accordance with the Clean Air Act, the Pennsylvania SIP, Rockview's Title V Permit, Laurel Highlands' Title V Permit, and Huntingdon's Title V Permit; 2. Order Defendants to remedy their past violations by, among other things, requiring Defendants to install emissions control technology for particulate matter for the Muncy Facility, the Rockview Facility, the Laurel Highlands Facility and the Huntingdon Facility as necessary to comply with the Clean Air Act and the Pennsylvania SIP; 3. Assess civil penalties against Defendants for violations of applicable
21

Case 4:10-cv-02672-CCC Document 1 Filed 12/30/10 Page 22 of 22
provisions of the CAA as well as their implementing regulations and permits issued thereunder of up to $32,500 per day of violation occurring on or after March 15, 2004 and $37,500 per day of violation occurring on or after January 12, 2009;
4. Award Plaintiff its costs and disbursements of this action; and, 5. Grant such other relief as the Court may deem just and proper.
Respectfully Submitted, ____/s/ Ignacia S. Moreno______ IGNACIA S. MORENO Assistant Attorney General Environment and Natural Resources Division United States Department of Justice
___/s/ Katherine M. Kane__________ KATHERINE M. KANE Senior Attorney Environmental Enforcement Section Environment and Natural Resources Division United States Department of Justice P.O. Box 7611 Washington, DC 20044 Phone: (202) 514-0414 Facsimile: (202) 616-6583 Katherine.Kane@usdoj.gov
22

 
 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 1 of 68
, ,
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

;

)

•..

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

) Civil Action No:

)

COMMONWEALTH OF PENNSYLVANIA )

DEPARTMENT OF GENERAL SERVICES and )

DEPARTMENT OF CORRECTIONS,

)

)

Defendants.

)

- -- - - - - - - - - -- -- - - - - - - - - - )

CONSENT DECREE

.,.

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 2 of 68

.. .. .• · ,

'. :. . " " ...."

TABLE OF CONTENTS
,,
I. JURISDICTION AND VENUE . . . . . . . . . . .. . ... . . . . .. .. .. .. ... ... . .. 3 II. APPLICABILITY .............. . . ...... ... . ... ........ .... . ..... 4 III. DEFINITIONS .. . . . .......... . . . . .. ... . . . . . . . . ... . .. ... ... . .... 5 IV. ROCKVIEW EMISSION REDUCTIONS AND CONTROLS ..... . .... 10 V. MUNCY EMISSION REDUCTIONS AND CONTROLS .. .. .. ... . . . . . 14 VI. LAUREL HIGHLANDS EMISSION REDUCTIONS AND CONTROLS . . 18 VII. HUNTINGDON EMISSION REDUCTIONS AND CONTROLS . ...... 19 VIII. PERFORMANCE TESTING . . . . . .............................. 22 IX. CIVIL PENALTY . ... .. . . . . . . . • . ...... . . . • . . . ...... . •....•.... 24 X. RESOLUTION OF CLAIMS . . ... . .... . . .. .. . . .. .. . . . . . ... . . ... .. 25 XI. PERIODIC REPORTING .... . . . . . ...... . . . ...... . . . ............ 26 XII. REVIEW AND APPROVAL OF SUBMITTALS ............. .. . .. .. 28 XlII. STIPULATED PENALTIES . . . . . . .. .. . ... ..... . . . . . ............ 29 XIV. FORCE MAJEURE . ... . . . . . . . . . ......... . ....... . ....... .. ... 36 XV. DISPUTE RESOLUTION ......• . . .. . . .. . . . . . . . .. . . . . . . . . ...... 40 XVI. PERMITS . ... . . .. . .. . . .. . . . ........................... . .... 42
II

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 3 of 68

XVII. INFORMATION COLLECTION AND RETENTION ...... . . . . . ... 46

XVIIl. NOTICES ......... . .............. . ... .. . . . . . . .. .. . . ....... 47

XIX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS ........... 52

," .,

XX. EFFECTIVE DATE ............. . .. . . . .. . . . ..... . . . .... . ... . .. 54

XXI. RETENTION OF JURISDICTION . ...•..•....•..•.............. 54

, ,

•

xxn. MODIFICATION ................... . .... . . . . . . .... . .. . ...... 54

XXIIl. GENERAL PROVISIONS .. . . . . . .... . .... . . . . . . .. . ....... .. .. 55

XXIV. SIGNATORIES AND SERVICE . . ... . . . . .. . . . . ... . .. .. . .. . .... 57

XXV. PUBLIC COMMENT ...... . . . . . . .. . .. .. . . . . .... .. . .. .. ... . .. 58
I
XXVI. TERMINATION ............. . . . .. . .. . .. . . . .. . . . . . ... . ... . .. 58

XXVII. FINAL JUDGMENT .. . . . . . .... . . . . . . . ...................... 60

III

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 4 of 68
WHEREAS, Plaintiff, the United States of America ("United States"), on behalf of the United States Environmental Protection Agency ("EPA") has filed a Complaint for injunctive relief and civil penalties pursuant to Section 113(b) of the Clean Air Act (the "Act" or "CAA"), 42 U.S .C. § 7413(b), alleging that the Defendants, the Commonwealth of Pennsylvania's Department of Corrections ("PA Department of Corrections") and the Commonwealth of Pennsylvania's Department of General Services ("PA Department of General Services") (collectively referred to as the "Defendants"), violated the Clean Air Act ("the Act"), 42 U.S.C. §§ 7401 et seq., at four state correctional institutions;
WHEREAS , the PA Department of General Services owns and PA Department of Corrections operates the State Correctional Institution at Muncy ("Muncy Facility") in Lycoming County, Muncy, Pennsylvania, the State Correctional Institution at Rockview ("Rockview Facility") in Centre County, Bellefonte, Pennsylvania, the State Correctional Institution at Huntingdon ("Huntingdon Facility") in Huntingdon County, Huntingdon, Pennsylvania, and the State Correctional Institution at Laurel Highlands ("Laurel Highlands Facility") in Somerset County, Somerset, Pennsylvania;
WHEREAS, in the Complaint, the United States alleges, inter alia, that the

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 5 of 68
,,

Defendants are in violation of Sections 110 and 113 of the Act, 42 U.S.c. §§ 7410

and 7413, through their failure to operate boilers in compliance with applicable

particulate matter emission limits provided in the Commonwealth of

Pennsylvania's State Implementation Plan ("Pennsylvania SIP") at the Muncy,

Rockview, and Laurel Highlands Facilities and their failure to operate boilers in

compliance with the applicable opacity limits provided in the Pennsylvania SIP at

J

the Muncy, Rockview, Huntingdon, and Laurel Highlands Facilities and that the

1

Defendants are in violation of Section 502 of the Act, 42 U.S .C. § 7661a, through

the Defendants' failure to comply with the requirements in Rockview's Title V

permit, Huntingdon' s Title V permit and Laurel Highland's Title V permit;

WHEREAS , the Complaint alleges claims upon which relief can be granted

against the Defendants under Sections 113 and 502 of the Act, 42 U.S.C. §§ 7413

and 7661a;

\

•

WHEREAS, the United States provided the Defendants and the
;

Commonwealth of Pennsylvania's Department of Environmental Protection

("PADEP") with actual notice of the alleged violations in accordance with Section
.\ '
113(a)(l) and (b) of the Act, 42 U.S.C. § 74l3(a)(l) and (b);

WHEREAS, the Parties have agreed that settlement of this action is in the

2

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 6 of 68
best interest of the Parties and in the public interest, and that entry of this Consent Decree without further litigation is the most appropriate means of resolving this matter;
WHEREAS, the Parties recognize, and the Court by entering this Consent Decree finds, that this Consent Decree has been negotiated in good faith and at arm's length and that this Consent Decree is fair, reasonable, consistent with the
I
goals of the Act, and in the public interest; and WHEREAS, the Parties have consented to entry of this Consent Decree
without trial of any issues; NOW, THEREFORE, without any admission of fact or law, it is hereby
ORDERED, ADJUDGED, AND DECREED as follows: J. JURISDICTION AND VENUE
I. This Court has jurisdiction over this action, the subject matter herein, and the Parties consenting hereto, pursuant to 28 U.S.C. §§ 1331, 1345, 1355, and 1367, and pursuant to Sections 113 and 502 of the Act, 42 U.S .C. §§ 7413 and 7661a. Venue is proper under Section 113(b) of the Act, 42 U.S.c. § 7413(b), and under 28 U.S.C. § 1391 (b) and (c). Solely for the purposes of this Consent Decree and the underlying Complaint, the Defendants waive all objections and defenses
3

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 7 of 68

that they may have to the Court's jurisdiction over this action, to the Court's

jurisdiction over the Defendants, and to venue in this District. The Defendants

shall not challenge the terms of this Consent Decree or this Court's jurisdiction to

enter and enforce this Consent Decree. For purposes of the Complaint filed by the

United States in this matter and resolved by the Consent Decree, and for purposes i
of entry and enforcement of this Consent Decree, the Defendants waive any

defense or objection based on standing. Except as expressly provided for herein,

this Consent Decree shall not create any rights in any party other than the Parties

to this Consent Decree. Except as provided in Section XXV (Public Comment) of

this Consent Decree, the Parties consent to entry of this Consent Decree without

further notice.

II. APPLICABILITY

2. The provisions of this Consent Decree shall, upon entry, apply to and be

'.

binding upon the Defendants and their agents, employees, contractors, successors

and assigns.

3. The Defendants shall provide a copy of this Consent Decree to all

vendors, suppliers, consultants, contractors, agents, and any other company or

other organization retained to perform any of the work required by this Consent

4

........--.••.•••. ,>. .'. --.'.-
Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 8 of 68

Decree. Notwithstanding any retention of contractors, subcontractors, or agents to

perform any work required under this Consent Decree, the Defendants shall be

responsible for ensuring that all work is performed in accordance with the

,,

requirements of this Consent Decree. In any action to enforce this Consent

Decree, the Defendants shall not assert as a defense the failure of their officers,

directors, employees, servants, agents, or contractors to take actions necessary to

, ,

comply with this Consent Decree, unless it is determined to be a Force Majeure

Event and satisfies the Force Majeure provisions of this Consent Decree.

III. DEFINITIONS

4. Unless otherwise expressly provided herein, the terms used in this

Consent Decree that are defined in the Clean Air Act or its implementing

regulations shall have the meaning assigned to them in the Clean Air Act and its

regulations. Whenever the terms listed below are used in this Consent Decree,

however, the following definitions shall apply:

"Baghouse" means a device or facility in which particulates are removed

from a stream of exhaust gases as the stream passes through various fabric bags

before the stream is discharged to the atmosphere.

"Clean Air Act" or "Act" means the federal Clean Air Act, 42 U.S.c.

5

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 9 of 68

,!

§§7401-767Iq, and its implementing regulations.

"Consent Decree" means this Consent Decree.

"Defendants" means the Commonwealth of Pennsylvania Department of

General Services and the Commonwealth of Pennsylvania Department of

Corrections.

..

"EPA" means the United States Environmental Protection Agency.

,'<.

<
1
"Huntington Facility" means the State Correctional Institution at

Huntingdon in Huntingdon County, Huntingdon, Pennsylvania. The Huntington

Facility includes four Units - Units 1,2,3 and 4 - all of which burn bituminous

coal. Units I and 2 were installed in 1933 and share an exhaust stack. Unit 3 was

installed in 1950 and vents directly to the same stack as Units I and 2. Unit 4 was

installed in 1966 and exhausts to its own stack.

"Huntingdon Title V Permit" means the Title V permit #TV-31 -0500I,

issued on July 12,2005 and effective on August 1,2005 for the Huntingdon

Facility pursuant to Subchapter V of the Act, 42 U.S.c. §§ 7661 -766Ie.

"Laurel Highlands Facility" means the State Correctional Institution at

Laurel Highlands in Somerset County, Somerset, Pennsylvania. The Laurel

Highlands Facility includes three Units - Units I, 2, and 3 - all of which burn

6

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 10 of 68

bituminous coal, and all of which were built in 1950.

"Laurel Highlands Title V Permit" means the Title V permit #TV-56-00257,

issued and effective on January 26, 2000 for the Laurel Highlands Facility

pursuant to Subchapter V of the Act, 42 U.S.C. §§ 7661-7661e.

"lblMMBtu" means one pound of total particulate matter per million British

thermal units of heat input.

, ,

"Malfunction" means malfunction as that term is defined under 40 C.F.R.

§ 60.2.

"Muncy Facility" means the State Correctional Institution at Muncy in

Lycoming County, Muncy, Pennsylvania. The Muncy Facility includes four Units

- Units 1,2,3, and 4. Units 1,2 and 3 were built in 1964 and bum anthracite coal;

Unit 4 was built in 2003 and bums natural gas.

"PADEP" shall mean the Pennsylvania Department of Environmental

Protection.

"Parties" means the United States of America and the Commonwealth of

Pennsylvania including the PA Department of General Services and the PA

Department of Corrections. "Party" means one of the named "Parties."

"PM" means total particulate matter, measured in accordance with the

7

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 11 of 68

,
i

provisions of this Consent Decree.

"PM Emission Rate" means the average number of pounds of PM emitted

per million British thermal units of heat input ("lbslMMBtu") from a boiler stack,

~.'

as measured in an annual stack test from the boiler stack, in accordance with the

reference method set forth in 40 C.F.R. Part 60, Appendix A, Method 5 (filterable
.':
"
portion only) or Method 17 (filterable portion only).
i
"Rockview Facility" means the State Correctional Institution at Rockview

in Centre County, Bellefonte, Pennsylvania. The Rockview Facility includes four

Units- Units I, 2, 3, and 4. Units I, 2, and 3 all bum bituminous coal. Unit I was

built in 1954, Unit 2 in 1967, and Unit 3 in 1955. Unit 4 bums natural gas and

was built in 2002.

"Rockview Title V permit" means the Title V Operating Permit # 14-00005,

issued June 25, 2004, to PA Department of Corrections for the Rockview Facility

pursuant to Subchapter V of the Act, 42 U.S.C. §§ 7661-766Ie.

"Standby Mode" as used in this Consent Decree for the Muncy Facility

means that the unit or boiler is maintained in a hot condition with steam in the

drum at or near normal operating pressure such that the unit or boiler can be

brought on line and up to full load within one hour or less, versus a cold boiler

8

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 12 of 68

which takes eight to ten hours to be properly brought up to full load. The

"Standby Mode" unit has a slowly burning coal bed on the grates with neither the

stoker nor forced draft fan running. The induced draft fan is running to maintain a

slightly negative furnace pressure to prevent combustion gases from leaking out

onto the operating floor and presenting a hazard to personnel. The slowly burning

coal bed provides sufficient heat to keep the unit or boiler hot and maintain steam

,,

in the steam drum but is insufficient to produce steam for delivery to the Muncy

Facility. Periodic feedwater input is required to account for continuous blowdown

losses. Maintaining the "Standby Mode" condition requires the following group

of activities be performed on a periodic basis:

I. The coal bed is manually pushed away from the front wall to ensure no clinker build up. 2. Ash is dumped to the hoppers. 3. The stoker is started at minimum speed to replenish the coal bed. Due to system design this also causes the forced draft fan to run at minimum speed, thereby introducing a small amount of combustion air. This results in a slightly increased coal firing rate and the subsequent production of a small amount of steam. The steam production ceases as soon as the stoker and fan are turned off at the end of coal bed replenishment. "Unit" means, for the purposes of this Consent Decree, collectively, the

9

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 13 of 68

-,-.

stationary equipment that feeds coal to the boiler, the boiler that produces steam,

the equipment necessary to operate the boiler, and all ancillary equipment,

including pollution control equipment and systems necessary for the production of

,.-

steam.

IV. ROCKVIEW EMISSION REDUCTIONS AND CONTROLS

5_ No later than December 31 , 2010, the Defendants shall install and

.,

'j

commence continuous operation of a baghouse for PM control for Units I, 2, and

3 at the Rockview Facility. Defendants shall install a baghouse for Units 1,2, and

3 at the Rockview Facility which has been approved in writing in advance by

EPA. EPA's decision to approve the baghouse required pursuant to this

Paragraph shall be within EPA's sole and unreviewable discretion.

6. After December 31, 2010, the Defendants shall not operate Unit I, 2, or

3 at the Rockview Facility when the baghouse required by Paragraph 5 is not in

continuous operation_ The Defendants' obligation to "continuously operate" the

new baghouse means that the Defendants must operate the baghouse at all times

that any or all of the Units associated with this control are in operation and

combusting fuel, consistent with the technological limitations, manufacturers'

10

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 14 of 68

specifications to the extent practicable, and good engineering and maintenance

practices for PM control technology.

a. Notwithstanding the foregoing, the Defendants need not

operate the baghouse during periods of Malfunction of the

baghouse provided that the Defendants satisfy the requirements

for Malfunction as set forth in Paragraph 61 and 40 C.F.R §

60.2. If there is a Malfunction pursuant to Paragraph 61 and

40 C.F.R § 60.2 at any of the Units at the Rockview Facility,

Defendants must still continuously operate the baghouse to

control PM from any or all Units which are in operation and

combusting fuel.

7. The Defendants shall at all times comply with the requirements set forth

in the Rockview Title V Permit for Units 1,2, and 3 until those Units cease

operation and are replaced in accordance with this Section. These requirements

include Condition 006 in Section C of the Rockview Title V Permit, which

requires the Defendants to burn only bituminous coal at Units 1, 2, and 3 that

..

•

meets the following specifications for fuel physical characteristics:

II

,.

"

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 15 of 68

a. heating value of at least 13,400 British Thennal Units ("BTU")

(dry basis);

b. ash content of no more than 12% (dry basis); and

c. sulfur content of no more than HV/4875 (in % sulfur) where

HV~heating value.
•~•
The Defendants shall collect samples from each truckload of bituminous
1•
coal received. From these samples, the Defendants shall test and analyze the

bituminous coal on a weekly basis. The Defendants shall submit to PADEP and

EPA all coal sampling documents demonstrating compliance or non-compliance

with Condition 006 within five (5) calendar days of creating or receiving

documents demonstrating the fuel physical characteristics of the bituminous coal

that the Rockview Facility receives and burns.

8. The Defendants may, after obtaining written approval from EPA and

,,,

'.

notifying PADEP, remove and pennanently retire Units 1,2, or 3 from the

•

Rockview Facility and replace such Units with new Units. Such new Units shall

be subject to all applicable federal and state environmental regulations and
i.
pennitting requirements, including the installation of emission control

technologies required at that time under federal and state regulations. EPA' s

12

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 16 of 68
decision to approve the replacement of Units 1, 2, and/or 3 shall be within EPA's sole and unreviewable discretion.
9. The Defendants shall obtain all applicable permits and/or plan approvals from PADEP before commencing any activity related to installing the baghouse required by Paragraph 5 or installing any new Unit at the Rockview Facility. The Defendants shall at all times comply with the Pennsylvania SIP and any revised permits, including the Rockview Title V Permit, for the new Units.
10. The Defendants shall at all times achieve and maintain a PM Emission Rate of no greater than 0.4 IblMMBtu at the Rockview Facility Units in accordance with the Pennsylvania SIP. The Defendants shall at all times also achieve and maintain at these Units the visible emission standard established in 25 Pa. Code § 123.41 of the Pennsylvania SIP. Any new Units at the Rockview Facility shall also comply with all applicable requirements in the Pennsylvania SIP and the Act.
11. The Defendants shall at all times operate all of the Units at the Rockview Facility in accordance with good combustion practices, good air pollution control practices, and good operating practices to minimize opacity and PM emissions.
13

."
Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 17 of 68

V. MUNCY EMISSION REDUCTIQNS AND CONTROLS

12, No later than March 31, 2009, the Defendants shall cease operation of

Units 1,2, and 3 at the Muncy Facility, which bum coal, and shall commence sole

\

1

operation of Unit 4 at the Muncy Facility, which shall bum gas and oiL The

Defendants may operate Unit lor Unit 2 at the Muncy Facility in a Standby Mode

after March 31, 2009 as long as only one coal-fired Unit (Unit I or Unit 2) is

,,

operating in Standby Mode at any given time. The Defendants shall not otherwise

operate these coal-fired Units (Unit I or Unit 2) without prior written approval

from EPA which shall be within EPA's sole discretion. Defendants may not

operate Unit 3 at the Muncy Facility in any capacity unless Defendants comply

with all requirements in the Pennsylvania SIP and in the Act including, but not

limited to, requirements for permits and for the installation of required emission

control technologies and unless Defendants obtain prior written approval from

, -

EPA which shall be within EPA's sole discretion. Notwithstanding the foregoing:

a. the Defendants may operate Unit I or Unit 2 at the Muncy

Facility after March 31, 2009 on an emergency basis if Unit 4

,

becomes non-operational due to a Malfunction as defmed in

",.

this Consent Decree as long as Defendants comply with

14

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 18 of 68
Paragraph 61 in this Consent Decree and 40 C.F.R § 60 .2; provided, however, that the Defendants shall be liable for the stipulated penalties stated herein in Paragraph 44 if the Defendants do not obtain express written consent and approval from EPA to operate Unit I or Unit 2 on an emergency basis during a Malfunction of Unit 4 after providing notice in accordance with Paragraph 61; b. the Defendants may operate Muncy Facility Unit I or Unit 2 on more than a Standby Mode if they install and commence continuous operation of a baghouse or electrostatic precipitator on the Unit after submitting a proposal to EPA for such installation and obtaining written approval from EPA to do so and after receiving all permits required by the Act and the Pennsylvania SIP; c. the Defendants may operate Muncy Facility Unit I or Unit 2 on more than a Standby Mode if they convert the Unit to burn only natural gas, and not any coal or oil, after submitting a proposal to EPA for such conversion and obtaining written approval
15

,,~ Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 19 of 68

from EPA to do so and after receiving all permits required by

the Act and the Pennsylvania SIP.

d. the Defendants may, after obtaining written approval from

,

j'

EPA, remove and permanently retire Units 1, 2, and/or 3 from

the Muncy Facility and replace such Unit with new Units.
·i .'
Such new Units shall be subject to all applicable federal and

state environmental regulations and permitting, including the

installation of emission control technologies required at that

time under federal and state regulations.

13. EPA's decision to approve the restarting of Unit 1 or Unit 2 beyond

Standby Mode, or to authorize any of the alternatives set forth in the preceding

Paragraph, shall be within EPA's sole and unreviewable discretion.

14. The Defendants shall obtain all applicable permits andlor plan

approvals from PADEP before commencing any activity retrofitting, modifying,

restarting, or rebuilding Units 1,2, or 3, or before installing any new Unit, at the

Muncy Facility. The Defendants shall at all times comply with the Act, the
•
Pennsylvania SIP and any permits for the new, retrofitted, or modified Unit(s) at

the Muncy Facility and for Units 1,2,3 and 4 at the Muncy Facility.

16

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 20 of 68
15. The Defendants shall comply with the Pennsylvania SIP PM Emission Rate ofO.4lbfMM Btu of heat input for Unit I and Unit 2 at the Muncy Facility and for any new Units at the Muncy Facility and shall comply with any more stringent PM emissions standard found applicable to Units I, 2, and/or 3 or to any new Units at the Muncy Facility. The Defendants shall also comply with the Pennsylvania SIP and the Pennsylvania SIP visible emission standard (25 Pa. Code § 123.41) for Unit I and Unit 2 and for any new Units at the Muncy Facility.
16. The Defendants shall at all times operate all of the Units at the Muncy Facility in accordance with good combustion practices, good air pollution control practices, and good operating practices to minimize opacity and PM emissions.
17. If Defendants operate Unit I or Unit 2 beyond Standby Mode at the Muncy Facility due to a Malfunction in accordance with Paragraphs 12(a) and 61 , the Defendants shall provide notice to EPA in accordance with Section XVIII of this Consent Decree no later than twenty-four (24) hours after Defendants operate Unit I or Unit 2 beyond Standby Mode. The notice to EPA may be by electronic mail in accordance with Paragraph 79.
17

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 21 of 68

VI. LAUREL IDGHLANDS EMISSION REDUCTIONS AND

CONTROLS

18. No later than June 30, 2011, the Defendants shall cease all operation of

;

j

the existing coal-fired Units 1,2, and 3 at the Laurel Highlands Facility, remove

these Units, and surrender any permits related to these Units.

19. By June 30, 2011, the Defendants shall also install and commence

continuous operation of three new Units at the Laurel Highlands Facility that

combust natural gas or landfill gas.

20. The Defendants shall obtain from PADEP all applicable permits

and/or plan approvals required by federal or state law before commencing

construction on the new Units at the Laurel Highlands Facility. The Defendants

shall complete and submit applications for all permits prior to commencing

construction on the new Units. After installation of the new, gas-fired boilers at

the Laurel Highlands Facility, the Defendants shall comply with the Pennsylvania

SIP PM Emission Rate of 0.4 IblMM Btu of heat input (and any more stringent

PM emissions standard found applicable to the new gas-fired boilers) and the

visible emission standard in the Pennsylvania SIP (25 Pa. Code § 123.41) for the

new gas-fired boilers. Until such time as the Defendants cease operation of the

coal-fired Units at the Laurel Highlands Facility, the Defendants shall operate the

18

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 22 of 68

coal-fired Units at the Laurel Highlands Facility in accordance with good

combustion practices, good air pollution control practices, and good operating

practices under the Pennsylvania SIP to minimize opacity and emissions of PM in

,,
;

excess of the limits in 25 Pa. Code §§ 123.11 and 123.41.

21. The Defendants shall at all times achieve and maintain a PM Emission

Rate of no greater than 0.4 IbIMMBtu at the Laurel Highlands Facility new or

existing Units, in accordance with the Pennsylvania SIP and shall comply with any

more stringent PM emissions standard found applicable to the new Units at the

Laurel Highlands Facility. The Defendants shall at all times also achieve and

maintain the visible emission standard established in 25 Pa. Code § 123.41 of the

Pennsylvania SIP at Laurel Highlands Facility new or existing Units.

22. The Defendants shall at all times operate all of the Units at the Laurel

Highlands Facility in accordance with good combustion practices, good air

pollution control practices, and good operating practices to minimize opacity and

PM emissions.

VII. HUNTINGDON EMISSION REDUCTIONS AND CONTROLS

23. No later than June 30, 2012, the Defendants shall cease burning coal at

Huntingdon Facility Units 1,2,3 and 4. The Defendants shall not restart these

19

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 23 of 68

coal-fired Units without prior written approval from EPA which shall be within

EPA's sole discretion.

24. Notwithstanding the foregoing, the Defendants may request prior

.,,

~

written approval from EPA to either:

a. continue burning coal at Units 1, 2,3, and 4 after the

installation of an electrostatic precipitator or a baghouse, which

'J

must be operational before June 30, 2012, to control PM from

Units 1,2,3, and 4;

b. convert Units 1,2,3, and 4 from coal-fired Units to natural

gas-fired Units as long as Units 1,2,3, and 4 operate while

burning solely natural gas and do not burn coal or fuel oil; or

c. remove and permanently retire Units I, 2, 3 and 4 from the

Huntingdon Facility. Any new Units installed at the

Huntingdon Facility shall be subject to all applicable federal

and state environmental regulations and pollution controls at

the time the Defendants commence construction on the new

Units.

EPA' s decision on approval or denial of any of the three alternatives

described in this Paragraph is within EPA's sole and unreviewable discretion.

20

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 24 of 68
25. The Defendants shall obtain all applicable permits and/or plan approvals from PADEP before commencing any activity to retrofit the Units with new emission controls or to install new Unit(s) at the Huntingdon Facility. The Defendants shall also comply at all times with the Pennsylvania SIP and any revised permits, including the Huntingdon Title V Permit, for the retrofitted or new Units.
26. The Defendants shall at all times achieve and maintain a PM Emission Rate of no greater than 0.4 IbfMMBtu at Huntingdon Facility Units or at any new Units, in accordance with the Pennsylvania SIP and shall comply with any more stringent PM emissions standard found applicable to Units 1,2,3 or 4 or to any new Units at the Huntingdon Facility. The Defendants shall at all times also achieve and maintain at these Units or at any new Units the visible emission standard established in 25 Pa. Code § 123.41 of the Pennsylvania SIP.
27. The Defendants shall at all times operate all of the Units at the Huntingdon Facility in accordance with good combustion practices, good air pollution control practices, and good operating practices to minimize opacity and PM emissions.
21

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 25 of 68

,;
I
VIn. PERFORMANCE TESTING

28. Within 20 days after the Defendants complete the replacement,

repowering, or retrofitting of any Unit under this Consent Decree, the Defendants

shall submit to EPA and PADEP for review and approval a proposed protocol,

consistent with 40 C.F.R. Part 60, for conducting stack tests to measure PM

emissions and visible emission opacity at the Units in the Rockview, Muncy,

.

•

Laurel Highland, and Huntingdon Facilities. The protocol for observing and

calculating PM emissions shall conform to 40 C.F.R. Part 60, Appendix A,

Method 5 and applicable Pennsylvania law (25 Pa. Code §§ 139.11 and 139.12).

The protocol for observing and measuring opacity shall also be based on EPA

Reference Test Method 9, and shall be taken during the mass emission PM

performance test at each Unit. If EPA notifies the Defendants that revisions to the

testing protocol are necessary, the Defendants shall resubmit a revised protocol no

later than fifteen (15) days after receipt of EPA's written notification.

29. Within 90 days after the Defendants complete any of the emission

control and reduction measures required by Sections IV through VII of this

Consent Decree, including the replacement of Units, the repowering of Units, and

the installation of emission controls on Units, the Defendants shall conduct a

performance stack test to demonstrate that the Units are in compliance with the

22

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 26 of 68
PM and opacity limitations established by this Consent Decree, the Pennsylvania SIP, and all permits applicable to those Units. This obligation to conduct PM performance stack tests shall not apply, however, to any Unit that bums only natural or landfill gas.
30. If the performance demonstration for PM and opacity shows that a Unit does not meet the required Pennsylvania SIP emission limitations for PM and opacity, the Defendants shall submit a proposal describing alternative emission controls or measures to EPA and PADEP, within sixty (60) days of completion of each performance test. Upon approval by EPA and PADEP, the Defendants shall install and commence operation of the approved controls and methods within one year of the Defendants' receipt of notice of approval, or within the time frame set fortb in EPA's and PADEP's approval. EPA' s decision regarding the approval or denial of alternative controls and methods is within its sole and unreviewable discretion.
31. Subsequently, the Defendants shall conduct annual PM performance testing for PM mass emissions and visible opacity, in -accordance with the approved protocols, EPA regulations, and the Pennsylvania SIP, at each of the Units in the Rockview, Muncy, Laurel Highland, and Huntingdon Facilities. Defendants shall conduct the first annual PM performance test for PM mass
23

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 27 of 68

emissions and visible opacity at each of the Units in the Rockview, Muncy, Laurel

Highland, and Huntingdon Facilities no later than twelve (12) months after the

initial performance stack tests for PM and opacity as required by Paragraph 28 are

conducted and shall continue conducting such performance stack tests for PM and

opacity at each of the Units annually thereafter.

32. The Defendants shall provide written notice to EPA and PADEP no
j
later than twenty (20) days prior to the initiation of any stack test, and shall submit

the results of each stack test to EPA and PADEP within thirty (30) days of

completion of each test. The stack test reports shall include information on the

volumetric flow rate (dry standard cubic feet per minute), particulate emission

concentration (grains per dry standard cubic foot), and particulate emission rate (in

IbfMMBtu of heat input) for each test.

IX. CIVIL PENALTY

33. Within thirty (30) calendar days after entry of this Consent Decree, the

Defendants shall pay to the United States a civil penalty in the amount of

$300,000. The civil penalty shall be paid by Electronic Funds Transfer ("EFT") to

,.,:

the United States Department of Justice, in accordance with current EFT

procedures, referencing USAO File Number _---', DOJ Case Number 90-5-2-1-

09099, and the civil action case name and case number of this action. Any costs

24

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 28 of 68

......',.,. ,

associated with such EFT shall be bourne by the Defendants. Payment shall be

made in accordance with instructions provided to the Defendants by the Financial

Litigation Unit of the U.S. Attorney's Office for the Middle District of

i

I

Pennsylvania. Any funds received after 2:00 p.m. EDT shall be credited on the

next business day. At the time of payment, the Defendants shall provide notice of

payment, referencing the USAO File Number, the DOJ Case Number, and the civil

,.

action case name and case number, to the Department of Justice and to EPA in

accordance with Section XVIII (Notices) of this Consent Decree.

34. Failure to timely pay the civil penalty shall subject the

Defendants to interest accruing from the date payment is due until the date

payment is made at the rate prescribed by 28 U.S .C. § 1961, and shall also render

the Defendants liable for all charges, costs, fees, and penalties established by law

for the benefit of a creditor or of the United States in securing payment.

35. Payments made pursuant to this Section are penalties within the

meaning of Section 162(1) of the Internal Revenue Code, 26 U.S.C. § 162(1), and

are not tax-deductible expenditures for purposes of federal law.

X. RESOLUTION OF CLAIMS

36. This Consent Decree settles all civil claims alleged in the United

States' Complaint against the Defendants for violations of the Act at Laurel

25

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 29 of 68
Highlands, Muncy, Huntingdon and Rockview Facilities prior to and through the date of the lodging of this Consent Decree.
37. Third Parties. This Consent Decree does not limit or affect the rights of the Defendants or the United States as against any third party, nor does it limit the rights of such third parties against the Defendants. This Consent Decree
·.·' shall not constitute an admission by any Party as to any third party.
·';
XI. PERIODIC REPORTING 38. Beginning thirty (30) days after the end of the first full calendar quarter following the entry of this Consent Decree, continuing on a semi-annual basis thereafter (Le., every six months covering the prior six months) until March 31, 2015, and in addition to any other express reporting requirement in this Consent Decree, the Defendants shall submit to EPA a progress report, containing the following: a. all information necessary to determine compliance with this Consent
Decree; and
b. all information indicating that the installation and commencement of operation for a pollution control device may be delayed, including the nature and cause of the delay, and any steps taken by the Defendants to mitigate such delay. 26

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 30 of 68
39. In any periodic progress report submitted pursuant to tbis Section, the Defendants may incorporate by reference information previously submitted under tbeir Title V permitting requirements, provided that tbe Defendants attach tbe Title
!
V permit report (or pertinent portions of such report) and give a specific reference to the provisions of tbe Title V permit report that are responsive to the information required in the periodic progress report.
40. In addition to the progress reports required pursuant to tbis Section, tbe Defendants shall provide a written report to EPA of any violation of the requirements of this Consent Decree, including exceedances of PM Emission Rates and visible opacity requirements, witbin ten (10) business days of when tbe Defendants knew or should have known of any such violation. In tbis report, the Defendants shall exp lain tbe cause or causes of tbe violation and all measures taken or to be taken by tbe Defendants to prevent such violations in tbe future. Exceedances oftbe PM emission rates shall be reported within tbirty (30) days of tbe completion of tbe stack test that demonstrates such non-compliance. In tbis report, tbe Defendants shall explain tbe cause or causes of tbe violation and all measures taken or to be taken by tbe Defendants to prevent such violations in tbe future. Defendants shall provide the written reports of exceedances of PM emissions and/or opacity as required by tbis Paragraph after entry of this Consent
27

...... .......................~ ... -......
Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 31 of 68

, .

Decree for the Muncy Facility and after the emission control and reduction

measures required by Sections IV, VI and VII are completed at the Rockview,

Laurel Highlands and Huntingdon Facilities.

,

41 . Each report required by this Consent Decree shall be signed by the

Enviromnental Manager for PA Department of Corrections or, in his or her

absence the Secretary for PA Department of Corrections, and shall contain the

following certification:

This information was prepared either by me or under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my evaluation, or the direction and my inquiry of the person(s) who manage the system, or the person(s) directly responsible for gathering the information, I hereby certify under penalty of law that, to the best of my knowledge and belief, this information is true, accurate, and complete. I understand that there are significant penalties for submitting false, inaccurate, or incomplete information to the United States.

XII. REVIEW AND APPROVAL OF SUBMITTALS 42. The Defendants shall submit each plan, report, or other submission to EPA whenever such a document is required to be submitted for review or approval pursuant to this Consent Decree. EPA may approve the submittal or decline to approve it and provide written comments. Within sixty (60) days of receiving
28

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 32 of 68

written comments from EPA, the Defendant shall either: (a) revise the submittal consistent with the written comments and provide the revised submittal for final approval to EPA; or (b) submit the matter for dispute resolution, under Section XV (Dispute Resolution) of this Consent Decree.
43. Upon receipt of EPA's final approval ofa submittal or upon completion of dispute resolution invoked pursuant to Section XV of this Consent Decree for the submittal, the Defendants shall implement the approved submittal in accordance with the schedule specified therein.
XIII. STIPULATED PENALTIES 44. For any failure by the Defendants to comply with the terms of this Consent Decree, and subject to the provisions of Sections XIV (Force Majeure) and XV (Dispute Resolution) of this Consent Decree, the Defendants shall pay, within thirty (30) days after receipt of written demand to the Defendants by the United States, the following stipulated penalties to the United States:

Consent Decree Violation

Stipulated Penalty

(Per day per

violation, unless

otherwise specified)

.'

a. Failure to pay the civil penalty as specified in Section IX (Civil Penalty) of this Consent Decree

$10,000

29

Case 4:10-cv-02672-CCC Document 3

• . • • ,' .•.••,., ." ,"J ..... ~ ...:.:-": . ~J
Filed 12/30/10 Page 33 of 68

,

b. Failure to comply with any PM Emission

$2,500

Rate where the violation is less than 5% in excess

of the limits set forth in this Consent Decree or

referenced herein

- at the Rockview Facility after December

-. . '

31,2010,

- at Laurel Highlands Facility after June 30,

2011,

- at Huntingdon Facility after June 30,

2012,and

- at the Muncy Facility after the effective

date of the Consent Decree

c. Failure to comply with any PM Emission Rate, where the violation is equal to or greater than 5% but less than 10% in excess of the limits set forth in this Consent Decree or referenced herein
- at the Rockview Facility after December 31,2010,
- at Laurel Highlands Facility after June 30, 2011,
- at Huntingdon Facility after June 30, 2012, and
- at the Muncy Facility after the effective date of the Consent Decree

$5,000

.

30

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 34 of 68

d. Failure to comply with any PM Emission

$10,000

Rate, where the violation is equal to or greater than

10% in excess of the limits set forth in this

Consent Decree or referenced herein - at the Rockview Facility after December

.~

31,2010,

- at Laurel Highlands Facility after June 30,

2011,

- at Huntingdon Facility after June 30, 2012,

and

- at the Muncy Facility after the effective

i

date of the Consent Decree

e. Failure to comply with any visible

$5,000

emission standard set forth in this Consent Decree

or referenced herein

- at the Rockview Facility after December

31 , 2010,

- at Laurel Highlands Facility after June 30,

2011 ,

- at Huntingdon Facility after June 30, 2012,

and

- at the Muncy Facility after the effective

date of the Consent Decree

.,

f. Failure to install, to commence operation,

$10,000 per day

•

or to continue operation of any Unit, baghouse, during the first 30 days;

electrostatic precipitator or other pollution controls $20,000 per day thereafter

required by this Consent Decree

g. Operation of Unit I or Unit 2 at Muncy Facility in excess of Standby Mode unless operation of Unit 1 or Unit 2 at Muncy Facility is authorized and approved in writing by EPA for each day of operation in excess of Standby Mode

$5,000 per day during the first 5 days; $10,000 per day thereafter

31

:~

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 35 of 68

h. Failure to cease operation of any Unit as required by this Consent Decree, failure to cease burning coal at any Unit as required by this Consent Decree, or any operation of Unit 3 at the Muncy Facility without EPA approval and without required permits or plan approvals for Unit 3

$10,000 per day during the first 30 days; $20,000 per day thereafter

i. Failure to repower any Unit with natural

$10,000 per day

gas, if elected by the Defendants or required by during the first 30 days;

this Consent Decree

$20,000 per day thereafter

!.,,

j. Failure to conduct performance tests of

$1,000

PM emissions as required by the Consent Decree

k. Failure to conduct visible emission tests as required by the Consent Decree

$1,000

I. Failure to timely submit, modifY, or implement, as approved, the reports, plans, studies, analyses, protocols, or other submittals required by this Consent Decree

$750 per day during the first 10 days, $1,000 per day thereafter

m. Failure to comply with any condition or term in a permit issued for the Huntingdon, Laurel Highlands, Muncy or Rockview Facilities, other than the requirements for which stipulated penalty provisions are addressed above

$2,000

n. Failure to surrender any permits as required by this Consent Decree

$2,000

o. Any other violation of this Consent Decree

$1,000

45. All stipulated penalties shall begin to accrue on the day after the performance is due or on the day a violation occurs, whichever is applicable, and

32

..... ....... .......................
Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 36 of 68
shall continue to accrue until performance is satisfactorily completed or until the violation ceases. Nothing in this Consent Decree shall prevent the simultaneous accrual of separate stipulated penalties for separate violations of this Consent Decree.
46. The Defendants shall pay all stipulated penalties to the United States within thirty (30) days of receipt of written demand to the Defendants from the United States, and shall continue to make such payments every thirty (30) days thereafter until the violation(s) no longer continues, unless the Defendants elect within twenty (20) days of receipt of written demand from the United States to dispute the accrual of stipulated penalties in accordance with the provisions in Section XV (Dispute Resolution) of this Consent Decree.
47. Failure to timely pay the stipulated penalty shall subject the Defendants to interest accruing from the date payment is due until the date payment is made at the rate prescribed by 28 U.S.C. § 1961, and shall render the Defendants liable for all charges, costs, fees, and penalties established by law for the benefit of a creditor or of the United States in securing payment.
48. Stipulated penalties shall continue to accrue as provided in Paragraphs 44 and 45 during any dispute, with interest on accrued stipulated penalties payable, but need not be paid until the following:
33

,

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 37 of 68

<

court decision, pay all accrued stipulated penalties determined to be owing, togetber with accrued interest.
34

-. " .', .....--
Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 38 of 68

The Defendants need not pay any stipulated penalties based on violations

which it disputes and ultimately prevails under the Dispute Resolution provisions

of this Consent Decree.

49. All stipulated penalties shall be paid in the manner set forth in Section

IX (Civil Penalty) of this Consent Decree.

50. EPA, in its sole and unreviewable discretion, may reduce the amount of

,

stipulated penalties prescribed by this Section of the Consent Decree.

51. Should the Defendants fail to pay stipulated penalties in compliance

with the terms of this Consent Decree, the United States shall be entitled to collect

interest on such penalties, as provided for in 28 U.S.C. § 1961.

52. The stipulated penalties provided for in this Consent Decree shall be in

addition to any other rights, remedies, or sanctions available to the United States

by reason of the Defendants' failure to comply with any requirement of this

.,.

Consent Decree or applicable law, except that for any violation of the Act for

which this Consent Decree provides for payment of a stipulated penalty, the

Defendants shall be allowed a credit for stipulated penalties paid against any

statutory penalties also imposed for such violation.

35

... ,.. .." ................. .

. ' . ...... -.- ........ .... - ~........ ..

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 39 of 68

XIV. FORCE MAJEURE

53. Force Majeure Events. For purposes of this Consent Decree, a "Force

Majeure Event" shall mean an event that has been or will be caused by

circumstances beyond the control of the Defendants, their contractors, or any

entity controlled by the Defendants that delays compliance with any provision of

this Consent Decree or otherwise causes a violation of any provision of this

Consent Decree despite the Defendants' best efforts to fulfill the obligation. "Best

efforts to fulfill the obligation" include using best efforts to anticipate any

potential Force Majeure Event and to address the effects of any such event (a) as it

is occurring and (b) after it has occurred, such that the delay or violation is

minimized to the greatest extent possible.

54. Notice of Force Majeure Events. If any event occurs or has occurred

that may delay compliance with or otherwise cause a violation of any obligation

under this Consent Decree, as to which the Defendants intend to assert a claim of

,'.

Force Majeure, the Defendants shall notify the United States in writing as soon as

practicable, but in no event later than fourteen (14) business days following the

date the Defendants first knew, or by the exercise of due diligence should have

known, that the event caused or may cause such delay or violation. In this notice,

the Defendants shall reference this Paragraph of this Consent Decree and describe

36

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 40 of 68

the anticipated length of time that the delay or violation may persist, the cause or

causes of the delay or violation, all measures taken or to be taken by the

Defendants to prevent or minimize the delay or violation, the schedule by which

•

t

the Defendants propose to implement those measures, and the Defendants'

rationale for attributing a delay or violation to a Force Majeure Event. The

Defendants shall adopt all reasonable measures to avoid or minimize such delays

or violations. The Defendants shall be deemed to know of any circumstance

which the Defendants, their contractors, or any entity controlled by the

Defendants, knew or should have known.

55. Failure to Give Notice. If the Defendants fail to comply with the notice

requirements in the preceding Paragraph, the United States may void the

Defendants' claim for Force Majeure as to the specific event for which the

Defendants have failed to comply with such notice requirement.

56. United States' Response. The United States shall notify the Defendants

in writing regarding the Defendants' claim of Force Majeure provided under

Paragraph 54. If the United States agrees that a delay in performance has been or

will be caused by a Force Majeure Event, the Parties shall stipulate to an extension

of deadline(s) for performance of the affected compliance requirement(s) by a

period equal to the delay actually caused by the event. In such circumstances, an

37

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 41 of 68
appropriate modification shall be made pursuant to Section XXII (Modification) of this Consent Decree.
57. Disagreement. If the United States does not accept the Defendants' claim of Force Majeure, or if the Parties cannot agree on the length of the delay actually caused by the Force Majeure Event, the matter shall be resolved in
,.. accordance with Section XV (Dispute Resolution) of this Consent Decree.
58. Burden QfProof. In any dispute regarding Force Majeure, the Defendants shall bear the burden of proving that any delay in performance or any other violation of any requirement of this Consent Decree was caused by or will be caused by a Force Majeure Event. The Defendants shall also bear the burden of proving that the Defendants gave the notice required by Paragraph 54 and the burden of proving the anticipated duration and extent of any delay(s) attributable to a Force Majeure Event. An extension of one compliance date based on a particular event may, but will not necessarily, result in an extension of a subsequent compliance date.
59. Events Excluded. Unanticipated or increased costs or expenses associated with the performance of the Defendants' obligations under this Consent Decree shall not constitute a Force Majeure Event.
38

... ...'
Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 42 of 68

', .

• ,_ ~ .

A

60. Extensions or Modifications by Agreement. As part of the resolution of any matter submitted to this Court under Section XV (Dispute Resolution) of this Consent Decree regarding a claim of Force Majeure, the Parties by agreement, or this Court by order, may in appropriate circumstances extend or modifY the schedule for completion of work under this Consent Decree to account for the delay in the work that occurred as a result of any delay agreed to by the United States and the Defendants or approved by the Court. The Defendants shall be liable for stipulated penalties for their failure thereafter to complete the work in accordance with the extended or modified schedule.
61. Malfunctions. The Defendants shall notifY EPA in writing of each Malfunction impacting a pollution control technology or Unit ai the Rockview, Laurel Highlands, Muncy or Huntingdon Facilities as soon as practicable, but in no event later than twenty-four (24) hours following the date and the time that the Defendants first knew, or by the exercise of due diligence should have known, of the Malfunction. The notice to EPA may be by electronic mail in accordance with Paragraph 79 of this Consent Decree. The Defendants shall be deemed to know of any circumstance which the Defendants, their contractors, or any entity controlled by the Defendants knew or should have known. In this notice, the Defendants shall describe the anticipated length of time that the Malfunction may persist, the
39

- ..... . .. ... ~....' .. ...... '. '.. ..... .
Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 43 of 68

cause or causes of the Malfunction, all measures taken or to be taken by the

Defendants to minimize the duration of the Malfunction, and the schedule by

which the Defendants propose to implement those measures.

a. The Defendants shall adopt all reasonable measures to

minimize the duration of such Malfunctions and, consistent

..

with 40 C.F.R. § 60.1 1(d), shall, to the extent practicable,

,

maintain and operate any affected Unit and associated air

pollution control equipment in a manner consistent with good

air pollution control practice for minimizing emissions.

b. A Malfunction, as defined in this Consent Decree, does not

constitute a Force Majeure Event pursuant to Section XIV

(Force Majeure) of this Consent Decree unless the Malfunction

also meets the definition of a Force Majeure Event, as provided

in Section XIV.

XV. DISPUTE RESOLUTION

62. The dispute resolution procedure provided by this Section shall be

available to resolve all disputes arising under this Consent Decree, provided that

the Party invoking such procedure has first made a good faith attempt to resolve

the matter with the other Party,

40

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 44 of 68

.. .. , ' .. ........ ._... ; .

63. The dispute resolution procedure required herein shall be invoked by one Party giving written notice to the other Party advising of a dispute pursuant to this Section. The notice shall describe the nature of the dispute and shall state the noticing Party's position with regard to such dispute. The Party receiving such a notice shall acknowledge receipt of the notice, and the noticing Party shall expeditiously schedule a meeting to discuss the dispute informally not later than fourteen (14) days following receipt of such notice.
64. Disputes submitted to dispute resolution under this Section shall, in the first instance, be the subject of informal negotiations among the disputing Parties. Such period of informal negotiations shall not extend beyond thirty (30) calendar days from the date of the first meeting among the disputing Parties' representatives unless they agree in writing to extend this period.
65. During the informal negotiations period, the disputing Parties may also submit their dispute to a mutually-agreed-upon non-binding alternative dispute resolution ("ADR") forum if the Parties agree that the non-binding ADR activities can be completed within the 30-day informal negotiations period (or such longer period as the Parties may agree to in writing).
66. If the disputing Parties are unable to reach agreement during the informal negotiation period, the United States shall provide the Defendants with a
41

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 45 of 68

written summary of its position regarding the dispute. The written position

provided by the United States shall be considered binding unless, within forty-five

(45) calendar days thereafter, the Defendants seek judicial resolution of the

dispute by filing a petition with this Court. The United States may respond to the

petition within forty-five (45) calendar days of filing.

67. The Court shall decide all disputes pursuant to applicable principles of

,,

law for resolving such disputes. In their initial filings with the Court under

Paragraph 66, the disputing Parties shall state their respective positions as to the

applicable standard of law for resolving the particular dispute.

XVI. PERMITS

68. Unless expressly stated otherwise in this Consent Decree, in any

instance where otherwise applicable law or this Consent Decree requires the

Defendants to secure a permit to authorize construction or operation of any device,

including all preconstruction, construction, and operating permits required under

state law, the Defendants shall make such application in a timely and complete

manner. The Defendants shall identifY and obtain all applicable permits, licenses

and approvals required for performance of activities or work required by this

Consent Decree in sufficient time to perform the activities or work as scheduled.

42

...., . '''''.', .;._ .•____._._ .• __._._v....._•.•••
Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 46 of 68

69. When permits are required, the Defendants shall complete and submit

applications for such permits to the appropriate authorities to allow sufficient time

for processing and review of the permit request, including requests for additional

·,

information by the permitting authorities. Any failure by the Defendants to submit

a timely and complete permit application for any Unit at Huntingdon, Laurel

Highlands, Rockview or Muncy Facilities shall bar any use by the Defendant of

Section XlV (Force Majeure) of this Consent Decree, where a Force Majeure

claim is based on permitting delays.

70. Within ninety (90) days from the date of entry of this Consent Decree,

the Defendants shall submit applications to PADEP for the Muncy Facility to

incorporate Unit-specific fuel-burning requirements, operational requirements and

prohibitions, or other requirements established by Section V of this Consent

Decree into federally enforceable operating permits (other than a CAA Title V

·
!

permit) and/or plan approvals as applicable for the Muncy Facility. Following

submission of the permit or plan approval applications, Defendants shall cooperate

with PADEP by promptly submitting to PADEP all information that PADEP seeks

following its receipt of the permit or plan approval applications. If the

Defendants, with approval from EPA, select an alternative control technology or

fuel for a Unit at Muncy, then the Defendants shall submit to PADEP a plan

43

,

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 47 of 68

~ . _.... -..- ... ' .. . 1,

approval application and apply to modify, renew, or obtain any applicable plan approval or operating permit to incorporate such Unit-specific control technology requirements or fuel-burning requirements within ninety (90) days of making such election.
71. Prior to commencing construction on the Rockview, Laurel Highlands,
!
and the Huntingdon Facilities and in compliance with requirements in the Act and in the Pennsylvania SIP, but in no event later than September 30,2010, Defendants shall submit applications to PADEP for federally enforceable operating permits (other than CAA Title V permits) andlor plan approvals as required to incorporate emission reduction measures required in Sections IV, VI and VII of this Consent Decree as applicable to the Rockview, Laurel Highlands, and Huntingdon Facilities. Following submission of the permit or plan approval applications, Defendants shall cooperate with PADEP by promptly submitting to PADEP all information that PADEP seeks following its receipt of the respective permit or plan approval applications. Upon issuance of such permits or plan approvals or in conjunction with such permitting, Defendants shall file any applications necessary to incorporate the requirements of the permits or plan approvals for the Rockview, Laurel Highlands, and Huntingdon Facilities into the Rockview Title V Permit, the Laurel Highlands Title V Permit, and the
44

·' .
Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 48 of 68
Huntingdon Title V Permit as appropriate. The Parties agree that the incorporation of any requirements of this Consent Decree into the Rockview Title V Permit, into the Laurel Highlands Title V Permit, and into the Huntingdon Title V Permit shall be in accordance with the Commonwealth of Pennsylvania's federally approved Title V provisions.
72. The Defendants shall provide the United States with a copy of each application for a federally enforceable permit or plan approval to allow for timely participation in any public comment opportunity.
73. Notwithstanding the reference to Title V permits in this Consent Decree, the enforcement of such permits shall be in accordance with their own terms and the Act. The TitleV permits shall not be enforceable under this Consent Decree, although any term or limit established by or under this Consent Decree shall be enforceable under this Consent Decree regardless of whether such term or limit has or may become part of a Title V permit.
74. Prior to termination of this Consent Decree, in accordance with federal and/or state requirements for issuing, modifying or renewing a Title V permit or other operating permit, the Defendants shall obtain enforceable provisions in their Title V permits for the Huntingdon, Laurel Highlands, and Rockview Facilities and in an enforceable operating permit for the Muncy Facility which incorporate
45

,
Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 49 of 68
the requirements and limitations from Sections IV through VII of this Consent Decree.
XVII. INFORMATION COLLECTION AND RETENTION 75. Any authorized representative of the United States, including its
attorneys, contractors, and consultants, upon presentation of credentials, shall have
a right of entry upon the premises of any facility covered under this Consent Decree at any reasonable time for the purpose of:
a. monitoring the progress of activities required under this Consent
Decree;
b. verifYing any data or information submitted to the United States in
accordance with the terms of this Consent Decree;
c. obtaining samples and, upon request, splits of any samples taken by
the Defendants or their representatives, contractors, or consultants;
and d. assessing the Defendants' compliance with this Consent Decree. 76. The Defendants shall retain, and instruct their contractors and agents to preserve, all non-identical copies of all records and documents (including records
and documents in electronic form) now in their or their contractors' or agents'
possession or control, and that directly relate to the Defendants' performance of 46

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 50 of 68

their obligations under this Consent Decree, until December 31 ,2020. This record

retention requirement shall apply regardless of any document retention policy to

the contrary.

77. All information and documents submitted by the Defendants pursuant

to this Consent Decree shall be subject to public disclosure based on requests

under applicable law providing for such disclosure unless (a) the information and

documents are subject to legal privileges or protection or (b) the Defendants claim

and substantiate in accordance with 40 C.F.R. Part 2 that the information and

documents contain confidential business information.

78. Nothing in this Consent Decree shall limit the authority of the United

States to conduct tests and inspections at facilities covered under this Consent

Decree under Section 114 of the Act, 42 U.S.C. § 7414, or any other applicable

federal or state laws, regulations or permits.

XVIII. NOTICES

79. Unless otherwise provided herein, whenever notifications, submissions,

or communications are required by this Consent Decree, they shall be made in

'.

writing and addressed as follows:

For the United States of America: Chief, Environmental Enforcement Section Environment and Natural Resources Division
47

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 51 of 68
u.s. Department of Justice
P.O. Box 7611, Ben Franklin Station Washington,D.C. 20044-7611 DOJ# 90-5-2-1-09099 and James Hagedorn U. S. EPA, Region 3 Air Protection Division 1650 Arch Street (3AP 12) Philadelphia, PA 19103 and Donna Mastro, Esq. U. S. EPA, Region 3 Office of Regional Counsel 1650 Arch Street (3RC 10) Philadelphia, PA 19103
48

...• ~:, •

' . . . :•• c.· -,,: . .0',.

.' .',. > • ". " •

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 52 of 68

For PADEP:

For the Rockview and Muncy Facilities:

Commonwealth of Pennsylvania Department of Environmental Protection

!

Northcentral Regional Office

Environmental Program Manager

Air Quality Program

208 West Third Street, Suite 101

Williamsport, PA 17701-6448

"

For the Laurel Highlands Facility:

Commonwealth of Pennsylvania Department of Environmental Protection Southwest Regional Office Air Quality Program Manager 400 Waterfront Drive Pittsburgh, PA 15222-4745

For the Huntingdon Facility:

Commonwealth of Pennsylvania Department of Environmental Protection Southcentral Regional Office Environmental Program Manager Air Quality Program 909 Elmerton Avenue Harrisburg, PA 17110

49

·.; . .-. -
Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 53 of 68

For the Defendants:

For the Department ofCorrections:

,
• ,

Deputy Secretary for Administration Department of Corrections 2520 Lisburn Rd PO Box 598 Camp Hill, PA 17001-0598

Director, Bureau of Operations Department of Corrections 2520 Lisbum Rd POBox 598 Camp Hill, PA 17001-0598

Chief Counsel Department of Corrections 2520 Lisbum Rd PO Box 598 Camp Hill, PA 17001-0598

For the Department ofGeneral Services:

Deputy Secretary for Public Works Department of General Services 18th & Herr Streets Harrisburg, PA 17125

Director, Bureau of Engineering & Architecture Department of General Services 18th and Herr Streets Harrisburg, PA 17125

50

. . . '.~ -

..'-- - .

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 54 of 68

Chief Counsel Department of General Services 603 North Office Building Harrisburg, PA 17125

80. As permitted in this Consent Decree, electronic mail notification to

EPA may be provided to Donna Mastro of EPA and James Hagedorn of EPA

through mastro.donna@epa.gov and hagedorn.james@epa.gov.

81. All notifications, communications or submissions made pursuant to this

Section shall be sent either by: (a) overnight mail or delivery service; (b) certified

or registered mail, return receipt requested; or (c) electronic transmission, unless

the recipient is not able to review the transmission in electronic form. All

notifications, communications and transmissions (a) sent by overnight, certified or

registered mail shall be deemed submitted on the date they are postmarked, or (b)

sent by overnight delivery service shall be deemed submitted on the date they are

delivered to the delivery service. All notifications, communications, and

".

submissions made by electronic means shall be electronically signed and certified,

and shall be deemed submitted on the date that the Defendants receive written

acknowledgment of receipt of such transmission.

51

- - --_ · ....".. ... •...

..... .. ._.-•..

.• - .~., -

~.

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 55 of 68

,,
82. Any Party may change either the notice recipient or the address for providing notices to it by serving the other Party with a notice setting forth such new notice recipient or address.
XIX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS 83. If the Defendants propose to sell or transfer part or all of their ownership interest in any of their real property or operations subject to this Consent Decree ("Ownership Interest") to an entity unrelated to the Defendants ("Third Party Purchaser"), they shall advise the Third Party Purchaser in writing of the existence of this Consent Decree prior to such sale or transfer, and shall send a copy of such written notification to the United States pursuant to Section XVIII (Notices) at least sixty (60) days before such proposed sale or transfer. 84. No sale or transfer of an Ownership Interest shall take place before the Third Party Purchaser and the United States have executed, and the Court has approved, a modification pursuant to Section XXII (Modification) of this Consent Decree making the Third Party Purchaser a party defendant to this Consent Decree and jointly and severally liable with the Defendants for all the requirements of this Consent Decree that may be applicable to the transferred or purchased Ownership Interests, except as provided in Paragraph 85 , below.

52

>. '" .....~•.~ •••• -.~••••• __ ••• _ • . .;.
Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 56 of 68

85, This Consent Decree shall not be construed to impede the transfer of

any Ownership Interests between the Defendants and any Third Party Purchaser as

long the requirements of this Consent Decree are met. In addition, this Consent

Decree shall not be construed to prohibit a contractual allocation- as between the

Defendants and any Third Party Purchaser of Ownership Interests-of the burdens

of compliance with this Decree, provided that both the Defendants and such Third

Party Purchaser shall remain jointly and severally liable to the United States for

the obligations of the Decree applicable to the transferred or purchased Ownership

Interests, except as provided in Paragraph 85,

86, If the United States consents, it may join the Defendants, and the Third

Party Purchaser that has become a party defendant to this Consent Decree pursuant

to Paragraph 83 , in executing a modification that relieves the Defendants of their

liability, and that makes the Third Party Purchaser liable, for all obligations and

liabilities under this Consent Decree applicable to the purchased or transferred

" "

Ownership Interests, Notwithstanding the foregoing, however, the Defendants

may not assign, and may not be released from, any obligation under this Consent

Decree that is not specific to the purchased or transferred Ownership Interests,

including the obligations set forth in Section IX (Civil Penalty),

53

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 57 of 68

XX. EFFECTIVE DATE

87. The effective date of this Consent Decree shall be the date upon which

this Consent Decree is entered by the Court.

XXI. RETENTION OF JURISDICTION

88. Continuing Iurisdiction. The Court shall retain jurisdiction of this case

.

after entry of this Consent Decree to enforce compliance with the terms and

;

i

conditions of this Consent Decree and to take any action necessary or appropriate

;

for its interpretation, construction, execution, modification, or adjudication of

disputes. During the term of this Consent Decree, any Party to this Consent

Decree may apply to the Court for any relief necessary to construe or effectuate

this Consent Decree.

XXII. MODIFICATION

89. The terms of this Consent Decree may be modified only by a

subsequent written agreement signed by all Parties. Where the modification

constitutes a material change to any term of this Consent Decree, it shall be

effective only upon approval by the Court.

54

, , ,, .. .~'

... ...;

.,-. .

" ..

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 58 of 68

XXIII. GENERAL PROVISIONS

90. This Consent Decree is not a permit. Compliance with the terms of this

,

Consent Decree does not guarantee compliance with all applicable federal. state,

i

or local laws or regulations.

91. Nothing in this Consent Decree shall relieve the Defendants of their

obligations to comply with all applicable federal, state, and local laws and

regulations. Nothing contained in this Consent Decree shall be construed to

prevent or limit the rights of the United States to obtain penalties, injunctive relief

or other relief under the Act or other federal, state, or local statutes, regulations, or

permits.

92. This Consent Decree does not apply to any claim(s) of alleged criminal

liability.

93. In any subsequent administrative or judicial action initiated by the

United States for injunctive relief or civil penalties relating to the facilities

covered by this Consent Decree, the Defendants shall not assert any defense or

claim based upon principles of waiver, J:§ judicata, collateral estoppel, issue

preclusion, claim preclusion, or claim splitting, or any other defense based upon

the contention that the claims raised by the United States in the subsequent

proceeding were brought, or should have been brought, in the instant case.

55

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 59 of 68
94. Every term expressly defined by this Consent Decree shall have the meaning given to that term by this Consent Decree and, except as otherwise provided in this Consent Decree, every other term used in this Consent Decree that is also a term under the Act or the regulations implementing the Act shall mean in this Consent Decree what such term means under the Act or those implementing
regulations.
95. Nothing in this Consent Decree is intended to, or shall, alter or waive any applicable law (including but not limited to any defenses, entitlements, challenges, or clarifications related to the Credible Evidence Rule, 62 Fed. Reg. 8315 (Feb. 27, 1997» concerning the use of data for any purpose under the Act, generated either by the reference methods specified herein or otherwise.
96. Each limit and/or other requirement established by or under this
Consent Decree is a separate, independent requirement.
97. This Consent Decree does not limit, enlarge or affect the rights of any Party to this Consent Decree as against any third parties.
98. This Consent Decree constitutes the final, complete and exclusive agreement and understanding among the Parties with respect to the settlement embodied in this Consent Decree, and supersedes all prior agreements and understandings among the Parties related to the subject matter herein. No
56

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 60 of 68
document, representation, inducement, agreement, understanding, or promise constitutes any part of this Consent Decree or the settlement it represents, nor shall it be used in construing the terms of this Consent Decree.
99. The United States and the Defendants shall bear their own costs and attorneys' fees.
XXIV. SIGNATORIES AND SERVICE 100. The undersigned representatives of Defendants and the Assistant Attorney General for the United States each certifY that he or she is duly authorized to enter into the terms and conditions of this Consent Decree and to execute and legally bind the Party he or she represents to the terms of the Decree. 101. This Consent Decree may be signed in counterparts, and such counterpart signature pages shall be given full force and effect. 102. Each Party hereby agrees to accept service of process by mail with respect to all matters arising under or relating to this Consent Decree and to waive the formal service requirements set forth in Rule 4 of the Federal Rules of Civil Procedure and any applicable Local Rules of this Court including, but not limited to, service of a summons.
57

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 61 of 68

XXV. PUBLIC COMMENT

103. The Parties agree and acknowledge that final approval by the United

States and entry of this Consent Decree is subject to the procedures of28 C.F.R. §

50.7, which provides for notice of the lodging of this Consent Decree in the

Federal Register, an opportunity for public comment, and the right of the United
;:
States to withdraw or withhold consent if the comments disclose facts or

considerations which indicate that the Consent Decree is inappropriate, improper,

or inadequate. The Defendants shall not oppose entry of this Consent Decree by

"

this Court or challenge any provision of this Consent Decree unless the United

States has notified the Defendants, in writing, that the United States no longer

supports entry ofthe Consent Decree.

XXVI. TERMINATION

104. This Consent Decree may be terminated after the Defendants have

complied for at least forty-eight (48) consecutive months with the requirements in
Sections IV through vrr of this Consent Decree, and have made the payment of all

civil and stipulated penalties in Sections IX and XIII.

105. To terminate this Consent Decree, the Defendants shall submit to the

United States, and EPA an affidavit signed by a person responsible for

environmental management and compliance for PA Department of Corrections

58

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 62 of 68

.........," .... :.

that certifies, in accordance with Paragraph 41, that the Defendants have completed and complied with Sections IV through VIII of this Consent Decree. In addition, the Defendants' affidavit shall state that the Defendants have complied with those provisions for forty-eight consecutive months. The United States shall either: (a) submit the affidavit of the Defendants to the Court, with a notice that the United States does not object to the termination of this Consent Decree; or (b) notify the Defendants that the United States does not agree that the Defendants have completed and complied with the requirements in Sections IV through VIII of this Consent Decree. In the latter event, the Parties shall attempt to resolve the disagreement within thirty (30) days after the Defendants receive the notice of disagreement from the United States. If the Parties are unable to resolve the disagreement, the Defendants shall petition the Court to resolve the disagreement. If the United States does not (a) submit the Defendants' affidavit to the court or (b) notify the Defendants of its disagreement with the affidavit on or before the 120th day after receiving the affidavit, the Defendants may submit a motion to the Court for termination which the United States may oppose. Ifthe Defendants petition the Court to resolve a dispute with the United States over termination, or if the Defendants submit a motion for termination to the Court, the Defendants
59

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 63 of 68

shall bear the burden of proving in such proceedings that it has complied with the

provisions in Sections IV through VIII of this Consent Decree.
,,
xxvn. FINAL JUDGMENT

106. Upon approval and entry of this Consent Decree by the Court, this

,

Consent Decree shall constitute a final judgment in the above-captioned matter

.• ' .

between the United States and the Defendants.

SO ORDERED, THIS _ _ DAY OF _ _ __ _--', 2010.

UNITED STATES DISTRICT COURT JUDGE
, ,

60

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 64 of 68

·..., .~.......

FOR THE UNITED STATES OF A M E R I C A : " /

Dafl~j;D

~RE~~~

Assistant Attorney General Environmental and Natural Resources Division United States Department of Justice

---, ?re. 1_____

• ,

KATHERlNE M. KANE

Senior Attorney

Environmental Enforcement Section

Environment and Natural Resources Division

United States Department of Justice

47

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 65 of 68
.·,
[RESERVED: THIS PAGE LEFT INTENTIONALLY BLANK]
48

- ·. _..... .... . ...•

' -"

., .

, " _ . · .·• • •__ • • • • • _·._~ • • • • • • • •· _. . . A •• _

A .._ .

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 66 of 68

__ FOR U.S. ENVIRONMENTAL PROTECTm;':;:;

J/zq!{O

d;tl{~~·( :~£'~:;'2/~'

Date

~WNM.GARVIN

Regional Administrator U.S. EPA Region III

,,,

1650 Arch Street

Regional Counse l U.S. EPA Region III 1650 Arch Street Phi adelphia, PA 19103

Seni o r Assistant Regional Counsel

,

U.S. EPA Region III

1650 Arch Street

Philadelphia, PA 10 I03

,
• 49

.' •.'.. . "..'.',,-- .. _',........... ._.... .

'_ _ . .. _....'.. _.._.. ... .. ...,..... .~..

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 67 of 68

FOR THE COMMONWEALTH OF PENNSYLVANIA: COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS

COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF GENERAL SERVICES

Secretary GOVERNOR

Date

7 I

Edward G. Rendell

Date

Approved for Form and Legality:

unse De artment of Corrections

Date I

Office of Chief Counsel

Date

gepartment of General SerVices

C:::2r-

50

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 68 of 68
,i ,, .
Date
Offi~Attorney Counsf!
,
•
51

 
 Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 1 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 1 of 68

IN TIlE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

f::/LI!;'"

NARFUSB LJ

,

URG, PA

UNITED STATES OF AMERICA,

)

", ::: t! ."(- -I} '.J• t'.>.,0 if

,~

MARY~

)

Per . O'ANDF1

)

Plaintiff,

)

)

v.

)

li: ) Civil Action No: 10- OJ-l{,-=r~

)

COl\1MONWEALTH OF PENNSYLVANIA )

DEPARTMENT OF GENERAL SERVICES and )

DEPART11ENT OF CORRECTIONS,

)

)

Defendants.

)

-------------------------------)

CONSENT DECREE & 3UDGKENT

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 2 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 2 of 68

~ _. -.'.-. _ "- . ' - --

TABLE OF CONTENTS
I. JURISDICTION AND VENUE ..................................... 3 II. APPLICABILITY ............................................. . . 4 III. DEFINITIONS ....................................' ............. 5 IV. ROCKVIEW EMISSION REDUCTIONS AND CONTROLS .......... 10 V. MUNCY EMISSION REDUCTIONS AND CONTROLS ....... . ...... 14 VI. LAUREL IDGHLANDS EMISSION REDUCTIONS AND CONTROLS .. 18 VII. HUNTINGDON EMISSION REDUCTIONS AND CONTROLS ....... 19 VIII. PERFORMANCE TESTING ................................... 22 IX. CIVIL PENALTY ............................................. 24 X. RESOLUTION OF CLAIMS ..................................... 25 XI. PERIODIC REPORTING ....................................... 26 XII. REVIEW AND APPROVAL OF SUBMITTALS .................... 28 XIII. STIPULATED PENALTIES ................................... . 29 XIV. FORCE MAJEURE ........................................... 36 XV. DISPUTE RESOLUTION ..... . .............................. . . 40 XVI. PERMITS .................................................. 42
ii

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 3 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 3 of 68

XVII. INFORMATION COLLECTION AND RETENTION .............. 46

XVIII. NOTICES ................................................. 47
,

XIX. SALES OR TRANSFERS OF OWNERSIDP INTERESTS ........... 52

-~

XX. EFFECTIVE DATE ........................................... 54

XXI. RETENTION OF JURISDICTION .............................. 54

XXII. MODIFICATION ............................................ 54

XXIII. GENERAL PROVISIONS .................................... 55

XXIV. SIGNATORIES AND SERVICE ............................... 57

XXV. PUBLIC COMlVIENT ........................................ 58

XXVI. TERMINATION ............ . ............................... 58

XXVII. FINAL JUDGMENT ........................................ 60

iii

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 4 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 4 of 68
WHEREAS, Plaintiff, the United States of America ("United States"), on behalf of the United States Environmental Protection Agency ("EPA") has filed a Complaint for injunctive relief and civil penalties pursuant to Section 113(b) of the Clean Air Act (the "Act" or "CAA"), 42 U.S.C. § 7413(b), alleging that the Defendants, the Commonwealth of Pennsylvania's Department of Corrections ("PA Department of Corrections") and the Commonwealth of Pennsylvania's Department of General Services ("PA Department of General Services") (collectively referred to as the "Defendants"), violated the Clean Air Act (lithe Act"), 42 U.S.C. §§ 7401 et seq., at four state correctional institutions;
WHEREAS, the PA Department of General Services owns and PA Department of Corrections operates the State Correctional Institution at Muncy ("Muncy Facility") in Lycoming County, Muncy, Pennsylvania, the State Correctional Institution at Rockview ("Rockview Facility") in Centre County, Bellefonte, Pennsylvania, the State Correctional Institution at Huntingdon ("Huntingdon Facility") in Huntingdon County, Huntingdon, Pennsylvania, and the State Correctional Institution at Laurel Highlands ("Laurel Highlands Facility") in Somerset County, Somerset, Pennsylvania;
WHEREAS, in the Complaint, the United States alleges, inter alia, that the
1

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 5 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 5 of 68
Defendants are in violation of Sections 110 and 113 of the Act, 42 U.S.C. §§ 7410 and 7413, through their failure to operate boilers in compliance with applicable particulate matter emission limits provided in the Commonwealth of Pennsylvania's State Implementation Plan ("Pennsylvania SIP") at the Muncy, Rockview, and Laurel Highlands Facilities and their failure to operate boilers in compliance with the applicable opacity limits provided in the Pennsylvania SIP at the Muncy, Rockview, Huntingdon, and Laurel Highlands Facilities and that the Defendants are in violation of Section 502 of the Act, 42 U.S.C. § 7661a, through the Defendants' failure to comply with the requirements in Rockview's Title V permit, Huntingdon's Title V permit and Laurel Highland's Title V permit;
WHEREAS, the Complaint alleges claims upon which relief can be granted against the Defendants under Sections 113 and 502 of the Act, 42 U.S.C. §§ 7413 and 7661a;
WHEREAS, the United States provided the Defendants and the Commonwealth ofPennsylvania's Department ofEnvironmental Protection ("PADEP") with actual notice of the alleged violations in accordance with Section 113(a)(1) and (b) of the Act, 42 U.S.C. § 7413(a)(I) and (b);
WHEREAS, the Parties have agreed that settlement of this action is in the
2

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 6 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 6 of 68
best interest of the Parties and in the public interest, and that entry of this Consent Decree without further litigation is the most appropriate means of resolving this matter;
WHEREAS, the Parties recognize, and the Court by entering this Consent Decree finds, that this Consent Decree has been negotiated in good faith and at ann's length and that this Consent Decree is fair, reasonable, consistent with the goals of the Act, and in the public interest; and
WHEREAS, the Parties have consented to entry of this Consent Decree without trial of any issues;
NOW, THEREFORE, without any admission of fact or law, it is hereby ORDERED, ADJUDGED, AND DECREED as follows:
I. JURISDICTION AND VENUE 1. This Court has jurisdiction over this action, the subject matter herein, and the Parties consenting hereto, pursuant to 28 U.S.C. §§ 1331, 1345, 1355, and 1367, and pursuant to Sections 113 and 502 of the Act, 42 U.S.C. §§ 7413 and 7661a. Venue is proper under Section 113(b) of the Act, 42 U.S.C. § 7413(b), and under 28 U.S.C. § 1391(b) and (c). Solely for the purposes of this Consent Decree and the underlying Complaint, the Defendants waive all objections and defenses
3

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 7 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 7 of 68
that they may have to the Court's jurisdiction over this action, to the Court's jurisdiction over the Defendants, and to venue in this District. The Defendants shall not challenge the terms of this Consent Decree or this Court's jurisdiction to enter and enforce this Consent Decree. For purposes of the Complaint filed by the United States in this matter and resolved by the Consent Decree, and for purposes of entry and enforcement of this Consent Decree, the Defendants waive any defense or objection based on standing. Except as expressly provided for herein, this Consent Decree shall not create any rights in any party other than the Parties to this Consent Decree. Except as provided in Section XXV (Public Comment) of this Consent Decree, the Parties consent to entry of this Consent Decree without further notice.
II. APPLICABILITY 2. The provisions of this Consent Decree shall, upon entry, apply to and be binding upon the Defendants and their agents, employees, contractors, successors and assigns. 3. The Defendants shall provide a copy of this Consent Decree to all vendors, suppliers, consultants, contractors, agents, and any other company or other organization retained to perform any of the work required by this Consent
4

r - - - -.- ---- - - - ,. . "
I

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 8 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 8 of 68

Decree. Notwithstanding any retention of contractors, subcontractors, or agents to perform any work required under this Consent Decree, the Defendants shall be responsible for ensuring that all work is performed in accordance with the requirements of this Consent Decree. In any action to enforce this Consent Decree, the Defendants shall not assert as a defense the failure of their officers, directors, employees, servants, agents, or contractors to take actions necessary to comply with this Consent Decree, unless it is determined to be a Force Majeure Event and satisfies the Force Majeure provisions of this Consent Decree.
III. DEFINITIONS 4. Unless otherwise expressly provided herein, the terms used in this Consent Decree that are defined in the Clean Air Act or its implementing regulations shall have the meaning assigned to them in the Clean Air Act and its regulations. Whenever the terms listed below are used in this Consent Decree, however, the following definitions shall apply: "Baghouse" means a device or facility in which particulates are removed from a stream of exhaust gases as the stream passes through various fabric bags before the stream is discharged to the atmosphere. "Clean Air Act" or "Act" means the federal Clean Air Act, 42 U.S.C.
5

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 9 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 9 of 68
§§7401-7671q, and its implementing regulations. "Consent Decree" means this Consent Decree. "Defendants" means the Commonwealth of Pennsylvania Department of
General Services and the Commonwealth of Pennsylvania Department of Corrections.
"EPA" means the United States Environmental Protection Agency. "Huntington Facility" means the State Correctional Institution at Huntingdon in Huntingdon County, Huntingdon, Pennsylvania. The Huntington Facility includes four Units - Units 1,2,3 and 4 - all of which burn bituminous coal. Units 1 and 2 were installed in 1933 and share an exhaust stack. Unit 3 was installed in 1950 and vents directly to the same stack as Units 1 and 2. Unit 4 was installed in 1966 and exhausts to its own stack. "Huntingdon Title V Permit" means the Title V permit #TV-31-05001, issued on July 12,2005 and effective on August 1,2005 for the Huntingdon Facility pursuant to Subchapter V of the Act, 42 U.S.C. §§ 7661-7661e. "Laurel Highlands Facility" means the State Correctional Institution at Laurel Highlands in Somerset County, Somerset, Pennsylvania. The Laurel Highlands Facility includes three Units - Units 1,2, and 3 - all of which burn
6

, - - - - - - - - -- - -_ .._-_._-- -_._--_.
Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 10 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 10 of 68
bituminous coal, and all of which were built in 1950. "Laurel Highlands Title V Permit" means the Title V permit #TV-56-00257,
issued and effective on January 26, 2000 for the Laurel Highlands Facility pursuant to Subchapter V of the Act, 42 U.S.C. §§ 7661-7661e.
"lb/l.\tIl\1Btu" means one pound of total particulate matter per million British thermal units of heat input.
"Malfunction" means malfunction as that tenn is defined under 40 C.F.R. § 60.2.
"Muncy Facility" means the State Correctional Institution at Muncy in Lycoming County, Muncy, Pennsylvania. The Muncy Facility includes four Units - Units 1,2,3, and 4. Units 1,2 and 3 were built in 1964 and bum anthracite coal; Unit 4 was built in 2003 and burns natural gas.
"PADEP" shall mean the Pennsylvania Department of Environmental Protection.
"Parties" means the United States of America and the Commonwealth of Pennsylvania including the PA Department of General Services and the PA Department of Corrections. "Party" means one of the named "Parties."
"PM" means total particulate matter, measured in accordance with the
7

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 11 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 11 of 68
provisions of this Consent Decree. "PM Emission Rate" means the average number of pounds of PM emitted
per million British thermal units of heat input ("lbslMrvlBtu") from a boiler stack, as measured in an annual stack test from the boiler stack, in accordance with the reference method set forth in 40 C.F.R. Part 60, Appendix A, Method 5 (filterable portion only) or Method 17 (filterable portion only).
"Rockview Facility" means the State Correctional Institution at Rockview in Centre County, Bellefonte, Pennsylvania. The Rockview Facility includes four Units - Units 1,2,3, and 4. Units 1,2, and 3 all burn bituminous coal. Unit 1 was built in 1954, Unit 2 in 1967, and Unit 3 in 1955. Unit 4 bums natural gas and was built in 2002.
"Rockview Title V permit" means the Title V Operating Permit # 14-00005, issued June 25, 2004, to PA Department of Corrections for the Rockview Facility pursuant to Subchapter V of the Act, 42 U.S.C. §§ 7661-7661e.
"Standby Mode" as used in this Consent Decree for the Muncy Facility means that the unit or boiler is maintained in a hot condition with steam in the drum at or near normal operating pressure such that the unit or boiler can be brought on line and up to full load within one hour or less, versus a cold boiler
8

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 12 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 12 of 68
which takes eight to ten hours to be properly brought up to full load. The "Standby Mode" unit has a slowly burning coal bed on the grates with neither the stoker nor forced draft fan running. The induced draft fan is running to maintain a slightly negative furnace pressure to prevent combustion gases from leaking out onto the operating floor and presenting a hazard to personnel. The slowly burning coal bed provides sufficient heat to keep the unit or boiler hot and maintain steam in the steam drum but is insufficient to produce steam for delivery to the Muncy Facility. Periodic feedwater input is required to account for continuous blowdown losses. Maintaining the "Standby Mode" condition requires the following group of activities be performed on a periodic basis:
1. The coal bed is manually pushed away from the front wall to ensure no clinker build up. 2. Ash is dumped to the hoppers. 3. The stoker is started at minimum speed to replenish the coal bed. Due to system design this also causes the forced draft fan to run at minimum speed, thereby introducing a small amount of combustion air. This results in a slightly increased coal firing rate and the subsequent production of a small amount of steam. The steam production ceases as soon as the stoker and fan are turned off at the end of coal bed replenishment. "Unit" means, for the purposes of this Consent Decree, collectively, the
9

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 13 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 13 of 68
stationary equipment that feeds coal to the boiler, the boiler that produces steam, the equipment necessary to operate the boiler, and all ancillary equipment, including pollution control equipment and systems necessary for the production of steam.
IV. ROCKVIEW EMISSION REDUCTIONS AND CONTROLS 5. No later than December 31,2010, the Defendants shall install and commence continuous operation of a baghouse for PM control for Units 1, 2, and
3 at the Rockview Facility. Defendants shall install a baghouse for Units 1, 2, and
3 at the Rockview Facility which has been approved in writing in advance by EPA. EPA's decision to approve the baghouse required pursuant to this Paragraph shall be within EPA's sole and unreviewable discretion.
6. After December 31,2010, the Defendants shall not operate Unit 1,2, or 3 at the Rockview Facility when the baghouse required by Paragraph 5 is not in continuous operation. The Defendants' obligation to "continuously operate" the new baghouse means that the Defendants must operate the baghouse at all times that any or all of the Units associated with this control are in operation and combusting fuel, consistent with the technological limitations, manufacturers'
10

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 14 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 14 of 68
specifications to the extent practicable, and good engineering and maintenance practices for PM control technology.
a. Notwithstanding the foregoing, the Defendants need not operate the baghouse during periods of Malfunction of the baghouse provided that the Defendants satisfy the requirements for Malfunction as set forth in Paragraph 61 and 40 C.F.R § 60.2. If there is a Malfunction pursuant to Paragraph 61 and 40 C.F.R § 60.2 at any of the Units at the Rockview Facility, Defendants must still continuously operate the baghouse to control PM from any or all Units which are in operation and combusting fuel.
7. The Defendants shall at all times comply with the requirements set forth in the Rockview Title V Permit for Units 1, 2, and 3 until those Units cease operation and are replaced in accordance with this Section. These requirements include Condition 006 in Section C of the Rockview Title V Permit, which requires the Defendants to burn only bituminous coal at Units 1,2, and 3 that
..
I
meets the following specifications for fuel physical characteristics:
11

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 15 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 15 of 68
a. heating value of at least 13,400 British Thennal Units ("BTU") (dry basis);
b. ash content of no more than 12% (dry basis); and c. sulfur content of no more than HV/4875 (in % sulfur) where
HV=heating value. The Defendants shall collect samples from each truckload of bituminous coal received. From these samples, the Defendants shall test and analyze the bituminous coal on a weekly basis. The Defendants shall submit to PADEP and EPA all coal sampling documents demonstrating compliance or non-compliance with Condition 006 within five (5) calendar days of creating or receiving documents demonstrating the fuel physical characteristics of the bituminous coal that the Rockview Facility receives and bums. 8. The Defendants may, after obtaining written approval from EPA and notifying PADEP, remove and pennanently retire Units 1,2, or 3 from the Rockview Facility and replace such Units with new Units. Such new Units shall be subject to all applicable federal and state environmental regulations and pennitting requirements, including the installation of emission control technologies required at that time under federal and state regulations. EPA's
12

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 16 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 16 of 68
decision to approve the replacement of Units 1,2, and/or 3 shall be within EPA's sole and unreviewable discretion.
9. The Defendants shall obtain all applicable pennits and/or plan approvals from PADEP before commencing any activity related to installing the baghouse required by Paragraph 5 or installing any new Unit at the Rockview Facility. The Defendants shall at all times comply with the Pennsylvania SIP and any revised permits, including the Rockview Title V Permit, for the new Units.
10. The Defendants shall at all times achieve and maintain a PM Emission Rate of no greater than 0.4 IblMMBtu at the Rockview Facility Units in accordance with the Pennsylvania SIP. The Defendants shall at all times also achieve and maintain at these Units the visible emission standard established in 25 Pa. Code § 123.41 of the Pennsylvania SIP. Any new Units at the Rockview Facility shall also comply with all applicable requirements in the Pennsylvania SIP and the Act.
11. The Defendants shall at all times operate all of the Units at the Rockview Facility in accordance with good combustion practices, good air pollution control practices, and good operating practices to minimize opacity and PM emissions.
13

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 17 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 17 of 68
v. MUNCY EMISSION REDUCTIONS AND CONTROLS
12. No later than March 31,2009, the Defendants shall cease operation of Units 1,2, and 3 at the Muncy Facility, which bum coal, and shall commence sole operation of Unit 4 at the Muncy Facility, which shall bum gas and oil. The Defendants may operate Unit lor Unit 2 at the Muncy Facility in a Standby Mode after March 31, 2009 as long as only one coal-fired Unit (Unit 1 or Unit 2) is operating in Standby Mode at any given time. The Defendants shall not otherwise operate these coal-fired Units (Unit 1 or Unit 2) without prior written approval from EPA which shall be within EPA's sole discretion. Defendants may not operate Unit 3 at the Muncy Facility in any capacity unless Defendants comply with all requirements in the Pennsylvania SIP and in the Act including, but not limited to, requirements for permits and for the installation of required emission control technologies and unless Defendants obtain prior written approval from EPA which shall be within EPA's sole discretion. Notwithstanding the foregoing:
a. the Defendants may operate Unit 1 or Unit 2 at the Muncy Facility after March 31 , 2009 on an emergency basis if Unit 4 becomes non-operational due to a Malfunction as defined in this Consent Decree as long as Defendants comply with
14

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 18 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 18 of 68
Paragraph 61 in this Consent Decree and 40 C.F.R § 60.2; provided, however, that the Defendants shall be liable for the stipulated penalties stated herein in Paragraph 44 if the Defendants do not obtain express written consent and approval from EPA to operate Unit 1 or Unit 2 on an emergency basis during a Malfunction of Unit 4 after providing notice in accordance with Paragraph 61 ;
h. the Defendants may operate Muncy Facility Unit 1 or Unit 2 on
more than a Standby Mode if they install and commence continuous operation of a baghouse or electrostatic precipitator on the Unit after submitting a proposal to EPA for such installation and obtaining written approval from EPA to do so and after receiving all permits required by the Act and the Pennsylvania SIP; c. the Defendants may operate Muncy Facility Unit 1 or Unit 2 on more than a Standby Mode if they convert the Unit to bum only natural gas, and not any coal or oil, after SUbmitting a proposal to EPA for such conversion and obtaining written approval
15

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 19 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 19 of 68
from EPA to do so and after receiving all permits required by the Act and the Pennsylvania SIP. d. the Defendants may, after obtaining written approval from EPA, remove and permanently retire Units 1,2, and/or 3 from the Muncy Facility and replace such Unit with new Units. Such new Units shall be subject to all applicable federal and state environmental regulations and permitting, including the installation of emission control technologies required at that time under federal and state regulations. 13. EPA's decision to approve the restarting of Unit I or Unit 2 beyond Standby Mode, or to authorize any of the alternatives set forth in the preceding Par~graph, shall be within EPA's sole and unreviewable discretion. 14. The Defendants shall obtain all applicable permits and/or plan approvals from PADEP before commencing any activity retrofitting, modifying, restarting, or rebuilding Units 1,2, or 3, or before installing any new Unit, at the Muncy Facility. The Defendants shall at all times comply with the Act, the Pennsylvania SIP and any permits for the new, retrofitted, or modified Unites) at the Muncy Facility and for Units 1,2,3 and 4 at the Muncy Facility.
16

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 20 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 20 of 68
15. The Defendants shall comply with the Pennsylvania SIP PM Emission Rate ofO.4lblMM Btu of heat input for Unit 1 and Unit 2 at the Muncy Facility and for any new Units at the Muncy Facility and shall comply with any more stringent PM emissions standard found applicable to Units 1, 2, and/or 3 or to any new Units at the Muncy Facility. The Defendants shall also comply with the Pennsylvania SIP and the Pennsylvania SIP visible emission standard (25 Pa. Code § 123.41) for Unit 1 and Unit 2 and for any new Units at the Muncy Facility.
16. The Defendants shall at all times operate all of the Units at the Muncy Facility in accordance with good combustion practices, good air pollution control practices, and good operating practices to minimize opacity and PM emissions.
17. If Defendants operate Unit 1 or Unit 2 beyond Standby Mode at the Muncy Facility due to a Malfunction in accordance with Paragraphs 12(a) and 61, the Defendants shall provide notice to EPA in accordance with Section XVIII of this Consent Decree no later than twenty-four (24) hours after Defendants operate Unit 1 or Unit 2 beyond Standby Mode. The notice to EPA may be by electronic mail in accordance with Paragraph 79.
17

--------- ----- ----- - - - - - -- - -
Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 21 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 21 of 68
VI. LAUREL HIGHLANDS EMISSION REDUCTIONS AND CONTROLS
18. No later than June 30, 2011, the Defendants shall cease all operation of the existing coal-fired Units 1,2, and 3 at the Laurel Highlands Facility, remove these Units, and surrender any permits related to these Units.
19. By June 30, 2011, the Defendants shall also install and commence continuous operation of three new Units at the Laurel Highlands Facility that combust natural gas or landfill gas.
20. The Defendants shall obtain from PADEP all applicable permits and/or plan approvals required by federal or state law before commencing construction on the new Units at the Laurel Highlands Facility. The Defendants shall complete and submit applications for all permits prior to commencing construction on the new Units. After installation of the new, gas-fired boilers at the Laurel Highlands Facility, the Defendants shall comply with the Pennsylvania SIP PM Emission Rate ofO.4lblMM Btu of heat input (and any more stringent PM emissions standard found applicable to the new gas-fired boilers) and the visible emission standard in the Pennsylvania SIP (25 Pa. Code § 123.41) for the new gas-fired boilers. Until such time as the Defendants cease operation of the coal-fired Units at the Laurel Highlands Facility, the Defendants shall operate the
18

......_------ - - -- - - --
Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 22 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 22 of 68
coal-fired Units at the Laurel Highlands Facility in accordance with good combustion practices, good air pollution control practices, and good operating practices under the Pennsylvania SIP to minimize opacity and emissions of PM in excess of the limits in 25 Pa. Code §§ 123.11 and 123.41.
21. The Defendants shall at all times achieve and maintain a PM Emission Rate of no greater than 0.4 IblMrv1Btu at the Laurel Highlands Facility new or existing Units, in accordance with the Pennsylvania SIP and shall comply with any more stringent PM emissions standard found applicable to the new Units at the Laurel Highlands Facility. The Defendants shall at all times also achieve and maintain the visible emission standard established in 25 Pa. Code § 123.41 of the Pennsylvania SIP at Laurel Highlands Facility new or existing Units.
22. The Defendants shall at all times operate all of the Units at the Laurel Highlands Facility in accordance with good combustion practices, good air pollution control practices, and good operating practices to minimize opacity and PM emissions.
VII. HUNTINGDON EMISSION REDUCTIONS AND CONTROLS 23. No later than June 30, 2012, the Defendants shall cease burning coal at Huntingdon Facility Units 1, 2, 3 and 4. The Defendants shall not restart these
19

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 23 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 23 of 68
coal-fired Units without prior written approval from EPA which shall be within EPA's sole discretion.
24. Notwithstanding the foregoing, the Defendants may request prior written approval from EPA to either:
a. continue burning coal at Units 1,2, 3, and 4 after the installation of an electrostatic precipitator or a baghouse, which must be operational before June 30, 2012, to control PM from Units 1,2,3, and 4;
b. convert Units 1,2, 3, and 4 from coal-fired Units to natural gas-fired Units as long as Units 1,2, 3, and 4 operate while burning solely natural gas and do not bum coal or fuel oil; or
c. remove and permanently retire Units 1, 2, 3 and 4 from the Huntingdon Facility. Any new Units installed at the Huntingdon Facility shall be subject to all applicable federal and state environmental regulations and pollution c<;mtrols at the time the Defendants commence construction on the new Units.
EPA's decision on approval or denial of any of the three alternatives described in this Paragraph is within EPA's sole and unreviewable discretion.
20

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 24 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 24 of 68
25. The Defendants shall obtain all applicable permits and/or plan approvals from PADEP before commencing any activity to retrofit the Units with new emission controls or to install new Unites) at the Huntingdon Facility. The Defendants shall also comply at all times with the Pennsylvania SIP and any revised permits, including the Huntingdon Title V Permit, for the retrofitted or new Units.
26. The Defendants shall at all times achieve and maintain a PM Emission Rate of no greater than 0.4 IblM:MBtu at Huntingdon Facility Units or at any new Units, in accordance with the Pennsylvania SIP and shall comply with any more stringent PM emissions standard found applicable to Units 1, 2, 3 or 4 or to any new Units at the Huntingdon Facility. The Defendants shall at all times also achieve and maintain at these Units or at any new Units the visible emission standard established in 25 Pa. Code § 123.41 of the Pennsylvania SIP.
27. The Defendants shall at all times operate all of the Units at the Huntingdon Facility in accordance with good combustion practices, good air pollution control practices, and good operating practices to minimize opacity and PM emissions.
21

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 25 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 25 of 68 .
VIII. PERFORMANCE TESTING 28. Within 20 days after the Defendants complete the replacement, repowering, or retrofitting of any Unit under this Consent Decree, the Defendants shall submit to EPA and PADEP for review and approval a proposed protocol, consistent with 40 C.F.R. Part 60, for conducting stack tests to measure PM emissions and visible emission opacity at the Units in the Rockview, Muncy, Laurel Highland, and Huntingdon Facilities. The protocol for observing and calculating PM emissions shall conform to 40 C.F.R. Part 60, Appendix A, Method 5 and applicable Pennsylvania law (25 Pa. Code §§ 139.11 and 139.12). The protocol for observing and measuring opacity shall also be based on EPA Reference Test Method 9, and shall be taken during the mass emission PM performance test at each Unit. If EPA notifies the Defendants that revisions to the testing protocol are necessary, the Defendants shall resubmit a revised protocol no later than fifteen (15) days after receipt of EPA's written notification. 29. Within 90 days after the Defendants complete any of the emission control and reduction measures required by Sections IV through VII of this Consent Decree, including the replacement of Units, the repowering of Units, and the installation of emission controls on Units, the Defendants shall conduct a performance stack test to demonstrate that the Units are in compliance with the
22

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 26 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 26 of 68
PM and opacity limitations established by this Consent Decree, the Pennsylvania SIP, and all permits applicable to those Units. This obligation to conduct PM performance stack tests shall not apply, however, to any Unit that bums only natural or landfill gas.
30. If the performance demonstration for PM and opacity shows that a Unit does not meet the required Pennsylvania SIP emission limitations for PM and opacity, the Defendants shall submit a proposal describing alternative emission
controls or measures to EPA and PADEP, within sixty (60) days of completion of
each performance test. Upon approval by EPA and PADEP, the Defendants shall install and commence operation of the approved controls and methods within one year of the Defendants' receipt of notice of approval, or within the time frame set forth in EPA's and PADEP's approval. EPA's decision regarding the approval or denial of alternative controls and methods is within its sole and unreviewable discretion.
31. Subsequently, the Defendants shall conduct annual PM performance testing for PM mass emissions and visible opacity, in -accordance with the approved protocols, EPA regulations, and the Pennsylvania SIP, at each of the Units in the Rockview, Muncy, Laurel Highland, and Huntingdon Facilities. Defendants shall conduct the first annual PM performance test for PM mass
23

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 27 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 27 of 68
emissions and visible opacity at each of the Units in the Rockview, Muncy, Laurel Highland, and Huntingdon Facilities no later than twelve (12) months after the initial performance stack tests for PM and opacity as required by Paragraph 28 are conducted and shall continue conducting such performance stack tests for PM and opacity at each of the Units annually thereafter.
32. The Defendants shall provide written notice to EPA and PADEP no
;f
later than twenty (20) days prior to the initiation of any stack test, and shall submit the results of each stack test to EPA and PADEP within thirty (30) days of completion of each test. The stack test reports shall include information on the volumetric flow rate (dry standard cubic feet per minute), particulate emission concentration (grains per dry standard cubic foot), and particulate emission rate (in IblMMBtu of heat input) for each test.
IX. CIVIL PENALTY 33. Within thirty (30) calendar days after entry of this Consent Decree, the Defendants shall pay to the United States a civil penalty in the amount of $300,000. The civil penalty shall be paid by Electronic Funds Transfer ("EFT") to the United States Department of Justice, in accordance with current EFT procedures, referencing USAO File Number _ _, DO] Case Number 90-5-2-109099, and the civil action case name and case number of this action. Any costs
24

Case 4:10-cv-02672-CCC

Document 7

Filed 03/10/11

Page 28 of 68 • • - - - - - - • & ,

'.

.~

-

_ • • - - . : _ •• -

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 28 of 68

associated with such EFT shall be bourne by the Defendants. Payment shall be made in accordance with instructions provided to the Defendants by the Financial Litigation Unit of the U.S. Attorney's Office for the Middle District of Pennsylvania. Any funds received after 2:00 p.m. EDT shall be credited on the next business day. At the time of payment, the Defendants shall provide notice of payment, referencing the USAO File Number, the DOJ Case Number, and the civil action case name and case number, to the Department of Justice and to EPA in accordance with Section XVIII (Notices) of this Consent Decree.
34. Failure to timely pay the civil penalty shall subject the Defendants to interest accruing from the date payment is due until the date payment is made at the rate prescribed by 28 U.S.C. § 1961, and shall also render the Defendants liable for all charges, costs, fees, and penalties established by law for the benefit of a creditor or of the United States in securing payment.
35. Payments made pursuant to this Section are penalties within the meaning of Section 162(t) of the Internal Revenue Code, 26 U.S.C. § 162(t), and are not tax-deductible expenditures for purposes of federal law.
x. RESOLUTION OF CLAIMS
36. This Consent Decree settles all civil claims alleged in the United States' Complaint against the Defendants for violations of the Act at Laurel
25

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 29 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 29 of 68

Highlands, Muncy, Huntingdon and Rockview Facilities prior to and through the

date of the lodging of this Consent Decree.

37. Third Parties. This Consent Decree does not limit or affect the
.~
rights of the Defendants or the United States as against any third party, nor does it

limit the rights of such third parties against the Defendants. This Consent Decree

shall not constitute an admission by any Party as to any third party.

XI. PERIODIC REPORTING

38. Beginning thirty (30) days after the end of the first full calendar quarter

following the entry of this Consent Decree, continuing on a semi-annual basis

thereafter (i. e., every six months covering the prior six months) until March 31,

2015, and in addition to any other express reporting requirement in this Consent

Decree, the Defendants shall submit to EPA a progress report, containing the

following:

a. all information necessary to determine compliance with this Consent

Decree; and

b. all information indicating that the installation and commencement of

operation for a pollution control device may be delayed, including the

"'

nature and cause of the delay, and any steps taken by the Defendants

to mitigate such delay.

26

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 30 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 30 of 68
39. In any periodic progress report submitted pursuant to this Section, the Defendants may incorporate by reference information previously submitted under their Title V permitting requirements, provided that the Defendants attach the Title V permit report (or pertinent portions of such report) and give a specific reference to the provisions of the Title V permit report that are responsive to the information required in the periodic progress report.
40. In addition to the progress reports required pursuant to this Section, the Defendants shall provide a written report to EPA of any violation of the requirements of this Consent Decree, including exceedances of PM Emission Rates and visible opacity requirements, within ten (10) business days of when the Defendants knew or should have known of any such violation. In this report, the Defendants shall explain the cause or causes of the violation and all measures taken or to be taken by the Defendants to prevent such violations in the future. Exceedances of the PM emission rates shall be reported within thirty (30) days of the completion of the stack test that demonstrates such non-compliance. In this report, the Defendants shall explain the cause or causes of the violation and all measures taken or to be taken by the Defendants to prevent such violations in the future. Defendants shall provide the written reports of exceedances of PM emissions and/or opacity as required by this Paragraph after entry of this Consent
27

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 31 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 31 of 68
Decree for the Muncy Facility and after the emission control and reduction
measures required by Sections IV, VI and VII are completed at the Rockview,
Laurel Highlands and Huntingdon Facilities.
41. Each report required by this Consent Decree shall be signed by the
Environmental Manager for PA Department of Corrections or, in his or her
absence the Secretary for PA Department of Corrections, and shall contain the
following certification:
This information was prepared either by me or under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my evaluation, or the direction and my inquiry of the person(s) who manage the system, or the person(s) directly responsible for gathering the information, I hereby certify under penalty of law that, to the best of my knowledge and belief, this information is true, accurate, and complete. I understand that there are significant penalties for SUbmitting false, inaccurate, or incomplete information to the United States.
XII. REVIEW AND APPROVAL OF SUBMITTALS
42. The Defendants shall submit each plan, report, or other submission to
EPA whenever such a document is required to be submitted for review or approval
pursuant to this Consent Decree. EPA may approve the submittal or decline to
approve it and provide written comments. Within sixty (60) days of receiving
28

. _ -- - - _._ - - _ . _ - -- - - -- --------- ---_. __.._._...
Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 32 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 32 of 68

written comments from EPA, the Defendant shall either: (a) revise the submittal consistent with the written comments and provide the revised submittal for final approval to EPA; or (b) submit the matter for dispute resolution, under Section XV (Dispute Resolution) of this Consent Decree.
43. Upon receipt of EPA's final approval ofa submittal or upon completion of dispute resolution invoked pursuant to Section XV of this Consent Decree for the submittal, the Defendants shall implement the approved submittal in
accordance with the schedule specified therein.
XIII. STIPULATED PENALTIES 44. For any failure by the Defendants to comply with the terms of this Consent Decree, and subject to the provisions of Sections XIV (Force Majeure) and XV (Dispute Resolution) of this Consent Decree, the Defendants shall pay, within thirty (30) days after receipt of written demand to the Defendants by the United States, the following stipulated penalties to the United States:

Consent Decree Violation
a. Failure to pay the civil penalty as specified in Section IX (Civil Penalty) of this Consent Decree

Stipulated Penalty (per day per violation, unless otherwise specified)
$10,000

.'i
29

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 33 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 33 of 68

. .. ; ... . . ..:. .. ..,.;...:.:...:. ... .

b. Failure to comply with any PM Emission

$2,500

Rate where the violation is less than 5% in excess

of the limits set forth in this Consent Decree or

referenced herein

- at the Rockview Facility after December

31,2010,

- at Laurel Highlands Facility after June 30,

2011,

- at Huntingdon Facility after June 30,

<.

2012, and

- at the Muncy Facility after the effective

date of the Consent Decree

c. Failure to comply with any PM Emission Rate, where the violation is equal to or greater than 5% but less than 10% in excess of the limits set forth in this Consent Decree or referenced herein
- at the Rockview Facility after December 31,2010,
- at Laurel Highlands Facility after June 30, 2011,
- at Huntingdon Facility after June 30, 2012, and
- at the Muncy Facility after the effective date of the Consent Decree

$5,000

30

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Pa, .g,..~e. 34 of 68. :. .;,.... Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 34 of 68

... --- .... . , , ~

.::. - _':-..

d. Failure to comply with any PM Emission Rate, where the violation is equal to or greater than 10% in excess of the limits set forth in this Consent Decree or referenced herein
- at the Rockview Facility after December 31,2010,
- at Laurel Highlands Facility after June 30, 2011,
- at Huntingdon Facility after June 30, 2012, and
- at the Muncy Facility after the effective date of the Consent Decree

$10,000

e. Failure to comply with any visible emission standard set forth in this Consent Decree or referenced herein
- at the Rockview Facility after December 31,2010,
- at Laurel Highlands Facility after June 30, 2011,
- at Huntingdon Facility after June 30, 2012, and
- at the Muncy Facility after the effective date of the Consent Decree

$5,000

f. Failure to install, to commence operation, or to continue operation of any Unit, baghouse, electrostatic precipitator or other pollution controls required by this Consent Decree

$10,000 per day during the first 30 days; $20,000 per day thereafter

g. Operation of Unit 1 or Unit 2 at Muncy Facility in excess of Standby Mode unless operation of Unit 1 or Unit 2 at Muncy Facility is authorized and approved in writing by EPA for each day of operation in excess of Standby Mode

$5,000 per day during the first 5 days; $10,000 per day thereafter

31

- - - - - - - - - - - - - - - -- - - - - - - - - - - - -- - - -- - - - -- - - --
Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 35 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 35 of 68

h. Failure to cease operation of any Unit as required by this Consent Decree, failure to cease burning coal at any Unit as required by this Consent Decree, or any operation of Unit 3 at the Muncy Facility without EPA approval and without required pennits or plan approvals for Unit 3

$10,000 per day during the first 30 days; $20,000 per day thereafter

i. Failure to repower any Unit with natural gas, if elected by the Defendants or required by this Consent Decree

$10,000 per day during the first 30 days; $20,000 per day thereafter

j. Failure to conduct performance tests of PM emissions as required by the Consent Decree

$1,000

k. Failure to conduct visible emission tests as required by the Consent Decree

$1,000

1. Failure to timely submit, modify, or implement, as approved, the reports, plans, studies, analyses, protocols, or other submittals required by this Consent Decree

$750 per day during the first 10 days, $1,000 per day thereafter

m. Failure to comply with any condition or tenn in a permit issued for the Huntingdon, Laurel Highlands, Muncy or Rockview Facilities, other than the requirements for which stipulated penalty provisions are addressed above

$2,000

n. Failure to surrender any permits as required by this Consent Decree

$2,000

o. Any other violation of this Consent Decree

$1,000

45. All stipulated penalties shall begin to accrue on the day after the perfonnance is due or on the day a violation occurs, whichever is applicable, and

32

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 36 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 36 of 68
shall continue to accrue until performance is satisfactorily completed or until the violation ceases. Nothing in this Consent Decree shall prevent the simultaneous accrual of separate stipulated penalties for separate violations of this Consent Decree.
46. The Defendants shall pay all stipulated penalties to the United States within thirty (30) days of receipt of written demand to the Defendants from the United States, and shall continue to make such payments every thirty (30) days
thereafter until the violation(s) no longer continues, unless the Defendants elect
within twenty (20) days of receipt of written demand from the United States to dispute the accrual of stipulated penalties in accordance with the provisions in Section XV (Dispute Resolution) of this Consent Decree.
47. Failure to timely pay the stipulated penalty shall subject the Defendants to interest accruing from the date payment is due until the date payment is made at the rate prescribed by 28 U.S.C. § 1961, and shall render the Defendants liable for all charges, costs, fees, and penalties established by law for the benefit of a creditor or of the United States in securing payment.
48. Stipulated penalties shall continue to accrue as provided in Paragraphs 44 and 45 during any dispute, with interest on accrued stipulated penalties payable, but need not be paid until the following:
33

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 37 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 37 of 68

"
a. If the dispute is resolved by agreement, or by a decision of the

United States pursuant to Section XV (Dispute Resolution) of

this Consent Decree that is not appealed to the Court, accrued

;.,i
",r~

stipulated penalties agreed or detennined to be owing, together

with accrued interest, shall be paid within thirty (30) days of

the effective date of the agreement or of the receipt of the "!';.
':~
United States' decision;

b. If the dispute is appealed to the Court and the United States

prevails in whole or in part, the Defendants shall, within sixty

(60) days of receipt of the Court's decision or order, pay all

accrued stipulated penalties detennined by the Court to be

owing, together with accrued interest, except as provided in

Subparagraph (c);

c. If the Court's decision is appealed by any Party, the Defendants

shall, within fifteen (15) days of receipt of the final appellate

court decision, pay all accrued stipulated penalties detennined
j i
"
to be owing, together with accrued interest.

34

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 38 of 68 ~". : - • • ~.:•

• • • • ' . ." • • • • , . .

< : • • •• < • •

' • • • "-

. ' ~.

Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 38 of 68

The Defendants need not pay any stipulated penalties based on violations which it disputes and ultimately prevails under the Dispute Resolution provisions of this Consent Decree.
49. All stipulated penalties shall be paid in the manner set forth in Section IX (Civil Penalty) of this Consent Decree.
50. EPA, in its sole and unreviewable discretion, may reduce the amount of stipulated penalties prescribed by this Section of the Consent Decree.
51. Should the Defendants fail to pay stipulated penalties in compliance with the terms of this Consent Decree, the United States shall be entitled to collect interest on such penalties, as provided for in 28 U.S.C. § 1961.
52. The stipulated penalties provided for in this Consent Decree shall be in addition to any other rights, remedies, or sanctions available to the United States by reason of the Defendants' failure to comply with any requirement of this Consent Decree or applicable law, except that for any violation of the Act for which this Consent Decree provides for payment of a stipulated penalty, the Defendants shall be allowed a credit for stipulated penalties paid against any statutory penalties also imposed for such violation.

35

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 39 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 39 of 68
XIV. FORCE MAJEURE 53. Force Majeure Events. For purposes of this Consent Decree, a "Force Majeure Event" shall mean an event that has been or will be caused by circumstances beyond the control of the Defendants, their contractors, or any entity controlled by the Defendants that delays compliance with any provision of this Consent Decree or otherwise causes a violation of any provision of this Consent Decree despite the Defendants' best efforts to fulfill the obligation. "Best efforts to fulfill the obligation" include using best efforts to anticipate any potential Force Majeure Event and to address the effects of any such event (a) as it is occurring and (b) after it has occurred, such that the delay or violation is minimized to the greatest extent possible. 54. Notice of Force Majeure Events. If any event occurs or has occurred that may delay compliance with or otherwise cause a violation of any obligation under this Consent Decree, as to which the Defendants intend to assert a claim of Force Majeure, the Defendants shall notify the United States in writing as soon as practicable, but in no event later than fourteen (14) business days following the date the Defendants first knew, or by the exercise of due diligence should have known, that the event caused or may cause such delay or violation. In this notice, the Defendants shall reference this Paragraph of this Consent Decree and describe
36

_......._---- - - -- - - - - - - - - - - - - - - - - -- - - -- -- - - _._ - -Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 40 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 40 of 68
the anticipated length of time that the delay or violation may persist, the cause or causes of the delay or violation, all measures taken or to be taken by the Defendants to prevent or minimize the delay or violation, the schedule by which the Defendants propose to implement those measures, and the Defendants' rationale for attributing a delay or violation to a Force Majeure Event. The Defendants shall adopt all reasonable measures to avoid or minimize such delays or violations. The Defendants shall be deemed to know of any circumstance
which the Defendants, their contractors, or any entity controlled by the
Defendants, knew or should have known. 55. Failure to Give Notice. If the Defendants fail to comply with the notice
requirements in the preceding Paragraph, the United States may void the Defendants' claim for Force Majeure as to the specific event for which the Defendants have failed to comply with such notice requirement.
56. United States' Response. The United States shall notify the Defendants in writing regarding the Defendants' claim of Force Maj eure provided under Paragraph 54. If the United States agrees that a delay in performance has been or will be caused by a Force Majeure Event, the Parties shall stipulate to an extension of deadline(s) for performance of the affected compliance requirement(s) by a period equal to the delay actually caused by the event. In such circumstances, an
37

Case 4:10-cv-02672-CCC

Document 7

Filed 03/10/11

Page 41 of 68 ....... ........ .. . ~ ~

~ ."

.,:.~..•--~ .- ..:......:....-:..:......:..:...:

Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 41 of 68

appropriate modification shall be made pursuant to Section XXII (Modification) of this Consent Decree.
57. Disagreement. If the United States does not accept the Defendants' claim of Force Majeure, or if the Parties cannot agree on the length of the delay actually caused by the Force Majeure Event, the matter shall be resolved in accordance with Section XV (Dispute Resolution) of this Consent Decree.
58. Burden of Proof. In any dispute regarding Force Majeure, the Defendants shall bear the burden of proving that any delay in performance or any other violation of any requirement of this Consent Decree was caused by or will be caused by a Force Majeure Event. The Defendants shall also bear the burden of proving that the Defendants gave the notice required by Paragraph 54 and the burden of proving the anticipated duration and extent of any delay(s) attributable to a Force Majeure Event. An extension of one compliance date based on a particular event may, but will not necessarily, result in an extension of a subsequent compliance date.
59. Events Excluded. Unanticipated or increased costs or expenses associated with the performance of the Defendants' obligations under this Consent Decree shall not constitute a Force Majeure Event.
38

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 42 of 68

...,..~ ; ..

Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 42 of 68

60. Extensions or Modifications by Agreement. As part of the resolution of any matter submitted to this Court under Section XV (Dispute Resolution) of this Consent Decree regarding a claim of Force Majeure, the Parties by agreement, or this Court by order, may in appropriate circumstances extend or modify the schedule for completion of work under this Consent Decree to account for the delay in the work that occurred as a result of any delay agreed to by the United States and the Defendants or approved by the Court. The Defendants shall be liable for stipulated penalties for their failure thereafter to complete the work in accordance with the extended or modified schedule.
61. Malfunctions. The Defendants shall notify EPA in writing of each Malfunction impacting a pollution control technology or Unit at the Rockview, Laurel Highlands, Muncy or Huntingdon Facilities as soon as practicable, but in no event later than twenty-four (24) hours following the date and the time that the Defendants first knew, or by the exercise of due diligence should have known, of the Malfunction. The notice to EPA may be by electronic mail in accordance with Paragraph 79 of this Consent Decree. The Defendants shall be deemed to know of any circumstance which the Defendants, their contractors, or any entity controlled by the Defendants knew or should have known. In this notice, the Defendants shall describe the anticipated length of time that the Malfunction may persist, the
39

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 43 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 43 of 68
'.
cause or causes of the Malfunction, all measures taken or to be taken by the Defendants to minimize the duration of the Malfunction, and the schedule by which the Defendants propose to implement those measures.
a. The Defendants shall adopt all reasonable measures to minimize the duration of such Malfunctions and, consistent with 40 C.F.R. § 60.l1(d), shall, to the extent practicable, maintain and operate any affected Unit and associated air pollution control equipment in a manner consistent with good air pollution control practice for minimizing emissions.
b. A Malfunction, as defined in this Consent Decree, does not constitute a Force Majeure Event pursuant to Section XIV (Force Majeure) of this Consent Decree unless the Malfunction also meets the definition of a Force Majeure Event, as provided in Section XIV.
xv. DISPUTE RESOLUTION
62. The dispute resolution procedure provided by this Section shall be available to resolve all disputes arising under this Consent Decree, provided that the Party invoking such procedure has first made a good faith attempt to resolve the matter with the other Party.
40

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 44 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 44 of 68
63. The dispute resolution procedure required herein shall be invoked by one Party giving written notice to the other Party advising of a dispute pursuant to this Section. The notice shall describe the nature of the dispute and shall state the noticing Party's position with regard to such dispute. The Party receiving such a notice shall acknowledge receipt of the notice, and the noticing Party shall expeditiously schedule a meeting to discuss the dispute informally not later than fourteen (14) days following receipt of such notice.
64. Disputes submitted to dispute resolution under this Section shall, in the first instance, be the subject of informal negotiations among the disputing Parties. Such period of informal negotiations shall not extend beyond thirty (30) calendar days from the date of the first meeting among the disputing Parties' representatives unless they agree in writing to extend this period.
65. During the informal negotiations period, the disputing Parties may also submit their dispute to a mutually-agreed-upon non-binding alternative dispute resolution ("ADR") forum if the Parties agree that the non-binding ADR activities can be completed within the 3D-day informal negotiations period (or such longer period as the Parties may agree to in writing).
66. If the disputing Parties are unable to reach agreement during the informal negotiation period, the United States shall provide the Defendants with a
41

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 45 of 680. _. _ • _0. ~ •.• ••••• • ':'O~ . '_0 _ ' 0';' _·_'.O~;' ':'.' Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 45 of 68
written summary of its position regarding the dispute. The written position provided by the United States shall be considered binding unless, within forty-five (45) calendar days thereafter, the Defendants seek judicial resolution of the dispute by filing a petition with this Court. The United States may respond to the petition within forty-five (45) calendar days of filing.
67. The Court shall decide all disputes pursuant to applicable principles of law for resolving such disputes. In their initial filings with the Court under
Paragraph 66, the disputing Parties shall state their respective positions as to the
applicable standard of law for resolving the particular dispute. XVI. PERMITS
68. Unless expressly stated otherwise in this Consent Decree, in any instance where otherwise applicable law or this Consent Decree requires the Defendants to secure a permit to authorize construction or operation of any device, including all preconstruction, construction, and operating permits required under state law, the Defendants shall make such application in a timely and complete manner. The Defendants shall identify and obtain all applicable permits, licenses and approvals required for performance of activities or work required by this Consent Decree in sufficient time to perform the activities or work as scheduled.
42

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 46 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 46 of 68
69. When permits are required, the Defendants shall complete and submit applications for such permits to the appropriate authorities to allow sufficient time for processing and review of the permit request, including requests for additional information by the permitting authorities. Any failure by the Defendants to submit a timely and complete permit application for any Unit at Huntingdon, Laurel Highlands, Rockview or Muncy Facilities shall bar any use by the Defendant of Section XIV (Force Majeure) of this Consent Decree, where a Force Majeure claim is based on permitting delays.
70. Within ninety (90) days from the date of entry of this Consent Decree, the Defendants shall submit applications to PADEP for the Muncy Facility to incorporate Unit-specific fuel-burning requirements, operational requirements and prohibitions, or other requirements established by Section V of this Consent Decree into federally enforceable operating permits (other than a CAA Title V permit) and/or plan approvals as applicable for the Muncy Facility. Following submission of the permit or plan approval applications, Defendants shall cooperate with PADEP by promptly submitting to PADEP all information that PADEP seeks following its receipt of the permit or plan approval applications. If the Defendants, with approval from EPA, select an alternative control technology or fuel for a Unit at Muncy, then the Defendants shall submit to PADEP a plan
43

.. ... . __ ._-_._._ .........._._._-_._- -- - - -- - - -- -- -- - - - -- - - -- -
Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 47 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 47 of 68
approval application and apply to modify, renew, or obtain any applicable plan approval or operating permit to incorporate such Unit-specific control technology requirements or fuel-burning requirements within ninety (90) days of making such election.
71. Prior to commencing construction on the Rockview, Laurel Highlands, and the Huntingdon Facilities and in compliance with requirements in the Act and in the Pennsylvania SIP, but in no event later than September 30, 2010, Defendants shall submit applications to PADEP for federally enforceable operating permits (other than CAA Title V permits) and/or plan approvals as required to incorporate emission reduction measures required in Sections IV, VI and VII of this Consent Decree as applicable to the Rockview, Laurel Highlands, and Huntingdon Facilities. Following submission of the permit or plan approval applications, Defendants shall cooperate with PADEP by promptly submitting to PADEP all information that PADEP seeks following its receipt of the respective permit or plan approval applications. Upon issuance of such permits or plan approvals or in conjunction with such permitting, Defendants shall file any applications necessary to incorporate the requirements of the permits or plan approvals for the Rockview, Laurel Highlands, and Huntingdon Facilities into the Rockview Title V Permit, the Laurel Highlands Title V Permit, and the
44

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 48 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 48 of 68
Huntingdon Title V Permit as appropriate. The Parties agree that the incorporation of any requirements ofthis Consent Decree into the Rockview Title V Permit, into the Laurel Highlands Title V Permit, and into the Huntingdon Title V Permit shall be in accordance with the Commonwealth of Pennsylvania'S federally approved Title V provisions.
72. The Defendants shall provide the United States with a copy of each application for a federally enforceable permit or plan approval to allow for timely participation in any public comment opportunity.
73. Notwithstanding the reference to Title V permits in this Consent Decree, the enforcement of such permits shall be in accordance with their own terms and the Act. The TitleV permits shall not be enforceable under this Consent Decree, although any term or limit established by or under this Consent Decree shall be enforceable under this Consent Decree regardless of whether such term or limit has or may become part of a Title V permit.
74. Prior to termination of this Consent Decree, in accordance with federal and/or state requirements for issuing, modifying or renewing a Title V permit or other operating permit, the Defendants shall obtain enforceable provisions in their Title V permits for the Huntingdon, Laurel Highlands, and Rockview Facilities and in an enforceable operating permit for the Muncy Facility which incorporate
45

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 49 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 49 of 68
the requirements and limitations from Sections IV through VII of this Consent Decree.
XVII. INFORMATION COLLECTION AND RETENTION .~
75. Any authorized representative of the United States, including its attorneys, contractors, and consultants, upon presentation of credentials, shall have a right of entry upon the premises of any facility covered under this Consent Decree at any reasonable time for the purpose of:
a. monitoring the progress of activities required under this Consent Decree;
b. verifying any data or information submitted to the United States in accordance with the terms of this Consent Decree;
c. obtaining samples and, upon request, splits of any samples taken by the Defendants or their representatives, contractors, or consultants; and
d. assessing the Defendants' compliance with this Consent Decree. 76. The Defendants shall retain, and instruct their contractors and agents to preserve, all non-identical copies of all records and documents (including records and documents in electronic form) now in their or their contractors' or agents' possession or control, and that directly relate to the Defendants' performance of
46

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 50 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 50 of 68

"• • . "_'• • • '. _ '-"~'

·.~.;.:.:. ·. ·a · . ·. ·_

their obligations under this Consent Decree, until December 31, 2020. This record retention requirement shall apply regardless of any document retention policy to the contrary.
77. All information and documents submitted by the Defendants pursuant to this Consent Decree shall be subject to public disclosure based on requests under applicable law providing for such disclosure unless (a) the information and documents are subject to legal privileges or protection or (b) the Defendants claim and substantiate in accordance with 40 C.F.R. Part 2 that the information and documents contain confidential business information.
78. Nothing in this Consent Decree shall limit the authority of the United States to conduct tests and inspections at facilities covered under this Consent Decree under Section 114 of the Act, 42 U.S.C. § 7414, or any other applicable federal or state laws, regulations or permits.
XVIII. NOTICES 79. Unless otherwise provided herein, whenever notifications, submissions, or communications are required by this Consent Decree, they shall be made in writing and addressed as follows:
For the United States of America: Chief, Environmental ~nforcement Section Environment and Natural Resources Division
47

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 51 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 51 of 68
u.s. Department of Justice
P.o. Box 7611, Ben Franklin Station Washington, D.C. 20044-7611 DOJ# 90-5-2-1-09099 and James Hagedorn U. S. EPA, Region 3 Air Protection Division 1650 Arch Street (3AP12) Philadelphia, PA 19103
and
Donna Mastro, Esq.
U. s. EPA, Region 3
Office of Regional Counsel 1650 Arch Street (3RC10) Philadelphia, PA 19103
48

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 52 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 52 of 68
For PADEP:
For the Rockview and Muncy Facilities:
Commonwealth of Pennsylvania Department ofEnvironmental Protection Northcentral Regional Office Environmental Program Manager Air Quality Program 208 West Third Street, Suite 101 Williamsport, PA 17701-6448
For the Laurel Highlands Facility:
Commonwealth of PennsyIvania Department ofEnvironmental Protection Southwest Regional Office Air Quality Program Manager 400 Waterfront Drive Pittsburgh, PA 15222-4745
For the Huntingdon Facility:
Commonwealth of Pennsylvania Department of Environmental Protection Southcentral Regional Office Environmental Program Manager Air Quality Program 909 Elmerton Avenue Harrisburg, PA 17110
49

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 53 of 68 .'........,-'.........-,....- ;'.'>~ ':'::;':~-" . , "-.-.........."..-~-.. ~ Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 53 of 68
For the Defendants:
For the Department o/Corrections:
Deputy Secretary for Administration Department of Corrections 2520 Lisbum Rd POBox 598 Camp Hill, PA 17001-0598
Director, Bureau of Operations Department of Corrections 2520 Lisbum Rd POBox 598 Camp Hill, PA 17001-0598
Chief Counsel Department of Corrections 2520 Lisbum Rd POBox 598 Camp Hill, PA 17001-0598
For the Department o/General Services:
Deputy Secretary for Public Works Department of General Services 18th & Herr Streets Harrisburg, PA 17125
Director, Bureau of Engineering & Architecture Department of General Services 18th and Herr Streets Harrisburg, PA 17125
50

r - - - - - - -- -- - - - - -- -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - -- -- - - - - - - - - - - - - - - - - - - - - - - -- ,
Case 4:10-cv-02672-CCC Document 7. ."... Filed ... .. ~. :"..•0.- . 3/10/11 Page 54 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 54 of 68
Chief Counsel Department of General Services 603 North Office Building Harrisburg, PAl 7125
80. As permitted in this Consent Decree, electronic mail notification to EPA may be provided to Donna Mastro of EPA and James Hagedorn of EPA through mastro.donna@epa.gov and hagedorn.james@epa.gov.
81. All notifications, communications or submissions made pursuant to this Section shall be sent either by: (a) overnight mail or delivery service; (b) certified or registered mail, return receipt requested; or (c) electronic transmission, unless the recipient is not able to review the transmission in electronic form. All notifications, communications and transmissions (a) sent by overnight, certified or registered mail shall be deemed submitted on the date they are postmarked, or (b) sent by overnight delivery service shall be deemed submitted on the date they are delivered to the delivery service. All notifications, communications, and submissions made by electronic means shall be electronically signed and certified, and shall be deemed submitted on the date that the Defendants receive written acknowledgment of receipt of such transmission.
51

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 55 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 55 of 68
82. Any Party may change either the notice recipient or the address for providing notices to it by serving the other Party with a notice setting forth such new notice recipient or address.
XIX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS 83. If the Defendants propose to sell or transfer part or all of their ownership interest in any of their real property or operations subject to this Consent Decree ("Ownership Interest") to an entity unrelated to the Defendants ("Third Party Purchaser"), they shall advise the Third Party Purchaser in writing of the existence of this Consent Decree prior to such sale or transfer, and shall send a copy of such written notification to the United States pursuant to Section XVIII (Notices) at least sixty (60) days before such proposed sale or transfer. 84. No sale or transfer of an Ownership Interest shall take place before the Third Party Purchaser and the United States have executed, and the Court has approved, a modification pursuant to Section XXII (Modification) of this Consent Decree making the Third Party Purchaser a party defendant to this Consent Decree andjointly and severally liable with the Defendants for all the requirements ofthis Consent Decree that may be applicable to the transferred or purchased Ownership Interests, except as provided in Paragraph 85, below.
52

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 56 of 68 - -...........,'............ . -- ......, ~:.. - --".- ...:. Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 56 of 68
85. This Consent Decree shall not be construed to impede the transfer of any Ownership Interests between the Defendants and any Third Party Purchaser as long the requirements of this Consent Decree are met. In addition, this Consent Decree shall not be construed to prohibit a contractual allocation-as between the Defendants and any Third Party Purchaser of Ownership Interests-of the burdens of compliance with this Decree, provided that both the Defendants and such Third Party Purchaser shall remain jointly and severally liable to the United States for the obligations of the Decree applicable to the transferred or purchased Ownership Interests, except as provided in Paragraph 85.
86. If the United States consents, it may join the Defendants, and the Third Party Purchaser that has become a party defendant to this Consent Decree pursuant to Paragraph 83, in executing a modification that relieves the Defendants of their liability, and that makes the Third Party Purchaser liable, for all obligations and liabilities under this Consent Decree applicable to the purchased or transferred Ownership Interests. Notwithstanding the foregoing, however, the Defendants may not assign, and may not be released from, any obligation under this Consent Decree that is not specific to the purchased or transferred Ownership Interests, including the obligations set forth in Section IX (Civil Penalty).
53

. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - -- - - ---- ---- -_._. Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 57 of 6.8... .. .. . .. . - -... ---', :':~" .:.: ~...........~:,;........:.:..;;:.~~~ -.,;,:::.: Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 57 of 68
xx. EFFECTIVE DATE
87. The effective date of this Consent Decree shall be the date upon which this Consent Decree is entered by the Court.
XXI. RETENTION OF JURISDICTION 88. Continuing Jurisdiction. The Court shall retain jurisdiction of this case after entry of this Consent Decree to enforce compliance with the terms and conditions of this Consent Decree and to take any action necessary or appropriate for its interpretation, construction, execution, modification, or adjudication of disputes. During the term of this Consent Decree, any Party to this Consent Decree may apply to the Court for any relief necessary to construe or effectuate this Consent Decree.
XXII. MODIFICATION 89. The terms of this Consent Decree may be modified only by a subsequent written agreement signed by all Parties. Where the modification constitutes a material change to any term of this Consent Decree, it shall be effective only upon approval by the Court.
54

__ __ ._.. .. ....__ _ _ __ .... ... ... - -- - - -- - - - -- - - - -- -- -- - -- - - ------,
Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 58 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 58 of 68
XXIII. GENERAL PROVISIONS 90. This Consent Decree is not a permit. Compliance with the terms of this Consent Decree does not guarantee compliance with all applicable federal, state, or local laws or regulations. 91. Nothing in this Consent Decree shall relieve the Defendants of their obligations to comply with all applicable federal, state, and local laws and regulations. Nothing contained in this Consent Decree shall be construed to
prevent or limit the rights ofthe United States to obtain penalties, injunctive relief or other relief under the Act or other federal, state, or local statutes, regulations, or permits.
92. This Consent Decree does not apply to any claim(s) of alleged criminal liability.
93. In any subsequent administrative or judicial action initiated by the United States for injunctive relief or civil penalties relating to the facilities covered by this Consent Decree, the Defendants shall not assert any defense or claim based upon principles of waiver, res judicata, collateral estoppel, issue preclusion, claim preclusion, or claim splitting, or any other defense based upon the contention that the claims raised by the United States in the subsequent proceeding were brought, or should have been brought, in the instant case.
55

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 59 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 59 of 68
94. Every term expressly defined by this Consent Decree shall have the meaning given to that term by this Consent Decree and, except as otherwise provided in this Consent Decree, every other term used in this Consent Decree that is also a term under the Act or the regulations implementing the Act shall mean in this Consent Decree what such term means under the Act or those implementing regulations.
95. Nothing in this Consent Decree is intended to, or shall, alter or waive any applicable law (including but not limited to any defenses, entitlements, challenges, or clarifications related to the Credible Evidence Rule, 62 Fed. Reg. 8315 (Feb. 27, 1997» concerning the use of data for any purpose under the Act, generated either by the reference methods specified herein or otherwise.
96. Each limit and/or other requirement established by or under this Consent Decree is a separate, independent requirement.
97. This Consent Decree does not limit, enlarge or affect the rights of any Party to this Consent Decree as against any third parties.
98. This Consent Decree constitutes the final, complete and exclusive agreement and understanding among the Parties with respect to the settlement embodied in this Consent Decree, and supersedes all prior agreements and understandings among the Parties related to the subject matter herein. No
56

...._----_......._- - - - - - - - - - - - - - - - - - - - - -- -- - - - - - .

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 60 of 68

'... .:

Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 60 of 68

document, representation, inducement, agreement, understanding, or promise constitutes any part of this Consent Decree or the settlement it represents, nor shall it be used in construing the tenns of this Consent Decree.
99. The United States and the Defendants shall bear their own costs and attorneys' fees.
XXIV. SIGNATORIES AND SERVICE 100. The undersigned representatives of Defendants and the Assistant Attorney General for the United States each certify that he or she is duly authorized to enter into the terms and conditions of this Consent Decree and to execute and legally bind the Party he or she represents to the terms of the Decree. 101. This Consent Decree may be signed in counterparts, and such counterpart signature pages shall be given full force and effect. 102. Each Party hereby agrees to accept service of process by mail with respect to all matters arising under or relating to this Consent Decree and to waive the formal service requirements set forth in Rule 4 of the Federal Rules of Civil Procedure and any applicable Local Rules of this Court including, but not limited to, service of a summons.

57

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 61 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 61 of 68
xxv. PUBLIC COMMENT
103. The Parties agree and acknowledge that final approval by the United States and entry of this Consent Decree is subject to the procedures of28 C.F.R. § 50.7, which provides for notice of the lodging of this Consent Decree in the Federal Register, an opportunity for public comment, and the right of the United States to withdraw or withhold consent if the comments disclose facts or considerations which indicate that the Consent Decree is inappropriate, improper, or inadequate. The Defendants shall not oppose entry of this Consent Decree by this Court or challenge any provision of this Consent Decree unless the United States has notified the Defendants, in writing, that the United States no longer supports entry of the Consent Decree.
XXVI. TERMINATION 104. This Consent Decree may be terminated after the Defendants have complied for at least forty-eight (48) consecutive months with the requirements in Sections IV through VII of this Consent Decree, and have made the payment of all civil and stipulated penalties in Sections IX and XIII. 105. To terminate this Consent Decree, the Defendants shall submit to the United States, and EPA an affidavit signed by a person responsible for environmental management and compliance for PA Department of Corrections
58

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 62 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 62 of 68

.. ... "

-"- """- "-- - .". : _.

that certifies, in accordance with Paragraph 41, that the Defendants have completed and complied with Sections IV through VIII of this Consent Decree. In addition, the Defendants' affidavit shall state that the Defendants have complied with those provisions for forty-eight consecutive months. The United States shall either: (a) submit the affidavit of the Defendants to the Court, with a notice that the United States does not object to the termination of this Consent Decree; or (b) notify the Defendants that the United States does not agree that the Defendants have completed and complied with the requirements in Sections IV through VIII of this Consent Decree. In the latter event, the Parties shall attempt to resolve the disagreement within thirty (30) days after the Defendants receive the notice of disagreement from the United States. If the Parties are unable to resolve the disagreement, the Defendants shall petition the Court to resolve the disagreement. If the United States does not (a) submit the Defendants' affidavit to the court or (b) notify the Defendants of its disagreement with the affidavit on or before the 120th day after receiving the affidavit, the Defendants may submit a motion to the Court for termination which the United States may oppose. If the Defendants petition the Court to resolve a dispute with the United States over termination, or if the Defendants submit a motion for termination to the Court, the Defendants
59

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 63 of 68 Case 4:10-cv-02672-CCC Document 3 Filed 12/30/10 Page 63 of 68

shall bear the burden of proving in such proceedings that it has complied with the provisions in Sections IV through VIII of this Consent Decree.

XXVII. FINAL JUDGMENT

106. Upon approval and entry of this Consent Decree by the Court, this

Consent Decree shall constitute a final judgment in the above-captioned matter

between the United States and the Defendants.
SOORDERED,TIDS tt>~DAYOF ~

,20f&.

UNITE STATES DISTRICT COURT JUDGE

60

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 64 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 64 of 68

FOR THE UNITED STATES OF AMERICA:

A

Dafl~j;o

~RE{; ~

Assistant Attorney General Environmental and Natural Resources Division United States Department of Justice

7

(
-

,

,

-

-

.-
'I

":
I\.

.

fj'-----

KATHERINEM. KANE

Senior Attorney

Environmental Enforcement Section

Environment and Natural Resources Division

United States Department of Justice :

47

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 65 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 65 of 68 [RESERVED: THIS PAGE LEFT INTENTIONALLY BLANK]
48

Case 4:10-cv-02672-CCC

Document 7

Filed 03/10/11

Page 66 of 68 --- - -- .. - - .. . . . ..:,. ' ~

.'.. ',. ' ~

.-. ~

-'.;.

.. .. .. "" - ' .~ """" '. '.' ' " . '

Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 66 of 68

.:

"

Iz FO~ ~.s: ENVIRONMENTAL PROTECT~ N

> (;(10

----:.I.£'_UU · _ '-",,-,,".~_:l?---=_=--~_ _

DatJ

/~AWN M. GARVIN

Regional Administrator

U.S. EPA Region III

1650 Arch Street

Philadelphia, PAl

11IP.AJ. 1:;;1=010

/

Date

Regional Counsel

.,

U.S . EPA Region III

-~

1650 Arch Street

Phi adelphia, PA 19103

Senior Assistant Regional Counsel U.S . EPA Region III 1650 Arch Street Philadelphia, PA 10103

49

Case 4:10-cv-02672-CCC Document 7 Filed 03/10/11 Page 67 of 68 Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 67 of 68

FOR THE COMMONWEALTH OF PENNSYLVANIA: COMl'v:t:ONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS

"

COMMONWEALTH OF PENNSYLVANIA

.~

DEPARTMENT OF GENERAL SERVICES

Secretary GOVERNOR

Date

7 7

Edward G. Rendell

Date

Approved for Form and Legality:

Date I

Office of Chief Counsel

Date

~epartment of General Semces

C:::2r-

50

Case 4:10-cv-02672-CCC

Document 7

Filed 03/10/11

Page 68 of 68 ...... ..... .. ....-~ .

...... . .. .. ~.---.--. -- .-.- ....~--

-, ~ .- '-

, .~

-~

Case 4: 10-cv-02672-CCC Document 3 Filed 12/30/10 Page 68 of 68

Date

51

 
 Case 4:10-cv-02672-CCC Document 8 Filed 08/13/12 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT· FOR THE MIDDLE DISTRICT OF PENNSYLVANIA .

. )

UNITED STATES OF AMERICA

)

)

Plaintiff,

)

)

v.

)

) Civil Action No: 4:1O-CV-2672-CCC

)

COMMONWEALTH OF PENNSYLVANIA )

. DEPARTMENT OF GENERAL SERVICES and )

DEPARTMENT OF CORRECTIONS,

)

)

Defendants.

)

_ _ _ _ _ _ _ _ _ _ _ _ _- - -.. J .. ) . . . .

FIRST AMENDMENT TO MARCH 10. 2011 CONSENT DECREE

Case 4:10-cv-02672-CCC Document 8 Filed 08/13/12 Page 2 of 14

. TABLE OF'CONTENTS i

I. JURISDICTION'AND VENUE................~.:.;.....;..~.........................................................:...2,

.

'.

.

II. HUNTINGDON FACILITY MODIFICATION ..~............................................................ 3

'.

m. CIVIL PENALTY "...~....~~...............,;....................................:.....................~~........................,........3

.

.

IV. RESOLUTION OF CLAIMS .......~........................................................................................4

V.' STIPULATED PENALTIES .~....~................:.:.........~..........................~............~....................4 .

. VI. GENERAL PROVISIONS .......~..:.;.................~.....:.;...;~.....................;:.:...............................5

·.VII. . .SIGNATORIES AND SERVICE......·.·...;................................:...~~............·..~...............;~....~.....5

VIII. PUBLIC .COMMENT................~.............:................................;.....................·...........~.......~..~:.6

'.

Case 4:10-cv-02672-CCC Document 8 Filed 08/13/12 Page 3 of 14
WHEREAS, Plaintiff, the United States of America ("United States"), on behalfof the United States Environmental Protection Age~cy (nEPA") lodged a Complaint and Consent .Decree on December 30, 2010 pursuant to Section 1l3(b)of the Clean Air Act (the "Act" or nCAA"), 42 U.S.C. § 7413(b), with the Defendants, the Commonwealth ofPennsylvania's Department ofCorrections (liPA Departmentof Corrections") and the Commonwealth of Pennsylvania's Department of Gehetal Services ("PA Department of General Services") . (collectively referred to as the "Defendants"), for alleged violations ofthe Act at four statl? correctional institutions;
WHEREAS, the Consent Decree among the United States andthe·Defendants was entered .'. on March.l 0, 2011 {hereinafter referred to as "Consent Decree"} by this Court;
. WHEREAS, the PA Department ofGeneral Services owns and PA Department of Corrections operates the State Correctional Institution at Huntingdon ("Huntingdon Facility") in Huntingdon County, Huntingdon, Pennsylvania;
WHEREAS, in the Complaint :fil~ in this matter, the United States alleged, inter alia, that the Defendants are in violation of Sections 110 and 113 ofthe Act, 42 U.S.C §§ 7410 and 7413, through their failure to operate boilers at the Hunti1;tgdon Facility in compliance with the applicable opacity limits provided in the Pennsylvania State Implementation Plan ("SIP");
WHEREAS, the Defendants requested an extension on the time to complete actions . required by Paragraphs 23 and 24 of the Consent Decree at the Huntingdon Facility to address
the visible emissions from the Huntingdon FaciJity;
1

Case 4:10-cv-02672-CCC Document 8 Filed 08/13/12 Page 4 of 14
WHEREAS,Paragr~ph 89 ofthe Consent Decree pr~vided that the Consent Decree could be modified by a sUbsequent written agreement signed by all Parties and that the modification ,would only be effective upon approval by the Court.
WHEREAS Ute Parties recognize, and the. Court by entering this First Amendment to the .March 10, 20 I 1 Consent Decree ("Amended Consent Decree") finds, that this Amended Consent , ' Decree has been negotiated in good faith and a~ arm's length and that this Amended Consent 'Decree is fair, reasonable, consistent with the goals ofthe Act, and in ~e public interest; and
WHEREAS, the Parties have consentedto entrY o.fthis Amended Co~nt Decree without trial ofany issues;
NOW, THEREFORE,. without any:admissionoffact or law, it.is,hereby ORDERED, ADJUDGED, AND DECREED as follows:
I. JURISDICTION AND VENUE 1. This Court has jurisdiction over this a~tion, the subject matter herein, and the Parties consenting hereto, pursuant to 28 U.S.C. §§ 1331, 1345, 1355"an,d 1367, and pursuant to
Sections 113 and 502 ofthe Act, 42 U.S.C. §§ 7413 and 7661a. Venue is proper under Section 113(b) ofthe Act, 42 U.S.C. § 74,13(b), and under 28 U.S.C. § 139I(b) mid (c). The Defendants
.~
shall not challenge the terms of this Amended Consent Decree or this Court's jurisdiction to enter and enforce this Amended Consent Decree. Except as expressly provided for herein, this Amended Consent Decree shall not m~dify or,alter'any provision from the Consent Decree and that Consent Decree remains in full force and effect.
2

Case 4:10-cv-02672-CCC Document 8 Filed 08/13/12 Page 5 of 14

II. HUNTINGDON FACILITY MODIFICATION

2. The Parties hereby agree to amend the date for action at the Huntingdon Facility in

.

.

Paragraplr23 ofthe Consent Decree such thatno.1aterthan June 30, 2Q13,.theDefendants shall

cease burning coal at Huntingdon Facility Units 1,2,3 and 4. Inaddition,.the Parties hereby

agree to amend the date for action at the Huntingdon·Facility in Paragraph 24 ofthe Consent.

Decree such that no later tha,n June 30,.2013, the Defendants will be·in compliance with the option

. in Paragraph 24(c) ofthe Consent Decree by pennanerttly retiring theHuntingdon Facility Units 1, '. 2,3, and 4 as coal.burning unit~. After June 30, 2012, Defendants are prohibited from seeking

approval to operate pursuant to Paragraph 24(a) ofthe Consent Decreef()rreducing particulate

matter emissions. However, Defendants may convert Huntingdon Facility Units 1,2,3 and 4

after June 30, 2012 to natural' gas-fired units subject to EPA Written approval and subject to

Defenclants' compliance with all applicable feder,al and state environmental laws and regulations

. including obtaining pennits or plan approvals for installation ofall required pollution controls

.prior to Defendants commencing construction on the conversion ofHuntingdon Facility Units 1,2,

3, and 4 to natural gas-fired units.

III. CML PENALTY 3. Because Defendants will not achieve compliance with the·Act and the Pennsylvania SIP by June 30, 2012 regarding visible emissions from the Huntingdon Facility and becaUse the United States believes violations ofthe Act and P~nnsylvania SIP are continuing at the Huntingdon Facility until Julie 30, 2013, the Defendants shall pay to the United States a civil
·3

Case 4:10-cv-02672-CCC Document 8 Filed 08/13/12 Page 6 of 14

penalty in the amount of $39,000withln tlility (30) calendar days after entry ofthis' Amended

.

.

Consent Decree.

The

civ.il

penalty

shall

be

pai.d

in

the

manner

provlded

by .

Par.a~ph

3'3:

of

the

'

.Consent Decree. .FailUre to timely pay the civil penalty ~hall subject the Defeildants to interest, ,

;:charge~, ,co~s; fees, apd penalties,l',lS provid~d for illP~agraph 34 ofthe 'Consent Decree.

;',

IV. RESOLUTION OF CLAIMS'

.

,

4.

'

"Th.is.

Amended

CoDsent·Decreesettles .'

a11

civ. ilclaims

for

DefendantS'

violations'of

the opacity limits.in the Pennsylvatiia SIP a~·'25·Pa; Code § .123.41 by coal:'fired Units 1~ 2, 3 and 4

"

,

'

a

t

the
.'

Huntingdon

Facility

from

the

date

o

f

entry

o

f

the

Co.nsen, t

Decree'(Ma.rch

10,

20

1. ~)

through

·.anlinclud.iJ1g-the date of the 10dgipg"of,this.Amended. ConsentDecree.

v. ·STIPULATED·PENALTIE~

"5. For any failure by the Defen~ts to comply with the .terms of this Aniehded

Consent

D~cree

9

f

.willi

th. e

Conse.nt.-D'ecree;

'the

~tipulated.

pen~ties .

provided. for.iii

. Par. agra.ph

44

ofPte Consent Decree still'apply except thatthe dateS; for compliance at the Huntingdon Facility

before stipulated penalties ~ccrue as provided ~ Paragraph 44(b), (c), (d). and (e) are hereby

extended to June SO, 2013.

.

.

6. .For any failure by tl;te Defendants to pay the civill'enalty as sp'ecified in Paragraph

3 'of this Amended Consent Decree, Defendants shall pay a stipulated penalty of $1 0,000 per day. . .

'Payment of stipula~ed penalties shall be'in accordance with the'provisions in Paragraphs'44-52 of
Section XIII of the Consent Decree. AlI.othetprovisions. iI) Section XII~ of the Co~ent DeCr~ remainappIlcableto' Defendants ~xceptas otherwis~ expressly stated in Paragraph 5 ofthe :

4

Case 4:10-cv-02672-CCC Document 8 Filed 08/13/12 Page 7 of 14
Amended Consent Decree regarding the extension of compliance at Huntingdon Facility.
VI. GENERAL PROVISIONS 7. - The effective date oftbis Amended Consent Decree shall be the date upon which tlris Amended Consent ])ecree is entered by the Court. . 8. Nothing in this Amended Consent Decree shall relieve the Defendants oftheir obligations to comply with all applicable federal, state, and local laws and regulations. Except as expressly provided, nothing contained in this Amended Consent Dec~ shall be construed to _prevent or limit the rights ofthe United States to obtain penalties, injunctive relief or other relief under-the Act- or other-federal, -state; or-local statutes, regulations,. Of-perinits.
VII. SIGNATORIES AND SERVICE 9. The undersigned representatives ofbefendantsand the Assistant Attorney General for the United States each certify that he or she is dwy authorized to enter: into the terms and conditions of this Amended Consent Decree and to execute and legally bind the Party he or she represents to the tenns ofthe Amended Consent Decree.10. This Amended Consent Decree may be signed in counterparts, and such counterpart signature pages shall be given full force and effect. -Each Party hereby agrees to accept service ofprocess by mail with respect to all matters arising under or relating to this Amended Consent Decree and to waive the formal service requirements set forth in Rwe 4-ofthe Federal Rwes of Civil Procedure and any applicable Local Rwes of this Court including, but not limited to, service ofa Summons.
5

Case 4:10-cv-02672-CCC Document 8 Filed 08/13/12 Page 8 of 14

. VIll. PUBLICCOMMENT

11. .The Pame;s agree aildacmowledge that'final approval by the United States and '

entry ofthis Amended Consent Decr~ is subject to the proCedures of28,C.F.R. § SO.7"which

provides for notice ofthe, lodging ofthis Amended Consent Decree in the Federal Register, !ill

.opportunityfor pubiic comment, and the right ofthe United States to withdtaw or withhold

'cc)nsentifthe comments disclose facts or considerations which indicate:th.atthe Amerided Consent ,

.

.

.Decree is inappropriate; improper,' or inadequate. The Defendants'shall not oppose entry ofthis

Amended Consent-Decree by',thisCourt or challenge any provision ofthis Amended Consent ' Decreeunl<?ss'the United States hasnQti~ed the Defendants, in writing, that the Upited States no .' longer supports entrY o~the Amended Consent Decree~

SO ORDERED, TIIIS·_ _.,DAY OF _ _:---_ _, 2012..

,.' "
Honorab~e Christopher C. Conner . United States District Court}udge

6

Case 4:10-cv-02672-CCC Document 8 Filed 08/13/12 Page 9 of 14 FOR THE UNITED STATES OF AMERICA:

g'/ 10 / rv
~

Acting Deputy Section Chief Environmental Enforcement Section Environment and Natural Resources Division United States Department of Justice
-~ -i:.. (---
KATHERINE M. KANE Senior Attorney Environmental Enforcement Section Environment and Natural Resources Division United States Department of Justice

811011"1 _
~

7

Case 4:10-cv-02672-CCC Document 8 Filed 08/13/12 Page 10 of 14

FOR U.S. ENVIRONMENTAL PROTECTION AGENCY:

. ~ SHA-WN M. GARVIN . Regional Administrator
U.S, EPA Region III
1650 Arch Street
Philadelphia, PA. 19103

.~.MAR:CIAmuLKEY . Regional Counsel
.U.S: EPA Region ill .
1650 Arch Street Philadelphia, PA 19103

GJ~·Kn{~

DONNA L. MASTRO .

.

.

I

Senior Assistant Regional Counsel

U.S. EPA Region III

1650 Arch Street Phiiadelphia, PA 10103

8

Case 4:10-cv-02672-CCC Document 8 Filed 08/13/12 Page 11 of 14

FOR THE COMMONWEALTH OF PENNSYLVANIA: COM1v!ONWEALTH OF PENNSYLVANIA DBI'ARTMENT OF CORRECTIONS

~-

Secretary

. Date

'

Approved for Form and Legality:

o ce 0 Chief Counsel .
Department of Corrections .

Date I I

Case 4:10-cv-02672-CCC Document 8 Filed 08/13/12 Page 12 of 14
I

. FOR THE COMMONWEALTH OF PENNSYLVANIA:

....COMMONy{EALTH OF PENNSYLVANlk

.

DEPARTMENT OF GENERAL SERVICES

I

.

,.

,"

s~ltLU1=

Date

Approved for Fomr.an4J;,egality:·

.. 1'1
. ./.

J'.

'~.'l'.;."

.

. . ,/. t.·t.:../'· . J>i'.'. . ,,' . :

Office of. hief¢ounseI

. Department of General S~rvices'

6j/jlll

Date··

, - - / ' ..

. . . ,"

'

.10
" .

Case 4:10-cv-02672-CCC Document 8 Filed 08/13/12 Page 13 of 14

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
. ,,!

UNITED STATES OFiAMERICA, ..

)

)

Plaintiff

)

)

'V.

)

) CIVIL ACTION NO.

COMMONWEALTH OF PENNSYLVANIA ) 4:10-CV-2672-CCC

DEPARTMENT OF GENERAL SERVICES and )

DEPARTMENT OF CORRECTIONS

)

) .

Defendants

)

)

NOTICE OF LODGING OF PROPOSED AMENDMENT TO CONSENT DECREE

Notice is hereby given that oil this date an Amendment to the Consent

Decree has been lodged with the Courtin the above-referenced action.1I Pursuant
a to 28 C.F.R. § 50.7 and Paragraph 103 of the original Consent Decree, "Notice'

of Lodging" will be published in the Federal Register. The Notic~ ofLodgirtg will

.

" ..

.;....

.

..

.be subject to a thirty (30) public comment period. At the conClusion of the public

comment period, the United States will evaluate any comments to d~te~itie '

·whether to go forward with the amendment. Any comments and the United States'

responses thereto will be filed with the Court at the same time as it seeks entry of

)j The original Consent Decree was entered by this Court on March 10, 2011.

Case 4:10-cv-02672-CCC Document 8 Filed 08/13/12 Page 14 of 14

.the Arileri4ment or t? with4raw the Amendment. No .actionis required ofthe..

. 'Court until such time. as the United S:tates files' its ·motion.

. ...' .

.

· Respectfully:~ubmitted~

· ROBERTMAHER'
Acting DeputY Section Chief· Environmental Enforcement Section' Enviroriment arid Natural ResoUrces Pivision ..... U;S.pepartment·:ofJustice:

·./sl Katherine.M. Kane
KATHERINE M. KANE
Senior Atto~ey
Envirorllnental Enforcement Section" .
and 'Envkomnent: Natural Resources
. Division .
'.;' ::.;;:rJ.;S. ;oepartm~mt ofJustice .
..... P.b.·BdX··161.1 .
B~Ii Franklin Station'
Washington, DC 20044
·(202}514-0414 .

OF COUNSEL

p01>1NA S. MASTRO '.

.Senior" Assistant Regional Counsel·.

. .United States Environmental' Proteotion

". Agency, Region III.

.., 1650 Arch Street

Philadelphia, PA

.(21$}814 -2'227

.,'

':

"

. " . -2-

 
 Case: 4:10-cv-2672 As of: 05/07/2013 02:01 PM EDT 1 of 2
CLOSED,WMSPT
United States District Court Middle District of Pennsylvania (Williamsport) CIVIL DOCKET FOR CASE #: 4:10−cv−02672−CCC

United States Of America v. Commonwealth of Pennsylvania Department of Corrections et al Assigned to: Honorable Christopher C. Conner Cause: 42:7413(b) Clean Air Act
Plaintiff

Date Filed: 12/30/2010 Date Terminated: 03/10/2011 Jury Demand: None Nature of Suit: 893 Environmental Matters Jurisdiction: U.S. Government Plaintiff

United States Of America

represented by Ignacia S Moreno Environmental &Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, DC 20044 202−514−0414 ATTORNEY TO BE NOTICED

Katherine M. Kane US Department of Justice P. O. Box 7611 Washington, DC 20044 202.514.0414 Email: katherine.kane@usdoj.gov ATTORNEY TO BE NOTICED

Stephen R. Cerutti , II United States Attorney's Office 228 Walnut Street Suite 220 Harrisburg, PA 17108 717−221−4482 Email: Stephen.Cerutti@usdoj.gov ATTORNEY TO BE NOTICED

V. Defendant Commonwealth of Pennsylvania Department of Corrections
Defendant Commonwealth of Pennsylvania Department of General Services

Date Filed 12/30/2010
12/30/2010 12/30/2010 12/30/2010

# Docket Text
1 COMPLAINT against Commonwealth of Pennsylvania Department of Corrections, Commonwealth of Pennsylvania Department of General Services, filed by United States Of America. (Attachments: # 1 Civil Cover Sheet, # 2 Certificate of Service)(ch1) (Entered: 12/30/2010)
2 NOTICE of Lodging by United States Of America. (ch1) (Entered: 12/30/2010)
3 CONSENT DECREE by United States Of America. (ch1) (Entered: 12/30/2010)
Summons Issued as to Commonwealth of Pennsylvania Department of Corrections, Commonwealth of Pennsylvania Department of General Services and provided to

Case: 4:10-cv-2672 As of: 05/07/2013 02:01 PM EDT 2 of 2

01/03/2011 03/09/2011 03/10/2011 03/10/2011 08/13/2012 08/13/2012 12/12/2012 12/20/2012

Attorney Cerutti for service on Defendant(s). (ch1) (Entered: 12/30/2010)
4 ORDER − Letter to Counsel from Court Re: Case Assignment and Procedures. (See order for complete details.) Signed by Honorable Christopher C. Conner on 01/03/11. (ki) (Entered: 01/03/2011)
5 MOTION to Enter Consent Decree by United States Of America. (Attachments: # 1 Certificate of Service, # 2 Memorandum in Support)(Cerutti, Stephen) (Entered: 03/09/2011)
6 ORDER granting motion to enter consent decree 5 &noting consent decree shall issue herewith. (See order for complete details.) Signed by Honorable Christopher C. Conner on 03/10/11 (Attachments: # 1 Consent Decree) (ki) (Entered: 03/10/2011)
7 CONSENT DECREE &JUDGMENT approved by the court. (See consent decree/jdgmt for complete details.) Signed by Honorable Christopher C. Conner on 03/10/11. (ki) (Entered: 03/10/2011)
8 APPROVED (by the court 8/13/12 9 ) − First Amendment to March 10, 2011 Consent Decree by United States Of America. 7 Judgment . (Attachments: # 1 Notice of Lodging of Proposed Amendment to Consent Decree)(Simpson, D.) Modified on 8/14/2012 (ki). (Entered: 08/13/2012)
9 REVOKED (per 12/20/12 order 11 of court) − ORDER − First Amendement to March 10, 2011 Consent Decree 8 approved by the court.(See order for complete details.) Signed by Honorable Christopher C. Conner on 08/13/12. (ki) Modified on 12/20/2012 (ki). (Entered: 08/14/2012)
10 Letter from Government Counsel regarding March 10, 2011 Consent Decree . (Attachments: # 1 Proposed Order)(Simpson, D.) (Entered: 12/12/2012)
11 REVOCATION &REENTRY ORDER revoking 1st Amendment to 3/10/11 Consent Decree on 8/13/12 9 &directing that the 1st Amendment to the Consent Decree is hereby REENTERED. (See order for complete details.) Signed by Honorable Christopher C. Conner on 12/20/12. (ki) (Entered: 12/20/2012)