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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

UNITED STATES OF AMERICA ) 

) 

Plaintiff, )

 ) 

and )

 ) 

STATE OF NEW YORK, ET AL., ) 

) 

Plaintiff-Intervenors, ) 

) 

v. ) 

) 

) 

AMERICAN ELECTRIC POWER SERVICE ) 

) 

CORP., ET AL., ) 

) 

Defendants. ) 

) 

_____________________________________) 

UNITED STATES OF AMERICA ) 

) 

Plaintiff, )

 ) 

) 

v. ) 

) 

) 

AMERICAN ELECTRIC POWER SERVICE ) 

CORP., ET AL., ) 

) 

) 

Defendants. ) 

) 

_____________________________________) 

JUDGE EDMUND A. SARGUS, JR. 

Magistrate Judge Terence P. Kemp

Civil Action No C2-99-1250 

(Consolidated with C2-99-1182) 

JUDGE GREGORY L. FROST 

Magistrate Judge Norah McCann King 

Civil Action No C2-05-360 
 

 

 

 

 

 

 

_____________________________________ 

) 

OHIO CITIZEN ACTION, ET AL., ) 

) 

Plaintiffs, )

 ) 

v. ) JUDGE GREGORY L. FROST 

) Magistrate Judge Norah McCann King 

) 

AMERICAN ELECTRIC POWER SERVICE ) 

CORP., ET AL., ) Civil Action No. C2-04-1098 

) 

Defendants. ) 

) 

CONSENT DECREE
 
TABLE OF CONTENTS
 

I. JURISDICTION AND VENUE..................................................................................................4 

II. APPLICABILITY ......................................................................................................................5 

III. DEFINITIONS..........................................................................................................................5 

IV. NOx EMISSION REDUCTIONS AND CONTROLS ...........................................................19 

A. Eastern System-Wide Annual Tonnage Limitations for NOx................................19 

B. NOx Emission Limitations and Control Requirements..........................................20 

C. General Provisions for Use and Surrender of NOx Allowances ............................22 

D. Use of Excess NOx Allowances.............................................................................23 

E. Super-Compliant NOx Allowances........................................................................26 

F. Method for Surrender of Excess NOx Allowances ................................................26 

G. Reporting Requirements for NOx Allowances.......................................................28 

H. General NOx Provisions.........................................................................................28 

V. SO2 EMISSION REDUCTIONS AND CONTROLS .............................................................28 

A. Eastern System-Wide Annual Tonnage Limitations for SO2 ................................28 

B. SO2 Emission Limitations and Control Requirements ..........................................29 

C. Use and Surrender of SO2 Allowances ..................................................................32 

D. Method for Surrender of Excess SO2 Allowances .................................................33 

E. Super-Compliant SO2 Allowances.......................................................35 

F. Reporting Requirements for SO2 Allowances..........................................35 

G. General SO2 Provisions ...................................................................35 

VI. PM EMISSION REDUCTIONS AND CONTROLS..............................................35 

A. Optimization of Existing ESPs ..............................................................................35 

B. PM Emission Rate and Testing..............................................................................36 

C. PM Emissions Monitoring .....................................................................................37 

D. Installation and Operation of PM CEMS ...............................................38 

E. PM Reporting.........................................................................................................40 

F. General PM Provisions ..........................................................................................40 

VII. PROHIBITION ON NETTING CREDITS OR OFFSETS FROM REQUIRED 

CONTROLS ......................................................................................................................41 
VIII. ENVIRONMENTAL MITIGATION PROJECTS..............................................................41 

A. Requirements for Projects Described in Appendix A ($36 million) .....................42 

B. Mitigation Projects to be Conducted by the States ($24 million)..........................43 

IX. CIVIL PENALTY ...................................................................................................................45 

X. RESOLUTION OF CIVIL CLAIMS AGAINST DEFENDANTS .........................................46 

A. Resolution of the United States’ Civil Claims.......................................................46 

B. Pursuit by the United States of Civil Claims Otherwise Resolved by 

Subsection A ..........................................................................................................48 

C. Resolution of Past Claims of the States and Citizen Plaintiffs and 

Reservation of Rights.............................................................................................51 

XI. PERIODIC REPORTING..................................................................................................52 

XII. REVIEW AND APPROVAL OF SUBMITTALS ............................................................54 

XIII. STIPULATED PENALTIES .............................................................................................55 

XIV. FORCE MAJEURE ...........................................................................................................61 

XV. DISPUTE RESOLUTION .................................................................................................64 

XVI. PERMITS...........................................................................................................................66 

XVII. INFORMATION COLLECTION AND RETENTION ....................................................69 

XVIII. NOTICES..........................................................................................................................70 

XIX. SALES OR TRANSFERS OF OPERATIONAL OR OWNERSHIP INTERESTS .........74 

XX. EFFECTIVE DATE...........................................................................................................76 

XXI. RETENTION OF JURISDICTION...................................................................................76 

XXII. MODIFICATION ..............................................................................................................77 

XXIII. GENERAL PROVISIONS.................................................................................................77 

XXIV. SIGNATORIES AND SERVICE .....................................................................................79 

XXV. PUBLIC COMMENT .........................................................................................................80 

XXVI. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER DECREE ...............80 

XXVII. FINAL JUDGMENT........................................................................................................82
 

Appendix A: Environmental Mitigation Projects 

Appendix B: Reporting Requirements 

Appendix C: Monitoring Strategy and Calculation of 30-Day Rolling Average 

 Removal Efficiency for Conesville Units 5 and 6
 
WHEREAS, the following complaints have been filed against American Electric Power 

Service Corporation, Indiana Michigan Power Company, Ohio Power Company, Appalachian 

Power Company, Cardinal Operating Company, and Columbus Southern Power Company in the 

above-captioned cases, United States, et al. v. American Electric Power Service Corp., et al., 

Civil Action Nos. C2-99-1182 and C2-99-1250 (“AEP I”) and United States, et al. v. American 

Electric Power Service Corp., et al., Civil Action Nos. C2-04-1098 and C2-05-360 (“AEP II”): 

(a) the United States of America (“United States”), on behalf of the United States 

Environmental Protection Agency (“EPA”), filed initial complaints on November 3, 1999 and 

April 8, 2005, and filed amended complaints on March 3, 2000 and September 17, 2004, 

pursuant to Sections 113(b), 165, and 167 of the Clean Air Act (the “Act”), 42 U.S.C. §§ 7413, 

7475, and 7477; 

(b) the States of New York, Connecticut, New Jersey, Vermont, New Hampshire, 

Maryland, and Rhode Island, and the Commonwealth of Massachusetts, after their motion to 

intervene was granted, filed initial complaints on December 14, 1999 and November 18, 2004, 

and filed amended complaints on April 5, 2000, September 24, 2002, and September 17, 2004, 

pursuant to Section 304 of the Act, 42 U.S.C. § 7604; and 

(c) Ohio Citizen Action, Citizens Action Coalition of Indiana, Hoosier 

Environmental Council, Valley Watch, Inc., Ohio Valley Environmental Coalition, West 

Virginia Environmental Council, Clean Air Council, Izaak Walton League of America, United 

States Public Interest Research Group, National Wildlife Federation, Indiana Wildlife 

Federation, League of Ohio Sportsmen, Sierra Club, and Natural Resources Defense Council, 
Inc. filed an initial complaint on November 19, 1999, and filed amended complaints on January 

1, 2000 and September 16, 2004, pursuant to Section 304 of the Act, 42 U.S.C. § 7604; 

WHEREAS, the complaints filed against Defendants in AEP I and AEP II sought 

injunctive relief and the assessment of civil penalties for alleged violations of, inter alia, the: 

(a) Prevention of Significant Deterioration and Nonattainment New Source 

Review provisions in Part C and D of Subchapter I of the Act, 42 U.S.C. §§ 7470-

7492, 7501-7515; and 

(b) federally-enforceable state implementation plans developed by Indiana, 

Ohio, Virginia, and West Virginia; 

WHEREAS, EPA issued notices of violation (“NOVs”) to Defendants with respect to 

such allegations on November 2, 1999, November 22, 1999, and June 18, 2004; 

WHEREAS, EPA provided Defendants and the States of Indiana, Ohio, and West 

Virginia, and the Commonwealth of Virginia, with actual notice pertaining to Defendants’ 

alleged violations, in accordance with Section 113(a)(1) and (b) of the Act, 42 U.S.C. 

§ 7413(a)(1) and (b); 

WHEREAS, in their complaints, the United States, the States, and Citizen Plaintiffs 

(collectively, the “Plaintiffs”) alleged, inter alia, that Defendants made major modifications to 

major emitting facilities, and failed to obtain the necessary permits and install the controls 

necessary under the Act to reduce sulfur dioxide, nitrogen oxides, and/or particulate matter 

emissions, and further alleged that such emissions damage human health and the environment; 

2
 
WHEREAS, the Plaintiffs’ complaints state claims upon which relief can be granted 

against Defendants under Sections 113, 165, and 167 of the Act, 42 U.S.C. §§ 7413, 7475, and 

7477, and 28 U.S.C. § 1355; 

WHEREAS, Defendants have denied and continue to deny the violations alleged in the 

complaints and NOVs, maintain that they have been and remain in compliance with the Act and 

are not liable for civil penalties or injunctive relief, and state that they are agreeing to the 

obligations imposed by this Consent Decree solely to avoid the costs and uncertainties of 

litigation and to improve the environment; 

WHEREAS, Defendants have installed and operated SCR technology on several Units in 

the AEP Eastern System, as those terms are defined herein, during the five (5) month ozone 

season to achieve emission reductions in compliance with the NOx SIP Call; 

WHEREAS, the Plaintiffs and Defendants anticipate that this Consent Decree, including 

the installation and operation of pollution control technology and other measures adopted 

pursuant to this Consent Decree, will achieve significant reductions of emissions from the AEP 

Eastern System and thereby significantly improve air quality; 

WHEREAS, the liability phase of AEP I was tried on July 6-7, 2005, and July 11-12, 

2005, and no decision has been rendered; 

WHEREAS, the Parties have agreed, and the Court by entering this Consent Decree 

finds, that this Consent Decree has been negotiated in good faith and at arm’s length; that this 

settlement is fair, reasonable, and in the public interest, and consistent with the goals of the Act; 

and that entry of this Consent Decree without further litigation is the most appropriate means of 

resolving this matter; 

3
 
NOW, THEREFORE, without any admission by Defendants, and without adjudication of 

the violations alleged in the complaints or the NOVs, 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, Sections 113, 

167, and 304 of the Act, 42 U.S.C. §§ 7413, 7477, and 7604. Solely for the purposes of this 

Consent Decree, 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 complaints, and for no other purpose, Defendants waive all objections and defenses 

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

Defendants, and to venue in this District. Defendants shall not challenge the terms of this 

Consent Decree or this Court’s jurisdiction to enter and enforce this Consent Decree. Solely for 

the purposes of the complaints filed by the Plaintiffs in this matter and resolved by the Consent 

Decree, for the purposes of entry and enforcement of this Consent Decree, and for no other 

purpose, Defendants waive any defense or objection based on standing. Except as expressly 

provided for herein, this Consent Decree shall not create any rights in or obligations of any party 

other than the Plaintiffs and Defendants. Except as provided in Section XXV (Public Comment) 

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

notice. To facilitate entry of this Consent Decree, upon the Date of Lodging of this Consent 

Decree the Parties shall file a Joint Motion to Consolidate AEP I and AEP II so that AEP II is 

consolidated into AEP I. 

4
 
II. APPLICABILITY
 

2. Upon entry, the provisions of the Consent Decree shall apply to and be binding 

upon and inure to the benefit of Plaintiffs and Defendants, and their respective successors and 

assigns, and upon their officers, employees, and agents, solely in their capacities as such. 

3. Defendants shall be responsible for providing 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 Decree. Notwithstanding any 

retention of contractors, subcontractors, or agents to perform any work required under this 

Consent Decree, Defendants shall be responsible for ensuring that all work is performed in 

accordance with the requirements of this Consent Decree. For this reason, in any action to 

enforce this Consent Decree, 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 Defendants establish that such failure resulted from a Force Majeure 

Event, as defined in Paragraph 158 of this Consent Decree. 

III. DEFINITIONS 

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. 

4. A “1-hour Average NOx Emission Rate” for a re-powered gas-fired, electric 

generating unit means, and shall be expressed as, the average concentration in parts per million 

5
 
(“ppm”) by dry volume, corrected to 15% O2, as averaged over one (1) hour. In determining the 

1-Hour Average NOx Emission Rate, Defendants shall use CEMS in accordance with applicable 

reference methods specified in 40 C.F.R. Part 60 to calculate the emissions for each 15-minute 

interval within each clock hour, except as provided in this Paragraph. Compliance with the 1-

Hour Average NOx Emission Rate shall be shown by averaging all 15-minute CEMS interval 

readings within a clock hour, except that any 15-minute CEMS interval that contains any part of 

a startup or shutdown shall not be included in the calculation of that 1-Hour average. A 

minimum of two 15-minute CEMS interval readings within a clock hour, not including startup or 

shutdown intervals, is required to determine compliance with the 1-Hour average NOx Emission 

Rate. All emissions recorded by CEMS shall be reported in 1-Hour averages. 

5. A “30-Day Rolling Average Emission Rate” for a Unit means, and shall be 

expressed as, a lb/mmBTU and calculated in accordance with the following procedure: first, sum 

the total pounds of the pollutant in question emitted from the Unit during an Operating Day and 

the previous twenty-nine (29) Operating Days; second, sum the total heat input to the Unit in 

mmBTU during the Operating Day and the previous twenty-nine (29) Operating Days; and third, 

divide the total number of pounds of the pollutant emitted during the thirty (30) Operating Days 

by the total heat input during the thirty (30) Operating Days. A new 30-Day Rolling Average 

Emission Rate shall be calculated for each new Operating Day. Each 30-Day Rolling Average 

Emission Rate shall include all emissions that occur during all periods of startup, shutdown, and 

Malfunction within an Operating Day, except as follows: 

a. Emissions and BTU inputs that occur during a period of Malfunction shall 

be excluded from the calculation of the 30-Day Rolling Average Emission 

6
 
Rate if Defendants provide notice of the Malfunction to EPA in 

accordance with Paragraph 159 in Section XIV (Force Majeure) of this 

Consent Decree; 

b. Emissions of NOx and BTU inputs that occur during the fifth and 

subsequent Cold Start Up Period(s) that occur at a given Unit during any 

30-day period shall be excluded from the calculation of the 30-Day 

Rolling Average Emission Rate if inclusion of such emissions would 

result in a violation of any applicable 30-Day Rolling Average Emission 

Rate and Defendants have installed, operated, and maintained the SCR in 

question in accordance with manufacturers’ specifications and good 

engineering practices. A “Cold Start Up Period” occurs whenever there 

has been no fire in the boiler of a Unit (no combustion of any Fossil Fuel) 

for a period of six (6) hours or more. The NOx emissions to be excluded 

during the fifth and subsequent Cold Start Up Period(s) shall be the lesser 

of (i) those NOx emissions emitted during the eight (8) hour period 

commencing when the Unit is synchronized with a utility electric 

distribution system and concluding eight (8) hours later, or (ii) those NOx 

emissions emitted prior to the time that the flue gas has achieved the 

minimum SCR operational temperature specified by the catalyst 

manufacturer; and 

c. For SO2, shall include all emissions and BTUs commencing from the time 

the Unit is synchronized with a utility electric distribution system through 

7
 
the time that the Unit ceases to combust fossil fuel and the fire is out in the 

boiler. 

6. A “30-Day Rolling Average Removal Efficiency” means, for SO2, at a Unit other 

than Conesville Unit 5 and Conesville Unit 6, the percent reduction in the mass of SO2 achieved 

by a Unit’s FGD system over a 30-Operating Day period and shall be calculated as follows: step 

one, sum the total pounds of SO2 emitted as measured at the outlet of the FGD system for the 

Unit during the current Operating Day and the previous twenty-nine (29) Operating Days as 

measured at the outlet of the FGD system for that Unit; step two, sum the total pounds of SO2 

delivered to the inlet of the FGD system for the Unit during the current Operating Day and the 

previous twenty-nine (29) Operating Days as measured at the inlet to the FGD system for that 

Unit; step three, subtract the outlet SO2 emissions calculated in step one from the inlet SO2 

emissions calculated in step two; step four, divide the remainder calculated in step three by the 

inlet SO2 emissions calculated in step two; and step five, multiply the quotient calculated in step 

four by 100 to express as a percentage of removal efficiency. A new 30-day Rolling Average 

Removal Efficiency shall be calculated for each new Operating Day, and shall include all 

emissions that occur during all periods within each Operating Day except that emissions that 

occur during a period of Malfunction may be excluded from the calculation if Defendants 

provide Notice of the Malfunction to Plaintiffs in accordance with Section XIV (Force Majeure) 

and it is determined to be a Force Majeure Event pursuant to that Section. 

7. “AEP Eastern System” means, solely for purposes of this Consent Decree, the 

following coal-fired, electric steam generating Units (with the nominal nameplate net capacity of 

each Unit): 

8
 
a. Amos Unit 1 (800 MW), Amos Unit 2 (800 MW), and Amos Unit 3 (1300 

MW) located in St. Albans, West Virginia; 

b.	 Big Sandy Unit 1 (260 MW) and Big Sandy Unit 2 (800 MW) located in 

Louisa, Kentucky; 

c.	 Cardinal Unit 1 (600 MW), Cardinal Unit 2 (600 MW), and Cardinal Unit 

3 (630 MW) located in Brilliant, Ohio; 

d.	 Clinch River Unit 1 (235 MW), Clinch River Unit 2 (235 MW), and 

Clinch River Unit 3 (235 MW) located in Carbo, Virginia; 

e.	 Conesville Unit 1 (125 MW), Conesville Unit 2 (125 MW), Conesville 

Unit 3 (165 MW), Conesville Unit 4 (780 MW), Conesville Unit 5 (375 

MW), and Conesville Unit 6 (375 MW) located in Conesville, Ohio; 

f.	 Gavin Unit 1 (1300 MW) and Gavin Unit 2 (1300 MW) located in 

Cheshire, Ohio; 

g.	 Glen Lyn Unit 5 (95 MW) and Glen Lyn Unit 6 (240 MW) located in Glen 

Lyn, Virginia; 

h.	 Kammer Unit 1 (210 MW), Kammer Unit 2 (210 MW), and Kammer Unit 

3 (210 MW) located in Moundsville, West Virginia; 

i.	 Kanawha River Unit 1 (200 MW) and Kanawha River Unit 2 (200 MW) 

located in Glasgow, West Virginia; 

j.	 Mitchell Unit 1 (800 MW) and Mitchell Unit 2 (800 MW) located in 

Moundsville, West Virginia; 

k.	 Mountaineer Unit 1 (1300 MW) located in New Haven, West Virginia; 

9
 
l.	 Muskingum River Unit 1 (205 MW), Muskingum River Unit 2 (205 MW), 

Muskingum River Unit 3 (215 MW), Muskingum River Unit 4 (215 MW), 

and Muskingum River Unit 5 (585 MW) located in Beverly, Ohio; 

m.	 Picway Unit 9 (100 MW) located in Lockbourne, Ohio; 

n.	 Rockport Unit 1 (1300 MW) and Rockport Unit 2 (1300 MW) located in 

Rockport, Indiana; 

o.	 Sporn Unit 1 (150 MW), Sporn Unit 2 (150 MW), Sporn Unit 3 (150 

MW), Sporn Unit 4 (150), and Sporn Unit 5 (450 MW) located in New 

Haven, West Virginia; and 

p.	 Tanners Creek Unit 1 (145 MW), Tanners Creek Unit 2 (145 MW), 

Tanners Creek Unit 3 (205 MW), and Tanners Creek Unit 4 (500 MW) 

located in Lawrenceburg, Indiana. 

8. “Boiler Island” means: a Unit’s (a) fuel combustion system (including bunker, 

coal pulverizers, crusher, stoker, and fuel burners); (b) combustion air system; (c) steam 

generating system (firebox, boiler tubes, and walls); and (d) draft system (excluding the stack), 

all as further described in “Interpretation of Reconstruction,” by John B. Rasnic, U.S. EPA 

(November 25, 1986) and attachments thereto. 

9. “CEMS” or “Continuous Emission Monitoring System” means, for obligations 

involving NOx and SO2 under this Consent Decree, the devices defined in 40 C.F.R. § 72.2 and 

installed and maintained as required by 40 C.F.R. Part 75. 

10. “Citizen Plaintiffs” means, collectively, Ohio Citizen Action, Citizens Action 

Coalition of Indiana, Hoosier Environmental Council, Ohio Valley Environmental Coalition, 

10
 
West Virginia Environmental Council, Clean Air Council, Izaak Walton League of America, 

United States Public Interest Research Group, National Wildlife Federation, Indiana Wildlife 

Federation, League of Ohio Sportsmen, Sierra Club, and Natural Resources Defense Council, 

Inc. 

11. “Clean Air Act” or “Act” means the federal Clean Air Act, 42 U.S.C. §§ 7401-

7671q, and its implementing regulations. 

12. “Clean Air Interstate Rule” or “CAIR” means the regulations promulgated by 

EPA on May 12, 2005, at 70 Fed. Reg. 25,161, which are entitled, “Rule to Reduce Interstate 

Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid 

Rain Program; Revisions to NOx SIP Call; Final Rule,” and any subsequent amendments to that 

regulation, and any applicable, federally-approved state implementation plan or the federal 

implementation plan to implement CAIR. 

13. “Consent Decree” or “Decree” means this Consent Decree and the appendices 

attached hereto, which are incorporated into this Consent Decree. 

14. “Continuously Operate” or “Continuous Operation” means that when an SCR, 

FGD, ESP, or Other NOx Pollution Controls are used at a Unit, except during a Malfunction, 

they shall be operated at all times such Unit is in operation, consistent with the technological 

limitations, manufacturers’ specifications, and good engineering and maintenance practices for 

such equipment and the Unit so as to minimize emissions to the greatest extent practicable. 

15. “Date of Entry” means the date this Consent Decree is approved or signed by the 

United States District Court Judge; provided, however, that if the Parties’ Joint Motion to 

Consolidate, as specified in Paragraph 1, is denied or not decided, then the “Date of Entry” 

11
 
means the date that the last of the two United States District Court Judges hearing these cases 

approves or signs this Consent Decree. 

16. “Date of Lodging” means the date this Consent Decree is filed for lodging with 

the Clerk of the Court for the United States District Court for the Southern District of Ohio. 

17. “Day” means, unless otherwise specified, calendar day. 

18. “Defendants” or “AEP” means American Electric Power Service Corporation, 

Kentucky Power Company d/b/a American Electric Power, Indiana Michigan Power Company 

d/b/a American Electric Power, Ohio Power Company d/b/a American Electric Power, Cardinal 

Operating Company and its owners (Ohio Power and Buckeye Power, Inc.), Appalachian Power 

Company d/b/a American Electric Power, and Columbus Southern Power Company d/b/a 

American Electric Power. 

19. “Eastern System-Wide Annual Tonnage Limitation” means the limitations, as 

specified in this Consent Decree, on the number of tons of the air pollutants that may be emitted 

from the AEP Eastern System during the relevant calendar year (i.e., January 1 through 

December 31), and shall include all emissions of the air pollutants emitted during all periods of 

startup, shutdown, and Malfunction, except that emissions that occur during a period of 

Malfunction may be excluded from the calculation if Defendants provide Notice of the 

Malfunction to Plaintiffs in accordance with Section XIV (Force Majeure) and it is determined to 

be a Force Majeure Event pursuant to that Section. 

20. “Emission Rate” means the number of pounds of pollutant emitted per million 

BTU of heat input (“lb/mmBTU”), measured in accordance with this Consent Decree. 

21. “EPA” means the United States Environmental Protection Agency. 

12
 
22. “ESP” means electrostatic precipitator, a pollution control device for the 

reduction of PM. 

23. “Environmental Mitigation Project” means a project funded or implemented by 

Defendants as a remedial measure to mitigate alleged damage to human health or the 

environment, including National Parks or Wilderness Areas, claimed to have been caused by the 

alleged violations described in the complaints or to compensate Plaintiffs for costs necessitated 

as a result of the alleged damages. 

24. “Existing Unit” means a Unit that commenced operation prior to the Date of 

Lodging of this Consent Decree. 

25. “Flue Gas Desulfurization System,” or “FGD,” means a pollution control device 

with one or more absorber vessels that employs flue gas desulfurization technology for the 

reduction of SO2. 

26. “Fossil Fuel” means any hydrocarbon fuel, including coal, petroleum coke, 

petroleum oil, or natural gas. 

27. An “Improved Unit” for NOx means an AEP Eastern System Unit equipped with 

an SCR or scheduled under this Consent Decree to be equipped with an SCR, or required to be 

Retired, Retrofitted, or Re-powered. A Unit may be an Improved Unit for one pollutant without 

being an Improved Unit for another. Any Other Unit in the AEP Eastern System can become an 

Improved Unit for NOx if it is equipped with an SCR and the requirement to Continuously 

Operate such SCR is incorporated into a federally-enforceable non-Title V permit or site-specific 

amendment to the state implementation plan and the Title V Permit applicable to that Unit. 

13
 
28. An “Improved Unit” for SO2 means an AEP Eastern System Unit equipped with 

an FGD or scheduled under this Consent Decree to be equipped with an FGD, or required to be 

Retired, Retrofitted, or Re-powered. A Unit may be an Improved Unit for one pollutant without 

being an Improved Unit for another. Any Other Unit in the AEP Eastern System can become an 

Improved Unit for SO2 if it is equipped with an FGD and the requirement to Continuously 

Operate such FGD is incorporated into a federally-enforceable non-Title V permit or sitespecific amendment to the state implementation plan and the Title V Permit applicable to that 

Unit. 

29. “KW” means kilowatt or one thousand watts. 

30. “lb/mmBTU” means one pound per million British thermal units. 

31. “Malfunction” means any sudden, infrequent, and not reasonably preventable 

failure of air pollution control equipment, process equipment, or a process to operate in a normal 

or usual manner. Failures that are caused in part by poor maintenance or careless operation are 

not Malfunctions. 

32. “MW” means a megawatt or one million watts. 

33. “NSR Permit” means a preconstruction permit issued by the permitting authority 

pursuant to Parts C or D of Subchapter I of the Clean Air Act. 

34. “National Ambient Air Quality Standards” or “NAAQS” means national ambient 

air quality standards that are promulgated pursuant to Section 109 of the Act, 42 U.S.C. § 7409. 

35. “New and Newly Permitted Unit” means a Unit that commenced operation after 

the Date of Lodging of this Consent Decree, and that has been issued a final NSR Permit for SO2 

and NOx that includes applicable Best Available Control Technology (“BACT”) and/or Lowest 

14
 
Achievable Emission Rate (“LAER”) limitations, as those terms are respectively defined at 42 

U.S.C. §§ 7479(3), 7501(3). 

36. “Nonattainment NSR” means the nonattainment area New Source Review 

program within the meaning of Part D of Subchapter I of the Act, 42 U.S.C. §§ 7501-7515, and 

its regulations, 40 C.F.R. Part 51. 

37. “NOx” means oxides of nitrogen, measured in accordance with the provisions of 

this Consent Decree. 

38. “NOx Allowance” means an authorization to emit a specified amount of NOx that 

is allocated or issued under an emissions trading or marketable permit program of any kind that 

has been established under the Clean Air Act or a state implementation plan. 

39. “NOx CAIR Allocations” means the number of NOx Allowances allocated to the 

AEP Eastern System Units pursuant to the Clean Air Interstate Rule, excluding any NOx 

Allowances awarded by Indiana, Kentucky, Ohio, West Virginia, and Virginia to an AEP 

Eastern System Unit from the “compliance supplement pool,” as that phrase is defined at 40 

C.F.R. § 96.143, in a federally-approved state implementation plan, or federal implementation 

plan to implement CAIR. 

40. “Operating Day” means any day on which a Unit fires Fossil Fuel. 

41. “Other NOx Pollution Controls” means the measures identified in the table in 

Paragraph 69 that will achieve reductions in NOx emissions at the Units specified therein. 

42. “Other SO2 Measures” means the measures identified in Paragraph 90 that will 

achieve reductions in SO2 emissions at the Units specified therein. 

15
 
43. “Other Unit” means any Unit of the AEP Eastern System that is not an Improved 

Unit for the pollutant in question. 

44. “Operational or Ownership Interest” means part or all of Defendants’ legal or 

equitable operational or ownership interests in any Unit in the AEP Eastern System. 

45. “Parties” means the United States, the States, the Citizen Plaintiffs, and 

Defendants. “Party” means one of the Parties. 

46. “Plaintiffs” means the United States, the States, and the Citizen Plaintiffs. 

47. “Plant-Wide Annual Rolling Tonnage Limitation for SO2 at Clinch River” means 

the sum of the tons of SO2 emitted during all periods of operation from the Clinch River plant, 

including, without limitation, all SO2 emitted during periods of startup, shutdown, and 

Malfunction, in the most recent month and the previous eleven (11) months. A new Annual 

Rolling Average Tonnage Limitation for years 2010 through 2014, and for 2015 and continuing 

thereafter, shall be calculated in accordance with Paragraph 88. 

48. “Plant-Wide Annual Tonnage Limitation for SO2 at Kammer” means the sum of 

the tons of SO2 emitted during all periods of operation from the Kammer plant, including, 

without limitation, all SO2 emitted during periods of startup, shutdown, and Malfunction, during 

the relevant calendar year (i.e., January 1 through December 31). A new Plant-Wide Annual 

Tonnage Limitation shall be calculated for each new calendar year. 

49. “PM” means particulate matter, as measured in accordance with the provisions of 

this Consent Decree. 

16
 
50. “PM CEMS” or “PM Continuous Emission Monitoring System” means the 

equipment that samples, analyzes, measures, and provides, by readings taken at frequent 

intervals, an electronic or paper record of PM emissions. 

51. “PM Emission Rate” means the number of pounds of PM emitted per million 

BTU of heat input (lb/mmBTU), as measured in annual stack tests in accordance with EPA 

Method 5, 5B, or 17, 40 C.F.R. Part 60, including Appendix A. 

52. “Project Dollars” means Defendants’ expenditures and payments incurred or 

made in carrying out the Environmental Mitigation Projects identified in Section VIII 

(Environmental Mitigation Projects) of this Consent Decree to the extent that such expenditures 

or payments both: (a) comply with the requirements set forth in Section VIII (Environmental 

Mitigation Projects) and Appendix A of this Consent Decree, and (b) constitute Defendants’ 

direct payments for such projects, or Defendants’ external costs for contractors, vendors, and 

equipment. 

53. “PSD” means Prevention of Significant Deterioration within the meaning of Part 

C of Subchapter I of the Clean Air Act, 42 U.S.C. §§ 7470-7492, and its regulations, 40 C.F.R. 

Part 52. 

54. “Re-power” means either (1) the replacement of an existing pulverized coal 

boiler through the construction of a new circulating fluidized bed (“CFB”) boiler or other 

technology of equivalent environmental performance that at a minimum achieves and maintains 

a 30-Day Rolling Average Emission Rate not greater than 0.100 lb/mmBTU or a 30-Day Rolling 

Average Removal Efficiency of at least ninety-five percent (95%) for SO2 and a 30-Day Rolling 

Average Emission Rate not greater than 0.070 lb/mmBTU for NOx; or (2) the modification of 

17
 
such Unit, or removal and replacement of Unit components, such that the modified or replaced 

Unit generates electricity through the use of new combined cycle combustion turbine technology 

fueled by natural gas containing no more than 0.5 grains of sulfur per 100 standard cubic feet of 

natural gas, and at a minimum, achieves a 1-hour Average NOx Emission Rate not greater than 

2.0 ppm. 

55. “Retire” means that Defendants shall: (a) permanently shut down and cease to 

operate the Unit; and (b) comply with any state and/or federal requirements applicable to that 

Unit. Defendants shall amend any applicable permits so as to reflect the permanent shutdown 

status of such Unit. 

56. “Retrofit” means that the Unit must install and Continuously Operate both an 

SCR and an FGD. For the 600 MW listed in the table in Paragraph 68 and 87, “Retrofit” means 

that the Unit must meet a federally-enforceable 30-Day Rolling Average Emission Rate of 0.100 

lb/mmBTU for NOx and a 30-Day Rolling Average Emission Rate of 0.100 lb/mmBTU for SO2, 

measured in accordance with the requirements of this Consent Decree. 

57. “Selective Catalytic Reduction System” or “SCR” means a pollution control 

device that employs selective catalytic reduction technology for the reduction of NOx emissions. 

58. “Selective Non-Catalytic Reduction” means a pollution control device for the 

reduction of NOx emissions that utilizes ammonia or urea injection into the boiler. 

59. “SO2” means sulfur dioxide, as measured in accordance with the provisions of 

this Consent Decree. 

18
 
 

60. “SO2 Allowance” means “allowance” as defined at 42 U.S.C. § 7651a(3): “an 

authorization, allocated to an affected unit by the Administrator of EPA under Subchapter IV of 

the Act, to emit, during or after a specified calendar year, one ton of sulfur dioxide.” 

61. “SO2 Allocations” means the number of SO2 Allowances allocated to the AEP 

Eastern System Units. 

62. “Super-Compliant NOx Allowance” means an allowance attributable to reductions 

beyond the requirements of this Consent Decree as determined in accordance with Paragraph 80. 

63. “Super-Compliant SO2 Allowance” means an allowance attributable to reductions 

beyond the requirements of this Consent Decree as determined in accordance with Paragraph 98. 

64. “States” means the States of Connecticut, Maryland, New Hampshire, New 

Jersey, New York, Rhode Island, and Vermont, and the Commonwealth of Massachusetts. 

65. “Title V Permit” means the permit required for Defendants’ major sources under 

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

66. “Unit” means collectively, the coal pulverizer, stationary equipment that feeds 

coal to the boiler, the boiler that produces steam for the steam turbine, the steam turbine, the 

generator, the equipment necessary to operate the generator, steam turbine, and boiler, and all 

ancillary equipment, including pollution control equipment. An electric steam generating station 

may comprise one or more Units. 

IV. NOx EMISSION REDUCTIONS AND CONTROLS 

A. Eastern System-Wide Annual Tonnage Limitations for NOx. 

67. Notwithstanding any other provisions of this Consent Decree, except Section XIV 

(Force Majeure), during each calendar year specified in the table below, all Units in the AEP 

19
 
Eastern System, collectively, shall not emit NOx in excess of the following Eastern System-Wide 

Annual Tonnage Limitations: 

Calendar Year Eastern System-Wide Annual Tonnage 

Limitations for NOx 

2009 96,000 tons 

2010 92,500 tons 

2011 92,500 tons 

2012 85,000 tons 

2013 85,000 tons 

2014 85,000 tons 

2015 75,000 tons 

2016, and each year thereafter 72,000 tons 

B. NOx Emission Limitations and Control Requirements. 

68. No later than the dates set forth in the table below, Defendants shall install and 

Continuously Operate SCR on each Unit identified therein, or, if indicated in the table, Retire, 

Retrofit, or Re-power such Unit: 

Unit NOx Pollution Control Date 

Amos Unit 1 SCR January 1, 2008 

Amos Unit 2 SCR January 1, 2009 

Amos Unit 3 SCR January 1, 2008 

Big Sandy Unit 2 SCR January 1, 2009 

Cardinal Unit 1 SCR January 1, 2009 

Cardinal Unit 2 SCR January 1, 2009 

20
 
Unit NOx Pollution Control Date 

Cardinal Unit 3 SCR January 1, 2009 

Conesville Unit 1 Retire, Retrofit, or Re-power Date of Entry of this 

Consent Decree 

Conesville Unit 2 Retire, Retrofit, or Re-power Date of Entry of this 

Consent Decree 

Conesville Unit 3 Retire, Retrofit, or Re-power December 31, 2012 

Conesville Unit 4 SCR December 31, 2010 

Gavin Unit 1 SCR January 1, 2009 

Gavin Unit 2 SCR January 1, 2009 

Mitchell Unit 1 SCR January 1, 2009 

Mitchell Unit 2 SCR January 1, 2009 

Mountaineer Unit 1 SCR January 1, 2008 

Muskingum River Units 1-4 Retire, Retrofit, or Re-power December 31, 2015 

Muskingum River Unit 5 SCR January 1, 2008 

Rockport Unit 1 SCR December 31, 2017 

Rockport Unit 2 SCR December 31, 2019 

Sporn Unit 5 Retire, Retrofit, or Re-power December 31, 2013 

A total of at least 600 MW from 

the following list of Units: Sporn 

Units 1-4, Clinch River Units 1-3, 

Tanners Creek Units 1-3, and/or 

Kammer Units 1-3 

Retire, Retrofit, or Re-power December 31, 2018 

21
 
69. Other NOx Pollution Controls. No later than the dates set forth in the table below, 

Defendants shall Continuously Operate the Other NOx Pollution Controls on the Units identified 

therein: 

Unit Other NOx Pollution 

Controls 

Date 

Big Sandy Unit 1 Low NOx Burners Date of Entry 

Glen Lyn Units 5 and 6 Low NOx Burners Date of Entry 

Clinch River Units 1, 2, and 3 Low NOx Burners, and 

Selective Non-catalytic 

Reduction 

For Low NOx Burners, Date 

of Entry, and, for Selective 

Non-Catalytic Reduction, 

December 31, 2009 

Conesville Units 5 and 6 Low NOx Burners Date of Entry 

Kammer Units 1, 2, and 3 Overfire Air Date of Entry 

Kanawha River Units 1 and 2 Low NOx Burners Date of Entry 

Picway Unit 9 Low NOx Burners Date of Entry 

Tanners Creek Units 1, 2, and 3 Low NOx Burners Date of Entry 

Tanners Creek Unit 4 Overfire Air Date of Entry 

C. General Provisions for Use and Surrender of NOx Allowances. 

70. Except as may be necessary to comply with this Section and Section XIII 

(Stipulated Penalties), Defendants may not use NOx Allowances to comply with any requirement 

of this Consent Decree, including by claiming compliance with any emission limitation or 

Eastern System-Wide Annual Tonnage Limitation required by this Decree, by using, tendering, 

22
 
 

or otherwise applying NOx Allowances to achieve compliance or offset any emissions above the 

limits specified in this Consent Decree. 

71. As required by this Section IV of this Consent Decree, Defendants shall surrender 

NOx Allowances that would otherwise be available for sale, trade, or transfer as a result of 

actions taken by Defendants to comply with the requirements of this Consent Decree. 

72. NOx Allowances allocated to the AEP Eastern System may be used by 

Defendants to meet their own federal and/or state Clean Air Act regulatory requirements for the 

Units included in the AEP Eastern System. Subject to Paragraph 70, nothing in this Consent 

Decree shall prevent Defendants from purchasing or otherwise obtaining NOx Allowances from 

another source for purposes of complying with their own federal and/or state Clean Air Act 

requirements to the extent otherwise allowed by law. 

73. The requirements in this Consent Decree pertaining to Defendants’ use and 

surrender of NOx Allowances are permanent injunctions not subject to any termination provision 

of this Consent Decree. These provisions shall survive any termination of this Consent Decree. 

D. Use of Excess NOx Allowances. 

74. Calculation of Unrestricted and Restricted NOx Allowances. On an annual basis, 

beginning in 2009, Defendants shall calculate the difference between the NOx CAIR Allocations 

for the Units in the AEP Eastern System for that year and the annual Eastern System-Wide 

Tonnage Limitations for NOx for that calendar year. This difference represents the total Excess 

NOx Allowances for that calendar year. For purposes of this Consent Decree, for each year 

commencing in 2009 and ending in 2015, forty-two percent (42%) of the Excess NOx 

Allowances shall be Unrestricted Excess NOx Allowances and fifty-eight percent (58%) shall be 

23
 
Restricted Excess NOx Allowances. Commencing in 2016, and continuing thereafter, all Excess 

NOx Allowances shall be Restricted Excess NOx Allowances. 

75. Use and Surrender of Unrestricted Excess NOx Allowances. For each calendar 

year commencing in 2009 and ending in 2015, Defendants may use Unrestricted Excess NOx 

Allowances in any manner authorized by law. No later than March 1, 2016, Defendants must 

surrender, or transfer to a non-profit third party selected by Defendants for surrender, all unused 

Unrestricted Excess NOx Allowances subject to surrender accumulated during the period from 

2009 through 2015. 

76. Use and Surrender of Restricted Excess NOx Allowances. Beginning in calendar 

year 2009, and for each calendar year thereafter, Defendants shall calculate the difference 

between the number of any Restricted Excess NOx Allowances and the number of NOx 

Allowances that is equal to the amount of actual NOx emissions from: (a) any New and Newly 

Permitted Unit as defined in this Consent Decree, and (b) the following five natural-gas plants 

but only up to a cumulative total of 1200 tons of NOx in any single year: Ceredo Generating 

Station located near Ceredo, West Virginia, with a nominal generating capacity of 505 

megawatts; Waterford Energy Center located in southeastern Ohio, with a nominal generating 

capacity of 821 megawatts; Darby Electric Generating Station located near Columbus, Ohio, 

with a nominal generating capacity of 480 megawatts; Lawrenceburg Generating Station located 

in Lawrenceburg, Indiana, with a generating capacity of 1,096 megawatts; and a natural gas-fired 

power plant under construction near Dresden, Ohio, with a nominal generating capacity of 580 

megawatts. This difference shall be the amount of Restricted Excess NOx Allowances 

24
 
potentially subject to surrender in 2016. During calendar years 2009 through 2015, Defendants 

may accumulate Restricted Excess NOx Allowances potentially subject to surrender in 2016. 

77. NOx Allowances from Renewable Energy. Beginning in calendar year 2009, and 

for each calendar year thereafter, Defendants may subtract from the number of Restricted Excess 

NOx Allowances potentially subject to surrender, a number of allowances calculated in 

accordance with this Paragraph. To calculate such number, Defendants shall use the following 

method: multiply 0.0002 by the sum of (a) the actual annual generation in MWH/year generated 

from solar or wind power projects first owned or operated by Defendants after the Date of 

Lodging of this Consent Decree, and (b) the actual annual generation in MWH/year purchased 

by Defendants from solar or wind power projects in any year after the Date of Lodging of this 

Consent Decree. Such figure so calculated shall be subtracted from the number of Restricted 

Excess NOx Allowances potentially subject to surrender each year. The remainder shall be the 

Restricted Excess NOx Allowances subject to surrender. 

78. Defendants may, solely at their discretion, use Restricted Excess NOx Allowances 

at a New and Newly Permitted Unit for which Defendants have received a final NSR Permit 

from the permitting agency even if the NSR Permit has been appealed but not stayed during the 

permit appeal process. If Defendants use Restricted Excess NOx Allowances at such New and 

Newly Permitted Unit, and the emissions from such New and Newly Permitted Unit are greater 

than what such Unit is permitted to emit after final adjudication of the appeal process, 

Defendants shall, within thirty (30) days of such final adjudication, retire an amount of NOx 

Allowances equal to the number of tons of NOx actually emitted that exceeded the finally 

adjudicated permit limit. 

25
 
79. No later than March 1, 2016, the total number of Restricted Excess NOx 

Allowances subject to surrender accumulated during 2009 through 2015 as calculated in 

accordance with Paragraphs 74, 76, and 77, shall be surrendered or transferred to a non-profit 

third party selected by Defendants for surrender, pursuant to Subsection F, below. Beginning in 

calendar year 2016, and for each calendar year thereafter, the total number of Restricted Excess 

NOx Allowances subject to surrender for that year calculated in accordance with Paragraph 74, 

76 and 77, shall be surrendered, or transferred to a non-profit third party selected by Defendants 

for surrender, by March 1 of the following calendar year. 

E. Super-Compliant NOx Allowances. 

80. In each calendar year beginning in 2009, and continuing thereafter, Defendants 

may use in any manner authorized by law any NOx Allowances made available in that year as a 

result of maintaining actual NOx emissions from the AEP Eastern System below the Eastern 

System-Wide Annual Tonnage Limitations for NOx under this Consent Decree for each calendar 

year. Defendants shall timely report the generation of such Super-Compliant NOx Allowances in 

accordance with Section XI (Periodic Reporting) and Appendix B of this Consent Decree. 

F. Method for Surrender of Excess NOx Allowances. 

81. For purposes of this Consent Decree, the “surrender” of Excess Restricted or 

Unrestricted Excess NOx Allowances subject to surrender means permanently surrendering to 

EPA NOx Allowances from the accounts administered by EPA so that such NOx Allowances can 

never be used thereafter to meet any compliance requirement under the Clean Air Act, a state 

implementation plan, or this Consent Decree. 

26
 
82. For all Restricted or Unrestricted Excess NOx Allowances subject to surrender 

required to be surrendered to EPA in Paragraphs 79 and 75, above, Defendants or the third party 

recipient(s) (as the case may be) shall first submit a NOx Allowance transfer request form to 

EPA’s Office of Air and Radiation’s Clean Air Markets Division directing the transfer of such 

NOx Allowances to the EPA Enforcement Surrender Account or to any other EPA account that 

EPA may direct in writing. As part of submitting these transfer requests, Defendants or the third 

party recipient(s) shall irrevocably authorize the transfer of these NOx Allowances and identify – 

by name of account and any applicable serial or other identification numbers or station names – 

the source and location of the NOx Allowances being surrendered. 

83. If any NOx Allowances required to be surrendered under this Consent Decree are 

transferred directly to a non-profit third party, Defendants shall include a description of such 

transfer in the next report submitted to EPA as required by Section XI (Periodic Reporting) of 

this Consent Decree. Such report shall: (a) identify the non-profit third party recipient(s) of the 

NOx Allowances and list the serial numbers of the transferred NOx Allowances; and (b) include a 

certification by the third party recipient(s) stating that the recipient(s) will not sell, trade, or 

otherwise exchange any of the NOx Allowances and will not use any of the NOx Allowances to 

meet any obligation imposed by any environmental law. No later than the second periodic report 

due after the transfer of any NOx Allowances, Defendants shall include a statement that the third 

party recipient(s) surrendered the NOx Allowances for permanent surrender to EPA in 

accordance with the provisions of Paragraph 82 within one (1) year after Defendants transferred 

the NOx Allowances to them. Defendants shall not have complied with the NOx Allowance 

27
 
 

surrender requirements of this Paragraph until all third party recipient(s) have actually 

surrendered the transferred NOx Allowances to EPA. 

G. Reporting Requirements for NOx Allowances. 

84. Defendants shall comply with the reporting requirements for NOx Allowances as 

described in Section XI (Periodic Reporting) and Appendix B. 

H. General NOx Provisions. 

85. To the extent a NOx Emission Rate is required under this Consent Decree, 

Defendants shall use CEMS in accordance with the reference methods specified in 40 C.F.R. 

Part 75 to determine such Emission Rate. 

V. SO2 EMISSION REDUCTIONS AND CONTROLS 

A. Eastern System-Wide Annual Tonnage Limitations for SO2. 

86. Notwithstanding any other provisions of this Consent Decree, except Section XIV 

(Force Majeure), during each calendar year specified in the table below, all Units in the AEP 

Eastern System, collectively, shall not emit SO2 in excess of the following Eastern System-Wide 

Annual Tonnage Limitations: 

Calendar Year Eastern System-Wide Annual Tonnage 

Limitations for SO2 

2010 450,000 tons 

2011 450,000 tons 

2012 420,000 tons 

2013 350,000 tons 

2014 340,000 tons 

28
 
Calendar Year Eastern System-Wide Annual Tonnage 

Limitations for SO2 

2015 275,000 tons 

2016 260,000 tons 

2017 235,000 tons 

2018 184,000 tons 

2019, and each year thereafter 174,000 tons 

B. SO2 Emission Limitations and Control Requirements. 

87. No later than the dates set forth in the table below, Defendants shall install and 

Continuously Operate an FGD on each Unit identified therein, or, if indicated in the table, 

Retire, Retrofit, or Re-power such Unit: 

Unit SO2 Pollution Control Date 

Amos Units 1 and 3 FGD December 31, 2009 

Amos Unit 2 FGD December 31, 2010 

Big Sandy Unit 2 FGD December 31, 2015 

Cardinal Units 1 and 2 FGD December 31, 2008 

Cardinal Unit 3 FGD December 31, 2012 

Conesville Units 1 and 2 Retire, Retrofit, or Re-power Date of Entry 

Conesville Unit 3 Retire, Retrofit, or Re-power December 31, 2012 

Conesville Unit 4 FGD December 31, 2010 

Conesville Unit 5 Upgrade existing FGD and 

meet a 95% 30-day Rolling 

Average Removal Efficiency 

December 31, 2009 

29
 
Unit SO2 Pollution Control Date 

Conesville Unit 6 Upgrade existing FGD and 

meet a 95% 30-day Rolling 

Average Removal Efficiency 

December 31, 2009 

Gavin Units 1 and 2 FGD Date of Entry 

Mitchell Units 1 and 2 FGD December 31, 2007 

Mountaineer Unit 1 FGD December 31, 2007 

Muskingum River Units 1-4 Retire, Retrofit, or Re-power December 31, 2015 

Muskingum River Unit 5 FGD December 31, 2015 

Rockport Unit 1 FGD December 31, 2017 

Rockport Unit 2 FGD December 31, 2019 

Sporn Unit 5 Retire, Retrofit, or Re-power December 31, 2013 

A total of at least 600 MW from 

the following list of Units: Sporn 

Units 1-4, Clinch River Units 1-3, 

Tanners Creek Units 1-3, and/or 

Kammer Units 1-3 

Retire, Retrofit, or Re-power December 31, 2018 

88. Plant-Wide Annual Rolling Average Tonnage Limitation for SO2 at Clinch River. 

Beginning on January 1, 2010, and continuing through December 31, 2014, Defendants shall 

limit their total annual SO2 emissions at the Clinch River plant to a Plant-Wide Annual Rolling 

Average Tonnage Limitation of 21,700 tons. Beginning on January 1, 2015, and continuing 

thereafter, Defendants shall limit their total annual SO2 emissions at the Clinch River plant to a 

Plant-Wide Annual Rolling Average Tonnage Limitation of 16,300 tons. For purposes of 

calculating the Plant-Wide Annual Rolling Average Tonnage Limitation that begins in 2010, 

Defendants shall use the period beginning January 1, 2010 through December 31, 2010 to 

30
 
establish the initial annual period that is subject to the Plant-Wide Annual Rolling Average 

Tonnage Limitation for 2010 through 2014. Defendants shall then calculate a new Plant-Wide 

Annual Rolling Average Tonnage Limitation each month thereafter through December 31, 2014, 

by averaging the most recent month with the previous eleven (11) months. For purposes of 

calculating the Plant-Wide Annual Rolling Average Tonnage Limitation that begins in 2015, 

Defendants shall use the period beginning January 1, 2015 through December 31, 2015 to 

establish the initial annual period that is subject to the Plant-Wide Annual Average Rolling 

Tonnage Limitation for 2015. Defendants shall then calculate a new Plant-Wide Annual Rolling 

Average Tonnage Limitation each month thereafter by averaging the most recent month with the 

previous eleven (11) months. 

89. Plant-Wide Annual Tonnage Limitation for SO2 at Kammer. Beginning on 

January 1, 2010, and continuing annually thereafter, Defendants shall limit their total annual SO2 

emissions at the Kammer plant to a Plant-Wide Annual Tonnage Limitation of 35,000 tons. 

90. Other SO2 Measures. No later than the dates set forth in the table below, 

Defendants shall comply with the limit on coal sulfur content for such Units, at all times that the 

Units are in operation: 

Unit Other SO2 Measures Date 

Big Sandy Unit 1 Units can only burn coal with a 

sulfur content no greater than 

1.75 lb/mmBTU on an annual 

average basis 

Date of Entry 

Glen Lyn Units 5 and 6 Units can only burn coal with a 

sulfur content no greater than 

1.75 lb/mmBTU on an annual 

average basis. 

Date of Entry 

31
 
 

Unit Other SO2 Measures Date 

Kanawha River Units 1 

and 2 

Units can only burn coal with a 

sulfur content no greater than 

1.75 lb/mmBTU on an annual 

average basis 

Date of Entry 

Tanners Creek Units 1, 2, 

and 3 

Units can only burn coal with a 

sulfur content no greater than 

1.2 lb/mmBTU on an annual 

average basis 

Date of Entry 

Tanners Creek Unit 4 Unit can only burn coal with a 

sulfur content no greater than 

1.2 % on an annual average 

basis 

Date of Entry 

C. Use and Surrender of SO2 Allowances. 

91. Defendants may use SO2 Allowances allocated to the AEP Eastern System by the 

Administrator of EPA under the Act, or by any state under its state implementation plan, to meet 

their own federal and/or state regulatory requirements for the Units included in the AEP Eastern 

System. Subject to Paragraph 92, nothing in this Consent Decree shall prevent Defendants from 

purchasing or otherwise obtaining SO2 Allowances from another source for purposes of 

complying with their own federal and/or state Clean Air Act requirements to the extent otherwise 

allowed by law. 

92. Except as may be necessary to comply with this Section and Section XIII 

(Stipulated Penalties), Defendants may not use any SO2 Allowances to comply with any 

requirement of this Consent Decree, including by claiming compliance with any emission 

limitation, Eastern System-Wide Annual Tonnage Limitations, Plant-Wide Annual Rolling 

Average Tonnage Limitation for SO2 at Clinch River, or Plant-Wide Annual Tonnage Limitation 

32
 
for SO2 at Kammer required by this Consent Decree by using, tendering, or otherwise applying 

SO2 Allowances to achieve compliance or offset any emissions above the limits specified in this 

Consent Decree. 

93. On an annual basis beginning in 2010, and continuing thereafter, Defendants shall 

calculate the number of Excess SO2 Allowances by subtracting the number of SO2 Allowances 

equal to the annual Eastern System-Wide Tonnage Limitations for SO2 for each calendar year 

times the applicable allowance surrender ratio from the annual SO2 Allocations for all Units 

within the AEP Eastern System for the same calendar year. Defendants shall surrender, or 

transfer to a non-profit third party selected by Defendants for surrender, all Excess SO2 

Allowances that have been allocated to the AEP Eastern System for the specified calendar year 

by the Administrator of EPA under the Act or by any state under its state implementation plan. 

Defendants shall make the surrender of SO2 Allowances required by this Paragraph to EPA by 

March 1 of the immediately following calendar year. 

D. Method for Surrender of Excess SO2 Allowances. 

94. For purposes of this Subsection, the “surrender” of Excess SO2 Allowances 

means permanently surrendering allowances from the accounts administered by EPA so that 

such allowances can never be used thereafter to meet any compliance requirement under the 

Clean Air Act, a state implementation plan, or this Consent Decree. 

95. If any SO2 Allowances required to be surrendered under this Consent Decree are 

transferred directly to a non-profit third party, Defendants shall include a description of such 

transfer in the next report submitted to EPA pursuant to Section XI (Periodic Reporting) of this 

Consent Decree. Such report shall: (i) identify the non-profit third party recipient(s) of the SO2 

33
 
Allowances and list the serial numbers of the transferred SO2 Allowances; and (ii) include a 

certification by the third party recipient(s) stating that the recipient(s) will not sell, trade, or 

otherwise exchange any of the allowances and will not use any of the SO2 Allowances to meet 

any obligation imposed by any environmental law. No later than the second periodic report due 

after the transfer of any SO2 Allowances, Defendants shall include a statement that the third 

party recipient(s) surrendered the SO2 Allowances for permanent surrender to EPA in 

accordance with the provisions of Paragraph 96 within one (1) year after Defendants transferred 

the SO2 Allowances to them. Defendants shall not have complied with the SO2 Allowance 

surrender requirements of this Paragraph until all third party recipient(s) have actually 

surrendered the transferred SO2 Allowances to EPA. 

96. For all SO2 Allowances surrendered to EPA, Defendants or the third party 

recipient(s) (as the case may be) shall first submit an SO2 Allowance transfer request form to 

EPA’s Office of Air and Radiation’s Clean Air Markets Division directing the transfer of such 

SO2 Allowances to the EPA Enforcement Surrender Account or to any other EPA account that 

EPA may direct in writing. As part of submitting these transfer requests, Defendants or the third 

party recipient(s) shall irrevocably authorize the transfer of these SO2 Allowances and identify – 

by name of account and any applicable serial or other identification numbers or station names – 

the source and location of the SO2 Allowances being surrendered. 

97. The requirements in this Consent Decree pertaining to Defendants’ surrender of 

SO2 Allowances are permanent injunctions not subject to any termination provision of this 

Decree. These provisions shall survive any termination of this Consent Decree in whole or in 

part. 

34
 
 

 

 E. Super-Compliant SO2 Allowances. 

98. In each calendar year beginning in 2010, and continuing thereafter, Defendants 

may use in any manner authorized by law any SO2 Allowances made available in that year as a 

result of maintaining actual SO2 emissions from the AEP Eastern System below the Eastern 

System-Wide Annual Tonnage Limitations for SO2 under this Consent Decree for each calendar 

year. Defendants shall timely report the generation of such Super-Compliant SO2 Allowances in 

accordance with Section XI (Periodic Reporting) and Appendix B of this Consent Decree. 

F. Reporting Requirements for SO2 Allowances. 

99. Defendants shall comply with the reporting requirements for SO2 Allowances as 

described in Section XI (Periodic Reporting) and Appendix B. 

G. General SO2 Provisions. 

100. To the extent an Emission Rate or 30-Day Rolling Average Removal Efficiency 

for SO2 is required under this Consent Decree, Defendants shall use CEMS in accordance with 

the reference methods specified in 40 C.F.R. Part 75 to determine such Emission Rate. 

101. Notwithstanding Paragraphs 6 and 100, the 30-Day Rolling Average Removal 

Efficiency for SO2 at Conesville Unit 5 and Conesville Unit 6 shall be determined in accordance 

with Appendix C. 

VI. PM EMISSION REDUCTIONS AND CONTROLS 

A. Optimization of Existing ESPs. 

102. Beginning thirty (30) days after the Date of Entry, and continuing thereafter, 

Defendants shall Continuously Operate each ESP on Cardinal Unit 1, Cardinal Unit 2, and 

Muskingum River Unit 5 to maximize PM emission reductions at all times when the Unit is in 

35
 

operation, provided that such operation of the ESP is consistent with the technological 

limitations, manufacturers’ specifications, and good engineering and maintenance practices for 

the ESP. Defendants shall, at a minimum, to the extent reasonably practicable: (a) fully energize 

each section of the ESP for each unit, and repair any failed ESP section at the next planned Unit 

outage (or unplanned outage of sufficient length); (b) operate automatic control systems on each 

ESP to maximize PM collection efficiency; (c) maintain power levels delivered to the ESPs, 

consistent with manufacturers’ specifications, the operational design of the Unit, and good 

engineering practices; and (d) inspect for and repair during the next planned Unit outage (or 

unplanned outage of sufficient length) any openings in ESP casings, ductwork, and expansion 

joints to minimize air leakage. 

B. PM Emission Rate and Testing. 

103. No later than the dates specified in the table below, Defendants shall 

Continuously Operate each Unit specified therein to achieve and maintain a PM Emission Rate 

no greater than 0.030 lb/mmBTU: 

Unit Date to Achieve and Maintain PM 

Emission Rate 

Cardinal Unit 1 December 31, 2009 

Cardinal Unit 2 December 31, 2009 

Muskingum River Unit 5 December 31, 2012 

36
 
104. On or before the date established by this Consent Decree for Defendants to 

achieve and maintain 0.030 lb/mmBTU at Cardinal Unit 1, Cardinal Unit 2, and Muskingum 

River Unit 5, Defendants shall conduct a performance test for PM that demonstrates compliance 

with the PM Emission Rate required by this Consent Decree. Within forty-five (45) days of each 

such performance test, Defendants shall submit the results of the performance test to Plaintiffs 

pursuant to Section XVIII (Notices) of this Consent Decree. 

C. PM Emissions Monitoring. 

105. Beginning in calendar year 2010 for Cardinal Unit 1 and Cardinal Unit 2, and 

calendar year 2013 for Muskingum River Unit 5, and continuing in each calendar year thereafter, 

Defendants shall conduct a stack test for PM on each stack servicing Cardinal Unit 1, Cardinal 

Unit 2, and Muskingum River Unit 5. The annual stack test requirement imposed by this 

Paragraph may be satisfied by stack tests conducted by Defendants as required by their permits 

from the State of Ohio for any year that such stack tests are required under the permits. 

106. The reference methods and procedures for determining compliance with PM 

Emission Rates shall be those specified in 40 C.F.R. Part 60, Appendix A, Method 5, 5B, or 17, 

or an alternative method that is promulgated by EPA, requested for use herein by Defendants, 

and approved for use herein by EPA. Use of any particular method shall conform to the EPA 

requirements specified in 40 C.F.R. Part 60, Appendix A and 40 C.F.R. § 60.48Da(b) and (e), or 

any federally-approved method contained in the Ohio State Implementation Plan. Defendants 

shall calculate the PM Emission Rates from the stack test results in accordance with 40 C.F.R. 

§ 60.8(f). The results of each PM stack test shall be submitted to EPA within forty-five (45) 

days of completion of each test. 

37
 
D. Installation and Operation of PM CEMS. 

107. Defendants shall install, calibrate, operate, and maintain PM CEMS, as specified 

below. Each PM CEMS shall comprise a continuous particle mass monitor measuring 

particulate matter concentration, directly or indirectly, on an hourly average basis and a diluent 

monitor used to convert the concentration to units of lb/mmBTU. Defendants shall maintain, in 

an electronic database, the hourly average emission values produced by all PM CEMS in 

lb/mmBTU. Defendants shall use reasonable efforts to keep each PM CEMS running and 

producing data whenever any Unit served by the PM CEMS is operating. 

108. No later than December 31, 2011, Defendants shall submit to EPA pursuant to 

Section XII (Review and Approval of Submittals) of this Consent Decree: (a) a plan for the 

installation and certification of each PM CEMS, and (b) a proposed Quality Assurance/Quality 

Control (“QA/QC”) protocol that shall be followed in calibrating such PM CEMS. In 

developing both the plan for installation and certification of the PM CEMS and the QA/QC 

protocol, Defendants shall use the criteria set forth in 40 C.F.R. Part 60, Appendix B, 

Performance Specification 11, and Appendix F, Procedure 3. Following approval by EPA of the 

protocol, Defendants shall thereafter operate each PM CEMS in accordance with the approved 

protocol. 

109. No later than the dates specified below, Defendants shall install, certify, and 

operate PM CEMS on the stacks or common stacks for Cardinal Unit 1, Cardinal Unit 2, and a 

third Unit, as further described in Paragraph 110: 

38
 
Stack Date to Commence Operation of PM 

CEMS 

Cardinal Unit 1 December 31, 2012 

Cardinal Unit 2 December 31, 2012 

Unit to be identified pursuant to Paragraph 

110 

December 31, 2012 

110. No later than December 31, 2011, Defendants shall identify, subject to Plaintiffs’ 

approval, the third Unit required by Paragraph 109. 

111. No later than ninety (90) days after Defendants begin operation of the PM CEMS, 

Defendants shall conduct tests of each PM CEMS to demonstrate compliance with the PM 

CEMS installation and certification plan submitted to and approved by EPA. 

112. Demonstration that PM CEMS are Infeasible. Defendants shall operate the PM 

CEMS for at least two (2) years on each of the Units specified in Paragraphs 109 and 110. After 

two (2) years of operation, Defendants may attempt to demonstrate that it is infeasible to 

continue operating PM CEMS. As part of such demonstration, Defendants shall submit an 

alternative PM monitoring plan for review and approval by EPA. The plan shall explain the 

basis for stopping operation of the PM CEMS and propose an alternative PM monitoring plan. If 

the United States disapproves the alternative PM monitoring plan, or if the United States rejects 

Defendants’ claim that it is infeasible to continue operating PM CEMS, such disagreement is 

subject to Section XV (Dispute Resolution). 

113. “Infeasible to Continue Operating PM CEMS” Standard. Operation of a PM 

CEMS shall be considered no longer feasible if: (a) the PM CEMS cannot be kept in proper 

39
 
 

condition for sufficient periods of time to produce reliable, adequate, or useful data consistent 

with the QA/QC protocol, or (b) Defendants demonstrate that recurring, chronic, or unusual 

equipment adjustment or servicing needs in relation to other types of continuous emission 

monitors cannot be resolved through reasonable expenditures of resources. If EPA determines 

that Defendants have demonstrated pursuant to this Paragraph that operation is no longer 

feasible, Defendants shall be entitled to discontinue operation of and remove the PM CEMS. 

114. PM CEMS Operations Will Continue During Dispute Resolution or Proposals for 

Alternative Monitoring. Until EPA approves an alternative monitoring plan, or until the 

conclusion of any proceeding under Section XV (Dispute Resolution), Defendants shall continue 

to operate the PM CEMS. If EPA has not issued a decision regarding an alternative monitoring 

plan within 120 days, Defendants may initiate action under Section XV (Dispute Resolution). 

E. PM Reporting. 

115. Defendants shall comply with the reporting requirements for PM as described in 

Section XI (Periodic Reporting) and Appendix B. 

F. General PM Provisions. 

116. Although stack testing shall be used to determine compliance with the PM 

Emission Rate established by this Consent Decree, data from the PM CEMS shall be used, at a 

minimum, to monitor progress in reducing PM emissions. 

40
 
VII. PROHIBITION ON NETTING CREDITS OR

 OFFSETS FROM REQUIRED CONTROLS 

117. Emission reductions that result from actions required to be taken by Defendants 

after the Date of Entry of this Consent Decree to comply with the requirements of this Consent 

Decree shall not be considered as a creditable contemporaneous emission decrease for the 

purpose of obtaining a netting credit or offset under the Clean Air Act’s Nonattainment NSR and 

PSD programs. 

118. Nothing in this Consent Decree is intended to preclude the emission reductions 

generated under this Consent Decree from being considered by a State or EPA as creditable 

contemporaneous emission decreases for the purpose of attainment demonstrations submitted 

pursuant to § 110 of the Act, 42 U.S.C. § 7410, or in determining impacts on NAAQS, PSD 

increment, or air quality related values, including visibility, in a Class I area. 

VIII. ENVIRONMENTAL MITIGATION PROJECTS 

119. Defendants shall implement the Environmental Mitigation Projects (“Projects”) 

described in Appendix A to this Consent Decree and fund the categories of Projects described in 

Subsection B, below, in compliance with the approved plans and schedules for such Projects and 

other terms of this Consent Decree. In funding and/or implementing all such Projects in 

Appendix A and Subsection B, Defendants shall expend moneys and/or implement Projects 

valued at no less than $36 million for the Projects identified in Appendix A and $24 million for 

the payments to the States to fund Projects within the categories set forth in Subsection B. 

Defendants shall fund and/or implement such Projects over a period of no later than five (5) 

years from the Date of Entry. Defendants may propose establishing one or more qualified 

settlement funds within the meaning of Treas. Reg. §1.468B-1 in conjunction with one or more 

41
 
Mitigation Projects. Any such trust would be established pursuant to a trust agreement in a form 

to be mutually agreed upon by the affected Parties. Nothing in the foregoing is intended by the 

United States to be a determination or opinion regarding whether such trust would meet the 

requirements of Treas. Reg. §1.468B-1 or is otherwise appropriate. 

A. Requirements for Projects Described in Appendix A ($36 million). 

120. Defendants shall maintain, and present to EPA upon request, all documents to 

substantiate the Project Dollars expended to implement the Projects described in Appendix A, 

and shall provide these documents to EPA within thirty (30) days of a request for the documents. 

121. All plans and reports prepared by Defendants pursuant to the requirements of this 

Section of the Consent Decree and required to be submitted to EPA shall be publicly available 

from Defendants without charge. 

122. Defendants shall certify, as part of each plan submitted to EPA for any Project, 

that Defendants are not otherwise required by law to perform the Project described in the plan, 

that Defendants are unaware of any other person who is required by law to perform the Project, 

and that Defendants will not use any Project, or portion thereof, to satisfy any obligations that it 

may have under other applicable requirements of law, including any applicable renewable 

portfolio standards. 

123. Defendants shall use good faith efforts to secure as much benefit as possible for 

the Project Dollars expended, consistent with the applicable requirements and limits of this 

Consent Decree. 

124. If Defendants elect (where such an election is allowed) to undertake a Project by 

contributing funds to another person or entity that will carry out the Project in lieu of 

Defendants, but not including Defendants’ agents or contractors, that person or instrumentality 

42
 
must, in writing: (a) identify its legal authority for accepting such funding; and (b) identify its 

legal authority to conduct the Project for which Defendants contribute the funds. Regardless of 

whether Defendants elect (where such election is allowed) to undertake a Project by itself or to 

do so by contributing funds to another person or instrumentality that will carry out the Project, 

Defendants acknowledge that they will receive credit for the expenditure of such funds as Project 

Dollars only if Defendants demonstrate that the funds have been actually spent by either 

Defendants or by the person or instrumentality receiving them, and that such expenditures met 

all requirements of this Consent Decree. 

125. Defendants shall comply with the reporting requirements for Appendix A Projects 

as described in Section XI (Periodic Reporting) and Appendix B. 

126. Within sixty (60) days following the completion of each Project required under 

this Consent Decree (including any applicable periods of demonstration or testing), Defendants 

shall submit to the United States a report that documents the date that the Project was completed, 

Defendants’ results of implementing the Project, including the emission reductions or other 

environmental benefits achieved, and the Project Dollars expended by Defendants in 

implementing the Project. 

B. Mitigation Projects to be Conducted by the States ($24 million). 

127. The States, by and through their respective Attorneys General, shall jointly 

submit to Defendants Projects within the categories identified in this Subsection B for funding in 

amounts not to exceed $4.8 million per calendar year for no less than five (5) years following the 

Date of Entry of this Consent Decree beginning as early as calendar year 2008. The funds for 

these Projects will be apportioned by and among the States, and Defendants shall not have 

approval rights for the Projects or the apportionment. Defendants shall pay proceeds as 

43
 
designated by the States in accordance with the Projects submitted for funding each year within 

seventy-five (75) days after being notified in writing by the States. Notwithstanding the $4.8 

million and 5-year limitation above, if the total costs of the projects submitted in any one or 

more years are less than $4.8 million, the difference between that amount and $4.8 million will 

be available for funding by Defendants of new or previously submitted projects in the following 

years, except that all amounts not designated by the States within ten (10) years after the Date of 

Entry of this Consent Decree shall expire. 

128. Categories of Projects. The States agree to use money funded by Defendants to 

implement Projects that pertain to energy efficiency and/or pollution reduction. Such projects 

may include, but are not limited by, the following: 

a. Retrofitting land and marine vehicles (e.g., automobiles, off-road and onroad construction and other vehicles, trains, ferries) and transportation 

terminals and ports, with pollution control devices, such as particulate 

matter traps, computer chip reflashing, and battery hybrid technology; 

b. Truck-stop and marine port electrification; 

c. Purchase and installation of photo-voltaic cells on buildings; 

d. Projects to conserve energy use in new and existing buildings, including 

appliance efficiency improvement projects, weatherization projects, and 

projects intended to meet EPA’s Green Building guidelines (see 

http://www.epa.gov/greenbuilding/pubs/enviro-issues.htm) and/or the 

Leadership in Energy and Environmental Design (LEED) Green Building 

Rating System (see 

http://www.usgbc.org/DisplayPage.aspx?CategoryID=19), and projects to 

44
 
collect information in rental markets to assist in design of efficiency and 

conservation programs; 

e. Construction associated with the production of energy from wind, solar, 

and biomass; 

f. “Buy back” programs for dirty old motors (e.g., automobile, lawnmowers, 

landscape equipment); 

g. Programs to remove and/or replace oil-fired home heating equipment to 

allow use of ultra-low sulfur oil, and outdoor wood-fired boilers; 

h. Purchase and retirement of SO2 and NOx allowances; and 

i. Funding program to improve modeling of mobile source sector. 

IX. CIVIL PENALTY 

129. Within thirty (30) days after the Date of Entry, Defendants shall pay to the United 

States a civil penalty in the amount of $15,000,000. 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 1999v01542 and DOJ Case Number 90-5-2-1-

06893 and the civil action case name and consolidated case numbers of this action. The costs of 

such EFT shall be Defendants’ responsibility. Payment shall be made in accordance with 

instructions provided to Defendants by the Financial Litigation Unit of the U.S. Attorney’s 

Office for the Southern District of Ohio. Any funds received after 2:00 p.m. EDT shall be 

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

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

name and consolidated case numbers, to the Department of Justice and to EPA in accordance 

with Section XVIII (Notices) of this Consent Decree. 

45
 
130. Failure to timely pay the civil penalty shall subject 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 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. 

131. Payment made pursuant to this Section is a penalty within the meaning of Section 

162(f) of the Internal Revenue Code, 26 U.S.C. § 162(f), and is not a tax-deductible expenditure 

for purposes of federal law. 

X. RESOLUTION OF CIVIL CLAIMS AGAINST DEFENDANTS 

A. Resolution of the United States’ Civil Claims. 

132. Claims Based on Modifications Occurring Before the Date of Lodging of this 

Consent Decree. Entry of this Decree shall resolve all civil claims of the United States against 

Defendants that arose from any modifications commenced at any AEP Eastern System Unit prior 

to the Date of Lodging of this Consent Decree, including but not limited to, those modifications 

alleged in the Notices of Violation and complaints filed in AEP I and AEP II, under any or all of: 

(a) Parts C or D of Subchapter I of the Clean Air Act, 42 U.S.C. §§ 7470-7492, 7501-7515; (b) 

Section 111 of the Clean Air Act, 42 U.S.C. § 7411, and 40 C.F.R. § 60.14; (c) the federallyapproved and enforceable Indiana State Implementation Plan, Kentucky State Implementation 

Plan, Ohio State Implementation Plan, Virginia State Implementation Plan, and West Virginia 

State Implementation Plan; or (d) Sections 502(a) and 504(a) of Title V of the Clean Air Act, 42 

U.S.C §§ 7611(a) and 7611(c), but only to the extent that such claims are based on Defendants’ 

failure to obtain an operating permit that reflects applicable requirements imposed under Parts C 

or D of Subchapter I, or Section 111 of the Clean Air Act. 

46
 
133. Claims Based on Modifications after the Date of Lodging of This Consent 

Decree. Entry of this Consent Decree also shall resolve all civil claims of the United States 

against Defendants that arise based on a modification commenced before December 31, 2018, or 

solely for Rockport Unit 2, before December 31, 2019, for all pollutants, except Particulate 

Matter, regulated under Parts C or D of Subchapter I of the Clean Air Act, and under regulations 

promulgated thereunder, as of the Date of Lodging of this Consent Decree, and: 

a. where such modification is commenced at any AEP Eastern System Unit 

after the Date of Lodging of this Consent Decree; or 

b. where such modification is one this Consent Decree expressly directs 

Defendants to undertake. 

The term “modification” as used in this Paragraph shall have the meaning that term is given 

under the Clean Air Act and under the regulations in effect as of the Date of Lodging of this 

Consent Decree, as alleged in the complaints in AEP I and AEP II. 

134. Reopener. The resolution of the United States’ civil claims against Defendants, 

as provided by this Subsection A, is subject to the provisions of Subsection B of this Section. 

47
 
B. Pursuit by the United States of Civil Claims Otherwise Resolved by Subsection 

A. 

135. Bases for Pursuing Resolved Claims for the AEP Eastern System. If Defendants 

violate: (a) the Eastern System-Wide Annual Tonnage Limitations for NOx required pursuant to 

Paragraph 67; (b) the Eastern System-Wide Annual Tonnage Limitations for SO2 required 

pursuant to Paragraph 86; or (c) operate a Unit more than ninety (90) days past a date established 

in this Consent Decree without completing the required installation, upgrade, or commencing 

Continuous Operation of any emission control device required pursuant to Paragraphs 68, 69, 87, 

102, and 103 then the United States may pursue any claim at any AEP Eastern System Unit that 

is otherwise resolved under Subsection A (Resolution of United States’ Civil Claims), subject to 

(a) and (b) below. 

a. For any claims based on modifications undertaken at any Unit in the AEP 

Eastern System that is not an Improved Unit for the pollutant in question, 

claims may be pursued only where the modification(s) on which such 

claim is based was commenced within the five (5) years preceding the 

violation or failure specified in this Paragraph. 

b. For any claims based on modifications undertaken at an Improved Unit, 

claims may be pursued only where the modification(s) on which such 

claim is based was commenced: (1) after the Date of Lodging of this 

Consent Decree and (2) within the five (5) years preceding the violation or 

failure specified in this Paragraph. 

136. Additional Bases for Pursuing Resolved Claims for Modifications at an Improved 

Unit. Solely with respect to an Improved Unit, the United States may also pursue claims arising 

48
 
 

from a modification (or collection of modifications) at an Improved Unit that has otherwise been 

resolved under Subsection A (Resolution of the United States’ Civil Claims) if the modification 

(or collection of modifications) at the Improved Unit on which such claim is based (a) was 

commenced after the Date of Lodging of this Consent Decree and (b) individually (or 

collectively) increased the maximum hourly emission rate of that Unit for NOx or SO2 (as 

measured by 40 C.F.R. § 60.14 (b) and (h)) by more than ten percent (10%). 

137. Any Other Unit can become an Improved Unit for NOx if (a) it is equipped with 

an SCR, and (b) the operation of such SCR is incorporated into a federally-enforceable non-Title 

V permit or site-specific amendment to the state implementation plan and incorporated into a 

Title V permit applicable to that Unit. Any Other Unit can become an Improved Unit for SO2 if 

(a) it is equipped with an FGD, and (b) the operation of such FGD is incorporated into a 

federally-enforceable non-Title V permit or site-specific amendment to the state implementation 

plan and incorporated into a Title V permit applicable to that Unit. 

138. Additional Bases for Pursuing Resolved Claims for Modifications at Other Units. 

a. Solely with respect to Other Units, i.e., a Unit that is not an Improved Unit 

under the terms of this Consent Decree, the United States may also pursue claims arising from a 

modification (or collection of modifications) at an Other Unit that has otherwise been resolved 

under Subsection A (Resolution of the United States’ Civil Claims), if the modification (or 

collection of modifications) at the Other Unit on which the claim is based was commenced 

within the five (5) years preceding any of the following events: 

1. a modification (or collection of modifications) at such Other Unit 

commenced after the Date of Lodging of this Consent Decree increases the maximum hourly 

49
 
emission rate for such Other Unit for the relevant pollutant (NOx or SO2) (as measured by 40 

C.F.R. § 60.14(b) and (h)); 

2. the aggregate of all Capital Expenditures made at such Other Unit 

exceed $125/KW on the Unit’s Boiler Island (based on the generating capacities identified in 

Paragraph 7) during the period from the Date of Entry of this Consent Decree through December 

31, 2015. (Capital Expenditures shall be measured in calendar year 2007 constant dollars, as 

adjusted by the McGraw-Hill Engineering News-Record Construction Cost Index); or 

3. a modification (or collection of modifications) at such Other Unit 

commenced after the Date of Lodging of this Consent Decree results in an emissions increase of 

NOx and/or SO2 at such Other Unit, and such increase: (i) presents, by itself, or in combination 

with other emissions or sources, “an imminent and substantial endangerment” within the 

meaning of Section 303 of the Act, 42 U.S.C. §7603; (ii) causes or contributes to violation of a 

NAAQS in any Air Quality Control Area that is in attainment with that NAAQS; (iii) causes or 

contributes to violation of a PSD increment; or (iv) causes or contributes to any adverse impact 

on any formally-recognized air quality and related values in any Class I area. The introduction 

of any new or changed NAAQS shall not, standing alone, provide the showing needed under 

Subparagraphs (3)(ii) or (3)(iii) of this Paragraph, to pursue any claim for a modification at an 

Other Unit resolved under Subparagraph A of this Section. 

b. Solely with respect to Other Units at the plant listed below, the United States may 

also pursue claims arising from a modification (or collection of modifications) at such Other 

Units commenced after the Date of Lodging of this Consent Decree if such modification (or 

collection of modifications) results in an emissions increase of SO2 at such Other Unit, and such 

increase causes the emissions at the plant at issue to exceed the Plant-Wide Annual Rolling 

50
 
Average Tonnage Limitation for SO2 at Clinch River listed in the table below for year 2010-

2014 and/or 2015 and beyond: 

Plant Year SO2 Tons Limit 

Clinch River 2010 - 2014 21,700 

Clinch River 2015 and each year 

thereafter 

16,300 

C. Resolution of Past Claims of the States and Citizen Plaintiffs and Reservation of 

Rights. 

139. The States and Citizen Plaintiffs agree that this Consent Decree resolves all civil 

claims that have been alleged in their respective complaints or could have been alleged against 

Defendants prior to the Date of Lodging of this Consent Decree for violations of: (a) Parts C or 

D of Subchapter I of the Clean Air Act, 42 U.S.C. §§ 7470-7492, 7501-7515, and (b) Section 

111 of the Act, 42 U.S.C. § 7411, and 40 C.F.R § 60.14, at Units within the AEP Eastern 

System. 

140. The States and Citizen Plaintiffs expressly do not join in giving the Defendants 

the covenant provided by the United States through Paragraph 133 of this Consent Decree, do 

not release any claims under the Clean Air Act and its implementing regulations arising after the 

Date of Lodging of this Consent Decree, and reserve their rights, if any, to bring any actions 

against the Defendants pursuant to 42 U.S.C. § 7604 for any claims arising after the Date of 

Lodging of this Consent Decree. 

141. Notwithstanding Paragraph 140, the States and Citizen Plaintiffs release 

Defendants from any civil claim that may arise under the Clean Air Act for Defendants’ 

performance of activities that this Consent Decree expressly directs Defendants to undertake, 

51
 
except to the extent that such activities would cause a significant increase in the emission of a 

criteria pollutant other than SO2, NOx, or PM. 

142. Retention of Authority Regarding NAAQS Exceedences. Nothing in this Consent 

Decree shall be construed to affect the authority of the United States or any state under 

applicable federal statutes or regulations and applicable state statutes or regulations to impose 

appropriate requirements or sanctions on any Unit in the AEP Eastern System, including, but not 

limited to, the Units at the Clinch River plant, if the United States or a state determines that 

emissions from any Unit in the AEP Eastern System result in violation of, or interfere with the 

attainment and maintenance of, any ambient air quality standard. 

XI. PERIODIC REPORTING 

143. Beginning on March 31, 2008, and continuing annually thereafter on March 31 

until termination of this Consent Decree, and in addition to any other express reporting 

requirement in this Consent Decree, Defendants shall submit to the Unites States, the States, and 

the Citizen Plaintiffs a progress report in compliance with Appendix B of this Consent Decree. 

144. In any periodic progress report submitted pursuant to this Section, Defendants 

may incorporate by reference information previously submitted under their Title V permitting 

requirements, provided that Defendants attach the Title V permit report, or the relevant portion 

thereof, and provide a specific reference to the provisions of the Title V permit report that are 

responsive to the information required in the periodic progress report. 

145. In addition to the progress reports required pursuant to this Section, Defendants 

shall provide a written report to the United States, the States, and the Citizen Plaintiffs of any 

violation of the requirements of this Consent Decree within fifteen (15) days of when Defendants 

knew or should have known of any such violation. In this report, Defendants shall explain the 

52
 
cause or causes of the violation and all measures taken or to be taken by Defendants to prevent 

such violations in the future. 

146. Each report shall be signed by Defendants’ Vice President of Environmental 

Services or his or her equivalent or designee of at least the rank of Vice President, 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. 

147. If any SO2 or NOx Allowances are surrendered to any third party pursuant to this 

Consent Decree, the third party’s certification pursuant to Paragraphs 83 and 95 shall be signed 

by a managing officer of the third party and shall contain the following language: 

I certify under penalty of law that,_____________ [name of third party] 

will not sell, trade, or otherwise exchange any of the allowances and will not use 

any of the allowances to meet any obligation imposed by any environmental law. 

I understand that there are significant penalties for submitting false, inaccurate, or 

incomplete information to the United States. 

53
 
XII. REVIEW AND APPROVAL OF SUBMITTALS
 

148. Defendants shall submit each plan, report, or other submission required by this 

Consent Decree to the Plaintiffs specified, whenever such a document is required to be submitted 

for review or approval pursuant to this Consent Decree. The Plaintiff(s) to whom the report is 

submitted, as required, may approve the submittal or decline to approve it and provide written 

comments explaining the bases for declining such approval as soon as reasonably practicable. 

Such Plaintiff(s) will endeavor to coordinate their comments into one document when explaining 

their bases for declining such approval. Within sixty (60) days of receiving written comments 

from any of the Plaintiff(s), Defendants shall either: (a) revise the submittal consistent with the 

written comments and provide the revised submittal to the Plaintiff(s); or (b) submit the matter 

for dispute resolution, including the period of informal negotiations, under Section XV (Dispute 

Resolution) of this Consent Decree. 

149. Upon receipt of Plaintiffs’ or Plaintiff’s (as the case may be) final approval of the 

submittal, or upon completion of the submittal pursuant to dispute resolution, Defendants shall 

implement the approved submittal in accordance with the schedule specified therein. 

54
 
 

XIII. STIPULATED PENALTIES 

150. For any failure by Defendants to comply with the terms of this Consent Decree, 

and subject to the provisions of Sections XIV (Force Majeure) and XV (Dispute Resolution), 

Defendants shall pay, within thirty (30) days after receipt of written demand to 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 per day 

b. Failure to comply with any applicable 30-Day Rolling 

Average Emission Rate, 30-Day Rolling Average Removal 

Efficiency, Emission Rate for PM, or Other SO2 Measures 

where the violation is less than 5% in excess of the limits 

set forth in this Consent Decree 

$2,500 per day per violation 

c. Failure to comply with any applicable 30-Day Rolling 

Average Emission Rate, 30-Day Rolling Average Removal 

Efficiency, Emission Rate for PM, or Other SO2 Measures 

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 

$5,000 per day per violation 

d. Failure to comply with any applicable 30-Day Rolling 

Average Emission Rate, 30-Day Rolling Average Removal 

Efficiency, Emission Rate for PM, or Other SO2 Measures 

where the violation is equal to or greater than 10% in 

excess of the limits set forth in this Consent Decree 

$10,000 per day per violation 

55
 
Consent Decree Violation Stipulated Penalty (Per Day, 

Per Violation, Unless 

Otherwise Specified) 

e. Failure to comply with the Eastern System-Wide Annual 

Tonnage Limitation for SO2 

$5,000 per ton for the first 1000 

tons, and $10,000 per ton for 

each additional ton above 1000 

tons, plus the surrender, 

pursuant to the procedures set 

forth in Paragraphs 82 and 83, 

of NOx Allowances in an 

amount equal to two times the 

number of tons by which the 

limitation was exceeded 

f. Failure to comply with the Plant-Wide Annual Rolling 

Tonnage Limitation for SO2 at Clinch River 

$40,000 per ton, plus the 

surrender, pursuant to the 

procedures set forth in 

Paragraphs 95 and 96, of SO2 

Allowances in an amount equal 

to two times the number of tons 

by which the limitation was 

exceeded 

g. Failure to comply with the Eastern System-Wide Annual 

Tonnage Limitation for NOx 

$5,000 per ton for the first 1000 

tons, and $10,000 per ton for 

each additional ton above 1000 

tons, plus the surrender, 

pursuant to the procedures set 

forth in Paragraphs 82 and 83, 

of NOx Allowances in an 

amount equal to two times the 

number of tons by which the 

limitation was exceeded 

h. Failure to install, commence operation, or Continuously 

Operate a pollution control device required under this 

Consent Decree 

$10,000 per day per violation 

during the first 30 days, 

$32,500 per day per violation 

thereafter 

i. Failure to Retire, Retrofit, or Re-power a Unit by the date 

specified in this Consent Decree 

$10,000 per day per violation 

during the first 30 days, 

$32,500 per day per violation 

thereafter 

56
 
Consent Decree Violation Stipulated Penalty (Per Day, 

Per Violation, Unless 

Otherwise Specified) 

j. Failure to install or operate CEMS as required in this 

Consent Decree 

$1,000 per day per violation 

k. Failure to conduct performance tests of PM emissions, 

as required in this Consent Decree 

$1,000 per day per violation 

l. Failure to apply for any permit required by Section XVI 

(Permits) 

$1,000 per day per violation 

m. Failure to timely submit, modify, or implement, as 

approved, the reports, plans, studies, analyses, protocols, or 

other submittals required in this Consent Decree 

$750 per day per violation 

during the first ten days, $1,000 

per day per violation thereafter 

n. Using NOx Allowances except as permitted by 

Paragraphs 75, 76, and 78 

The surrender of NOx 

Allowances in an amount equal 

to four times the number of 

NOx Allowances used in 

violation of this Consent 

Decree 

o. Failure to surrender NOx Allowances as required by 

Paragraphs 75 and 79 

(a) $32,500 per day plus (b) 

$7,500 per NOx Allowance not 

surrendered 

p. Failure to surrender SO2 Allowances as required by 

Paragraph 93 

(a) $32,500 per day plus (b) 

$1,000 per SO2 Allowance not 

surrendered 

q. Failure to demonstrate the third party surrender of an 

SO2 Allowance or NOx Allowance in accordance with 

Paragraphs 95-96 and 82-83. 

$2,500 per day per violation 

r. Failure to implement any of the Environmental 

Mitigation Projects described in Appendix A in compliance 

with Section VIII (Environmental Mitigation Projects) of 

this Consent Decree 

The difference between the cost 

of the Project, as identified in 

Appendix A, and the dollars 

Defendants spent to implement 

the Project 

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Consent Decree Violation Stipulated Penalty (Per Day, 

Per Violation, Unless 

Otherwise Specified) 

s. Failure to fund an Environmental Mitigation Project, as 

submitted by the States, in compliance with Section VIII 

(Environmental Mitigation Projects) of this Consent Decree 

$1,000 per day per violation 

during the first 30 days, $5,000 

per day per violation thereafter 

t. Failure to Continuously Operate required Other NOx 

Pollution Controls required in Paragraph 69 

$10,000 per day during the first 

30 days, and $32,500 each day 

thereafter 

u. Failure to comply with the Plant-Wide Annual Tonnage 

Limitation for SO2 at Kammer 

$40,000 per ton, plus the 

surrender, pursuant to the 

procedures set forth in 

Paragraphs 95 and 96 of SO2 

Allowances in an amount equal 

to two times the number of tons 

by which the limitation was 

exceeded 

v. Any other violation of this Consent Decree $1,000 per day per violation 

151. Violation of an Emission Rate or 30-Day Rolling Average Removal Efficiency 

that is based on a 30-Day Rolling Average is a violation on every day on which the average is 

based. Where a violation of a 30-Day Rolling Average Emission Rate or 30-Day Rolling 

Average Removal Efficiency (for the same pollutant and from the same source) recurs within 

periods of less than thirty (30) days, Defendants shall not pay a daily stipulated penalty for any 

day of the recurrence for which a stipulated penalty has already been paid. 

152. 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 shall continue to accrue until 

performance is satisfactorily completed or until the violation ceases, whichever is applicable. 

Nothing in this Consent Decree shall prevent the simultaneous accrual of separate stipulated 

penalties for separate violations of this Consent Decree. 

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153. Defendants shall pay all stipulated penalties to the United States within thirty (30) 

days of receipt of written demand to 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 Defendants elect within twenty (20) days of receipt of written demand to Defendants 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. 

154. Stipulated penalties shall continue to accrue as provided in accordance with 

Paragraph 152 during any dispute, with interest on accrued stipulated penalties payable and 

calculated at the rate established by the Secretary of the Treasury, pursuant to 28 U.S.C. § 1961, 

but need not be paid until the following: 

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

pursuant to Section XV (Dispute Resolution) of this Consent Decree that 

is not appealed to the Court, accrued stipulated penalties agreed or 

determined 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 Plaintiffs’ decision; 

b. If the dispute is appealed to the Court and Plaintiffs prevail in whole or in 

part, Defendants shall, within sixty (60) days of receipt of the Court’s 

decision or order, pay all accrued stipulated penalties determined by the 

Court to be owing, together with interest accrued on such penalties 

determined by the Court to be owing, except as provided in Subparagraph 

c, below; 

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c. If the Court’s decision is appealed by any Party, Defendants shall, within 

fifteen (15) days of receipt of the final appellate court decision, pay all 

accrued stipulated penalties determined to be owing, together with interest 

accrued on such stipulated penalties determined to be owing by the 

appellate court. 

Notwithstanding any other provision of this Consent Decree, the accrued stipulated penalties 

agreed by the Plaintiffs and Defendants, or determined by the Plaintiffs through Dispute 

Resolution, to be owing may be less than the stipulated penalty amounts set forth in Paragraph 

150. 

155. All stipulated penalties shall be paid in the manner set forth in Section IX (Civil 

Penalty) of this Consent Decree. 

156. Should 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. 

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

to any other rights, remedies, or sanctions available to Plaintiffs by reason of 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, 

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

also imposed for such violation. 

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XIV. FORCE MAJEURE
 

158. For purposes of this Consent Decree, including, but not limited to, Paragraphs 67 

and 86, a “Force Majeure Event” shall mean an event that has been or will be caused by 

circumstances beyond the control of Defendants or any entity controlled by Defendants that 

delays compliance with any provision of this Consent Decree or otherwise causes a violation of 

any provision of this Consent Decree despite 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. 

159. 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 Defendants intend to assert a claim of Force Majeure, Defendants shall 

notify the Plaintiffs in writing as soon as practicable, but in no event later than twenty-one (21) 

business days following the date 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, 

Defendants shall reference this Paragraph of this Consent Decree and describe 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 Defendants to prevent or minimize the delay or 

violation, the schedule by which Defendants propose to implement those measures, and 

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

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

shall be deemed to know of any circumstance which Defendants or any entity controlled by 

Defendants knew or should have known. 

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

requirements of this Section, the Plaintiffs may void Defendants’ claim for Force Majeure as to 

the specific event for which Defendants have failed to comply with such notice requirement. 

161. Plaintiffs’ Response. The Plaintiffs shall notify Defendants in writing regarding 

Defendants’ claim of Force Majeure as soon as reasonably practicable. If the Plaintiffs agree 

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, or the extent to which 

Defendants may be relieved of stipulated penalties or other remedies provided under the terms of 

this Consent Decree. Such agreement shall be reduced to writing, and signed by all Parties. If 

the agreement results in a material change to the terms of this Consent Decree, an appropriate 

modification shall be made pursuant to Section XXII (Modification). If such change is not 

material, no modification of this Consent Decree shall be required. 

162. Disagreement. If Plaintiffs do not accept Defendants’ claim of Force Majeure, or 

if the Plaintiffs and Defendants cannot agree on the length of the delay actually caused by the 

Force Majeure Event, or the extent of relief required to address 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. 

163. Burden of Proof. In any dispute regarding Force Majeure, 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. Defendants 

shall also bear the burden of proving that Defendants gave the notice required by this Section 

and the burden of proving the anticipated duration and extent of any delay(s) attributable to a 

62
 
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. 

164. Events Excluded. Unanticipated or increased costs or expenses associated with 

the performance of Defendants’ obligations under this Consent Decree shall not constitute a 

Force Majeure Event. 

165. Potential Force Majeure Events. The Parties agree that, depending upon the 

circumstances related to an event and Defendants’ response to such circumstances, the kinds of 

events listed below are among those that could qualify as Force Majeure Events within the 

meaning of this Section: construction, labor, or equipment delays; Malfunction of a Unit or 

emission control device; unanticipated coal supply or pollution control reagent delivery 

interruptions; acts of God; acts of war or terrorism; and orders by a government official, 

government agency, other regulatory authority, or a regional transmission organization, acting 

under and authorized by applicable law, that directs Defendants to operate an AEP Eastern 

System Unit in response to a local or system-wide (state-wide or regional) emergency (which 

could include unanticipated required operation to avoid loss of load or unserved load). 

Depending upon the circumstances and Defendants’ response to such circumstances, failure of a 

permitting authority to issue a necessary permit in a timely fashion may constitute a Force 

Majeure Event where the failure of the permitting authority to act is beyond the control of 

Defendants and Defendants have taken all steps available to it to obtain the necessary permit, 

including, but not limited to: submitting a complete permit application; responding to requests 

for additional information by the permitting authority in a timely fashion; and accepting lawful 

permit terms and conditions after expeditiously exhausting any legal rights to appeal terms and 

conditions imposed by the permitting authority. 

63
 
166. 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 Plaintiffs 

and Defendants 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 Plaintiffs or approved by 

the Court. Defendants shall be liable for stipulated penalties for their failure thereafter to 

complete the work in accordance with the extended or modified schedule (provided that 

Defendants shall not be precluded from making a further claim of Force Majeure with regard to 

meeting any such extended or modified schedule). 

XV. DISPUTE RESOLUTION 

167. 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 Parties. 

168. The dispute resolution procedure required herein shall be invoked by one Party 

giving written notice to the other Parties 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 Parties receiving such a notice shall acknowledge receipt of the 

notice, and the Parties in dispute shall expeditiously schedule a meeting to discuss the dispute 

informally not later than fourteen (14) days following receipt of such notice. 

169. 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) days from the date of the first meeting 

among the disputing Parties’ representatives unless they agree in writing to shorten or extend 

64
 
this period. During the informal negotiations period, the disputing Parties may also submit their 

dispute to a mutually agreed upon alternative dispute resolution (ADR) forum if the Parties agree 

that the ADR activities can be completed within the 30-day informal negotiations period (or such 

longer period as the Parties may agree to in writing). 

170. If the disputing Parties are unable to reach agreement during the informal 

negotiation period, the Plaintiffs shall provide Defendants with a written summary of their 

position regarding the dispute. The written position provided by Plaintiffs shall be considered 

binding unless, within forty-five (45) days thereafter, Defendants seek judicial resolution of the 

dispute by filing a petition with this Court. The Plaintiffs may respond to the petition within 

forty-five (45) days of filing. In their initial filings with the Court under this Paragraph, the 

disputing Parties shall state their respective positions as to the applicable standard of law for 

resolving the particular dispute. 

171. The time periods set out in this Section may be shortened or lengthened upon 

motion to the Court of one of the Parties to the dispute, explaining the Party’s basis for seeking 

such a scheduling modification. 

172. This Court shall not draw any inferences nor establish any presumptions adverse 

to any disputing Party as a result of invocation of this Section or the disputing Parties’ inability 

to reach agreement. 

173. As part of the resolution of any dispute under this Section, in appropriate 

circumstances the disputing Parties may agree, or this Court may order, an extension or 

modification of the schedule for the completion of the activities required under this Consent 

Decree to account for the delay that occurred as a result of dispute resolution. Defendants shall 

be liable for stipulated penalties for their failure thereafter to complete the work in accordance 

65
 
with the extended or modified schedule, provided that Defendants shall not be precluded from 

asserting that a Force Majeure Event has caused or may cause a delay in complying with the 

extended or modified schedule. 

174. 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 170, the disputing 

Parties shall state their respective positions as to the applicable standard of law for resolving the 

particular dispute. 

XVI. PERMITS 

175. Unless expressly stated otherwise in this Consent Decree, in any instance where 

otherwise applicable law or this Consent Decree requires Defendants to secure a permit to 

authorize construction or operation of any device contemplated herein, including all 

preconstruction, construction, and operating permits required under state law, Defendants shall 

make such application in a timely manner. Defendants shall provide Notice to Plaintiffs under 

Section XVIII (Notices), for each Unit that Defendants submit an application for any permit 

described in this Paragraph 175. 

176. Notwithstanding the previous Paragraph, nothing in this Consent Decree shall be 

construed to require Defendants to apply for or obtain a PSD or Nonattainment NSR permit for 

physical changes in, or changes in the method of operation of, any AEP Eastern System Unit that 

would give rise to claims resolved by Paragraph 132 and 133, subject to Paragraphs 134 through 

138, or Paragraphs 139 and 141 of this Consent Decree. 

177. When permits are required as described in Paragraph 175, Defendants shall 

complete and submit applications for such permits to the appropriate authorities to allow time for 

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

66
 
information by the permitting authorities. Any failure by Defendants to submit a timely permit 

application for any Unit in the AEP Eastern System shall bar any use by Defendants of Section 

XIV (Force Majeure) of this Consent Decree, where a Force Majeure claim is based on 

permitting delays. 

178. 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 Title 

V 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 will become part of a Title V permit, subject to 

the terms of Section XXVI (Conditional Termination of Enforcement Under Decree) of this 

Consent Decree. 

179. Within three (3) years from the Date of Entry of this Consent Decree, and in 

accordance with federal and/or state requirements for modifying or renewing a Title V permit, 

Defendants shall amend any applicable Title V permit application, or apply for amendments to 

their Title V permits, to include a schedule for any Unit-specific performance, operational, 

maintenance, and control technology requirements established by this Consent Decree including, 

but not limited to, required emission rates or other limitations. For Units subject to a 

requirement to Retire, Retrofit, or Re-power, Defendants shall apply to modify, renew, or obtain 

any applicable Title V permit to include a schedule for any Unit-specific performance, operation, 

maintenance, and control technology requirements established by this Consent Decree including, 

but not limited to, required emission rates or other limitations, within (12) twelve months of 

making such election to Retire, Retrofit, or Re-power. 

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180. Within one (1) year from commencement of operation of each pollution control 

device to be installed, upgraded, and/or operated under this Consent Decree, Defendants shall 

apply to include the requirements and limitations enumerated in this Consent Decree into 

federally-enforceable non-Title V permits and/or site-specific amendments to the applicable state 

implementation plans to reflect all new requirements applicable to each Unit in the AEP Eastern 

System, the Plant-Wide Annual Rolling Average Tonnage Limitation for SO2 at Clinch River, 

and the Plant-Wide Annual Tonnage Limitation for SO2 at Kammer. 

181. Defendants shall provide the United States with a copy of each application for a 

federally-enforceable non-Title V permit or amendment to a state implementation plan, as well 

as a copy of any permit proposed as a result of such application, to allow for timely participation 

in any public comment period. 

182. Prior to termination of this Consent Decree, Defendants shall obtain enforceable 

provisions in their Title V permits for the AEP Eastern System that incorporate (a) any Unitspecific requirements and limitations of this Consent Decree, such as performance, operational, 

maintenance, and control technology requirements, (b) the Plant-Wide Annual Rolling Average 

Tonnage Limitation for SO2 at Clinch River and the Plant-Wide Annual Tonnage Limitation for 

SO2 at Kammer, and (c) the Eastern System-Wide Annual Tonnage Limitations for SO2 and 

NOx. If Defendants do not obtain enforceable provisions for the Eastern System-Wide Annual 

Tonnage Limitations for SO2 and NOx in such Title V permits, then the requirements in 

Paragraphs 86 and 67 shall remain enforceable under this Consent Decree and shall not be 

subject to termination. 

183. If Defendants sell or transfer to an entity unrelated to Defendants (“Third-Party 

Purchaser”) part or all of Defendants’ Ownership Interest in a Unit in the AEP Eastern System, 

68
 
Defendants shall comply with the requirements of Section XIX (Sales or Transfers of 

Operational or Ownership Interests) with regard to that Unit prior to any such sale or transfer 

unless, following any such sale or transfer, Defendants remain the holder of the Title V permit 

for such facility. 

XVII. INFORMATION COLLECTION AND RETENTION 

184. Any authorized representative of the United States, including attorneys, 

contractors, and consultants, upon presentation of credentials, shall have a right of entry upon the 

premises of any facility in the AEP Eastern System 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 

Defendants or their representatives, contractors, or consultants; and 

d. assessing Defendants’ compliance with this Consent Decree. 

185. 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 (with the exception of 

their contractors’ copies of field drawings and specifications), and that directly relate to 

Defendants’ performance of their obligations under this Consent Decree until six (6) years 

following completion of performance of such obligations. This record retention requirement 

shall apply regardless of any corporate document retention policy to the contrary. 

186. All information and documents submitted by Defendants pursuant to this Consent 

Decree shall be subject to any requests under applicable law providing public disclosure of 

69
 
 

documents unless (a) the information and documents are subject to legal privileges or protection 

or (b) Defendants claim and substantiate in accordance with 40 C.F.R. Part 2 that the information 

and documents contain confidential business information. 

187. Nothing in this Consent Decree shall limit the authority of EPA to conduct tests 

and inspections at Defendants’ facilities under Section 114 of the Act, 42 U.S.C. § 7414, or any 

other applicable federal or state laws, regulations, or permits. 

XVIII. NOTICES 

188. 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: 

As to the United States: 

Chief, Environmental Enforcement Section 

Environment and Natural Resources Division 

U.S. Department of Justice 

P.O. Box 7611, Ben Franklin Station 

Washington, DC 20044-7611 

DJ# 90-5-2-1-06893 

and 

Director, Air Enforcement Division 

Office of Enforcement and Compliance Assurance 

U.S. Environmental Protection Agency 

Ariel Rios Building [Mail Code 2242A] 

1200 Pennsylvania Avenue, N.W. 

Washington, DC 20460 

and 

Air Enforcement & Compliance Assurance Branch 

U.S. EPA Region V 

77 W. Jackson St. 

Mail Code AE17J 

Chicago, IL 60604 

70
 
and 

Air Protection Division Director 

U.S. EPA Region III 

1650 Arch Street 

Philadelphia, PA 19103 

As to the State of Connecticut: 

Office of the Attorney General 

Environmental Department 

P.O. Box 120 

Hartford, Connecticut 

06141-0120 

As to the State of Maryland: 

Frank Courtright 

Program Manager 

Air Quality Compliance Program 

Maryland Department of the Environment 

1800 Washington Blvd. 

Baltimore, Maryland 21230 

fcourtright@mde.state.md.us 

As to the Commonwealth of Massachusetts: 

Frederick D. Augenstern, Assistant Attorney General 

Office of the Attorney General 

1 Ashburton Place, 18th floor 

Boston, Massachusetts 02108 

fred.augenstern@state.ma.us 

and 

Douglas Shallcross, Esquire 

Department of Environmental Protection 

Office of General Counsel 

1 Winter Street 

Boston, Massachusetts 02108 

Douglas.Shallcross@state.ma.us 

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As to the State of New Hampshire: 

Director, Air Resources Division 

New Hampshire Department of Environmental Services 

29 Hazen Dive 

Concord, New Hampshire 03302-0095 

As to the State of New Jersey: 

Kevin P. Auerbacher 

Section Chief 

Environmental Enforcement Section 

R.J. Hughes Justice Complex 

25 Market Street 

P.O. Box 093 

Trenton, New Jersey 08625-0093 

As to the State of New York: 

Robert Rosenthal 

Assistant Attorney General 

New York State Attorney General's Office 

The Capitol 

Albany, New York 12224 

As to the State of Rhode Island: 

Tricia K. Jedele 

Special Assistant Attorney General 

150 South Main Street 

Providence, RI 02903 

(401) 274-4400, Ext. 2400 

tjedele@riag.ri.gov 

As to the State of Vermont: 

Environmental Division 

Office of the Attorney General 

109 State Street 

Montpelier, Vermont 05609-1001 

and 

72
 
 

Director 

Air Pollution Control Division 

Department of Environmental Conservation 

Agency of Natural Resources 

Building 3 South 

103 South Main Street 

Waterbury, Vermont 05671-0402 

As to the Citizen Plaintiffs: 

Nancy S. Marks 

Natural Resources Defense Council, Inc. 

40 West 20th Street 

New York, New York 10011 

(212) 727-4414 

nmarks@nrdc.org 

and 

Albert F. Ettinger 

Environmental Law and Policy Center 

35 East Wacker Dr. Suite 1300 

Chicago, Illinois 60601-2110 

(312) 673-6500 

aettinger@elpc.org 

As to Defendants: 

Vice President, Environmental Services 

American Electric Power Service Corporation 

1 Riverside Plaza 

Columbus, OH 43215 

jmmcmanus@aep.com 

and 

General Counsel 

American Electric Power 

1 Riverside Plaza 

Columbus, OH 43215 

jbkeane@aep.com 

189. All notifications, communications, or submissions made pursuant to this Section 

shall be sent as follows: (a) by overnight mail or overnight delivery service to the United States; 

73
 
and (b) by electronic mail to all Plaintiffs, if practicable, but if not practicable, then by overnight 

mail or overnight delivery service to the States and Citizen Plaintiffs. All notifications, 

communications, and transmissions sent by overnight delivery service shall be deemed submitted 

on the date they are delivered to the delivery service. 

190. Any Party may change either the notice recipient or the address for providing 

notices to it by serving all other Parties with a notice setting forth such new notice recipient or 

address. 

XIX. SALES OR TRANSFERS OF OPERATIONAL OR OWNERSHIP INTERESTS 

191. If Defendants propose to sell or transfer an Operational or Ownership Interest to 

an entity unrelated to Defendants (“Third Party”), they shall advise the Third Party 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 Plaintiffs pursuant to Section XVIII (Notices) of this Consent Decree 

at least sixty (60) days before such proposed sale or transfer. 

192. No sale or transfer of an Operational or Ownership Interest shall take place before 

the Third Party and Plaintiffs have executed, and the Court has approved, a modification 

pursuant to Section XXII (Modification) of this Consent Decree making the Third Party a party 

to this Consent Decree and jointly and severally liable with Defendants for all the requirements 

of this Decree that may be applicable to the transferred or purchased Interests. 

193. This Consent Decree shall not be construed to impede the transfer of any Interests 

between Defendants and any Third Party so long as the requirements of this Consent Decree are 

met. This Consent Decree shall not be construed to prohibit a contractual allocation – as 

between Defendants and any Third Party – of the burdens of compliance with this Decree, 

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provided that both Defendants and such Third Party shall remain jointly and severally liable for 

the obligations of the Consent Decree applicable to the transferred or purchased Interests. 

194. If the Plaintiffs agree, the Plaintiffs, Defendants, and the Third Party that has 

become a party to this Consent Decree pursuant to Paragraph 192, may execute a modification 

that relieves Defendants of liability under this Consent Decree for, and makes the Third Party 

liable for, all obligations and liabilities applicable to the purchased or transferred Interests. 

Notwithstanding the foregoing, however, 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 Interests, including the obligations set forth in Section VIII (Environmental 

Mitigation Projects), Paragraphs 86 and 67, and Section IX (Civil Penalty). Defendants may 

propose and the Plaintiffs may agree to restrict the scope of the joint and several liability of any 

purchaser or transferee for any obligations of this Consent Decree that are not specific to the 

transferred or purchased Interests, to the extent such obligations may be adequately separated in 

an enforceable manner. 

195. Defendants may propose and Plaintiffs may agree to restrict the scope of joint and 

several liability of any purchaser or transferee for any AEP Eastern System obligations to the 

extent such obligations may be adequately separated in an enforceable manner using the methods 

provided by or approved under Section XVI (Permits). 

196. Paragraphs 191-195 of this Consent Decree do not apply if an Interest is sold or 

transferred solely as collateral security in order to consummate a financing arrangement (not 

including a sale-leaseback), so long as Defendants: (a) remain the operator (as that term is used 

and interpreted under the Clean Air Act) of the subject AEP Eastern System Unit(s); (b) remain 

75
 
subject to and liable for all obligations and liabilities of this Consent Decree; and (c) supply 

Plaintiffs with the following certification within thirty (30) days of the sale or transfer: 

“Certification of Change in Ownership Interest Solely for Purpose of Consummating 

Financing. We, the Chief Executive Officer and General Counsel of American Electric 

Power (“AEP”), hereby jointly certify under Title 18 U.S.C. Section 1001, on our own 

behalf and on behalf of AEP, that any change in AEP’s Ownership Interest in any AEP 

Eastern System Unit that is caused by the sale or transfer as collateral security of such 

Ownership Interest in such Unit(s) pursuant to the financing agreement consummated on 

[insert applicable date] between AEP and [insert applicable entity]: a) is made solely for 

the purpose of providing collateral security in order to consummate a financing 

arrangement; b) does not impair AEP’s ability, legally or otherwise, to comply timely 

with all terms and provisions of the Consent Decree entered in United States, et al. v. 

American Electric Power Service Corp., et al., Civil Action No. C2-99-1250 (“AEP I”) 

and United States, et al. v. American Electric Power Service Corp., et al., Civil Action 

Nos. C2-04-1098 and C2-05-360 (“AEP II”); c) does not affect AEP’s operational control 

of any Unit covered by that Consent Decree in a manner that is inconsistent with AEP’s 

performance of its obligations under the Consent Decree; and d) in no way affects the 

status of AEP’s obligations or liabilities under that Consent Decree.” 

XX. EFFECTIVE DATE 

197. The effective date of this Consent Decree shall be the Date of Entry. 

XXI. RETENTION OF JURISDICTION 

198. The Court shall retain jurisdiction of this case after the Date of 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. 

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XXII. MODIFICATION
 

199. The terms of this Consent Decree may be modified only by a subsequent written 

agreement signed by the Plaintiffs and Defendants. Where the modification constitutes a 

material change to any term of this Decree, it shall be effective only upon approval by the Court. 

XXIII. GENERAL PROVISIONS 

200. 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. The limitations and requirements set forth herein do not relieve Defendants from 

any obligation to comply with other state and federal requirements under the Clean Air Act at 

any Units covered by this Consent Decree, including the Defendants’ obligation to satisfy any 

state modeling requirements set forth in a state implementation plan. 

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

202. In any subsequent administrative or judicial action initiated by any of the 

Plaintiffs for injunctive relief or civil penalties relating to the facilities covered by this Consent 

Decree, 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 any of the Plaintiffs in the 

subsequent proceeding were brought, or should have been brought, in the instant case; provided, 

however, that nothing in this Paragraph affects the validity of Paragraphs Paragraph 132 and 

133, subject to Paragraphs 134 through 138, or Paragraphs 139 and 141. 

203. Except as specifically provided by this Consent Decree, nothing in this Consent 

Decree shall relieve Defendants of their obligation to comply with all applicable federal, state, 

and local laws and regulations. Subject to the provisions in Section X (Resolution of Civil 

77
 
Claims Against Defendants), nothing contained in this Consent Decree shall be construed to 

prevent or limit the rights of the Plaintiffs to obtain penalties or injunctive relief under the Act or 

other federal, state, or local statutes, regulations, or permits. 

204. At any time prior to termination of this Consent Decree, Defendants may request 

approval from Plaintiffs to implement other control technology for SO2 or NOx than what is 

required by this Consent Decree. In seeking such approval, Defendants must demonstrate that 

such alternative control technology is capable of achieving pollution reductions equivalent to an 

FGD (for SO2) or SCR (for NOx) at the Units in the AEP Eastern System at which Defendants 

seek approval to implement such other control technology for SO2 or NOx. Approval of such a 

request is solely at the discretion of the Plaintiffs. 

205. 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. 8314 (Feb. 24, 1997)) 

concerning the use of data for any purpose under the Act generated either by the reference 

methods specified herein or otherwise. 

206. Each limit and/or other requirement established by or under this Consent Decree 

is a separate, independent requirement. 

207. Performance standards, emissions limits, and other quantitative standards set by 

or under this Consent Decree must be met to the number of significant digits in which the 

standard or limit is expressed. For example, an Emission Rate of 0.100 is not met if the actual 

Emission Rate is 0.101. Defendants shall round the fourth significant digit to the nearest third 

significant digit, or the third significant digit to the nearest second significant digit, depending 

upon whether the limit is expressed to three or two significant digits. For example, if an actual 

78
 
Emission Rate is 0.1004, that shall be reported as 0.100, and shall be in compliance with an 

Emission Rate of 0.100, and if an actual Emission Rate is 0.1005, that shall be reported as 0.101, 

and shall not be in compliance with an Emission Rate of 0.100. Defendants shall report data to 

the number of significant digits in which the standard or limit is expressed. 

208. This Consent Decree does not limit, enlarge, or affect the rights of any Party to 

this Consent Decree as against any third parties. 

209. 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 document, representation, inducement, agreement, understanding, or promise 

constitutes any part of this Consent Decree or the settlement it represents, nor shall they be used 

in construing the terms of this Consent Decree. 

210. Except for Citizen Plaintiffs, each Party to this action shall bear its own costs and 

attorneys’ fees. Defendants shall reimburse the Citizen Plaintiffs’ attorneys’ fees and costs, 

pursuant to 42 U.S.C. § 7604(d), and the agreement between counsel for Defendants and Citizen 

Plaintiffs within thirty (30) days of the Date of Entry of this Consent Decree. 

XXIV. SIGNATORIES AND SERVICE 

211. Each undersigned representative of the Parties certifies that he or she is fully 

authorized to enter into the terms and conditions of this Consent Decree and to execute and 

legally bind to this document the Party he or she represents. 

212. This Consent Decree may be signed in counterparts, and such counterpart 

signature pages shall be given full force and effect. 

79
 
213. 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. 

XXV. PUBLIC COMMENT 

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

the entry of this Consent Decree is subject to the procedures of 28 C.F.R. § 50.7, which provides 

for notice of 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. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER DECREE 

215. Termination as to Completed Tasks. As soon as Defendants complete a 

construction project or any other requirement of this Consent Decree that is not ongoing or 

recurring, Defendants may, by motion to this Court, seek termination of the provision or 

provisions of this Consent Decree that imposed the requirement. 

216. 

Defendants: 

Conditional Termination of Enforcement Through the Consent Decree. After 

a. have successfully completed construction, and have maintained 

Continuous Operation, of all pollution controls as required by this Consent 

Decree; 

80
 
b. have obtained final Title V permits (i) as required by the terms of this 

Consent Decree; (ii) that cover all Units in this Consent Decree; and (iii) 

that include as enforceable permit terms all of the Unit performance and 

other requirements specified in this Consent Decree; and 

c. certify that the date is later than December 31, 2022; 

then Defendants may so certify these facts to the Plaintiffs and this Court. If the Plaintiffs do not 

object in writing with specific reasons within forty-five (45) days of receipt of Defendants’ 

certification, then, for any Consent Decree violations that occur after the filing of notice, the 

Plaintiffs shall pursue enforcement of the requirements contained in the Title V permit through 

the applicable Title V permit and not through this Consent Decree. 

217. Resort to Enforcement under this Consent Decree. Notwithstanding Paragraph 

216, if enforcement of a provision in this Consent Decree cannot be pursued by a Party under the 

applicable Title V permit, or if a Consent Decree requirement was intended to be part of a Title 

V Permit and did not become or remain part of such permit, then such requirement may be 

enforced under the terms of this Consent Decree at any time. 

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_________________________________________ 

_________________________________________ 

XXVII. FINAL JUDGMENT
 

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

Decree shall constitute a final judgment among the Parties. 

SO ORDERED, THIS _____ DAY OF ________________, 2007. 

HONORABLE EDMUND A. SARGUS, JR. 

UNITED STATES DISTRICT COURT JUDGE 

HONORABLE GREGORY L. FROST 

UNITED STATES DISTRICT COURT JUDGE 

82
 
APPENDIX A
 

ENVIRONMENTAL MITIGATION PROJECTS 

In compliance with and in addition to the requirements in Section VIII of this Consent 

Decree (Environmental Mitigation Projects), Defendants shall comply with the requirements of 

this Appendix to ensure that the benefits of the $36 million in federally directed Environmental 

Mitigation Projects are achieved. 

I.	 National Parks Mitigation 

A.	 Within 45 days from the Date of Entry, Defendants shall pay to the National Park 

Service the sum of $2 million to be used in accordance with the Park System 

Resource Protection Act, 16 U.S.C. § 19jj, for the restoration of land, watersheds, 

vegetation, and forests using adaptive management techniques designed to 

improve ecosystem health and mitigate harmful effects from air pollution. This 

may include reforestation or restoration of native species and acquisition of 

equivalent resources and support for collaborative initiatives with state and local 

agencies and other stakeholders to develop plans to assure resource protection 

over the long-term. Projects will focus on one or more of the following Class I 

areas alleged in the underlying action to have been injured by emissions from 

Defendants facilities: Shenandoah National Park, Mammoth Cave National Park, 

and Great Smoky Mountains National Park. 

B.	 Payment of the amount specified in the preceding paragraph shall be made to the 

Natural Resource Damage and Assessment Fund managed by the United States 

Department of the Interior. Instructions for transferring funds will be provided to 

the Defendants by the National Park Service. Notwithstanding Section I.A of this 

Appendix, payment of funds by Defendants is not due until ten (10) days after 

receipt of payment instructions. 

C.	 Upon payment of the required funds into the Natural Resource Damage and 

Assessment Fund, Defendants shall have no further responsibilities regarding the 

implementation of any project selected by the National Park Service in 

connection with this provision of the Consent Decree. 

II. Overall Environmental Mitigation Project Schedule and Budget 

A.	 Within 120 days of the Date of Entry, as further described below, Defendants 

shall submit plans to EPA for review and approval for completing the remaining 

$34 million in federally directed Environmental Mitigation Projects specified in 

this Appendix over a period of not more than five (5) years from the Date of 

Entry. EPA will consult with the Citizen Plaintiffs, through their counsel, prior to 

approving or commenting on any proposed plan. The Parties agree that 

Defendants are entitled to spread their payments for Environmental Mitigation 

Projects evenly over the five-year period commencing upon the Date of Entry. 

Defendants are not, however, precluded from accelerating payments to better 

effectuate a proposed mitigation plan, provided however, Defendants shall not be 

1
 
entitled to any reduction in the nominal amount of the required payments by 

virtue of the early expenditures. EPA may, but is not required to, approve a 

proposed Project budget that results in a back-loading of some expenditures. 

EPA shall determine prior to approval that all Projects are consistent with federal 

law. 

B.	 Defendants may, at their election, consolidate the plans required by this Appendix 

into a single plan. 

C.	 In addition to the requirements set forth below, Defendants shall submit within 

120 days of the Date of Entry, a summary-level budget and Project time-line that 

covers all of the Projects proposed. 

D.	 Beginning March 31, 2008, and continuing on March 31 of each year thereafter 

until completion of each Project (including any applicable periods of 

demonstration or testing), Defendants shall provide the United States and Citizen 

Plaintiffs with written reports detailing the progress of each Project, including 

Project Dollars. 

E.	 Within 60 days following the completion of each Project required under 

Appendix A, Defendants shall submit to the United States and Citizen Plaintiffs a 

report that documents the date that the Project was completed, the results of 

implementing the Project, including the emission reductions or other 

environmental benefits achieved, and the Project Dollars expended by Defendants 

in implementing the Project. 

F.	 Upon approval of the plans required by this Appendix by EPA, Defendants shall 

complete the Environmental Mitigation Projects according to the approved plans. 

Nothing in this Consent Decree shall be interpreted to prohibit Defendants from 

completing Environmental Mitigation Projects before the deadlines specified in 

the schedule of an approved plan. 

III.	 Acquisition and Restoration of Ecologically Significant Areas in Indiana, Kentucky, 

North Carolina, Ohio, Pennsylvania, Virginia, and West Virginia 

A.	 Within 120 days of the Date of Entry, and on each anniversary of the initial 

submission for the following four (4) years, Defendants shall submit a plan to 

EPA for review and approval, in consultation with the Citizen Plaintiffs, for 

acquisition and/or restoration of ecologically significant areas in Indiana, 

Kentucky, North Carolina, Ohio, Pennsylvania, Virginia, and West Virginia 

(“Land Acquisition and Restoration”). Defendants shall spend no less than a total 

of $10 million in Project Dollars on Land Acquisition and Restoration over the 

five year period provided under this Appendix for completion of federally 

directed Environmental Mitigation Projects. 

2
 
B. Defendants’ proposed plan shall: 

1.	 Describe the proposed Land Acquisition and Restoration projects in 

sufficient detail to allow the reader to ascertain how each proposed action 

meets the requirements set out below. For purposes of this Appendix and 

Section VIII (Environmental Mitigation Projects) of this Consent Decree, 

land acquisition means purchase of interests in land, including fee 

ownership, easements, or other restrictions that run with the land that 

provide for perpetual protection of the acquired land. Restoration may 

include, by way of illustration, direct reforestation (particularly of tree 

species that may be affected by acidic deposition) and soil enhancement. 

Any restoration action must also incorporate the acquisition of an interest 

in the restored lands sufficient to ensure perpetual protection of the 

restored land. Any proposal for acquisition of land must identify fully all 

owners of the interests in the land. Every proposal for acquisition of land 

must identify the ultimate holder of the interests to be acquired and 

provide a basis for concluding that the proposed holder of title is 

appropriate for long-term protection of the ecological or environmental 

benefits sought to be achieved through the acquisition. 

2.	 Describe generally the ecological significance of the area to be acquired or 

restored. In particular, identify the environmental/ecological benefits 

expected as a result of the proposed action. In proposing areas for 

acquisition and restoration, Defendants shall focus on those areas that are 

in most need of conservation action or that promise the greatest 

conservation return on investment. 

3.	 Describe the expected cost of the Land Acquisition and Restoration, 

including the fair market value of any areas to be acquired. 

4.	 Identify any person or entity other than Defendants that will be involved 

in the land acquisition or restoration action. Defendants shall describe the 

third-party’s role in the action and the basis for asserting that such entity is 

able and suited to perform the intended role. For purposes of this Section 

of the Appendix, third-parties shall only include non-profits; federal, state, 

and local agencies; or universities. Any proposed third-party must be 

legally authorized to perform the proposed action or to receive Project 

Dollars. 

5.	 Include a schedule for completing and funding each portion of the project. 

C.	 Performance - Upon approval of the plan by EPA, after consultation with the 

Citizen Plaintiffs, Defendants shall complete the Land Acquisition and 

Restoration project according to the approved plan and schedule. 

3
 
IV. Nitrogen Impact Mitigation in the Chesapeake Bay 

A.	 Within 120 days of Date of Entry, Defendants shall submit a plan to EPA for 

review and approval, in consultation with the Citizen Plaintiffs, for the mitigation 

of adverse impacts on the Chesapeake Bay associated with nitrogen (“Chesapeake 

Bay Mitigation Project”). Defendants shall spend no less than a total of $3 

million in Project Dollars on the Chesapeake Bay Mitigation Project. 

B.	 Defendant’s proposed plan shall: 

1.	 Describe proposed Project(s) that reduce nitrogen loading in the 

Chesapeake Bay or otherwise mitigate the adverse effects of nitrogen in 

the Chesapeake Bay. Projects that may be approved include, by way of 

illustration, creation of forested stream buffers on agricultural land or 

other land cover to establish a “buffer zone” to keep livestock out of the 

adjoining waterway and to filter runoff before it enters the waterway. 

2.	 Describe generally the expected environmental benefit of the proposed 

Chesapeake Bay Mitigation Project. The key criteria for selection of 

components of the Project are the magnitude of the expected 

ecological/environmental benefit(s) in relation to the cost and the relative 

permanence of the expected benefit(s). Expected loadings benefits should 

be quantified to the extent practicable. 

3.	 Describe the expected cost of each element of the Chesapeake Bay 

Mitigation Project, including the fair market value of any interests in land 

to be acquired. 

4.	 Identify any person or entity other than Defendants that will be involved 

in any aspect of the Chesapeake Bay Mitigation Project. Defendants shall 

describe the third-party’s role in the action and the basis for asserting that 

such entity is able and suited to perform the intended role. For purposes 

of this Section of the Appendix, third-parties shall only include nonprofits; federal, state, and local agencies; or universities. Any proposed 

third-party must be legally authorized to perform the proposed action or to 

receive Project Dollars. 

5.	 Include a schedule for completing and funding each portion of the Project. 

C.	 Performance - Upon approval of the plan for Chesapeake Bay Mitigation by EPA, 

Defendants shall complete the Project according to the approved plan and 

schedule. 

4
 
V. Mobile Source Emission Reduction Projects 

A.	 Within 120 days of the Date of Entry, Defendants shall submit a plan to EPA for 

review and approval, in consultation with the Citizen Plaintiffs, for the 

completion of Projects to reduce emissions from Defendants’ fleet of barge 

tugboats on the Ohio River, diesel trains at or near power plants, Defendants’ 

fleet of motor vehicles in certain eastern states, and/or truck stops in certain 

eastern states (“Mobile Source Projects”). Defendants shall spend no less than a 

total of $21 million in Project Dollars on one or more of the three Mobile Source 

Projects specified in this Section, in accordance with the plans for such Projects 

approved by EPA, after consultation with the Citizen Plaintiffs. The key criteria 

for selection of components of the Mobile Source Projects are the magnitude of 

the expected environmental benefit(s) in relation to the cost. 

B.	 Diesel Tug/Train Project 

1.	 Defendants are among the leading barge operators in the country, with 

operations on the Ohio River, the Mississippi River, and the Gulf Coast. 

Barges are propelled by tugboats, which generally use a type of marine 

diesel fuel known as No. 2 distillate fuel oil. Tugboats that switch to 

ultra-low sulfur diesel fuel (“ULSD”) reduce emissions of NOX, PM, 

volatile organic compounds (“VOCs”), and other air pollutants. All 

marine diesel fuel must be ULSD by June 1, 2012, pursuant to EPA’s 

Nonroad Diesel Rule (see “Control of Emissions of Air Pollution from 

Nonroad Diesel Engines and Fuels; Final Rule,” 69 Fed. Reg. 38,958 

(June 29, 2004)). Defendants also receive coal by diesel trains. 

2.	 As part of the plan for Mobile Source Projects, Defendants may elect to 

achieve accelerated emission reductions from their tugboat fleet on the 

Ohio River (“Ohio River Tug Fleet”) and/or their diesel powered trains 

used at or near their power plants, as one of the three possible mobile 

source Projects under this Consent Decree (“Diesel Tug/Train Project”). 

3.	 The Diesel Tug/Train Project shall require one or more of the following: 

a.	 The accelerated retrofitting or re-powering of Tugs with engines 

that require the use of ULSD. Selection of this Project is expressly 

conditioned upon identification of satisfactory technology and an 

agreement between EPA and Defendants on how to credit Project 

Dollars towards this project. 

b.	 The retrofitting or repowering of the marine engines in the Ohio 

River Tug Fleet with diesel oxidation catalysts (“DOCs”), diesel 

particulate filters (“DPFs”), or other equivalent advanced 

technologies that reduce emissions of PM and VOCs from marine 

engines in tugboats (collectively “DOC/DPFs”). Defendants shall 

only install DOCs/DPFs that have received applicable approvals or 

5
 
verifications, if any, from the relevant regulatory agencies for 

reducing emissions from tugboat engines. Defendants must 

maintain any DOCs/DPFs installed as part of the Tug Project for 

the useful life of the equipment (as defined in the proposed Plan), 

even after the completion of the Tug Project. Project Dollars may 

be spent on DOCs/DPFs within 5 years of the Date of Entry, in 

accordance with the approved schedule for the mitigation projects 

in this Appendix. 

c.	 The accelerated use of ULSD for the Ohio River Tug Fleet, from 

the Date of Entry through January 1, 2012. Notwithstanding any 

other provision of this Consent Decree, including this Appendix, 

Defendants shall only receive credit for the incremental cost of 

ULSD as compared to the cost of the fuel Defendants would 

otherwise utilize. 

d.	 Emission reduction measures for diesel powered trains. Such 

measures may include retro-fitting with, or conversion to, Multiple 

Diesel Engine GenSets that are EPA Tier III Off-Road certified; 

Diesel Electric Hybrid; Anti-idling controls/strategies and Auto 

Shut-Off capabilities. Selection of this Project is expressly 

conditioned upon identification of satisfactory technology and an 

agreement between EPA and Defendants on how to credit Project 

Dollars towards this project. 

4.	 The proposed plan for the Diesel Tug/Train Project shall: 

a.	 Describe the expected cost of the project, including the costs for 

any equipment, material, labor costs, and the proposed method for 

accounting for the cost of each element of the Diesel Tug/Train 

Project, including the incremental cost of ULSD. 

b.	 Describe generally the expected environmental benefit of the 

project, including any expected fuel efficiency improvements and 

quantify emission reductions expected. 

c.	 Include a schedule for completing each portion of the Diesel 

Tug/Train Project. 

5.	 Performance - Upon approval of the Diesel Tug/Train Project plan by 

EPA, Defendants shall complete the project according to the approved 

plan and schedule. 

6
 
C.	 Hybrid Vehicle Fleet Project 

1.	 AEP has a fleet of approximately 11,000 motor vehicles in the eleven 

states where it operates, including vehicles in Indiana, Ohio, Michigan, 

Virginia, West Virginia, and Kentucky. These motor vehicles are 

generally powered by conventional diesel or gasoline engines and include 

vehicles such as diesel “bucket” trucks. The use of hybrid engine 

technologies in Defendants’ motor vehicles, such as diesel-electric 

engines, will improve fuel efficiency and reduce emissions of NOX, PM, 

VOCs, and other air pollutants. 

2.	 As part of the plan for Mobile Source Projects, Defendants may elect to 

spend Project Dollars on the replacement of conventional motor vehicles 

in their fleet with newly manufactured Hybrid Vehicles (“Hybrid Vehicle 

Fleet Project”). 

3.	 The proposed plan for the Hybrid Vehicle Fleet Project shall: 

a.	 Propose the replacement of conventional gasoline or diesel 

powered motor vehicles (such as bucket trucks) with Hybrid 

Vehicles. For purposes of this subsection of this Appendix, 

“Hybrid Vehicle” means a vehicle that can generate and utilize 

electric power to reduce the vehicle’s consumption of fossil fuel. 

Any Hybrid Vehicle proposed for inclusion in the Hybrid Fleet 

Project shall meet all applicable engine standards, certifications, 

and/or verifications. 

b.	 Provide for Hybrid Vehicles replacement in that portion of 

Defendants’ fleet in Indiana, Ohio, Michigan, West Virginia, 

Virginia, and/or Kentucky. Notwithstanding any other provision 

of this Consent Decree, including this Appendix, Defendants shall 

only receive credit toward Project Dollars for the incremental cost 

of Hybrid Vehicles as compared to the cost of a newly 

manufactured, similar motor vehicle. 

c.	 Prioritize the replacement of diesel-powered vehicles in 

Defendants’ fleet. 

d.	 Provide a method to account for the costs of the Hybrid Vehicles, 

including the incremental costs of such vehicles as compared to 

conventional gasoline or diesel motor vehicles. 

e.	 Certify that Defendants will use the Hybrid Vehicles for their 

useful life (as defined in the proposed plan). 

f.	 Include a schedule for completing each portion of the Project. 

7
 
g.	 Describe generally the expected environmental benefits of the 

Project, including any fuel efficiency improvements, and quantify 

emission reductions expected. 

4.	 Performance - Upon approval by EPA of the plan for the Hybrid Vehicle 

Fleet Project, after consultation with the Citizen Plaintiffs, Defendants 

shall complete the Project according to the approved plan. 

D.	 Truck Stop Electrification 

1.	 Long-haul truck drivers typically idle their engines at night at rest areas to 

supply heat or cooling in their sleeper cab compartments, and to maintain 

vehicle battery charge while electrical appliances such as televisions, 

computers, and microwaves are in use. Modifications to rest areas to 

provide parking spaces with electrical power, heat, and air conditioning 

will allow truck drivers to turn their engines off. Truck stop electrification 

reduces idling time and therefore reduces diesel fuel usage, and thus 

reduces emissions of PM, NOx, and VOCs. 

2.	 As part of the plan for Mobile Source Projects, Defendants may elect to 

achieve emission reductions by truck stop electrification, which shall 

include, where necessary, techniques and infrastructure needed to support 

such a program (“Truck Stop Electrification Project”). 

3.	 The proposed plan for the Truck Stop Electrification Project shall: 

a.	 Identify truck stops in one or more of the following States for 

Electrification: Ohio, Indiana, Kentucky, North Carolina, 

Pennsylvania, West Virginia, and Virginia. EPA may give 

preference to electrification Projects that are co-located, if 

possible, along the same transportation corridor. 

b.	 Describe the level of expected usage of the planned electrification 

facilities, air quality in the vicinity of the proposed Projects, 

proximity of the proposed Project to population centers, and 

whether the owner or some other entity is willing to pay for some 

portion of the work. 

c.	 Provide for the construction of truck stop electrification stations 

with established technologies and equipment. 

d.	 Account for hardware procurement and installation costs at the 

recipient truck stops. 

e.	 Include a schedule for completing each portion of the Project. 

8
 
f. Describe generally the expected environmental benefits of the 

Project and quantify emission reductions expected. 

4.	 Performance - Upon approval of the plan for the Truck Stop 

Electrification Project by EPA, after consultation with the Citizen 

Plaintiffs, Defendants shall complete the Project according to the 

approved plan. 

9
 
 

APPENDIX B 

REPORTING REQUIREMENTS
 

I. Annual Reporting Requirements 

In accordance with the dates specified below, for periods on and after the Date of 

Entry, Defendants shall submit annual reports to the United States, the States, and the 

Citizen Plaintiffs, electronically and in hard copy, as required by Paragraph 143 and 

certified as required by Paragraph 146. In such annual reports, Defendants shall include 

the following information: 

A. Eastern System-Wide Annual Tonnage Limitations for SO2 and NOx 

Beginning on March 31, 2010, for the Eastern System-Wide Annual Tonnage 

Limitations for NOx, and March 31, 2011, for the Eastern System-Wide Annual Tonnage 

Limitations for SO2, and annually thereafter, Defendants shall report the following 

information: (a) the total actual annual tons of the pollutant emitted from each Unit (or 

for Units vented to a common stack, from each combined stack) within the AEP Eastern 

System, as defined in Paragraph 7, during the prior calendar year; (b) the total actual 

annual tons of the pollutant emitted from the AEP Eastern System during the prior 

calendar year; (c) the difference, if any, between the applicable Eastern System-Wide 

Annual Tonnage Limitation for the pollutant in that calendar year and the amount 

reported in subparagraph (b); and (d) the annual average emission rate, expressed as a 

lb/mmBTU for NOx, for each Unit within the AEP Eastern System and for the entire AEP 

Eastern System during the prior calendar year. Data reported pursuant to this subsection 

shall be based upon the CEMS data submitted to the Clean Air Markets Division. 

B. Plant-Wide Annual Rolling Average Tonnage Limitation for SO2 at Clinch 

River 

Beginning on March 31, 2011, and continuing annually thereafter, Defendants 

shall report: (a) the actual tons of SO2 emitted from all Units at the Clinch River plant on 

an annual rolling average basis as defined in Paragraphs 47 and 88 for the prior calendar 

year; and (b) the applicable Plant-Wide Annual Rolling Average Tonnage Limitation for 

SO2 at the Clinch River plant for the prior calendar year. For calendar years other than 

2010 and 2015, Defendants shall also report the 12-month rolling average emissions for 

each month. 

C. Plant-Wide Tonnage Limitation for SO2 at Kammer 

Beginning on March 31, 2011, and continuing annually thereafter, Defendants 

shall report: (a) the actual tons of SO2 emitted from all Units at the Kammer plant as 

specified in Paragraph 48 for the prior calendar year; and (b) the Plant-Wide Tonnage 

Limitation for SO2 at the Kammer plant for that calendar year. 

1
 
 

 

 

D. Reporting Requirements for Excess NOx Allowances 

1. Reporting Requirements for Unrestricted Excess NOx Allowances 

Beginning on March 31, 2010, and continuing annually through March 31, 2016, 

Defendants shall report the number of Unrestricted Excess NOx Allowances available 

each year between 2009 through 2015, and how or whether such allowances were used so 

that Defendants account for each Unrestricted Excess NOx Allowance for each year 

during 2009 through 2015. No later than March 31, 2016, Defendants shall report: (a) the 

cumulative number of unused Unrestricted Excess NOx Allowances subject to surrender 

pursuant to Paragraph 75 and calculated pursuant to Paragraph 74, and (b) the total 

number of unused Unrestricted Excess NOx Allowances that they surrendered. 

2. Reporting Requirements for Restricted Excess NOx Allowances 

a. Beginning on March 31, 2010, and continuing annually through March 31, 

2016, Defendants shall report: (a) the number of Restricted Excess NOx Allowances 

available each year between 2009 through 2015; (b) the actual emissions from any New 

and Newly Permitted Unit during each year; (c) the actual NOx emissions from the five 

natural gas plants listed in Paragraph 76 during each year; (d) the amount, if any, of 

Restricted Excess NOx Allowances that are not subject to surrender each year because of 

Defendants’ investment in renewable energy as defined in Paragraph 77 and the data 

supporting Defendants’ calculation; and (e) the difference between the cumulative total 

of Restricted Excess NOx Allowances available from each year and any prior year and the 

actual emissions reported under (b) and (c), above, for that year and any Restricted 

Excess NOx Allowances not subject to surrender reported under (d), above. No later than 

March 31, 2016, Defendants shall report: (a) the cumulative number of unused Restricted 

Excess NOx Allowances subject to surrender calculated pursuant to Paragraphs 76 and 

77, and (b) the total number of unused Restricted Excess NOx Allowances that they 

surrendered. 

b. No later than March 31, 2017, and continuing annually thereafter, Defendants 

shall report: (a) the number of Restricted Excess NOx Allowances available in the prior 

year; (b) the actual emissions from any New and Newly Permitted Unit during such year; 

(c) the actual emissions from the five natural gas plants listed in Paragraph 76 during 

such year; (d) the amount, if any, of Restricted Excess NOx Allowances that are not 

subject to surrender for such year because of Defendants’ investment in renewable energy 

as defined in Paragraph 77 and the data supporting Defendants’ calculation; (e) the 

number of Restricted Excess NOx Allowances subject to surrender for such year 

calculated pursuant to Paragraphs 76 and 77; and (f) the total number of unused 

Restricted Excess NOx Allowances that they surrendered for such year. 

2
 
 

E. Reporting Requirements for Excess SO2 Allowances 

Beginning on March 31, 2011, and continuing annually thereafter, Defendants 

shall report: (a) the number of Excess SO2 Allowances subject to surrender calculated 

pursuant to Paragraph 93, and (b) the total number of Excess SO2 Allowances that they 

surrendered. 

F. Continuous Operation of Pollution Controls required by Paragraphs 68, 69, 87, 

and 102 

On March 31 of the year following Defendants’ obligation pursuant to this 

Consent Decree to commence Continuous Operation of an SCR, FGD, ESP, or 

Additional NOx Pollution Controls, Defendants shall report the date that they commenced 

Continuous Operation of each such pollution control as required by this Consent Decree. 

Beginning on March 31, 2008, and continuing annually thereafter, Defendants shall 

report, for any SCR, FGD, ESP, or Additional NOx Pollution Controls required to 

Continuously Operate during that year, the duration of any period during which that 

pollution control did not Continuously Operate, including the specific dates and times 

that such pollution control did not operate, the reason why Defendants did not 

Continuously Operate such pollution control, and the measures taken to reduce emissions 

of the pollutant controlled by such pollution control. 

G. Installation of SO2 and NOx Pollution Controls 

Beginning on March 31, 2008, and continuing annually thereafter, Defendants 

shall report on the progress of construction of NOx and SO2 pollution controls required by 

this Consent Decree including: (1) if construction is not underway, any available 

information concerning the construction schedule, including the dates of any major 

contracts executed during the prior calendar year, and any major components delivered 

during the prior calendar year; (2) if construction is underway, the estimated percent of 

installation as of the end of the prior calendar year, the current estimated construction 

completion date, and a brief description of completion of significant milestones during 

the prior calendar year, including a narrative description of the current construction status 

(e.g. foundations completed, absorber installation proceeding all material on-site, new 

stack erection completed, etc.); and (3) once construction is complete, the dates the 

equipment was placed in service and any acceptance testing was performed during the 

prior calendar year. 

H. Installation and Operation of PM CEMS 

Beginning on March 31, 2013, for Cardinal Units 1 and 2 and a third Unit 

identified pursuant to Paragraph 110, and continuing annually thereafter for all periods of 

operation of PM CEMS as required by this Consent Decree, Defendants shall report the 

data recorded by the PM CEMS, expressed in lb/mmBTU on a 3-hour rolling average 

basis in electronic format for the prior calendar year, in accordance with Paragraph 107. 

3
 
 

 

I. Other SO2 Measures 

Commencing in the first annual report Defendants submit pursuant to Paragraph 

143, and continuing annually thereafter, Defendants shall submit all data necessary to 

determine Defendants’ compliance with the annual average coal content specified in the 

table in Paragraph 90. 

J. 1-Hour Average NOx Emission Rate and 30-Day Rolling Average Emission 

Rates for SO2 and NOx 

1. Beginning on March 31 of the year following Defendants’ obligation pursuant 

to this Consent Decree to first comply with an applicable 1-Hour Average NOx Emission 

Rate and/or 30-Day Rolling Average Emission Rate for SO2 and NOx, and continuing 

annually thereafter, Defendants shall report all 1-Hour Average Emission Rate results 

and/or 30-Day Rolling Average Emission Rate results to determine compliance with such 

emission rate, as defined in Paragraph 4 or 5, as appropriate. Defendants shall also 

report: (a) the date and time that the Unit initially combusts any fuel after shutdown; (b) 

the date and time after startup that the Unit is synchronized with a utility electric 

distribution system; (c) the date and time that the fire is extinguished in a Unit; and (d) 

for the fifth and subsequent Cold Start Up Period that occurs within any 30-Day period, 

the earlier of the date and time that is either (i) eight hours after the unit is synchronized 

with a utility electric distribution system, or (ii) the flue gas has reached the SCR 

operational temperature range specified by the catalyst manufacturer. 

2. Within the first report that identifies a 1-Hour Average NOx Emission Rate or 

30-Day Rolling Average Emission Rate for SO2 or NOx, Defendants shall include at least 

five (5) example calculations (including hourly CEMS data in electronic format for the 

calculation) used to determine the 1-Hour Average NOx Emission Rate and the 30-Day 

Rolling Average Emission Rate for SO2 or NOx for five (5) randomly selected days. If at 

any time Defendants change the methodology used in determining the 1-Hour Average 

NOx Emission Rate or the 30-Day Rolling Average Emission Rate for SO2 or NOx, 

Defendants shall explain the change and the reason for using the new methodology. 

K. 30-Day Rolling Average Removal Efficiency for SO2 

1. Beginning on March 31 of the year following Defendants’ obligation pursuant 

to this Consent Decree to first comply with a 30-Day Rolling Average Removal 

Efficiency, and continuing annually thereafter, Defendants shall report all 30-Day Rolling 

Average Removal Efficiency results to determine compliance with such removal 

efficiency as defined in Paragraph 6 or, for Conesville Units 5 and 6, as specified in 

Appendix C. 

2. Within the first report that identifies a 30-Day Rolling Average Removal 

Efficiency for SO2, Defendants shall include at least five (5) example calculations 

(including hourly CEMS data in electronic format for the calculation) used to determine 

the 30-Day Rolling Average Removal Efficiency for five (5) randomly selected days. If 

4
 
 

 

 

 

at any time Defendants change the methodology used in determining the 30-Day Rolling 

Average Removal Efficiency, Defendants shall explain the change and the reason for 

using the new methodology. 

L. PM Emission Rates 

Beginning on March 31, 2010, for Cardinal Units 1 and 2, and beginning on 

March 31, 2013 for Muskingum River Unit 5, and continuing annually thereafter, 

Defendants shall report the PM Emission Rate as defined in Paragraph 51, for Cardinal 

Unit 1, Cardinal Unit 2, and Muskingum River Unit 5. For all such Units, Defendants 

shall attach a copy of the executive summary and results of any stack test performed 

during the calendar year covered by the annual report. 

M. Environmental Mitigation Projects 

1. Mitigation Projects to be Conducted by the States 

Defendants shall report the disbursement of funds as required in Paragraph 127 of 

the Consent Decree in the next annual progress report that Defendants submit pursuant to 

Paragraph 143 following such disbursement of funds. 

2. Appendix A Projects 

Beginning March 31, 2008, and continuing on March 31 of each year thereafter 

until completion of each Project (including any applicable periods of demonstration or 

testing), Defendants shall provide the United States and Citizen Plaintiffs with written 

reports detailing the progress of each Project, including Project Dollars. 

N. Other Unit becoming an Improved Unit 

If Defendants decide to make an Other Unit an Improved Unit, Defendants shall 

so state in the next annual progress report they submit pursuant to Paragraph 143 after 

making such decision, and comply with the reporting requirements specified in Section 

I.G of this Appendix and any other reporting or notice requirements in accordance with 

the Consent Decree. 

II. Deviation Reports 

Beginning March 31, 2008, and continuing annually thereafter, Defendants shall 

report a summary of all deviations from the requirements of the Consent Decree that 

occurred during the prior calendar year, identifying the date and time that the deviation 

occurred, the date and time the deviation was corrected, the cause and any corrective 

actions taken for each deviation, if necessary, and the date that the deviation was initially 

reported under Paragraph 145. In addition to any express requirements in Section I, 

above, or in the Consent Decree, such deviations required to be reported include, but are 

not limited to, the following requirements: the 1-Hour Average NOx Emission Rate, the 

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30-Day Rolling Average Emission Rates for SO2 and NOx, the 30-Day Rolling Average 

Removal Efficiency for SO2, and the PM Emission Rate. 

III. Submissions Pending Review 

In each annual report Defendants submit pursuant to Paragraph 143, Defendants 

shall include a list of all plans or submissions made pursuant to this Consent Decree 

during the calendar year covered by the annual report, the date(s) such plans or 

submissions were submitted to one or more Plaintiffs for review and/or approval, and 

shall identify which, if any, are still pending review and approval by Plaintiffs upon the 

date of submission of the annual report. 

IV. Other Information Necessary To Determine Compliance 

To the extent that information not expressly identified above is necessary to 

determine Defendants’ compliance with the requirements of this Consent Decree during a 

reporting period, and has not otherwise been submitted in accordance with the provisions 

of the Consent Decree, Defendants shall provide such information as part of the annual 

report required pursuant to Section XI of the Consent Decree. 

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APPENDIX C 

MONITORING STRATEGY AND CALCULATION OF
 

THE 30-DAY ROLLING AVERAGE REMOVAL EFFICIENCY 

FOR CONESVILLE UNITS 5 AND 6 

I. Monitoring Strategy 

1.	 The SO2 monitoring system for Conesville Units 5 & 6 will consist of two 

separate FGD inlet monitors in each of the two FGD inlet ducts for each Unit, 

and one FGD outlet monitor in the combined flow from the outlets of the FGD 

modules for each Unit, prior to the common stack. 

2.	 Due to space constraints and potential interferences, monitors are currently 

located in the inlet duct for one FGD module on each Unit and at the 

combined outlet from both FGD modules for each Unit prior to entering the 

stack using best engineering judgment. 

3.	 On or before December 31, 2008, Defendants shall submit a monitoring plan 

to EPA for approval that will propose where to site and install an additional 

inlet monitor in each of the unmonitored FGD inlet ducts for each Unit, and 

include a requirement that Defendants submit a complete certification 

application for the Conesville Units 5 & 6 monitoring system to EPA and the 

state permitting authority. 

4.	 The Monitoring Plan will incorporate the applicable procedures and quality 

assurance testing found in 40 C.F.R. Part 75, subject to the following: 

a.	 The PS-2 siting criteria will not be applied to these monitoring systems; 

however, the majority of the procedures in Section 8.1.3.2 of PS-2 will be 

followed. Sampling of at least nine (9) sampling points selected in 

accordance with PS-1 will be performed prior to the initial RATA. If the 

resultant SO2 emission rates for any single sampling point calculated in 

accordance with Equation 19.7 are all within 10% or 0.02 lb/mmBtu of the 

mean of all nine (9) sampling points, the alternative traverse point 

locations (0.4, 1.2, and 2.0 meters from the duct wall) will be 

representative and may be used for all subsequent RATAs. 

b.	 The required relative accuracy test audit will be performed in accordance 

with the procedures of 40 C.F.R. Part 75, except that the calculations will 

be performed on an SO2 emission rate basis (i.e., lb/mmBtu). 

c.	 The criteria for passing the relative accuracy test audit will be the same 

criteria that 40 C.F.R. Part 75 requires for relative accuracy or alternative 

performance specification as provided for NOx emission rates. 

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d.	 “Diluent capping” (i.e., 5% CO2) will be applied to the SO2 emission rate 

for any hours where the measured CO2 concentration rounds to zero. 

e.	 Results of quality assurance testing, data gathered by the inlet and outlet 

monitoring systems, and the resultant 30-day Rolling Average Removal 

Efficiencies for these monitoring systems are not required to be reported 

in the quarterly reports submitted to EPA’s Clean Air Markets Division 

for purposes of 40 C.F.R. Part 75. Results will be maintained at the 

facility and available for inspection, and the 30-day Rolling Average 

Removal Efficiency will be reported in accordance with the requirements 

of the Consent Decree and Appendix B. Equivalent data retention and 

reporting requirements will be incorporated into the applicable permits for 

these Units. 

f.	 Missing Data Substitution of 40 C.F.R Part 75 will not be implemented. 

g.	 Initial performance testing will be performed before the effective date of 

the 30-Day Rolling Average Removal Efficiency requirements, and the 

results will be reported to Plaintiffs as part of the annual report submitted 

in accordance with Appendix B. 

II. Calculation of 30-Day Rolling Average Removal Efficiency 

1. Removal efficiency shall be calculated by the equation: 

[SO2 emission rate Inlet – SO2 emission rate Outlet ] / SO2 emission rate Inlet * 100 

2. Inlet and outlet emission rates shall be calculated using the methodology 

specified in 40 C.F.R. Part 60 Appendix B – Method 19. Inlet emission 

rates will be based on the average of the valid recorded values calculated 

for each of the inlet FGD monitors at each Unit. Measurements are made 

on a wet basis, so Equation 19.7 will be utilized to determine the hourly 

SO2 emission rate at each location. To make the conversion between the 

measured wet SO2 and CO2 concentrations and an emission rate in pounds 

per million BTU, an electronic Data System will perform Equation 19.7 

using the SO2 ppm conversion factor from Table 19-1 of Method 19 and 

the Fc factor for the applicable fuel (currently bituminous coal) in Table 

19-2 of Method 19. The resulting equation will be: 

Emission rate (lb SO2/mmBtu) = 1.660 x 10-7 * SO2 (in ppm) * Fc * 100 / CO2 (in %) 

3. The electronic data system will calculate the hourly average SO2 and CO2 

concentration in accordance with 40 C.F.R. Part 75 quality control/quality 

assurance requirements and will compute and retain these SO2 emission 

rates for every operating hour meeting the minimum data capture 

requirements in accordance with 40 C.F.R. Part 75. Prior to the 

2
 
calculation of the SO2 emission rate, hourly SO2 and CO2 concentrations 

will be rounded to the nearest tenth (i.e., 0.1 ppm or 0.1 % CO2) and the 

resulting SO2 emission rate will be rounded to the nearest thousandth (i.e., 

0.001 lb/mmBtu). 

4. From these hourly SO2 emission rates, SO2 removal efficiencies will be 

calculated for each hour when the Unit is firing fossil fuel, and the hourly 

SO2 and CO2 monitors meet the QA/QC requirements of Part 75. Hourly 

SO2 removal efficiencies will be computed by taking the hourly inlet SO2 

emission rate minus the outlet SO2 emission rate, dividing the result by 

inlet SO2 emission rate and multiplying by 100. The resulting removal 

efficiency will be rounded to the nearest tenth (i.e., 95.1%). Daily SO2 

removal efficiencies will be calculated by taking the sum of Hourly SO2 

removal efficiencies and dividing by the number of valid monitored hours 

for each Operating Day. The resulting daily removal efficiencies will be 

rounded to the nearest tenth (i.e., 95.1%). 

5. The 30-Day Rolling Average Removal Efficiency will be computed by 

taking the current Operating Day’s daily SO2 removal efficiency (as 

described in Paragraph 4 of this Appendix C) plus the previous 29 

Operating Days’ daily SO2 removal efficiency, and dividing the sum by 

30. In the event that a daily SO2 removal efficiency is not available for an 

Operating Day, Defendants shall exclude that Operating Day from the 

calculation of the 30-Day Rolling Average Removal Efficiency. The 

resulting 30-day Rolling Average Removal Efficiency will be rounded to 

the nearest tenth of a percent (i.e., a value of 95.04% rounds down to 

95.0%, and a value of 95.05% rounds up to 95.1%). 

3