UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

__________________________________________

STATE OF ALABAMA AND THE )

ALABAMA DEPARTMENT OF )

ENVIRONMENTAL MANAGEMENT, )

COMMONWEALTH OF KENTUCKY, )

STATE OF NORTH CAROLINA ex rel. )

ATTORNEY GENERAL ROY COOPER, )

and STATE OF TENNESSEE, )

)

Plaintiffs, )

)

)

 v. )

)

 ) JUDGE __________________

TENNESSEE VALLEY AUTHORITY )

 ) Civil Action No. ____________

 )

 Defendant ) 

 )

 )

__________________________________________)

__________________________________________

NATIONAL PARKS CONSERVATION )

ASSOCIATION, INC., SIERRA CLUB, and )

OUR CHILDREN’S EARTH FOUNDATION, )

)

Plaintiffs, )

)

)

 v. )

)

 ) JUDGE __________________

TENNESSEE VALLEY AUTHORITY )

 ) Civil Action No. ____________

 )

 Defendant ) 

__________________________________________)

CONSENT DECREE
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TABLE OF CONTENTS

I. JURISDICTION AND VENUE ................................................................................................. 6

II. PARTIES BOUND.................................................................................................................... 7

III. COMPLIANCE PROGRAM ................................................................................................... 7

A. DEFINITIONS ...................................................................................................................... 7

B. NOx EMISSION REDUCTIONS AND CONTROLS ........................................................ 21

C. SO2 EMISSION REDUCTIONS AND CONTROLS......................................................... 29

D. PM EMISSION REDUCTIONS AND CONTROLS ......................................................... 37

E. PROHIBITION ON NETTING OR OFFSETS FROM REQUIRED CONTROLS ........... 44

F. ENVIRONMENTAL MITIGATION PROJECTS.............................................................. 51

G. CIVIL PENALTY ............................................................................................................... 55

H. RESOLUTION OF CLAIMS AGAINST TVA.................................................................. 56

I. PERIODIC REPORTING..................................................................................................... 58

J. REVIEW AND APPROVAL OF SUBMITTALS............................................................... 59

K. STIPULATED PENALTIES .............................................................................................. 60

L. PERMITS ............................................................................................................................ 65

IV. COORDINATION OF OVERSIGHT AND ENFORCEMENT ........................................... 69

V. FORCE MAJEURE ................................................................................................................ 76

VI. DISPUTE RESOLUTION ..................................................................................................... 81

VII. INFORMATION COLLECTION AND RETENTION........................................................ 83

VIII. NOTICES ............................................................................................................................ 85
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IX. SALES OR TRANSFERS OF OPERATIONAL OR OWNERSHIP INTERESTS ............. 87

X. EFFECTIVE DATE................................................................................................................ 90

XI. RETENTION OF JURISDICTION ....................................................................................... 90

XII. MODIFICATION ................................................................................................................. 90

XIII. GENERAL PROVISIONS.................................................................................................. 90

XIV. SIGNATORIES AND SERVICE ....................................................................................... 94

XV. PUBLIC COMMENT .......................................................................................................... 94

XVI. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER DECREE................. 95

XVI. FINAL JUDGMENT .......................................................................................................... 96

APPENDIX A – REPORTING REQUIREMENTS

APPENDIX B – EMISSION LIMITATIONS FOR NEW CC/CT UNITS

EXHIBIT 1 – FEDERAL FACILITIES COMPLIANCE AGREEMENT

EXHIBIT 2 – PROPOSED CONSENT AGREEMENT AND FINAL ORDER
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WHEREAS, the States of Alabama, North Carolina, and Tennessee and the 

Commonwealth of Kentucky (collectively the “States”), have jointly filed a complaint for 

injunctive relief and civil penalties pursuant to Ala. Code § 22-22A-5(18), (19), Ky. Rev. Stat. §§ 

224.99-010 to -020, Tenn. Code Ann. §§ 68-201-111, -115(b)(5), -117, and Section 304 of the 

Clean Air Act (the “Act”), 42 U.S.C. § 7604, alleging that Defendant Tennessee Valley Authority 

(“TVA”) made major modifications to major emitting facilities, and failed to obtain the 

necessary permits and install the controls necessary under the Prevention of Significant 

Deterioration (“PSD”) and Nonattainment New Source Review (“Nonattainment NSR”) 

provisions of the Act and the federally approved and enforceable State Implementation Plans 

(“SIPs”) for Alabama, Kentucky, and Tennessee, to reduce emissions of oxides of nitrogen 

(NOx), sulfur dioxide (SO2), and/or particulate matter (“PM”); further alleging related claims 

under the New Source Performance Standards, minor new source review (“minor NSR”), and 

Title V programs; and further alleging that such emissions damage human health and the 

environment;

WHEREAS, National Parks Conservation Association, Sierra Club, and Our Children’s 

Earth Foundation (collectively the “Citizen Plaintiffs”) have jointly filed a complaint for 

injunctive and declaratory relief and civil penalties pursuant to the federal Clean Air Act, 42 

U.S.C. §§ 7401 through 7671q, alleging that TVA made major modifications to major emitting 

facilities and failed to obtain the necessary permits and install the controls necessary under the 

PSD and Nonattainment NSR provisions of the Act and the EPA-approved SIPs for the States of 

Alabama and Tennessee, and the Commonwealth of Kentucky to reduce emissions of NOx, SO2, 
2

and/or PM and further alleging related claims under the New Source Performance Standards and 

minor NSR; 

WHEREAS, on November 10, 2004, the State of North Carolina gave notice to TVA and 

other required parties, pursuant to Section 304 of the Act, 42 U.S.C. § 7604, of its intent to sue 

TVA regarding the same alleged violations that EPA had alleged in an administrative compliance 

order that EPA had issued to TVA first on November 3, 1999, and which was subsequently 

amended several times, including on April 10, 2000,

WHEREAS, on October 30, 2000, December 13, 2000, July 21, 2003, and September 30, 

2008, to the extent it was necessary, the Citizen Plaintiffs gave notice to TVA and other required 

parties pursuant to Section 304 of the Act, 42 U.S.C. § 7604, of their intent to sue TVA regarding 

the claims alleged in their complaint;

WHEREAS, the States’ complaint alleges, inter alia, claims upon which relief can be 

granted against TVA pursuant to Ala. Code § 22-22A-5(18), (19), Ky. Rev. Stat. §§ 224.99-010 

to -020, Tenn. Code Ann. §§ 68-201-111, -115(b)(5), -117, Section 304 of the Act, 42 U.S.C. §

304, and 28 U.S.C. § 1355;

WHEREAS, the Citizen Plaintiffs’ complaint alleges claims upon which relief can be 

granted against TVA pursuant to the Clean Air Act’s PSD program, 42 U.S.C. §§ 7470-7492, 

Nonattainment NSR program, 42 U.S.C. §§ 7501-7515, New Source Performance Standards, 42 

U.S.C. § 7411, NSPS Subparts A and Da, 40 C.F.R. § 60.1 et seq., 40 C.F.R. § 60.40a et seq., 

minor NSR, the EPA-approved SIPs for the States of Tennessee and Alabama, and the 

Commonwealth of Kentucky, and 28 U.S.C. § 1355;
3

WHEREAS, EPA issued an administrative compliance order to TVA pursuant to 

Sections 113 and 167 of the Act, 42 U.S.C. §§ 7413, 7477, alleging that TVA violated, inter alia, 

the PSD and Nonattainment NSR programs of the Act, its implementing regulations, and the 

relevant SIPs at several of the coal-fired electric generating units that TVA owns and operates 

when it made certain physical changes without obtaining the necessary permits and installing the 

controls necessary to reduce emissions of NOx, SO2, and PM; 

WHEREAS, in the administrative compliance order, EPA directed TVA to come into 

compliance with the Act;

WHEREAS, the United States Environmental Appeals Board (“EAB”) issued a Final 

Order on Reconsideration in In re Tennessee Valley Auth., 9 E.A.D 357 (EAB 2000), in which it 

found that TVA had violated the PSD and Nonattainment NSR programs of the Act, its 

implementing regulations, and the relevant SIPs, and directed TVA to come into compliance with

the Act;

WHEREAS, TVA petitioned for review of the administrative compliance order and the 

EAB’s Final Order on Reconsideration in the United States Court of Appeals for the Eleventh 

Circuit, which concluded that EPA’s administrative proceedings, and the Act provisions under 

which the order was issued, violated due process, Tennessee Valley Auth. v. Whitman, 336 F.3d 

1236, 1244, 1260 (11th Cir. 2003), cert. denied, 541 U.S. 1030 (2004); Brief for Respondent in 

Opposition to a Writ of Certiorari (“Brief for Respondent”) at 4, National Parks Conservation 

Ass’n et al. v. Tennessee Valley Auth., 554 U.S. 917 (2008) (No. 07-867), and which then held 

that the unconstitutionality of the Clean Air Act provision meant that EPA’s order was not a 
4

“final agency action” and that the court of appeals therefore lacked jurisdiction to review it, see

Brief for Respondent at 4 (citing Whitman, 336 F.3d at 1248, 1260);

WHEREAS, through a Clean Air Act Federal Facilities Compliance Agreement 

(“Compliance Agreement”), In re Tennessee Valley Auth., Docket No. CAA-04-2010-1760

(Exhibit 1 to this Consent Decree), and a Consent Agreement and Final Order, In re Tennessee 

Valley Auth., Docket No. CAA-04-2010-1528(b) (Exhibit 2 to this Consent Decree), EPA and 

TVA are resolving the violations alleged in the amended administrative compliance order and the 

Final Order on Reconsideration;

WHEREAS, when entered, this Consent Decree will secure by way of injunction the 

same relief as the Compliance Agreement and that, therefore, TVA’s operations will be governed 

by both the Compliance Agreement and this Consent Decree;

WHEREAS, the States, Citizen Plaintiffs, and TVA (the “Parties”) anticipate that this 

Consent Decree (and EPA and TVA anticipate that the Compliance Agreement), including the 

installation and operation of pollution control technology and other measures adopted pursuant to 

this Consent Decree and the Compliance Agreement, will achieve significant reductions of 

emissions from the TVA System and thereby significantly improve air quality;

WHEREAS, TVA is now undertaking a process to transform itself into a cleaner power 

system by reducing emissions from its coal-fired power plants, by retiring some coal-fired units, 

and by relying more on lower-emitting or non-emitting generation like natural gas and nuclear 

units and energy-efficiency and demand response programs;
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WHEREAS, TVA disagreed with, and continues to disagree with, the allegations of the 

administrative compliance order and the findings of fact and conclusions of law of the Final 

Order on Reconsideration by the EAB, and denies that it violated the Act as so alleged and found 

(see Whitman, 336 F.3d at 1244-45);

WHEREAS, TVA wishes to resolve, without the uncertainty and expense associated with 

further litigation, the claims of EPA and other parties that it has violated any provisions of the 

Act’s PSD, Nonattainment NSR, New Source Performance Standards (“NSPS”), minor NSR, or 

(to the extent related to such PSD, Nonattainment NSR, NSPS, and minor NSR claims) Title V 

Operating Permit programs by way of the activities identified in the administrative compliance 

order and/or the complaints or other similar activities TVA has conducted at its coal-fired 

electricity generating plants;

WHEREAS, as specified in Paragraph 158 of this Consent Decree, TVA has agreed to an 

expedited schedule to obtain the appropriate Clean Water Act National Pollutant Discharge 

Elimination System permits for the wastewater discharges from its flue gas desulfurization 

(“FGD”) systems should EPA promulgate a final rule containing revisions to the Effluent 

Limitations Guidelines; 

WHEREAS, TVA plans to seek public review and comment during the environmental 

reviews conducted pursuant to the National Environmental Policy Act for the construction and 

operation of any combustion turbine and combined cycle electric generating plants it proposes to 

add to its system; and
6

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;

NOW, THEREFORE, without any admission by TVA, and without adjudication of the 

violations alleged in the complaints, 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, 1355, and 1367, and Section 304 of the 

Clean Air Act (the “Act”), 42 U.S.C. § 7604. Solely for purposes of this Consent Decree, venue 

is proper under 28 U.S.C. §§ 1391(b) and (c) and 1395. Solely for purposes of this Consent 

Decree and the underlying complaints, and for no other purpose, TVA waives all objections and 

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

over TVA, and to venue in this District. TVA shall not challenge the terms of this Consent 

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

of the complaints filed by the Plaintiffs in this matter and resolved by this Consent Decree, for 

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

waives any defense or objection based on standing. Except as expressly provided herein, this 
7

Consent Decree shall not create any rights in or obligations of any party other than the Plaintiffs 

and TVA. 

II. PARTIES BOUND

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

upon the Parties and their successors and assigns, and TVA’s officers, employees and agents, 

solely in their capacities as such.

III. COMPLIANCE PROGRAM

3. TVA 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, TVA 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, TVA shall not assert as a defense the failure of its officers, directors, 

employees, servants, agents, or contractors to take actions necessary to comply with this Consent 

Decree, unless TVA establishes that such failure resulted from a Force Majeure Event, as defined 

in Paragraph 166 of this Consent Decree.

A. DEFINITIONS

4. 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 
8

regulations implementing the Act shall mean in this Consent Decree what such term means under 

the Act or those implementing regulations. 

5. “Alabama” means the State of Alabama, Alabama Department of Environmental 

Management. 

6. “Baghouse” means a full stream (fabric filter) particulate emissions control 

device.

7. “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 (Nov. 25, 1986) 

and attachments thereto.

8. “Capital Expenditure” means all capital expenditures, as defined by Generally 

Accepted Accounting Principles as those principles exist as of the Date of Lodging of this 

Consent Decree, excluding the cost of installing or upgrading pollution control devices.

9. “Citizen Plaintiffs” means, collectively, National Parks Conservation Association, 

Sierra Club, and Our Children’s Earth Foundation.

10. “CEMS” 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, and for obligations involving PM, the continuous emission monitors installed and 

maintained as described in 40 C.F.R. § 60.49Da(v).
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11. “Clean Air Act” or “Act” means the federal Clean Air Act, 42 U.S.C. §§ 7401-

7671q, and its implementing regulations.

12. “Compliance Agreement” or “Federal Facilities Compliance Agreement” means 

the Clean Air Act agreement entered into between EPA and TVA, Docket No. CAA-04-2010-

1760, and which is Exhibit 1 to this Consent Decree.

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

attached hereto, which are incorporated into this Consent Decree.

14. “Consent Decree Obligation Date” means the Effective Date of the Compliance 

Agreement, as the term “Effective Date” is defined in the Compliance Agreement, which date is 

___________________________, 2011. 

15. “Continuously Operate” or “Continuous Operation” means that when a pollution 

control technology or combustion control is used at a Unit (including, but not limited to, SCR, 

FGD, PM Control Device, SNCR, Low NOx Burner (“LNB”), Overfire Air (“OFA”) or 

Separated Overfire Air (“SOFA”)), it shall be operated at all times such Unit is in operation 

(except during a Malfunction that is determined to be a Force Majeure Event), so as to minimize 

emissions to the greatest extent technically practicable consistent with the technological 

limitations, manufacturers= specifications, fire prevention codes, and good engineering and 

maintenance practices for such pollution control technology or combustion control and the Unit.

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

United States District Court Judge.
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17. “Date of Lodging” means the date that this Consent Decree was filed for lodging 

with the Clerk of the Court for the United States District Court for the Eastern District of 

Tennessee, Knoxville Division.

18. “Day” means calendar day unless otherwise specified in this Consent Decree.

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

British thermal units of heat input (“lb/mmBTU”), measured in accordance with this Consent 

Decree. 

20. “ESP” means electrostatic precipitator, a pollution control device for the reduction 

of PM.

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

22. “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 

control of SO2 emissions. Unless Paragraph 85 expressly requires the installation and 

Continuous Operation of a Wet FGD, TVA may install either a Wet FGD or a Dry FGD. 

23. “Greenhouse Gases” means the air pollutant defined at 40 C.F.R § 86.1818-12(a) 

as of the Date of Lodging of this Consent Decree as the aggregate group of six greenhouse gases: 

carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur 

hexafluoride. This definition continues to apply even if 40 C.F.R § 86.1818-12(a) is 

subsequently revised, stayed, vacated or otherwise modified.

24. “Improved Unit” for NOx means a TVA System Unit equipped with an SCR or 

scheduled under this Consent Decree to be equipped with an SCR (or equivalent control 
11

technology approved pursuant to Paragraph 199) or Repowered to Renewable Biomass (as 

defined herein). A Unit may be an Improved Unit for one pollutant without being an Improved 

Unit for another. Any Other Unit in the TVA System can become an Improved Unit for NOx if it 

is equipped with an SCR (or equivalent control technology approved pursuant to Paragraph 199) 

and the requirement to Continuously Operate the SCR or equivalent control technology is 

incorporated into a federally-enforceable non-Title V permit, or if it is Repowered to Renewable 

Biomass (as defined herein).

25. “Improved Unit” for SO2 means a TVA System Unit equipped with an FGD or 

scheduled under this Consent Decree to be equipped with an FGD (or equivalent control 

technology approved pursuant to Paragraph 199) or Repowered to Renewable Biomass (as 

defined herein). A Unit may be an Improved Unit for one pollutant without being an Improved 

Unit for another. Any Other Unit in the TVA System can become an Improved Unit for SO2 if it 

is equipped with an FGD (or equivalent control technology approved pursuant to Paragraph 199) 

and the requirement to Continuously Operate the FGD or equivalent control technology is 

incorporated into a federally-enforceable non-Title V permit, or it is Repowered to Renewable 

Biomass (as defined herein).

26. “Kentucky” means the Commonwealth of Kentucky, Energy and Environment 

Cabinet. 

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

28. “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 
12

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

not Malfunctions. 

29. “MW” means a megawatt or one million Watts.

30. “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.

31. “New CC/CT Unit” shall have the meaning indicated in Paragraph 117, below.

32. “NSPS” means New Source Performance Standards within the meaning of Part A 

of Subchapter I of the Act, 42 U.S.C. § 7411, and 40 C.F.R. Part 60.

33. “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, 40 C.F.R. Part 

51, and the federally-approved Nonattainment NSR provisions of the Alabama, Kentucky, and 

Tennessee State Implementation Plans (“SIPs”), including Ala. Admin. Code r. 335-3-14-.05, 

401 Ky. Admin. Regs. 51:052, Tenn. Comp. R. & Regs.1200-3-9-.01(5), and the 

Memphis/Shelby County local program.

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

this Consent Decree.

35. “NOx Allowance” means an authorization or credit 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 Act and/or the Alabama, Kentucky, or Tennessee SIPs.

36. “North Carolina” means the State of North Carolina.
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37. “Other Unit” means any Unit at the Shawnee Plant that is not an Improved Unit 

for the pollutant in question.

38. “Operational or Ownership Interest” means part or all of TVA’s legal or equitable 

operational or ownership interest in any Unit in the TVA System or any New CC/CT Unit(s). 

39. “Parallel Provision” means a requirement or prohibition of this Consent Decree 

that is also a requirement or prohibition of the Compliance Agreement.

40. “Parties” means the Plaintiffs and TVA. “Party” means one of the Parties.

41. “PM” means particulate matter, as measured in accordance with the requirements 

of this Consent Decree. 

42. “PM Control Device” means any device, including an ESP or a Baghouse, which

reduces emissions of PM. If a Wet FGD is the only device controlling PM on a particular Unit, 

then the Wet FGD is the PM Control Device.

43. “PM Emission Rate” means the number of pounds of filterable PM emitted per 

million British thermal units of heat input (“lb/mmBTU”), as measured in accordance with this 

Consent Decree.

44. “Plaintiffs” means collectively the States and the Citizen Plaintiffs.

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

C of Subchapter I of the Act, 42 U.S.C. §§ 7470 - 7492 and 40 C.F.R. Part 52, and the federallyapproved PSD provisions of the Alabama, Kentucky, and Tennessee SIPs, including Ala. Admin. 

Code r. 335-3-14-.04, 401 Ky. Admin. Reg. 51:017, Tenn. Comp. R. & Regs. 1200-3-9-.01(4), 

and the Memphis/Shelby County local program.
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46. “Region 4 Air Director” means the EPA Region 4 Director of Air, Pesticides and 

Toxics Management Division.

47. “Remove from Service” means:

a. with regard to the John Sevier plant, that two (2) of the four (4) Units shall 

cease to operate and emit any pollutants whatsoever by the dates specified in Paragraphs 69 and 

85 for the 2 Units to be Removed from Service unless and until an SCR and FGD are installed 

and commence Continuous Operation for each such Unit, or the Unit(s) is Repowered to 

Renewable Biomass or Retired, which shall occur by no later than the second date specified in 

Paragraphs 69 and 85 for the 2 Units that are Removed from Service provided that TVA may 

select which 2 Units at the John Sevier plant it will Remove from Service and that the remaining 

2 Units shall be Retired as set forth in Paragraphs 69 and 85, and 

b. with regard to Colbert Units 1-5, that such Units shall cease to operate and 

emit any pollutants whatsoever by the dates specified in Paragraphs 69 and 85 unless and until, 

by no later than three (3) years thereafter, an SCR and FGD are installed and commence 

Continuous Operation for each such Unit(s) or the Unit(s) is Repowered to Renewable Biomass 

or Retired, as specified therein.

48. “Renewable Biomass” means, solely for purposes of this Consent Decree, any 

organic matter that is available on a renewable basis from non-Federal land or from federal land 

that TVA manages, including renewable plant material; waste material, including crop residue; 

other vegetative waste material, including wood waste and wood residues; animal waste and 

byproducts; construction, food and yard waste; and residues and byproducts from wood pulp or 
15

paper products facilities. Biomass is renewable if it originates from forests that remain forests, or

from croplands and/or grasslands that remain cropland and/or grassland or revert to forest. 

Biomass residues and byproducts from wood pulp or paper products facilities includes byproducts, residues, and waste streams from agriculture, forestry, and related industries, but does 

not include used oil or expired pesticides. “Renewable Biomass” does not include any treated 

wood, including but not limited to, railroad ties, painted woods, or wood that has been treated 

with pentachlorophenol, copper-based and borate-based compounds, or creosote.

49. “Repower” or “Repowered” means Repower to Renewable Biomass or 

Repowered to Renewable Biomass.

50. “Repower to Renewable Biomass” or “Repowered to Renewable Biomass” for 

purposes of this Consent Decree means a TVA System Unit that is repowered to combust a fuel 

other than coal. Such a Repowered Unit shall only combust Renewable Biomass; provided, 

however, that such Repowered Unit may co-fire a fuel other than Renewable Biomass (but not 

used oil, expired pesticides, or any treated wood, including but not limited to, railroad ties, 

painted wood, or wood that has been treated with pentachlorophenol, copper-based and boratebased compounds, or creosote) up to six percent (6%) of heat input each calendar year for the 

Unit. Notwithstanding Section III.H (Resolution of Claims Against TVA) and Paragraph 116, 

for Shawnee Unit 10 and any other TVA System Unit that TVA Repowers to Renewable 

Biomass pursuant to Paragraphs 69 or 85, TVA shall apply for all required permits. A new 

source review permit under the PSD and/or Nonattainment NSR programs is a required permit 

within the meaning of this Paragraph; such a Repowered Unit is a “new emissions unit” as that 
16

term is defined in 40 C.F.R. §§ 52.21(b)(7)(i), 51.165(a)(1)(vii)(A), and 51.166(b)(7)(i), and the 

relevant SIP; and such Unit shall be subject to the test described in 40 C.F.R. §§

52.21(a)(2)(iv)(d), 51.165(a)(2)(ii)(D), and 51.166(a)(7)(d), and the relevant SIP. In such 

permitting action, TVA shall apply to include the limitation on co-firing a fuel other than 

Renewable Biomass as specified above. Any TVA System Unit that has the option to Repower 

to Renewable Biomass in Paragraphs 69 and 85 that TVA elects to Repower to Renewable 

Biomass as the Control Requirement under this Consent Decree, shall be subject to the 

prohibitions in Section III.E (Prohibition on Netting or Offsets From Required Controls). If 

Shawnee Unit 10 is Repowered to Renewable Biomass, it shall be subject to the prohibitions in 

Section III.E (Prohibition on Netting or Offsets From Required Controls) regarding netting 

credits. 

51. “Retire” means that TVA shall permanently cease to operate the Unit such that the 

Unit cannot legally burn any fuel nor produce any steam for electricity production and TVA shall 

comply with applicable state and/or federal requirements for permanently retiring a coal-fired 

electric generating unit, including removing the Unit from the relevant state=s air emissions 

inventory, and amending all applicable permits so as to reflect the permanent shutdown status of 

such Unit. Nothing herein shall prevent TVA from seeking to re-start the Retired Unit provided 

that TVA applies for, and obtains, all required permits. A new source review permit under the 

PSD and/or Nonattainment NSR programs is a required permit within the meaning of this 

Paragraph; such Retired Unit shall be a “new emissions unit” as that term is defined in 40 C.F.R. 

§§ 52.21(b)(7)(i), 51.165(a)(1)(vii)(A), and 51.166(b)(7)(i), and the relevant SIP; and such 
17

Retired Unit shall be subject to the test described in 40 C.F.R. §§ 52.21(a)(2)(iv)(d), 

51.165(a)(2)(ii)(D), and 51.166(a)(7)(d), and the relevant SIP. 

52. “Selective Catalytic Reduction” or “SCR” means a pollution control device that 

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

53. “Selective Non-Catalytic Reduction” or “SNCR” means a pollution control device 

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

54. “Startup” and “Shutdown” mean, as to each of those terms, the definition of those 

respective terms in 40 C.F.R. § 60.2.

55. “States” or “the States” refers collectively to Alabama, Kentucky, North Carolina, 

and Tennessee.

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

Consent Decree.

57. “SO2 Allowance” means an authorization or credit to emit a specified amount of 

SO2 that is allocated or issued under an emissions trading or marketable permit program of any 

kind that has been established under the Act or the Alabama, Kentucky, or Tennessee SIPs.

58. “Surrender” or “surrender of allowances” means, for purposes of SO2 or NOx

allowances, permanently surrendering allowances as required by this Consent Decree from the 

accounts administered by EPA and Alabama, Kentucky, and Tennessee for all Units in the TVA 

System, so that such allowances can never be used thereafter by any entity to meet any 

compliance requirement under the Act, a SIP, or this Consent Decree.
18

59. “System-Wide Annual Tonnage Limitation” means the number of tons of the 

pollutant in question that may be emitted collectively from the TVA System and any New CC/CT

Units during the relevant calendar year (i.e., January 1 through December 31), and shall include 

all emissions of the pollutant emitted during all periods of operation, including Startup, 

Shutdown, and Malfunction.

60. “Tennessee” means the State of Tennessee, Tennessee Department of 

Environment and Conservation (“TDEC”).

61. “Tennessee State Implementation Plan” and “Tennessee Title V program” shall

include, when applicable, the new source review provisions of the Memphis/Shelby County local 

program, and its implementing regulations, and its Title V permit program. 

62. “TVA” means Tennessee Valley Authority, a federal agency and instrumentality 

of the United States.

63. “TVA System” means solely for purposes of this Consent Decree, the following 

coal-fired, electric steam generating Units (with nameplate MW capacity of each Unit, for 

identification purposes only) or such coal-fired Unit that is Repowered to Renewable Biomass,

located at the following plants: 

a Allen Unit 1 (330 MW), Allen Unit 2 (330 MW), and Allen Unit 3 (330 

MW) located at the Allen Fossil Plant near Memphis, Tennessee;

b. Bull Run Unit 1 (950 MW) located at the Bull Run Fossil Plant near Oak 

Ridge, Tennessee;
19

c. Colbert Unit 1 (200 MW), Colbert Unit 2 (200 MW), Colbert Unit 3 (200 

MW), Colbert Unit 4 (200 MW), and Colbert Unit 5 (550 MW) located at 

the Colbert Fossil Plant in Tuscumbia, Alabama;

d. Cumberland Unit 1 (1300 MW) and Cumberland Unit 2 (1300 MW) 

located at the Cumberland Fossil Plant in Cumberland City, Tennessee;

e. Gallatin Unit 1 (300 MW), Gallatin Unit 2 (300 MW), Gallatin Unit 3 

(327.6 MW), and Gallatin Unit 4 (327.6 MW) located at the Gallatin 

Fossil Plant in Gallatin, Tennessee;

f. John Sevier Unit 1 (200 MW), John Sevier Unit 2 (200 MW), John Sevier 

Unit 3 (200 MW), and John Sevier Unit 4 (200 MW) located at the John 

Sevier Fossil Plant near Rogersville, Tennessee;

g. Johnsonville Unit 1 (125 MW), Johnsonville Unit 2 (125 MW), 

Johnsonville Unit 3 (125 MW), Johnsonville Unit 4 (125 MW), 

Johnsonville Unit 5 (147 MW), Johnsonville Unit 6 (147 MW), 

Johnsonville Unit 7 (172.8 MW), Johnsonville Unit 8 (172.8 MW), 

Johnsonville Unit 9 (172.8 MW), and Johnsonville Unit 10 (172.8 MW) 

located at the Johnsonville Fossil Plant near Waverly, Tennessee;

h. Kingston Unit 1 (175 MW), Kingston Unit 2 (175 MW), Kingston Unit 3 

(175 MW), Kingston Unit 4 (175 MW), Kingston Unit 5 (200 MW), 

Kingston Unit 6 (200 MW), Kingston Unit 7 (200 MW), Kingston Unit 8 
20

(200 MW), and Kingston Unit 9 (200 MW) located at the Kingston Fossil 

Plant near Kingston, Tennessee;

i. Paradise Unit 1 (704 MW), Paradise Unit 2 (704 MW), and Paradise Unit 

3 (1150.2 MW) located at the Paradise Fossil Plant in Drakesboro, 

Kentucky;

j. Shawnee Unit 1 (175 MW), Shawnee Unit 2 (175 MW), Shawnee Unit 3 

(175 MW), Shawnee Unit 4 (175 MW), Shawnee Unit 5 (175 MW), 

Shawnee Unit 6 (175 MW), Shawnee Unit 7 (175 MW), Shawnee Unit 8 

(175 MW), Shawnee Unit 9 (175 MW), and Shawnee Unit 10 (175 MW) 

located at the Shawnee Fossil Plant near Paducah, Kentucky; and

k. Widows Creek Unit 1 (140.6 MW), Widows Creek Unit 2 (140.6 MW), 

Widows Creek Unit 3 (140.6 MW), Widows Creek Unit 4 (140.6 MW), 

Widows Creek Unit 5 (140.6 MW), Widows Creek Unit 6 (140.6 MW), 

Widows Creek Unit 7 (575 MW), and Widows Creek Unit 8 (550 MW) 

located at the Widows Creek Fossil Plant near Stevenson, Alabama.

64. “Title V Permit” means the permit required of TVA’s major sources under 

Subchapter V of the Act, 42 U.S.C. §§ 7661-7661e; Ala. Code §§ 22-22A-1 to -16, §§ 22-28-1 to 

-23 (2006 Rplc. Vol.), and Ala. Admin. Code r. 335-3-16; Ky. Rev. Stat. Ann. §§ 224.20-100 to -

120, and 401 Ky. Admin. Reg. 52:020; and Tenn. Comp. R. & Regs. R. 1200-3-9-.02.

65. “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 
21

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. “Unit” shall also include any coal-fired TVA System Unit 

identified in Paragraph 63 that is Repowered to Renewable Biomass pursuant to this Consent 

Decree.

66. “VOC” means volatile organic compounds as defined in 40 C.F.R. § 51.100.

B. NOx EMISSION REDUCTIONS AND CONTROLS

1. NOx Emission Limitations.

67. System-Wide Annual Tonnage Limitations for NOx. During each calendar year 

specified in the table below, all Units in the TVA System and any New CC/CT Units constructed 

pursuant to Paragraph 117, collectively, shall not emit NOx in excess of the following SystemWide Annual Tonnage Limitations: 

Calendar Year System-Wide Tonnage Limitation for NOx

2011 100,600

2012 100,600

2013 90,791

2014 86,842

2015 83,042

2016 70,667

2017 64,951

2018, and each year thereafter 52,000

68. If TVA elects to Remove from Service any or all of Colbert Units 1-5 either 

pursuant to Paragraph 69 or Paragraph 85, then the System-Wide Annual Tonnage Limitations 
22

for NOx in each calendar year for which such Unit(s) is Removed from Service shall be adjusted 

as follows:

Unit Tons by Which System-Wide Annual Tonnage Limitation 

for NOx Shall be Reduced If Unit is Removed From 

Service in a Calendar Year

Colbert Unit 1 700 tons 

Colbert Unit 2 500 tons 

Colbert Unit 3 500 tons 

Colbert Unit 4 500 tons 

Colbert Unit 5 1,200 tons

 2. NOx Control Requirements. 

69. No later than the dates set forth in the table below, and continuing thereafter, TVA 

shall install and commence Continuous Operation of the pollution control technology identified 

therein or, if indicated in the table, Retire or Repower each Unit identified therein, or, solely for 

Colbert Units 1-4 and two (2) Units at the John Sevier plant, Remove from Service as defined 

herein: 

Plant Unit Control Requirement Date

Allen Unit 1 SCR Consent Decree Obligation 

Date

Allen Unit 2 SCR Consent Decree Obligation 

Date

Allen Unit 3 SCR Consent Decree Obligation 

Date

Bull Run Unit 1 SCR Consent Decree Obligation 

Date

Colbert Unit 1 Remove from Service, SCR, 

Repower to Renewable 

Biomass, or Retire

June 30, 2016
23

Plant Unit Control Requirement Date

Colbert Unit 2 Remove from Service, SCR, 

Repower to Renewable 

Biomass, or Retire

June 30, 2016

Colbert Unit 3 Remove from Service, SCR, 

Repower to Renewable 

Biomass, or Retire

June 30, 2016

Colbert Unit 4 Remove from Service, SCR, 

Repower to Renewable 

Biomass, or Retire

June 30, 2016

Colbert Unit 5 SCR Consent Decree Obligation 

Date

Cumberland Unit 1 SCR Consent Decree Obligation 

Date

Cumberland Unit 2 SCR Consent Decree Obligation 

Date

Gallatin Unit 1 SCR, Repower to Renewable 

Biomass, or Retire

December 31, 2017

Gallatin Unit 2 SCR, Repower to Renewable 

Biomass, or Retire

December 31, 2017

Gallatin Unit 3 SCR, Repower to Renewable 

Biomass, or Retire

December 31, 2017

Gallatin Unit 4 SCR, Repower to Renewable 

Biomass, or Retire

December 31, 2017

John Sevier 2 Units Retire December 31, 2012

John Sevier 2 other

Units 

Remove from Service December 31, 2012

SCR, Repower to Renewable 

Biomass, or Retire

December 31, 2015

Johnsonville Units 

1 - 10

Retire 6 Units by December 31, 2015

4 additional Units by 

December 31, 2017

Kingston Unit 1 SCR Consent Decree Obligation 

Date
24

Plant Unit Control Requirement Date

Kingston Unit 2 SCR Consent Decree Obligation 

Date

Kingston Unit 3 SCR Consent Decree Obligation 

Date

Kingston Unit 4 SCR Consent Decree Obligation 

Date

Kingston Unit 5 SCR Consent Decree Obligation 

Date

Kingston Unit 6 SCR Consent Decree Obligation 

Date

Kingston Unit 7 SCR Consent Decree Obligation 

Date

Kingston Unit 8 SCR Consent Decree Obligation 

Date

Kingston Unit 9 SCR Consent Decree Obligation 

Date

Paradise Unit 1 SCR Consent Decree Obligation 

Date

Paradise Unit 2 SCR Consent Decree Obligation 

Date

Paradise Unit 3 SCR Consent Decree Obligation 

Date

Shawnee Unit 1 SCR, Repower to Renewable 

Biomass, or Retire

December 31, 2017

Shawnee Unit 4 SCR, Repower to Renewable 

Biomass, or Retire

December 31, 2017

Widows Creek Units

1-6

Retire 2 Units by July 31, 2013 

2 additional Units by July 31, 

2014

2 additional Units by July 31, 

2015

Widows Creek Unit 7 SCR Consent Decree Obligation 

Date

Widows Creek Unit 8 SCR Consent Decree Obligation 

Date
25

70. Notwithstanding Paragraph 69, TVA’s failure to (a) complete installation and 

commence Continuous Operation of a pollution control technology by the date specified in the 

table in Paragraph 69 or (b) Repower to Renewable Biomass by the date specified in the table in 

Paragraph 69, shall not be a violation of this Consent Decree if such Unit:

(i) ceases to operate and emit any pollutants whatsoever at least sixty (60) 

days before the date specified in the table in Paragraph 69, and 

(ii) the installation is completed and the Unit commences Continuous 

Operation of the pollution control technology specified in the table in Paragraph 69 or as a 

Repowered Unit no later than ninety (90) days after the date specified in the table in Paragraph 

69. If TVA fails to commence Continuous Operation of the pollution control technology or the 

Repowered Unit ninety (90) days after such date, then TVA shall be subject to stipulated 

penalties for the entire period commencing on the date specified in the Table in Paragraph 69. 

71. Beginning upon the Consent Decree Obligation Date and continuing thereafter, 

TVA shall (a) Continuously Operate existing LNB, OFA, and SOFA combustion controls at all 

Units in the TVA System and (b) Continuously Operate existing SNCR technology at all Units in 

the TVA System equipped with such technology as of the Date of Lodging of this Consent 

Decree (i.e., John Sevier Units 1-4 and Johnsonville Units 1-4) unless and until such Unit is 

equipped with an SCR and TVA Continuously Operates such SCR pursuant to this Consent 

Decree, or such Unit is Retired or Repowered pursuant to this Consent Decree. 

72. For TVA System Units with two or more methods specified in the Control 

Requirement column in the table in Paragraph 69, above, TVA shall provide notice to EPA, the 
26

States, and the Citizen Plaintiffs pursuant to Section VIII (Notices) of this Consent Decree of its 

election as to which of the Control Requirement methods it will employ at such Unit by no later 

than three (3) years prior to the date specified in the table for that Unit. For the Units at the John 

Sevier plant, TVA shall provide notice to EPA, the States, and the Citizen Plaintiffs pursuant to 

Section VIII (Notices) of this Consent Decree of its election as to which two (2) Units it will 

Retire and which two (2) Units it will at least initially Remove from Service, by no later than 

June 30, 2012. For any TVA System Unit that TVA timely elects to control with SCR or 

Repower to Renewable Biomass, TVA may change its election to Retire at any time prior to the 

date specified in the table in Paragraph 69. TVA shall provide notice to EPA, the States, and the 

Citizen Plaintiffs pursuant to Section VIII (Notices) of its decision to Retire the Unit, with an 

explanation for its decision to change the election, by no later than ten (10) business days 

following its decision to change its election from SCR or Repower to Renewable Biomass to 

Retire. 

73. Solely for the Units at the Colbert plant, if TVA elects the Remove from Service

option, it shall provide notice to EPA, the States, and the Citizen Plaintiffs pursuant to Section 

VIII (Notices) at the time such Units are required to be Removed from Service as to which 

method specified in the Control Requirement column in the table in Paragraph 69 it will employ 

at such Unit. 

3. Use and Surrender of NOx Allowances.

74. TVA shall not use NOx Allowances to comply with any requirement of this 

Consent Decree, including by claiming compliance with any emission limitation required by this 
27

Consent Decree by using, tendering, or otherwise applying NOx Allowances to offset any excess 

emissions.

75. Beginning with calendar year 2011, and continuing each calendar year thereafter, 

TVA shall surrender all NOx Allowances allocated to the TVA System for that calendar year that 

TVA does not need in order to meet its own federal and/or state Clean Air Act regulatory 

requirements for the TVA System for that calendar year. However, NOx Allowances allocated to 

the TVA System may be used by TVA to meet its own federal and/or state Clean Air Act 

regulatory requirements for the Units included in the TVA System. 

76. Nothing in this Consent Decree shall prevent TVA from purchasing or otherwise 

obtaining NOx Allowances from another source for purposes of complying with federal and/or 

state Clean Air Act regulatory requirements (i.e., emissions trading or marketable permit 

programs) to the extent otherwise allowed by law.

77. The requirements of this Consent Decree pertaining to TVA=s use and surrender of 

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

Consent Decree.

4. Super-Compliance Allowances.

78. Notwithstanding Paragraph 75, in each calendar year beginning in 2011, and 

continuing thereafter, TVA may sell, bank, use, trade, or transfer any NOx Allowances made 

available in that calendar year as a result of maintaining actual NOx emissions from the combined 

total of (a) the TVA System and (b) any New CC/CT Unit(s) constructed pursuant to Paragraph 

117 below the System-Wide Annual Tonnage Limitations for NOx for such calendar year 

(“Super-Compliance Allowances”); provided, however, that reductions in NOx emissions that 
28

TVA utilizes as provided in Paragraph 117 to support the permitting of a New CC/CT Unit(s) 

shall not be available to generate Super-Compliance Allowances within the meaning of this 

Paragraph in the calendar year in which TVA utilizes such emission reductions and all calendar 

years thereafter. TVA shall timely report the generation of all Super-Compliance NOx

Allowances in accordance with Section III.I (Periodic Reporting) of this Consent Decree, and 

shall specifically identify any Super-Compliance NOx Allowances that TVA generates from 

Retiring a TVA System Unit and that TVA did not utilize for purposes of Paragraph 117.

5. Method for Surrender of NOx Allowances.

79. TVA shall surrender all NOx Allowances required to be surrendered pursuant to 

Paragraph 75 by April 30 of the immediately following calendar year.

80. For all NOx Allowances required to be surrendered, TVA 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, TVA 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.

6. NOx Monitoring Provisions.

81. TVA shall use CEMS in accordance with 40 C.F.R. Part 75 to monitor its 

emissions of NOx from the TVA System Units and any New CC/CT Unit(s) for purposes of 

demonstrating compliance with the applicable System-Wide Annual Tonnage Limitations 

specified in Paragraph 67 of this Consent Decree.
29

C. SO2 EMISSION REDUCTIONS AND CONTROLS

1. SO2 Emission Limitations.

82. System-Wide Annual Tonnage Limitations for SO2. During each calendar year 

specified in the table below, all Units in the TVA System and any New CC/CT Unit(s) 

constructed pursuant to Paragraph 117, collectively, shall not emit SO2 in excess of the following 

System-Wide Annual Tonnage Limitations:

Calendar Year System-Wide Tonnage Limitation for SO2

2011 285,000

2012 285,000

2013 235,518

2014 228,107

2015 220,631

2016 175,626

2017 164,257

2018 121,699

2019, and each year thereafter 110,000

83. If TVA elects to Remove from Service any or all of Colbert Units 1-5 either 

pursuant to Paragraph 69 or Paragraph 85, then the System-Wide Annual Tonnage Limitations 

for SO2 in each calendar year for which such Unit(s) is Removed from Service shall be adjusted 

as follows:

Calendar Year Tons by Which System-Wide Annual Tonnage Limitation 

for SO2 Shall be Reduced If Unit is Removed From 

Service in a Calendar Year

Colbert Unit 1 700 tons 

Colbert Unit 2 1,100 tons 

Colbert Unit 3 1,000 tons 

Colbert Unit 4 1,100 tons 

Colbert Unit 5 2,600 tons
30

84. If TVA must shut down one or more of its nuclear units for more than one 

hundred and twenty (120) consecutive days within calendar year 2011 or within calendar year 

2012 because of a forced outage or in response to a safety concern as required by the Nuclear 

Regulatory Commission, then the System-Wide Annual Tonnage Limitation for SO2 for that 

calendar year shall be 295,000 tons rather than 285,000 tons as specified in the table in Paragraph 

82. If TVA must shut down one or more of its nuclear units for more than one hundred and 

twenty (120) consecutive days within calendar year 2013 or within calendar year 2014 because of 

a forced outage or in response to a safety concern as required by the Nuclear Regulatory 

Commission, then the System-Wide Annual Tonnage Limitation for SO2 for calendar year 2013 

shall be 241,700 tons rather than 235,518 tons as specified in the table in Paragraph 82 and the 

System-Wide Annual Tonnage Limitation for SO2 for calendar year 2014 shall be 234,000 tons 

rather than 228,107 tons as specified in the table in Paragraph 82. In order to put EPA, the 

States, and the Citizen Plaintiffs on notice of this potential event, TVA shall provide notice to 

EPA, the States, and the Citizen Plaintiffs pursuant to Section VIII (Notices), and include a 

summary of the circumstances causing the shut down and TVA’s efforts to bring the unit back on 

line, commencing no later than thirty (30) days following the shutdown of a nuclear unit, and 

continuing every thirty (30) days thereafter until either (a) the unit comes back online or (b) the 

unit remains shut down for one hundred twenty (120) consecutive days, whichever is earlier. In 

this circumstance, TVA shall, to the extent practicable, increase utilization of any Units in the 

TVA System that are controlled with FGDs and/or SCRs and/or any New CC/CT Unit(s) 
31

constructed pursuant to Paragraph 117 to replace the lost power generation from the nuclear unit 

before increasing utilization of uncontrolled TVA System Units.

2. SO2 Control Requirements.

85. No later than the dates set forth in the table below, and continuing thereafter, TVA 

shall install and commence Continuous Operation of the pollution control technology at each 

Unit identified therein or, if indicated in the table, Retire or Repower each Unit identified therein, 

or, solely for Colbert Units 1-5 and two (2) Units at the John Sevier plant, Remove from Service 

as defined herein: 

Plant Unit Control Requirement Date

Allen Unit 1 FGD or Retire December 31, 2018

Allen Unit 2 FGD or Retire December 31, 2018

Allen Unit 3 FGD or Retire December 31, 2018

Bull Run Unit 1 Wet FGD Consent Decree Obligation 

Date

Colbert Unit 1 Remove from Service, FGD, 

Repower to Renewable Biomass,

or Retire

June 30, 2016

Colbert Unit 2 Remove from Service, FGD, 

Repower to Renewable Biomass,

or Retire

June 30, 2016

Colbert Unit 3 Remove from Service, FGD, 

Repower to Renewable Biomass,

or Retire

June 30, 2016

Colbert Unit 4 Remove from Service, FGD, 

Repower to Renewable Biomass,

or Retire

June 30, 2016

Colbert Unit 5 Remove from Service, FGD or 

Retire

December 31, 2015

Cumberland Unit 1 Wet FGD Consent Decree Obligation 

Date
32

Plant Unit Control Requirement Date

Cumberland Unit 2 Wet FGD Consent Decree Obligation 

Date

Gallatin Unit 1 FGD, Repower to Renewable 

Biomass, or Retire

December 31, 2017

Gallatin Unit 2 FGD, Repower to Renewable 

Biomass, or Retire

December 31, 2017

Gallatin Unit 3 FGD, Repower to Renewable 

Biomass, or Retire

December 31, 2017

Gallatin Unit 4 FGD, Repower to Renewable 

Biomass, or Retire

December 31, 2017

John Sevier 2 Units Retire December 31, 2012

John Sevier 2 other 

Units

Remove from Service December 31, 2012

FGD, Repower to Renewable 

Biomass, or Retire

December 31, 2015

Johnsonville Units 

1 - 10

Retire 6 Units by December 31, 2015

4 additional Units by December 

31, 2017

Kingston Unit 1 Wet FGD Consent Decree Obligation 

Date

Kingston Unit 2 Wet FGD Consent Decree Obligation 

Date

Kingston Unit 3 Wet FGD Consent Decree Obligation 

Date

Kingston Unit 4 Wet FGD Consent Decree Obligation 

Date

Kingston Unit 5 Wet FGD Consent Decree Obligation 

Date

Kingston Unit 6 Wet FGD Consent Decree Obligation 

Date

Kingston Unit 7 Wet FGD Consent Decree Obligation 

Date

Kingston Unit 8 Wet FGD Consent Decree Obligation 

Date

Kingston Unit 9 Wet FGD Consent Decree Obligation 

Date

Paradise Unit 1 FGD Upgrade to 93% Removal 

Efficiency

December 31, 2012
33

Plant Unit Control Requirement Date

Paradise Unit 2 FGD Upgrade to 93% Removal 

Efficiency 

December 31, 2012

Paradise Unit 3 Wet FGD Consent Decree Obligation 

Date

Shawnee Unit 1 FGD, Repower to Renewable 

Biomass, or Retire

December 31, 2017

Shawnee Unit 4 FGD, Repower to Renewable 

Biomass, or Retire

December 31, 2017

Widows 

Creek

Units

1-6

Retire 2 Units by July 31, 2013

2 additional Units by July 31, 

2014

2 additional Units by July 31, 

2015

Widows 

Creek

Unit 7 Wet FGD Consent Decree Obligation 

Date

Widows 

Creek

Unit 8 Wet FGD Consent Decree Obligation 

Date

Notwithstanding any requirement specified in the preceding table to Continuously Operate a Wet 

FGD at Kingston Units 1-9, TVA shall not be required to Continuously Operate such Wet 

FGD(s) until either: (a) TDEC authorizes disposal of gypsum in the Class II landfill (IDL 73-

0211) which, as of the Date of Lodging of this Consent Decree, is prohibited pursuant to TDEC’s 

Order dated December 17, 2010 in Case No. SWM10-0010 or (b) September 20, 2011, 

whichever occurs sooner. During the period when this exemption is in effect, TVA shall (a) burn 

coal at Kingston that achieves a 30-day rolling average emission rate for SO2 of no greater than 

1.1 lb/mmBTU and (b) operate Kingston only after Bull Run is dispatched first. This exemption 

shall not relieve TVA of its obligation to comply with the 2011 SO2 System-Wide Annual 

Tonnage Limitation and shall not relieve TVA of any other control requirements relating to 

Kingston, except as provided in Paragraph 100.
34

86. Notwithstanding Paragraph 85, TVA’s failure to (a) complete installation and 

commence Continuous Operation of a pollution control technology by the date specified in the 

table in Paragraph 85 or (b) Repower to Renewable Biomass by the date specified in the table in 

Paragraph 85, shall not be a violation of this Consent Decree if such Unit:

(i) ceases to operate and emit any pollutants whatsoever at least sixty (60) 

days before the date specified in the table in Paragraph 85, and 

(ii) the installation is completed and the Unit commences Continuous 

Operation of the pollution control technology specified in the table in Paragraph 85 or as a 

Repowered Unit no later than ninety (90) days after the date specified in the table in Paragraph 

85. If TVA fails to commence Continuous Operation of the pollution control technology or the 

Repowered Unit ninety (90) days after such date, then TVA shall be subject to stipulated 

penalties for the entire period commencing on the date specified in the Table in Paragraph 85. 

87. Upon the Consent Decree Obligation Date, and continuing thereafter, emissions of 

SO2 from Shawnee Units 1-10 shall not exceed 1.2 lb/mmBTU. Compliance with this limitation 

shall be demonstrated using the procedures specified in the Clean Air Act operating permit for 

the Shawnee facility.

88. For TVA System Units with two or more methods specified in the Control 

Requirement column in the table in Paragraph 85, above, TVA shall provide notice to EPA, the 

States, and the Citizen Plaintiffs pursuant to Section VIII (Notices) of its election as to which of 

the Control Requirement methods it will employ at such Unit by no later than three (3) years 

prior to the date specified in the Table for that Unit. For the Units at the John Sevier plant, TVA 

shall provide notice to EPA, the States, and the Citizen Plaintiffs pursuant to Section VIII 
35

(Notices) of this Consent Decree of its election as to which two (2) Units it will Retire and which 

two (2) Units it will at least initially Remove from Service, by no later than June 30, 2012. For 

any TVA System Unit that TVA timely elects to control with FGD or Repower to Renewable 

Biomass, TVA may change its election to Retire at any time prior to the date specified in the 

table in Paragraph 85. TVA shall provide notice to EPA, the States, and the Citizen Plaintiffs

pursuant to Section VIII (Notices) of its decision to Retire the Unit, with an explanation for its 

decision to change the election, by no later than ten (10) business days following its decision to 

change its election from FGD or Repower to Renewable Biomass to Retire.

89. Solely for the Units at the Colbert plant, if TVA elects the Remove from Service

option, it shall provide notice to EPA, the States, and the Citizen Plaintiffs pursuant to Section 

VIII (Notices) at the time such Units are required to be Removed from Service as to which 

method specified in the Control Requirement column in the table in Paragraph 85 it will employ 

at such Unit. 

3. Use and Surrender of SO2 Allowances.

90. TVA shall not use SO2 Allowances to comply with any requirement of this 

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

Consent Decree by using, tendering, or otherwise applying SO2 Allowances to offset any excess 

emissions.

91. Beginning with calendar year 2011, and continuing each calendar year thereafter, 

TVA shall surrender all SO2 Allowances allocated to the TVA System for that calendar year that 

TVA does not need in order to meet its own federal and/or state Clean Air Act regulatory 

requirements for the TVA System Units for that calendar year. However, SO2 Allowances 
36

allocated to the TVA System may be used by TVA to meet its own federal and/or state Clean Air 

Act regulatory requirements for the TVA System Units.

92. Nothing in this Consent Decree shall prevent TVA from purchasing or otherwise 

obtaining SO2 Allowances from another source for purposes of complying with federal and/or 

state Clean Air Act regulatory requirements (i.e., emissions trading or marketable permit 

programs) to the extent otherwise allowed by law. 

93. The requirements in this Consent Decree pertaining to TVA=s use and surrender of 

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

Consent Decree.

4. Super-Compliance Allowances.

94. Notwithstanding Paragraph 91, in each calendar year beginning in 2011, and 

continuing thereafter, TVA may sell, bank, use, trade, or transfer any SO2 Allowances made 

available in that calendar year as a result of maintaining actual SO2 emissions from the combined 

total of (a) the TVA System and (b) any New CC/CT Unit(s) constructed pursuant to Paragraph 

117 below the System-Wide Annual Tonnage Limitations for SO2 for such calendar year 

(“Super-Compliance Allowances”); provided, however, that reductions in SO2 emissions that 

TVA utilizes as provided in Paragraph 117 to support the permitting of a New CC/CT Unit(s) 

shall not be available to generate Super-Compliance Allowances within the meaning of this 

Paragraph in the calendar year in which TVA utilizes such emission reductions and all calendar 

years thereafter. TVA shall timely report the generation of all Super-Compliance SO2

Allowances in accordance with Section III.I (Periodic Reporting) of this Consent Decree, and 
37

shall specifically identify any Super-Compliance SO2 Allowances that TVA generates from 

Retiring a TVA System Unit and that TVA did not utilize for purposes of Paragraph 117. 

5. Method for Surrender of SO2 Allowances.

95. TVA shall surrender all SO2 Allowances required to be surrendered pursuant to 

Paragraph 91 by April 30 of the immediately following year.

96. For all SO2 Allowances required to be surrendered, TVA 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, TVA 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.

6. SO2 Monitoring Provisions.

97. TVA shall use CEMS in accordance with 40 C.F.R. Part 75 to monitor its 

emissions of SO2 from the TVA System Units and any New CC/CT Unit(s) for purposes of 

demonstrating compliance with the applicable System-Wide Annual Tonnage Limitations 

specified in Paragraph 82 of this Consent Decree.

D. PM EMISSION REDUCTIONS AND CONTROLS

1. Optimization of Existing PM Control Devices.

98. Beginning sixty (60) days after the Consent Decree Obligation Date, and 

continuing thereafter, TVA shall Continuously Operate each PM Control Device on each Unit in 

the TVA System. TVA shall, at a minimum, to the extent reasonably practicable and consistent 
38

with manufacturers= specifications, the operational design of the Unit, and good engineering 

practices (a) fully energize each section of the ESP for each Unit, and where applicable, operate 

each compartment of the Baghouse (except for a Baghouse compartment that, as part of the 

original design of the Baghouse when it was first constructed, is a spare compartment); (b) 

operate automatic control systems on each ESP to maximize PM collection efficiency; and (c) 

maintain power levels delivered to the ESPs, and where applicable, replace bags as needed on 

each Baghouse as needed to maximize collection efficiency.

99. TVA shall complete and submit to EPA for review and approval in accordance 

with Section III.J (Review and Approval of Submittals) of the Compliance Agreement, with 

copies of such submittal to the States and the Citizen Plaintiffs pursuant to Section VIII (Notices)

of this Consent Decree, a PM emission control optimization study for each TVA System Unit 

except for (a) Colbert Unit 5, Paradise Units 1 and 2, and Widows Creek Unit 8, (b) those Units 

that TVA is required to Retire pursuant to Paragraphs 69 and 85, (c) those Units that TVA elects 

to Retire pursuant to Paragraphs 69 and 85, and (d) those Units at which TVA has installed and 

commenced Continuous Operation of a new PM Control Device. The PM emission control 

optimization study shall, for the range of fuels used by the Unit, recommend the best available 

maintenance, repair, and operating practices to optimize the PM Control Device availability and 

performance in accordance with manufacturers’ specifications, the operational design of the Unit, 

and good engineering practices. TVA shall retain a qualified contractor to assist in the 

performance and completion of each study. TVA shall perform each study and implement the 

EPA-approved recommendations in accordance with the following schedule:
39

Date Studies Completed, New PM Control

Devices Identified To Be Installed, 

Or Units Elected To Be Retired

Pursuant To Paragraphs 69 And 85

Recommendations Implemented, 

New PM Control Devices Installed, 

Or Units Retired Pursuant To 

Election As Required By Paragraphs 

69 And 85

Individual Year Cumulative Individual Year Cumulative

12/31/2011 6 6 0 0

12/31/2012 8 14 1 1

12/31/2013 6 20 4 5

12/31/2014 6 26 10 15

12/31/2015 3 29 10 25

12/31/2016 4 33 8 33

12/31/2017 4 37 4 37

12/31/2018 0 37 0 37

12/31/2019 0 37 0 37

TVA shall submit each such PM emission control optimization study to EPA for review and 

approval (in consultation with the States and Citizen Plaintiffs) pursuant to Section III.J (Review 

and Approval of Submittals) at least nine (9) months before the date specified in the table in this 

Paragraph for TVA to implement the recommendations. TVA shall maintain each PM Control 

Device in accordance with the approved PM emission control optimization study or other 

alternative actions as approved by EPA (in consultation with the States and the Citizen 

Plaintiffs). 

2. PM Emission Rates.

100. No later than the dates set forth in the table below, and continuing thereafter, TVA 

shall Continuously Operate the PM Control Devices at each Unit identified therein so that each 

Unit or Units served by a common stack achieve and maintain a PM Emission Rate of no greater 

than 0.030 lb/mmBTU as determined by stack testing:
40

Plant Unit Date

Allen Units 1-3 December 31, 2018

Bull Run Unit 1 Consent Decree Obligation Date

Colbert Unit 5 December 31, 2015

Gallatin Units 1-4 December 31, 2017

Kingston Units 1-9 Consent Decree Obligation Date, 

subject to the exemption provided 

in Paragraph 85 for the 

Continuous Operation of the Wet 

FGDs

3. PM Emissions Monitoring.

a. PM Stack Tests. 

101. Beginning in calendar year 2011, and continuing in each calendar year thereafter, 

TVA shall conduct a PM stack test for filterable PM at each TVA System Unit or Units served by

a common stack that combust fossil fuels at any time in that calendar year.

102. Beginning in calendar year 2011, and continuing for three (3) consecutive 

calendar years thereafter, TVA shall conduct a PM stack test for condensable PM at each TVA 

System Unit or Units served by a common stack that combust fossil fuels at any time in that 

calendar year.

103. The annual stack test requirement imposed on each TVA System Unit by this 

Section may be satisfied by stack tests conducted by TVA as required by its permits from 

Alabama, Kentucky, and Tennessee for any year that such stack tests are required under the 

permits, provided that reference methods and procedures for performing such stack tests are 

consistent with the requirements specified in this Consent Decree. 
41

104. Filterable PM. The reference methods and procedures for performing PM stack 

tests for filterable PM and for determining compliance with the PM Emission Rate shall be the 

applicable reference methods and procedures specified in the relevant Clean Air Act permit for 

the plant. TVA shall calculate the PM Emission Rate 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, the States, 

and the Citizen Plaintiffs pursuant to Section VIII (Notices) of this Consent Decree within fortyfive (45) days of completion of each test.

105. Condensable PM. The reference methods and procedures for performing PM 

stack tests to monitor condensable PM shall be those specified in 40 C.F.R. Part 51, Appendix 

M, Method 202. TVA shall calculate the Emission Rate for condensable PM 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, the States, and the Citizen Plaintiffs pursuant to Section VIII (Notices) of this 

Consent Decree within forty-five (45) days of completion of each test.

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

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

minimum, to monitor progress in reducing PM emissions.

b. PM CEMS.

107. TVA shall install, correlate, maintain, and operate PM CEMS as specified below. 

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

concentration, directly or indirectly, on an hourly average basis and a diluent monitor used to 

convert the concentration to units of lb/mmBTU. The PM CEMS installed at each stack, or, at 

Kingston, installed at each flue within the stack, must be appropriate for the anticipated stack 
42

conditions. TVA shall maintain, in an electronic database, the hourly average emission values 

produced by each PM CEMS in lb/mmBTU. Except for periods of monitor malfunction, 

maintenance, or repair, TVA shall continuously operate the PM CEMS at all times when at least 

one Unit it serves is operating. 

108. No later than twelve (12) months after the Consent Decree Obligation Date, TVA 

shall submit to EPA for review and approval pursuant to Section III.J (Review and Approval of 

Submittals) of the Compliance Agreement, with copies of such submittal to the States and the 

Citizen Plaintiffs pursuant to Section VIII (Notices) of this Consent Decree, a plan for the 

installation and correlation of each PM CEMS and a proposed Quality Assurance/Quality 

Control (“QA/QC”) protocol that shall be followed in correlating such PM CEMS. At TVA’s 

option, and to the extent practicable, TVA may submit one plan and one QA/QC protocol that 

shall take into account Unit-specific measures, as needed, for the PM CEMS required by 

Paragraphs 107 and 109. In developing both the plan for installation and correlation of the PM 

CEMS and the QA/QC protocol, TVA shall use the criteria set forth in 40 C.F.R. Part 60, 

Appendix B, Performance Specification 11, and Appendix F, Procedure 2. Following approval 

by EPA (in consultation with the States and the Citizen Plaintiffs) of the plan(s) and protocol(s), 

TVA shall thereafter operate each PM CEMS in accordance with the approved plan(s) and 

QA/QC protocol(s).

109. No later than twelve (12) months after the date that EPA approves the plan for 

installation and correlation of the PM CEMS and the QA/QC protocol, TVA shall install, 

correlate, maintain and operate six (6) PM CEMS on stacks at the following Units: Paradise Unit 
43

3, Bull Run Unit 1, Colbert Unit 5, Kingston Units 1-9 (one (1) PM CEMS on each flue), and 

Shawnee Units 1-5. 

110. In the event that TVA elects to Retire a Unit scheduled to receive a PM CEMS or, 

with respect to Colbert Unit 5, elects the Remove from Service option, TVA shall locate a PM 

CEMS (either the same PM CEMS or a new PM CEMS) at an alternate Unit in the TVA System. 

TVA shall provide notice to EPA, the States, and the Citizen Plaintiffs pursuant to Section VIII

(Notices) of the alternate Unit by no later than three (3) years prior to the date that the Unit 

specified in Paragraph 109 is Retired or Removed from Service. TVA shall comply with all the 

requirements of this Section for such PM CEMS. The deadline identified in Paragraph 108 shall 

be adjusted to twelve (12) months after TVA’s notice pursuant to this Paragraph.

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

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

installation and correlation plan(s) and QA/QC protocol(s). Within forty-five (45) days of each 

such test, TVA shall submit the results to EPA, the States, and the Citizen Plaintiffs pursuant to

Section VIII (Notices) of this Consent Decree.

112. When TVA submits the applications for amendments to its Title V Permits 

pursuant to Paragraph 154, those applications shall include a Compliance Assurance Monitoring 

(“CAM”) plan, under 40 C.F.R. Part 64, for the PM Emission Rate specified in Paragraph 100. 

The PM CEMS required by Paragraphs 107 and 109 may be used in that CAM plan for Bull Run

Unit 1, Colbert Unit 5, and Kingston Units 1-9. 
44

c. PM Reporting.

113. Within one hundred eighty (180) days after the date established by this Consent 

Decree for TVA to achieve and maintain a PM Emission Rate at any TVA System Unit, TVA 

shall conduct a stack performance test for PM that demonstrates compliance with the Emission 

Rate required by this Consent Decree. Within forty-five (45) days of the performance test, TVA 

shall submit the results of the performance test to EPA, the States, and the Citizen Plaintiffs

pursuant to Section VIII (Notices) of this Consent Decree. TVA may use the annual stack test 

requirement established in Paragraph 101, above, to satisfy its obligation to conduct a 

performance test as required by this Paragraph.

114. Following the installation of each PM CEMS, TVA shall begin and continue to 

report, pursuant to Section III.I (Periodic Reporting), the data recorded by the PM CEMS, 

expressed in lb/mmBTU on a three-hour (3-hour) rolling average basis and a twenty-four-hour 

(24-hour) rolling average basis in electronic format to EPA, the States, and the Citizen Plaintiffs

including identification of each 3-hour average and 24-hour average above the applicable PM 

Emission Rate for Bull Run Unit 1, Colbert Unit 5, and Kingston Units 1-9, as required by 

Paragraph 100.

E. PROHIBITION ON NETTING OR OFFSETS FROM REQUIRED CONTROLS

115. Emission reductions that result from actions to be taken by TVA after the Consent 

Decree Obligation Date to comply with the requirements of this Consent Decree shall not be 

considered as creditable contemporaneous emission decreases for the purpose of netting or offset 

under the Act=s PSD and Nonattainment NSR programs (including any applicable SIP 

provisions). 
45

116. The limitations on the generation and use of netting credits and offsets set forth in 

the previous Paragraph do not apply to emission reductions achieved at a particular TVA System 

Unit that are greater than those required under this Consent Decree for that particular TVA 

System Unit. For purposes of this Paragraph, and except as otherwise provided in Paragraph 50, 

emission reductions achieved at a particular TVA System Unit are greater than those required 

under this Consent Decree only if they result from the actions described in Subparagraphs 116.a 

and/or 116.b, below:

a. controlling Shawnee Units 2, 3, 5, 6, 7, 8 and/or 9 to reduce emissions of NOx

and/or SO2 beyond the requirements of Paragraphs 71 and 87 of this Consent Decree through a 

federally-enforceable emission limitation, provided that TVA is not otherwise required by the 

Act or the applicable SIP to control such Units to reduce emissions of NOx and/or SO2, or 

b. for emission reductions of NOx, except for Shawnee Unit 10, Retiring a TVA 

System Unit that does not have the Retire option in the Control Requirement column in the Table

in Paragraph 69 except to the extent that TVA Retires such Unit as Additional MW pursuant to 

Paragraph 119.b, and provided that TVA is not otherwise required by the Act or the applicable 

SIP to Retire such Unit; and for emission reductions of SO2, except for Shawnee Unit 10, 

Retiring a TVA System Unit that does not have the Retire option in the Control Requirement 

column in the Table in Paragraph 85 except to the extent that TVA Retires such Unit as 

Additional MW pursuant to Paragraph 119.b, and provided that TVA is not otherwise required 

by the Act or the applicable SIP to Retire such Unit.

117. Notwithstanding Paragraph 115, TVA may utilize emission reductions of NOx, 

SO2, VOCs, and PM resulting solely from Retiring up to two thousand seven hundred (2,700)
46

MW from the TVA System, as creditable contemporaneous emission decreases for the purpose 

of obtaining netting credits for these four pollutants to construct and operate no more than a total 

of four thousand (4,000) MW of new combined cycle (“CC”) combustion turbine electric 

generating units (“New CC Units”) and simple cycle (“CT”) turbine electric generating units 

(“New CT Units”) (collectively referred to herein as “New CC/CT Units”) to be located at the 

stationary source where a TVA System Unit is Retired, subject to the limitations described in this 

Paragraph and Subparagraphs. Of the total 4,000 MW specified herein, TVA shall not construct 

more than a total of two thousand (2,000) MW of CT capacity.

a. The emission reductions of NOx, SO2, VOC, and PM resulting from Retiring a 

TVA System Unit that TVA intends to utilize for netting purposes to avoid major NSR for such 

New CC/CT Unit must be contemporaneous and otherwise creditable within the meaning of the 

Act and the applicable SIP, and TVA must comply with, and is subject to, all requirements and 

criteria for creating contemporaneous creditable decreases as set forth in 40 C.F.R. § 52.21(b) 

and the applicable SIP, subject to the limitations of this Paragraph 117.

b. TVA must apply for, and obtain, minor NSR permits for the construction and 

operation of such New CC/CT Unit(s) from the relevant permitting authority. Such minor NSR 

permit must include federally-enforceable emission limitations that reflect either Best Available 

Control Technology (“BACT”) or Lowest Achievable Emission Rate (“LAER”), as appropriate, 

depending upon the attainment classification for the relevant regulated pollutants for which TVA 

is utilizing emission reductions as provided in this Paragraph to net out of major new source 

review and that will be emitted from such New CC/CT Unit(s) (including NOx, SO2, and PM 

regulated as primary criteria pollutants and NOx, SO2, and VOCs regulated as precursor 
47

pollutants to the formation of the criteria pollutants PM2.5 and Ozone) in the area where such 

New CC/CT Units will be located. The relevant permitting authority where the New CC/CT

Units will be constructed shall determine emission limitations for NOx, SO2, VOCs, PM, PM10

and PM2.5 that reflect BACT or LAER, as appropriate, consistent with Sections 165(a)(4), 

169(3), 171(3), and 173(a)(2) of the Act, 42 U.S.C. §§ 7475(a)(4), 7479(3), 7501(3), and 

7503(a)(3); 40 C.F.R. §§ 52.21(b)(12) and 51.165(a)(1)(xiii); the applicable SIP; and relevant 

EPA guidance and/or interpretations pertaining to determining BACT and LAER, including 

EPA’s “New Source Review Workshop Manual – Prevention of Significant Deterioration and 

Nonattainment Area Permitting” (Draft Oct. 1990). In no event shall the emission limitations 

determined by the relevant permitting authority for NOx, SO2, VOC, and PM2.5 (filterable) be any 

less stringent than the emission limitations set forth in Appendix B to this Consent Decree. The 

emission limitations set forth in Appendix B serve solely as the minimum stringency for 

emission limitations that will be determined by the relevant permitting authority for such New 

CC/CT Units and shall not be presumed to be BACT or LAER. Although the permitting 

authority as part of the permitting action described in this Paragraph shall not determine BACT 

or LAER to be less stringent than the emission limitations set forth in Appendix B, nothing in 

this Consent Decree (including Appendix B) shall prevent the permitting authority from 

establishing more stringent emission limitations than those set forth in Appendix B. For 

purposes of the permitting action described in this Paragraph, TVA shall not assert that this 

Consent Decree (including Appendix B) supports imposing a BACT or LAER emission 

limitation that is no more stringent than the emission limitations set forth in Appendix B.
48

c. For the minor NSR permitting action specified in Subparagraph 117.b, above, the

relevant permitting authority shall comply with the public participation requirements in its SIP 

for major NSR permitting actions, including: Ala. Admin. Code r. 335-3-14-.01(7) for permitting 

actions in Alabama, 401 Ky. Admin. Regs. 52:100 for permitting actions in Kentucky, and Tenn. 

Comp. R. & Regs.1200-3-9-.01(4)(l) for permitting actions in Tennessee. TVA shall provide 

notice and a copy of its permit application to EPA, the States, and the Citizen Plaintiffs pursuant 

to Section VIII (Notices) concurrent with its permit application submission to the relevant 

permitting authority. 

d. All emissions of NOx and SO2 from any New CC/CT Unit(s) where TVA has 

utilized netting credits in order to construct such New CC/CT Unit as provided in this Paragraph, 

shall be treated as emissions from a TVA System Unit solely for purposes of the System-Wide 

Annual Tonnage Limitations for NOx and SO2 and such emissions of NOx and SO2 from the New 

CC/CT Unit(s) are therefore subject to, and shall be included under, the System-Wide Annual 

Tonnage Limitations for NOx and SO2 for the relevant calendar year(s) as specified in the tables 

in Paragraphs 67 and 82. 

e. Nothing in this Paragraph affects the Unit-specific schedule specified in the 

tables in Paragraphs 69 and 85 for each TVA System Unit.

118. For every emission reduction of NOx and SO2 that TVA utilizes as provided in 

Paragraph 117 to construct a New CC/CT Unit(s), such reduction shall not be available to 

generate Super-Compliance Allowances within the meaning of Paragraphs 78 and 94 in the 

calendar year in which TVA utilizes such emission reductions and all calendar years thereafter. 

In the next periodic progress report required pursuant to Section III.I (Periodic Reporting), TVA 
49

shall report the amount of emission reductions of NOx and the amount of emission reductions of 

SO2 resulting from Retiring a TVA System Unit that TVA utilized as netting credits as provided 

in Paragraph 117 to construct a New CC/CT Unit(s).

119. Notwithstanding Paragraphs 115, TVA may utilize emission reductions of 

Greenhouse Gases resulting solely from Retiring a TVA System Unit as creditable 

contemporaneous emission decreases for the purpose of obtaining netting credits for Greenhouse 

Gases to construct and operate no more than a total of four thousand (4,000) MW of New CC 

Units to be located at the stationary source where a TVA System Unit is Retired, subject to the 

limitations described in this Paragraph and Subparagraphs 119.a through 119.c, below. 

a. The emission reductions of Greenhouse Gases resulting from Retiring a TVA 

System Unit that TVA intends to utilize for netting purposes to avoid major NSR for such New 

CC Unit must be contemporaneous and otherwise creditable within the meaning of the Clean Air 

Act and the applicable SIP, and TVA must comply with, and is subject to, all requirements and 

criteria for creating contemporaneous creditable decreases as set forth in 40 C.F.R. § 52.21(b) 

and the applicable SIP, subject to the limitations of this Paragraph. 

b. For every one (1) MW of New CC Unit capacity that TVA proposes to construct 

and operate by utilizing Greenhouse Gas emission reductions to avoid major NSR for such New 

CC Unit, TVA shall Retire at least one (1) MW from the TVA System that is above and beyond 

the 2,728.8 MW that TVA is required to Retire pursuant to Paragraphs 69 and 85 (referred to 

herein as “Additional MW”). TVA shall Retire such Additional MW from the TVA System 

either within one (1) year from the date the New CC Unit commences operation or by no later 

than the date set forth in the table in Paragraphs 69 and 85 for the TVA System Unit that TVA is 
50

Retiring pursuant to this Paragraph, whichever is sooner. Emission reductions resulting from 

Retiring such Additional MW are subject to Paragraph 115.

c. Greenhouse Gas emission reductions resulting from Retiring a TVA System Unit 

may only be available to TVA for netting purposes to avoid major NSR permitting requirements 

for Greenhouse Gases for the construction and operation of a New CC Unit if TVA satisfies the 

following requirements: (i) TVA must apply for a minor NSR permit described in Paragraph 117 

for the construction and operation of such New CC Unit by no later than June 30, 2012, (ii) TVA 

must commence construction of the New CC Unit that is the subject of such minor NSR permit 

application by no later than January 1, 2015, and (iii) by no later than thirty (30) days after the 

date TVA commences construction of such New CC Unit, TVA must provide notice pursuant to 

Paragraphs 72 and 88 as to which TVA System Unit(s) TVA will Retire in order for TVA to 

Retire the requisite Additional MW. 

120. Nothing in this Consent Decree shall prevent anyone, including EPA, the States, 

and the Citizen Plaintiffs from submitting comments during the public comment period specified 

in Subparagraph 117.c regarding the emission limitations developed by the permitting authority 

as required by Subparagraph 117.b, including comments regarding the stringency of the emission 

limitations prescribed in Appendix B, or taking any other lawfully permissible action to 

challenge any permitting authority’s determination pursuant to Subparagraph 117.b or the minor 

NSR permitting action for such New CC/CT Units. 

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

generated under this Consent Decree from being considered by EPA or Alabama, Kentucky, or 

Tennessee for the purpose of attainment demonstrations submitted pursuant to § 110 of the Act, 
51

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.

F. ENVIRONMENTAL MITIGATION PROJECTS

122. TVA shall fund the Environmental Mitigation Projects (“Projects”) described in 

this Section. These Projects will result in a further reduction of NOx, SO2, and PM emissions, 

and additionally will have the collateral benefit of reducing Greenhouse Gases. TVA shall make 

payments to the States as further described below in an amount that is no less than $60 million to 

fund Projects described below. As specified in Section V.F of the Compliance Agreement 

(Environmental Mitigation Projects), TVA shall spend no less than $290 million to implement 

the projects described in Appendix C to the Compliance Agreement.

123. As set forth below, the States, by and through their respective Attorneys General 

or General Counsel, may each submit to TVA Projects within the categories identified for 

funding. The funds for these Projects will be allocated amongst the States as follows: Tennessee 

$26.4 million, Kentucky $11.2 million, North Carolina $11.2 million and Alabama $11.2 

million. These amounts are referred to below as each State’s “allocation.”

124. Beginning in 2011, TVA shall disburse to each State the amounts requested by 

each State, provided that, in any year, TVA shall disburse no more than one-fifth (1/5) of the 

State’s allocation plus any amount by which the State received less than one-fifth (1/5) of its 

allocation in any prior years until all timely requests have been paid in full by TVA. If by 

January 31, 2017 any funds remain for which a State has not made a request, TVA shall 

promptly, but no later than February 29, 2017, notify the States of the remaining amount and the 

States shall have until March 31, 2017 to jointly provide TVA an agreed-upon method for 
52

equitably reallocating the remaining funds to be spent on Projects identified in this Section by no 

later than December 31, 2017. In the event the States are unable to agree on a reallocation 

method, the remaining funds shall by reallocated using the same allocation percentages identified 

in the preceding Paragraph. TVA shall be obligated to disburse only those funds that are 

requested by December 31, 2017 in accordance with this Subsection. For funding requests by 

States commensurate with this Subsection, TVA shall pay funds as requested within thirty (30) 

days after being notified in writing by the State of its request.

125. The States shall use their best efforts to identify Projects that are located in TVA’s 

power service area or the Tennessee River watershed and shall give a preference to such Projects 

over Projects outside these areas. However, any Project funding requested by a State that is 

within the categories identified in Paragraph 128, shall be funded by TVA in accordance with 

this Paragraph regardless of where in the State the funds will be utilized. TVA shall not have 

approval rights over the Projects.

126. As an alternative to the method set forth in Paragraph 124, in any year any two or 

more States may agree together that any State may request any amount individually up to the 

remainder of its allocation, provided that the total funding requested by the agreeing States for 

that year does not exceed the maximum TVA would otherwise be required to disburse under 

Paragraph 124 to the agreeing States for that year.

127. If TVA wishes to use signage, written materials, publications or events to 

recognize its funding of these Projects, TVA shall clearly state and identify that the funding is

being provided pursuant to this Consent Decree.
53

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

implement Projects either from the following categories or for the Projects identified in 

Appendix C to the Compliance Agreement:

a. Purchase and installation of photo-voltaic cells and/or solar thermal 

systems on buildings;

b. Implementation of projects that reduce idling time from motor vehicles;

c. Projects to conserve energy in new and existing buildings, mobile homes, 

and modular buildings, including efficient lighting, appliance efficiency improvement projects, 

weatherization projects, and projects that meet the ENERGY STAR and Home Performance with 

ENERGY STAR Building qualifications, the Leadership in Energy and Environmental Design 

(“LEED”) Green Building Rating System or an equivalent energy efficiency program approved 

by the State, or other innovative building efficiency projects approved by the State and/or 

appropriate review committee; 

d. Construction of wind or solar renewable energy production facilities;

e. Installation of cogeneration units (wherein a single fuel source 

simultaneously produces electricity and useful heat) at industrial manufacturing plants or 

institutions such as universities, hospitals, prisons, and military bases; 

f. Projects that assist smart regional planning to reduce vehicle miles 

traveled and improve regional air quality;

g. Installation of geothermal equipment;

h. Funding of agricultural and forestry sector use and production of 

renewable energy and carbon sequestration including but not limited to: 
54

 anaerobic digestion of poultry, swine, and dairy manure to produce 

methane as a fuel source to displace conventional fuel use,

 installation of wind and solar power projects at farms to power 

irrigation and provide heat and/or hot water for farm operations,

 production of biodiesel from high oil producing crops grown and 

converted on-farm for on-farm use, 

 funding the procurement of land and necessary equipment to 

establish urban farms and support the education and institution of 

urban farming practices in these communities, 

 purchasing land buffering national or state forests, parks, and 

refuges that link important ecological systems in the region to 

support carbon sequestration efforts,

 use of agricultural or forestry waste products in support of biofuel 

production,

 development of co-products and by-products of biofuel production 

from agricultural or forestry resources, and

 other innovative agricultural or forestry projects, including 

education and training, that meet environmental improvement 

standards and are approved by the State and/or review committee;

i. Creation of a sustainable revolving loan program or other financing 

mechanism for homeowners to purchase and install energy efficiency and/or conservation 

measures with a two (2) to ten (10) year payback period where the repayment occurs over the 
55

defined payback period;

j. Promotion of the use of landfill gas to convert methane to electricity 

and/or useful heat;

k. Establishment and/or promotion of a tourist shuttle service for key tourist 

routes in and around the Great Smoky Mountain National Park where the shuttles are powered by 

electricity, fuel cell, or natural gas and/or funding of the purchase of vehicles and/or operation 

and maintenance of the equipment; 

l. Sponsoring a wood and/or coal burning appliance changeout and retrofit 

campaign that replaces, retrofits, and/or upgrades inefficient, higher polluting wood/coal burning 

appliances (e.g., non-EPA certified wood stoves, old technology outdoor wood-fired hydronic 

heaters) with Energy Star qualified heat pumps, EPA Phase II qualified hydronic-heaters, EPA 

certified wood stoves and/or cleaner, more energy-efficient wood pellet burning appliances; 

m. Implementation of projects to improve energy efficiency or renewable 

energy projects at water treatment and waste water treatment plants; and

n. Development, manufacture, and commercialization of innovative energy 

efficiency and renewable energy equipment and biofuel production.

G. CIVIL PENALTY

129. TVA shall pay a total of $10,000,000 in civil penalties as further described in this 

Section. 

130. Pursuant to, and as specified in, Paragraph 91 of the Consent Agreement and Final 

Order in In re Tennessee Valley Auth., Docket No. CAA-04-2010-1528(b), TVA shall pay the 

sum of $8,000,000 in civil penalties to EPA. 
56

131. Within thirty (30) days after the Date of Entry of this Consent Decree, TVA shall 

pay a total of $2,000,000 in civil penalties to Alabama, Kentucky, and Tennessee. TVA shall pay 

a civil penalty to Alabama in the amount of $500,000. Payment shall be made by check made 

out to the Alabama Department of Environmental Management and shall be mailed to: Office of 

General Counsel, Alabama Department of Environmental Management, PO Box 301463, 

Montgomery, Alabama, 36130-1463. TVA shall pay a civil penalty to Kentucky in the amount 

of $500,000. Payment shall be made by check made out to the Kentucky State Treasurer and 

shall be mailed to: Jeff Cummins, Acting Director, Division of Enforcement, 300 Fair Oaks 

Lane, Frankfort, Kentucky, 40601. TVA shall pay a civil penalty to Tennessee in the amount of 

$1,000,000. Payment shall be made by check made out to Treasurer, State of Tennessee and 

shall be mailed to: Tennessee Department of Environment & Conservation, Division of Fiscal 

Services – Consolidated Fees Section, 14th Floor L&C Tower, 401 Church Street, Nashville, 

Tennessee 37243 and shall reference this Consent Decree. At the time of payment, TVA shall 

also provide notice of its payment to EPA, the States, and Citizen Plaintiffs pursuant to Section 

VIII (Notices) of this Consent Decree, referencing the civil action case name and case number.

H. RESOLUTION OF CLAIMS AGAINST TVA

132. Except as expressly provided in Paragraphs 134-135 below, the States and the 

Citizen Plaintiffs agree that this Consent Decree resolves all civil claims arising from any 

modifications commenced at any TVA System Unit that could have been alleged against TVA 

prior to the Date of Lodging of this Consent Decree for violations of (a) Sections 165 and 173 of 

Parts C and D of Subchapter I of the Act, 42 U.S.C. §§ 7475 and 7503, and the implementing

PSD and Nonattainment NSR provisions of the relevant SIPs, (b) Section 111 of the Act, 42 
57

U.S.C. §§ 7411, and 40 C.F.R. §§ 60.14 and 60.15, (c) Sections 502(a) and 504(a) of the Act, 42 

U.S.C. §§ 7661a(a) and 7661c(a), but only to the extent that such claims are based on TVA’s 

failure to obtain an operating permit that reflects applicable requirements imposed under the PSD 

and Nonattainment NSR provisions of Subchapter I or Section 111 of the Act, and (d) the 

federally approved and enforceable minor NSR programs of Alabama, Kentucky, and Tennessee.

133. The States and Citizen Plaintiffs expressly do not join in giving TVA the covenant 

provided by EPA through Paragraph 139 of the Compliance Agreement, and reserve their rights 

to bring any actions against TVA for any claims arising after the Date of Lodging of this Consent 

Decree.

134. Notwithstanding Paragraph 133, the States and the Citizen Plaintiffs release TVA 

from any civil claim that may arise under the PSD and/or Nonattainment NSR provisions of the 

Act as described in Paragraph 132 (i.e., 42 U.S.C. §§ 7475 and 7503) and the implementing

provisions of the relevant SIP, for TVA’s performance of activities that this Consent Decree 

expressly directs TVA to undertake pursuant to Paragraphs 69 and 85 (within Alabama, which 

meet the criteria of Ala. Admin. Code r. 335-3-14-.04(8)(m)), except to the extent that (a) such 

activities would cause a significant increase in the emission of a regulated NSR pollutant other 

than NOx, SO2, and PM, in which event this release will not extend to any claim relating to such 

regulated NSR pollutant for which there is a significant increase or (b) a Unit is Repowered to 

Renewable Biomass.

135. Solely with regard to claims of the Citizen Plaintiffs, the claims of the Citizen 

Plaintiffs resolved by Paragraph 132 above do not include any claims based upon the regulated 

pollutant sulfuric acid mist (“SAM” or “H2SO4”). 
58

I. PERIODIC REPORTING

136. Beginning six (6) months after the Consent Decree Obligation Date, and 

continuing annually on April 30 each year thereafter until conditional termination of enforcement 

through this Consent Decree as provided in Paragraph 214, and in addition to any other express 

reporting requirement in this Consent Decree, TVA shall submit to EPA, the States, and the 

Citizen Plaintiffs a progress report in compliance with Appendix A. 

137. In any periodic progress report submitted pursuant to this Section, TVA may 

incorporate by reference information previously submitted under its Title IV and/or Title V 

permitting requirements, provided that TVA attaches the Title IV and/or Title V permit report, or 

the relevant portion thereof, and provides a specific reference to the provisions of the Title IV 

and/or Title V permit report that are responsive to the information required in the periodic 

progress report.

138. Other express reporting requirements. In addition to the annual progress reports 

required pursuant to Paragraph 136 and Appendix A, TVA shall submit to EPA, the States, and 

the Citizen Plaintiffs the information otherwise required by this Consent Decree in the manner 

and by the dates set forth herein, including but not limited to, the information required by 

Paragraphs 72, 73, 84, 88, 89, 104, 105, 110, 111, 113, 131, 139, 148, 157, and 191 and 

Subparagraph 117.c.

139. In addition to the progress reports required pursuant to this Section, TVA shall 

provide a written report to EPA, the States, and the Citizen Plaintiffs of any violation of the 

requirements of this Consent Decree within fifteen (15) days of when TVA knew or should have 

known of any such violation. In this report, TVA shall explain the cause or causes of the 
59

violation and all measures taken or to be taken by TVA to prevent such violations in the future 

and measures taken or to be taken to mitigate the environmental effects of such violation, if any.

140. Each report shall be signed by TVA=s Vice President of Environmental Permitting 

and Compliance 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 EPA.

J. REVIEW AND APPROVAL OF SUBMITTALS

141. Whenever a plan, report, or other submission required by this Consent Decree is 

required to be submitted to EPA for review or approval, EPA (in consultation with the States and 

the Citizen Plaintiffs) may approve the submittal or decline to approve it and provide written 

comments explaining the basis for declining such approval. Within sixty (60) days of receiving 

written comments from EPA, TVA shall either (a) revise the submittal consistent with the written 

comments and provide the revised submittal to EPA with copies to the States and the Citizen 

Plaintiffs pursuant to Section VIII (Notices) of this Consent Decree; or (b) submit the matter for 

dispute resolution pursuant to Section VIII (Dispute Resolution) of the Compliance Agreement. 

142. Upon receipt of EPA=s final approval of the submittal, or upon completion of 

dispute resolution under the Compliance Agreement and, if applicable, dispute resolution under 

Section VI (Dispute Resolution) of this Consent Decree as provided by Section IV (Coordination 
60

of Oversight and Enforcement) of this Consent Decree, TVA shall implement the approved 

submittal in accordance with the schedule specified therein or, if subject to dispute resolution 

pursuant to Section VI (Dispute Resolution) of this Consent Decree as provided by Section IV 

(Coordination of Oversight and Enforcement) of this Consent Decree, a schedule established by 

the Court.

K. STIPULATED PENALTIES

143. For any failure by TVA to comply with the terms of this Consent Decree, and 

subject to the provisions of Sections IV (Coordination of Oversight and Enforcement), V (Force 

Majeure), and VI (Dispute Resolution), TVA shall pay, within thirty (30) days after receipt of 

written demand to TVA by a State or the Citizen Plaintiffs, the following stipulated penalties:

Consent Decree Violation Stipulated Penalty

a. Failure to pay the civil penalty as specified in Section 

III.G (Civil Penalty) of this Consent Decree

$10,000 per day

b. Failure to comply with any applicable PM Emission Rate 

where the violation is less than five percent (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 PM Emission Rate 

where the violation is equal to or greater than five percent 

(5%) but less than ten percent (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 PM Emission Rate 

where the violation is equal to or greater than ten percent 

(10%) in excess of the limits set forth in this Consent 

Decree

$10,000 per day per violation 
61

Consent Decree Violation Stipulated Penalty

e. Failure to comply with an applicable System-Wide 

Annual Tonnage Limitation for SO2 set forth in this Consent 

Decree

$5,000 per ton for the first 

1,000 tons, and $10,000 per ton 

for each additional ton above 

1,000 tons, plus the surrender of 

SO2 Allowances in an amount 

equal to two (2) times the 

number of tons by which the 

limitation was exceeded.

f. Failure to Remove from Service as required by 

Paragraphs 69 and 85 of this Consent Decree any one or 

more of the following Units: the two (2) Units at the John 

Sevier plant that TVA indicated pursuant to Paragraphs 72 

and 88 that it will Remove from Service and Colbert Units 

1-5

$10,000 per day per violation 

during the first thirty (30) days, 

$37,500 per day per violation 

thereafter 

g. Failure to comply with an applicable System-Wide 

Annual Tonnage Limitation for NOx set forth in this 

Consent Decree

$5,000 per ton for the first 

1,000 tons, and $10,000 per ton 

for each additional ton above 

1,000 tons, plus the surrender of 

annual NOx Allowances in an 

amount equal to two (2) times 

the number of tons by which the 

limitation was exceeded.

h. Failure to comply with the requirements for NOx or SO2

in Paragraphs 71 or 87 of this Consent Decree

$2,500 per day per violation

i. Failure to provide notice as required by Paragraphs 72, 

73, 84, 88, and/or 89 of this Consent Decree $1,000 per day for the first 

fifteen (15) days, $15,000 per 

day for each day thereafter 

j. Failure to install, commence operation of, and/or 

Continuously Operate a pollution control technology as 

required by Paragraphs 69, 85, and/or 98 of this Consent 

Decree 

$10,000 per day per violation 

during the first thirty (30) days, 

$37,500 per day per violation 

thereafter

k. Failure to Retire or Repower a Unit as required by 

Paragraphs 69 and 85 of this Consent Decree

$10,000 per day per violation 

during the first thirty (30) days, 

$37,500 per day per violation 

thereafter
62

Consent Decree Violation Stipulated Penalty

l. Failure to comply with the PM optimization requirements 

of Paragraph 99 of this Consent Decree

$2,500 per day per violation 

during the first thirty (30) days, 

$7,500 per day per violation 

thereafter

m. Failure to install and/or operate CEMS as required under 

this Consent Decree

$1,000 per day per violation

n. Failure to conduct stack tests for PM as required under 

this Consent Decree 

$1,000 per day per violation

o. Failure to apply for any permit required under this 

Consent Decree

$1,000 per day per violation

p. Failure to timely submit, modify, and/or implement, as 

approved, the reports, plans, studies, analyses, protocols, 

and/or other submittals required by this Consent Decree

$750 per day per violation 

during the first ten (10) days, 

$1,000 per day per violation 

thereafter

q. Using, selling, banking, trading, or transferring SO2

Allowances except as permitted under this Consent Decree

The surrender of SO2

Allowances in an amount equal 

to four (4) times the number of 

SO2 Allowances used, sold, 

banked, traded, or transferred in 

violation of this Consent Decree

r. Failure to surrender SO2 Allowances as required under 

this Consent Decree

(a) $37,500 per day plus (b) 

$1,000 per allowance not 

surrendered

s. Using, selling, banking, trading, or transferring NOx

Allowances except as permitted under this Consent Decree

The surrender of NOx

Allowances in an amount equal 

to four (4) times the number of 

NOx Allowances used, sold, 

banked, traded, or transferred in 

violation of this Consent Decree

t. Failure to surrender NOx Allowances as required under 

this Consent Decree

(a) $37,500 per day plus (b) 

$1,000 per allowance not 

surrendered

u. Using emission reductions from Retiring a TVA System $2,500 per day per violation 

during the first 30 days, $10,000
63

Consent Decree Violation Stipulated Penalty

Unit except as provided in Paragraphs 116 and 117 of this 

Consent Decree

per day per violation thereafter

v. Failing to comply with the requirements of Paragraph 

117 of this Consent Decree if TVA uses emission reductions 

from Retiring a TVA System Unit to construct a New 

CC/CT Unit

$2,500 per day per violation 

during the first thirty (30) days, 

$10,000 per day per violation 

thereafter

w. Failing to comply with the requirements of Paragraph 

119 of this Consent Decree if TVA uses emission reductions 

in Greenhouse Gases to construct a New CC Unit

$2,500 per day per violation 

during the first thirty (30) days, 

$10,000 per day per violation

thereafter

x. Failure to fund the Environmental Mitigation Projects in 

compliance with Section III.F (Environmental Mitigation 

Projects) of this Consent Decree

$5,000 per day for the first 

thirty (30) days, $10,000 per 

day for each day thereafter

y. Any other violation of this Consent Decree $1,000 per day per violation

144. 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.

145. TVA shall pay all stipulated penalties within thirty (30) days of receipt of written 

demand to TVA from any or all Plaintiffs (referred to herein as the “demanding Party”), and shall 

continue to make such payments every thirty (30) days thereafter until the violation(s) no longer 

continues, unless TVA elects within fifteen (15) business days of receipt of written demand to 

TVA from the demanding Party to dispute the accrual of stipulated penalties in accordance with 

the provisions in Section VI (Dispute Resolution) of this Consent Decree, subject to Section IV

(Coordination of Oversight and Enforcement) of this Consent Decree.
64

146. Stipulated penalties shall continue to accrue as provided in accordance with 

Paragraph 144 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 written summary of the 

demanding Party that is not challenged within the time permitted pursuant to Section VI (Dispute 

Resolution) of this Consent Decree and that is not submitted to the Court for resolution, 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;

b. If the dispute is submitted to the Court and the demanding Party prevails 

in whole or in part, TVA shall pay, within sixty (60) days of receipt of the Court’s decision or 

order, all accrued stipulated penalties determined to be owing, together with interest accrued on 

such penalties determined by the Court to be owing, except as provided in Subparagraph c, 

below;

c. If the Court’s decision is appealed by either TVA or the demanding Party, 

TVA 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.

147. Notwithstanding any other provision of this Consent Decree, the accrued 

stipulated penalties agreed to by the demanding Party and TVA, or determined through dispute 

resolution, to be owing may be less than the stipulated penalty amounts set forth in Paragraph 

143.
65

148. Monetary stipulated penalties due and owing to Alabama, Kentucky, or 

Tennessee shall be paid in the manner specified in Paragraph 131. Monetary stipulated penalties 

due and owing as a result of a demand from North Carolina or the Citizen Plaintiffs shall be paid 

as specified in Section 304(g)(1) of the Act, 42 U.S.C. § 7604(g)(1). At the time of payment, 

TVA shall provide notice of payment to EPA, the States, and the Citizen Plaintiffs, referencing 

the relevant case names and case numbers in accordance with Section VIII (Notices) of this 

Consent Decree. All SO2 and NOx Allowance surrender stipulated penalties shall comply with 

the allowance surrender procedures set forth in Paragraphs 80 (for NOx) and 96 (for SO2).

149. The stipulated penalties provided for in this Consent Decree shall be in addition to 

any other rights, remedies, or sanctions available to the demanding Party by reason of TVA=s 

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, TVA shall be allowed a credit for stipulated penalties paid against any statutory penalties 

also imposed for such violation.

L. PERMITS

150. Unless expressly stated otherwise in this Consent Decree, in any instance where 

otherwise applicable law or this Consent Decree requires TVA to secure a permit to authorize 

construction or operation of any device, including all construction and operating permits required 

under state law, TVA shall make such application in a timely manner. 

151. Notwithstanding Paragraph 150, nothing in this Consent Decree shall be 

construed to require TVA to apply for or obtain a PSD or Nonattainment NSR permit for 
66

physical changes in, or changes in the method of operation of, any TVA System Unit that would 

give rise to claims resolved by Paragraphs 132 or 134 of this Consent Decree.

152. When permits or permit applications are required pursuant to Paragraphs 50, 150, 

154, 155, 156, and 158, TVA shall complete and submit applications for such permits to 

Alabama, Kentucky, and Tennessee, whichever is appropriate, to allow sufficient time for all 

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

information by such States. Any failure by TVA to submit a timely permit application for TVA 

System Units shall bar any use by TVA of Section V (Force Majeure) of this Consent Decree, 

where a Force Majeure claim is based on permitting delays.

153. 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 and its 

implementing regulations, including the federally approved Alabama, Kentucky, and Tennessee 

Title V programs. The Title V permit 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 has or will become part of a Title V permit, 

subject to the terms of Section XVI (Conditional Termination of Enforcement Under Decree) of 

this Consent Decree. 

154. Within three (3) years from the Consent Decree Obligation Date, unless otherwise 

specified in this Paragraph, and in accordance with federal and/or state requirements for 

modifying or renewing a Title V permit, TVA shall amend any applicable Title V permit 

application, or apply for amendments to its Title V permits, to include a schedule for all systemwide, Unit-specific, and plant-specific performance, operational, maintenance, and control 
67

technology requirements established by this Consent Decree including, but not limited to, 

emission rates, installation and/or Continuous Operation of SCRs and/or FGDs, tonnage 

limitations, and the requirements pertaining to the surrender of NOx and SO2 Allowances. For 

Units in Paragraphs 69 and 85 with two or more methods specified in the Control Requirement 

column and that do not have a Remove from Service option, TVA shall apply to modify, renew, 

or obtain any applicable Title V permit as required by this Paragraph within twelve (12) months 

of making an election as to the method TVA will employ for the Unit. For Units with the 

Remove from Service option in the Control Requirement column in Paragraphs 69 or 85, TVA 

shall apply to modify, renew, or obtain any applicable Title V permit as required by this 

Paragraph within twelve (12) months of electing to either install and operate FGD(s) and SCR(s), 

Repower to Renewable Biomass, or Retire. 

155. By no later than one (1) year after the date specified in Paragraphs 69 and 85 for 

the Control Requirement for each Unit, TVA shall (a) apply to include the requirements and 

limitations enumerated in this Consent Decree into federally-enforceable permits such that the 

requirements and limitations of this Consent Decree become and remain “applicable 

requirements” as that term is defined in 40 C.F.R. § 70.2 and/or (b) request site-specific 

amendments to the applicable SIPs for Alabama and Tennessee (but not for Kentucky) to reflect 

all new requirements applicable to each Unit and at each plant in the TVA System. For purposes 

of this Consent Decree, the federally enforceable permit(s) issued by Kentucky must be issued by 

Kentucky under its authority under its SIP to issue permits and not solely under Kentucky’s 

authority to issue permits pursuant to its Title V program.
68

156. Prior to conditional termination of enforcement through this Consent Decree, 

TVA shall apply for and obtain enforceable provisions in its Title V permits for the TVA System 

that incorporate (a) any Unit-specific requirements and limitations of this Consent Decree, such 

as performance, operational, maintenance, and control technology requirements, (b) the 

requirement to Surrender NOx and SO2 Allowances, and (c) the System-Wide Annual Tonnage 

Limitations. 

157. TVA shall provide EPA, the States, and the Citizen Plaintiffs with a copy of each 

application for any permit required pursuant to this Section, including any federally enforceable 

permit or Title V permit or modification, and any site-specific SIP amendment, as well as a copy 

of any permit or SIP amendment proposed as a result of such application, to allow for timely 

participation in any public comment opportunity.

158. In the event that EPA promulgates a final rule containing revisions to the Effluent 

Limitations Guidelines for the Steam Electric Power Generating point source category, by no 

later than twelve (12) months after the date EPA publishes the final rule in the Federal Register

(unless additional time is required for studies or data collection mandated by the final rule), TVA 

shall submit applications to the relevant permitting authority to obtain National Pollutant 

Discharge Elimination System (“NPDES”) permit renewals (in the case of expiring permits); 

permit renewal modifications (in the case of already submitted permit renewal applications); or 

permit modification requests (in the case of existing, non-expired permits) to include legallyapplicable requirements of the revised Effluent Limitations Guidelines relating to wastewaters 

from Flue Gas Desulfurization Systems in each of its NPDES permits for the TVA System Units

that are subject to the revised Effluent Limitation Guidelines and are equipped with a Flue Gas 
69

Desulfurization System. TVA shall include all the relevant information necessary for the 

permitting authority to expeditiously incorporate the Effluent Limitation Guideline requirements 

into each of TVA’s NPDES permits, and shall promptly respond to any additional requests for 

information from the permitting authority.

159. If TVA proposes to sell or transfer to an entity unrelated to TVA (“Third Party”) 

part or all of TVA=s operational or ownership interest in a TVA System Unit, TVA shall comply 

with the requirements of Section IX (Sales or Transfers of Operational or Ownership Interests) 

with regard to that Unit prior to any such sale or transfer. 

IV. COORDINATION OF OVERSIGHT AND ENFORCEMENT

160. Oversight and Enforcement of Parallel Provisions of the Compliance Agreement 

and this Consent Decree. 

a. EPA and TVA in the Compliance Agreement, and TVA, the States, and the 

Citizen Plaintiffs in this Consent Decree, are entering into separate agreements with Parallel 

Provisions to resolve TVA’s alleged violations of the Act. This Section of the Consent Decree 

establishes the manner in which enforcement and oversight (including resolution of disputes) 

pertaining to Parallel Provisions will occur.

b. Except where there is an unreasonable delay in resolving a dispute pursuant to 

Section VIII (Dispute Resolution) of the Compliance Agreement, a State or the Citizen Plaintiffs 

shall not invoke Section VI (Dispute Resolution) of this Consent Decree pertaining to a Parallel 

Provision until TVA has resolved any disputes between it and EPA pertaining to such Parallel 

Provision pursuant to Section VIII (Dispute Resolution) of the Compliance Agreement either 

through an agreement reached with EPA pursuant to Section VIII of the Compliance Agreement 
70

or a decision issued by the Region 4 Air Director pursuant to Paragraph 183 of the Compliance 

Agreement. TVA shall not seek judicial review in any court of any agreement reached with EPA 

pursuant to Section VIII (Dispute Resolution) of the Compliance Agreement or any decision 

issued by the Region 4 Air Director pursuant to Paragraph 183 of the Compliance Agreement. 

Although neither the Compliance Agreement nor any determinations that EPA makes under it are 

before this Court for judicial review, and are not subject to this Court’s judicial review now or in 

the future, this Court should accord appropriate weight to EPA’s determinations made either 

pursuant to Section VIII (Dispute Resolution) of the Compliance Agreement or as provided in 

Paragraphs 162, 163, and 164, below. For example, where EPA’s determination made either 

pursuant to Section VIII (Dispute Resolution) of the Compliance Agreement or as provided in 

Paragraphs 162, 163, or 164, below, relies on EPA’s technical expertise, determinations, or 

interpretation of statutes EPA administers and/or of regulations EPA promulgated (among other 

circumstances), such determination should be entitled to judicial deference consistent with 

prevailing law regarding judicial deference to such agency technical expertise, determinations, or 

interpretation of statutes or regulations.

c. Nothing in this Consent Decree shall be construed to affect the authority of EPA 

or a State under applicable federal statutes or regulations and applicable state statutes and 

regulations or any other applicable provisions to seek appropriate relief to address an imminent 

and substantial endangerment to public health or welfare, or the environment.

161. Availability of Dispute Resolution under Section VI of this Consent Decree. 

a. If there has been a resolution of a dispute pertaining to a Parallel Provision 

pursuant to Section VIII (Dispute Resolution) of the Compliance Agreement, a State or the 
71

Citizen Plaintiffs may only invoke the dispute resolution procedures of Section VI (Dispute 

Resolution) of this Consent Decree pertaining to that resolution solely to seek a resolution that is 

more stringent than the resolution reached through Section VIII (Dispute Resolution) of the 

Compliance Agreement. 

b. TVA may invoke Section VI (Dispute Resolution) of this Consent Decree 

regarding a Parallel Provision only (i) if a State or the Citizen Plaintiffs are acting in 

contravention to Section IV (Coordination of Oversight and Enforcement) of this Consent Decree

or (ii) as necessary to address any conflict between this Consent Decree and the Compliance 

Agreement due to a change to the Compliance Agreement that is made subsequent to the 

Effective Date of the Compliance Agreement as that term is defined therein. 

162. Disputes Involving Parallel Provisions Resolved Through Section VIII of the 

Compliance Agreement.

a. If a State or the Citizen Plaintiffs invoke Section VI (Dispute Resolution) of this 

Consent Decree to seek a resolution of a dispute under this Consent Decree pertaining to a 

Parallel Provision that is more stringent than the resolution reached through Section VIII

(Dispute Resolution) of the Compliance Agreement, the Court should accord appropriate weight 

to the resolution of the dispute by EPA under Section VIII of the Compliance Agreement as

described in Subparagraph 160.b, above.

b. TVA shall be bound by and hereby stipulates to be bound by any agreement 

reached with EPA pursuant to Section VIII (Dispute Resolution) of the Compliance Agreement, 

any decision issued by the Region 4 Air Director pursuant to Paragraph 183 of the Compliance 

Agreement, and/or any written determination pursuant to Subparagraph 163 and/or 164, below, 
72

and it shall not seek relief from this Court that is less stringent than, or is otherwise in any way 

inconsistent with, any agreement reached with EPA pursuant to Section VIII (Dispute 

Resolution) of the Compliance Agreement, any decision issued by the Region 4 Air Director 

pursuant to Paragraph 183 of the Compliance Agreement, and/or any written determination 

pursuant to Paragraphs 163 and/or 164 below. TVA may inform the Court of the position that it 

presented to EPA during the Dispute Resolution process; provided that TVA shall not argue to 

this Court that any agreement reached with EPA pursuant to Section VIII (Dispute Resolution) of 

the Compliance Agreement or any decision issued by the Region 4 Air Director, or the basis for 

such decision, was wrong (either technically, legally, or factually) or otherwise in error.

163. Process for Requesting that the Court Exercise Jurisdiction. A Party shall provide 

notice as further described in this Paragraph before it can request that the Court exercise 

jurisdiction (including under Sections V (Force Majeure), VI (Dispute Resolution), or XI

(Retention of Jurisdiction)), regarding implementation of this Consent Decree. The Party 

seeking to request that the Court exercise jurisdiction shall notify the other Parties to this 

Consent Decree and EPA of such intent pursuant to Section VIII (Notices) of this Consent 

Decree and shall include a description of the issue in such notice.

a. If the issue involves a Parallel Provision that has not already been the subject of 

dispute and resolution pursuant to Section VIII (Dispute Resolution) of the Compliance 

Agreement, EPA may provide the Parties with a written determination of EPA’s view regarding 

the issue within forty-five (45) days following the notice. No action before this Court may be 

taken by any Party (i) for at least fifteen (15) business days following EPA’s written 

determination or, (ii) if EPA does not make such written determination, then for at least forty-
73

five (45) days following the notice described previously in this Paragraph. If TVA does not 

invoke Section VIII (Dispute Resolution) of the Compliance Agreement within fifteen (15) 

business days following receipt of EPA’s written determination, then TVA shall be bound by 

EPA’s written determination in any action before this Court regarding such issue, as described in 

Subparagraph 162.b, above. TVA shall furnish to the Court EPA’s written determination under 

this Paragraph no later than the filing of its next brief, motion, or other communication with the 

Court regarding the issue. The Court should accord appropriate weight to EPA’s written

determination as described in Subparagraph 160.b, above. If TVA does invoke Section VIII 

(Dispute Resolution) of the Compliance Agreement within fifteen (15) business days of receipt 

of EPA’s written determination, the Parties may not proceed in this Court until EPA and TVA 

have resolved such dispute pursuant to Section VIII (Dispute Resolution) of the Compliance 

Agreement.

b. If the issue involves a Parallel Provision that has already been the subject of 

dispute and resolution pursuant to Section VIII (Dispute Resolution) of the Compliance 

Agreement, then the Party requesting that the Court exercise jurisdiction shall provide such 

notice at least fifteen (15) business days before requesting that the Court exercise jurisdiction and 

must furnish a copy of TVA’s written objection as provided in Paragraph 181 of the Compliance 

Agreement and the final resolution rendered pursuant to either Paragraph 182 or Paragraph 183

of Section VIII (Dispute Resolution) of the Compliance Agreement to the Court no later than the 

filing of its next brief, motion, or other communication with the Court regarding that issue. If 

EPA provides the Party with a written determination of its view regarding the issue to be 

presented to the Court, such Party shall furnish a copy of EPA’s written determination to the 
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Court with its next filing. The Court should accord appropriate weight to EPA’s written 

determination as described in Subparagraph 160.b, above.

c. If the issue involves a Parallel Provision that is the subject of a dispute pursuant to 

Section VIII (Dispute Resolution) of the Compliance Agreement but there is an unreasonable 

delay in resolving the dispute under Section VIII (Dispute Resolution) of the Compliance 

Agreement, then the Parties may proceed in this Court prior to a resolution by EPA and TVA of 

such dispute. The Party requesting that the Court exercise jurisdiction shall provide such notice 

at least fifteen (15) business days before requesting that the Court exercise jurisdiction. No 

action before this Court may be taken by any Party during this 15 business day period. If the 

Region 4 Air Director issues a decision pursuant to Paragraph 183 of the Compliance Agreement 

during this 15 business day period, then TVA shall be bound by such decision in any action 

before this Court regarding such issue, as described in Subparagraph 162.b, above, and the Party 

requesting that the Court exercise jurisdiction may only seek a more stringent resolution, as 

described in Paragraph 161.a. Such Party must furnish a copy of the Region 4 Air Director’s 

decision, if any, to the Court no later than the filing of its next brief, motion, or other 

communication with the Court regarding the issue. The Court should accord appropriate weight 

to the Region 4 Air Director’s decision as described in Subparagraph 160.b, above.

164. Assessment and Collection of Stipulated Penalties. 

a. TVA shall not be required to pay additional stipulated penalties under the Consent 

Decree for a violation of the same Parallel Provision of the Compliance Agreement if TVA has 

paid stipulated penalties pursuant to a demand made by EPA (in consultation with the States and 

the Citizen Plaintiffs). Notwithstanding the preceding sentence, TVA may be required to pay 
75

additional stipulated penalties under this Consent Decree for a violation of the same Parallel 

Provision of the Compliance Agreement if the stipulated penalty that EPA demanded (and that 

TVA paid) is inappropriate in light of the circumstances, taking into account the appropriate 

weight to be accorded to EPA’s written determination as described in Subparagraph 160.b, 

above. Nothing in this Paragraph shall prevent EPA and the States of Alabama, Kentucky, and 

Tennessee from sharing the payment of a stipulated penalty provided that the violation giving 

rise to payment of a stipulated penalty is a violation of a Parallel Provision of this Consent 

Decree. Where a violation of a Parallel Provision is facility specific, EPA has agreed to split the 

collected stipulated penalty evenly with the State where such facility is located. Where a 

violation of a Parallel Provision is not facility specific, EPA has agreed to split the collected 

stipulated penalty with the States of Alabama, Kentucky, and Tennessee as follows: 50% to EPA 

and 50% allocated equally among the States of Alabama, Kentucky, and Tennessee.

b. If a State or the Citizen Plaintiffs believes there has been a violation of a Parallel 

Provision under this Consent Decree but EPA has not taken action under the Compliance 

Agreement to assess stipulated penalties for such a violation through the Compliance Agreement, 

a State or the Citizen Plaintiffs may demand the payment of stipulated penalties pursuant to 

Section III.K (Stipulated Penalties) of this Consent Decree only after it has first consulted with 

EPA regarding the alleged violation as further described in this subparagraph. The State or the 

Citizen Plaintiffs shall provide EPA with a sixty (60) day period to evaluate the alleged violation 

and to provide a written determination as to whether it believes there is a violation of the Parallel 

Provision of the Compliance Agreement. The Court should accord appropriate weight to EPA’s 

written determination as described in Subparagraph 160.b, above.
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165. Enforcement of Parallel Provisions under this Consent Decree. Any or all 

Plaintiffs may demand the payment of stipulated penalties or seek other appropriate relief as 

allowed by Section XI (Retention of Jurisdiction) or any other provision of this Consent Decree 

for TVA’s failure to comply with the terms of a Parallel Provision of this Consent Decree if (i) 

after consulting with EPA as required in Paragraph 164.b, EPA does not take action under the 

Compliance Agreement to assess stipulated penalties for such alleged violation, or, as described 

in Paragraph 164.a., EPA assesses a stipulated penalty that is inappropriate in light of the 

circumstances, (ii) TVA has failed to comply with any agreement reached with EPA pursuant to 

Section VIII (Dispute Resolution) of the Compliance Agreement or any decision issued by the 

Region 4 Air Director pursuant to Paragraph 183 of the Compliance Agreement, or (iii) TVA 

remains in non-compliance despite assessment of stipulated penalties. 

V. FORCE MAJEURE

166. For purposes of this Consent Decree, a “Force Majeure Event” shall mean an 

event that has been or will be caused by circumstances beyond the control of TVA, its 

contractors, or any entity controlled by TVA that delays compliance with any provision of this 

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

TVA=s best efforts to fulfill the obligation. “Best efforts to fulfill the obligation” include using 

the 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 and any adverse 

environmental effect of the violation is minimized to the greatest extent possible.

167. 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 
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Decree, as to which TVA intends to assert a claim of Force Majeure, TVA shall notify EPA, the 

States, and the Citizen Plaintiffs in writing as soon as practicable, but in no event later than 

twenty-one (21) business days following the date TVA 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, TVA 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 TVA to prevent or minimize the delay and any 

adverse environmental effect of the violation, the schedule by which TVA proposes to implement 

those measures, and TVA=s rationale for attributing a delay or violation to a Force Majeure 

Event. TVA shall adopt all reasonable measures to avoid or minimize such delays or violations. 

TVA shall be deemed to know of any circumstance which TVA, its contractors, or any entity 

controlled by TVA knew or should have known. 

168. Failure to Give Notice. If TVA fails to comply with the notice requirements of 

this Section for any Parallel Provision, EPA (in consultation with the States and the Citizen 

Plaintiffs) may void TVA=s claim for Force Majeure as to the specific event for which TVA has 

failed to comply with such notice requirement. If TVA fails to comply with the notice 

requirements of this Section for any provision that is not a Parallel Provision of this Consent 

Decree (“Non-Parallel Provision”) the States and the Citizen Plaintiffs may void TVA=s claim for 

Force Majeure as to the specific event for which TVA has failed to comply with such notice 

requirement. 

169. Response. EPA (for any Parallel Provision, and as required by the Compliance 

Agreement) and the States and the Citizen Plaintiffs (for any Non-Parallel Provision) shall notify 
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TVA in writing regarding TVA=s claim of Force Majeure as soon as reasonably practicable. For 

any Parallel Provisions, if EPA, after consultation with the States and the Citizen Plaintiffs, 

agrees that a delay in performance has been or will be caused by a Force Majeure Event, the 

Plaintiffs and TVA under this Consent Decree (and EPA and TVA under the Compliance 

Agreement), shall stipulate to an extension of deadline(s) for performance of the affected 

compliance requirement(s) by a period equal to the delay actually caused by the event. In such 

circumstances, an appropriate modification shall be made pursuant to Section XII (Modification) 

of this Consent Decree. For any Non-Parallel Provision, if the States and the Citizen Plaintiffs 

agree that a delay in performance has been or will be caused by a Force Majeure Event, the 

Plaintiffs and TVA shall stipulate to an extension of deadline(s) for performance of the affected 

compliance requirement(s) by a period equal to the delay actually caused by the event. In such 

circumstances, an appropriate modification shall be made pursuant to Section XII (Modification) 

of this Consent Decree.

170. Disagreement. For any Parallel Provision, if EPA, after consultation with the 

States and the Citizen Plaintiffs, does not accept TVA=s claim of Force Majeure, or if EPA and 

TVA cannot agree on the length of the delay actually caused by the Force Majeure Event, the 

matter shall be resolved in accordance with Section VIII (Dispute Resolution) of the Compliance 

Agreement and as provided in Section IV (Coordination of Oversight and Enforcement) of this 

Consent Decree. For any Parallel Provision, a Plaintiff may seek a resolution that is more 

stringent than the resolution reached through Section VIII (Dispute Resolution) of the 

Compliance Agreement as provided in Paragraph 161.a or if there is an unreasonable delay in 

resolving a dispute pursuant to Section VIII (Dispute Resolution) of the Compliance Agreement, 
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the Plaintiffs may pursue dispute resolution or other available remedies, subject to the limitations 

in Section IV (Coordination of Oversight and Enforcement) of this Consent Decree. For any 

Non-Parallel Provision, if the States and the Citizen Plaintiffs do not accept TVA’s claim of 

Force Majeure, or if the Parties cannot agree on the length of the delay actually caused by the 

Force Majeure Event, the matter shall be resolved in accordance with Section VI (Dispute 

Resolution) of this Consent Decree. 

171. Burden of Proof. In any dispute regarding Force Majeure, TVA 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. TVA shall also bear 

the burden of proving that TVA gave the notice required by this Section and the burden of 

proving the anticipated duration and extent of any delay(s) attributable to a Force Majeure Event. 

An extension of one compliance date based on a particular event may, but will not necessarily, 

result in an extension of a subsequent compliance date.

172. Events Excluded. Unanticipated or increased costs or expenses associated with 

the performance of TVA’s obligations under this Consent Decree shall not constitute a Force 

Majeure Event. 

173. Potential Force Majeure Events. Depending upon the circumstances related to an 

event and TVA=s 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, other than by TVA, orders by a government official, government agency, 
80

other regulatory authority, or a regional transmission organization, acting under and authorized 

by applicable law, that directs TVA to supply electricity in response to a system-wide (state-wide 

or regional) emergency. Depending upon the circumstances and TVA=s 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 TVA and TVA has 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. 

174. As part of the resolution of any matter submitted to this Court under Section VI

(Dispute Resolution) of this Consent Decree, subject to Section IV (Coordination of Oversight 

and Enforcement) of this Consent Decree, regarding a claim of Force Majeure, the Plaintiffs and 

TVA 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 as approved by the 

Court. TVA shall be liable for stipulated penalties if applicable for its failure thereafter to 

complete the work in accordance with the extended or modified schedule (provided that TVA 

shall not be precluded from making a further claim of Force Majeure with regard to meeting any 

such extended or modified schedule).
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VI. DISPUTE RESOLUTION

175. Subject to, and only as allowed by, Section IV (Coordination of Oversight and 

Enforcement), the dispute resolution procedures provided by this Section shall be available to 

resolve all disputes arising under this Consent Decree. The procedures provided in Paragraphs 

176-183 are limited by the provisions set forth in Section IV (Coordination of Oversight and 

Enforcement) of this Consent Decree.

176. The dispute resolution procedure provided herein may be invoked only by one

Party giving written notice to the other Parties (and EPA) 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 (and EPA) shall expeditiously schedule a meeting 

to discuss the dispute informally not later than fourteen (14) days following receipt of such 

notice.

177. Disputes submitted to dispute resolution under this Section shall, in the first 

instance, be the subject of informal negotiations among the disputing Parties (and EPA). 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 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 
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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).

178. If the disputing Parties are unable to reach agreement during the informal 

negotiation period, the relevant disputing Plaintiff (e.g., the Plaintiff that initiated dispute 

resolution pursuant to this Section through the notice described in Paragraph 176) shall provide 

TVA (and EPA) with a written summary of its position regarding the dispute. The written 

position provided by the disputing Plaintiff shall be considered binding unless, within forty-five 

(45) days thereafter, TVA seeks judicial resolution of the dispute by filing a petition with this 

Court. The disputing Plaintiff, or any other Party, may respond to the petition within forty-five 

(45) days of filing. The Parties shall provide to EPA copies of all filings with the Court.

179. In addition to any other methods set forth in this Section for altering time periods, 

the time periods set out in this Section may be shortened or extended upon motion to the Court of 

one of the Parties to the dispute, explaining the Party’s basis for seeking such a scheduling 

modification. 

180. 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. TVA shall be 

liable for stipulated penalties for its failure thereafter to complete the work in accordance with 

the extended or modified schedule, provided that TVA 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.
83

181. Subject only to the exceptions set forth in Paragraph 182, the dispute resolution 

process set forth in this Section is mandatory once a notice is served under Paragraph 176. If 

notice is served under Paragraph 176, no Party may seek resolution of a dispute by the Court 

without first completing dispute resolution pursuant to Paragraphs 176-178. The dispute 

resolution process pursuant to Paragraphs 176-178 may be conducted concurrently with the 

process specified in Paragraph 163.

182. Notwithstanding Paragraph 181, if the matter has already been subject to dispute 

and resolution pursuant to Section VIII (Dispute Resolution) of the Compliance Agreement then 

no Party shall be required to engage in dispute resolution pursuant to Paragraphs 176-178 and a 

Party may seek resolution of a dispute by the Court without first engaging in dispute resolution 

pursuant to Paragraphs 176-178.

183. The Court shall decide all disputes pursuant to applicable principles of law for 

resolving such dispute. In their initial filings with the Court under Paragraph 178, the disputing 

Parties shall state their respective positions as to the applicable standard of law for resolving the 

particular dispute.

VII. INFORMATION COLLECTION AND RETENTION

184. Any authorized representative of Alabama, Kentucky, or Tennessee, including 

their attorneys, contractors, and consultants, upon presentation of credentials, shall have a right 

of entry upon the premises of any facility in the TVA System at any reasonable time for the 

purpose of:

a. monitoring the progress of activities required under this Consent Decree; 
84

b. verifying any data or information submitted in accordance with the terms of this 

Consent Decree; 

c. obtaining samples and, upon request, splits of any samples taken by TVA or its 

representatives, contractors, or consultants; and

d. assessing TVA=s compliance with this Consent Decree. 

185. TVA shall retain, and instruct its contractors and agents to preserve, all nonidentical copies of all records and documents (including records and documents in electronic 

form) in its or its contractors’ or agents’ possession and/or control, and that directly relate to 

TVA’s performance of its 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 TVA document retention policy to the contrary.

186. All information and documents submitted by TVA pursuant to this Consent 

Decree shall be subject to any requests under applicable law providing public disclosure of 

documents unless (a) the information and documents are subject to legal privileges or protection 

or (b) TVA claims and substantiates in accordance with relevant federal or state law that the 

information and documents contain confidential business information. The Citizen Plaintiffs 

shall appropriately protect all information that is either subject to legal privileges or protection or 

that TVA substantiates as confidential business information.

187. Nothing in this Consent Decree shall limit the authority of EPA or Alabama, 

Kentucky, and Tennessee to conduct tests and inspections at TVA’s facilities under Section 114 

of the Act, 42 U.S.C. § 7414, or any other applicable federal or state laws, regulations or permits.
85

VIII. NOTICES

188. Unless otherwise provided herein, whenever notifications, submissions, and/or 

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

addressed as follows:

As to EPA:

(If by first class mail)

Director, Air Enforcement Division

Office of Enforcement and Compliance Assurance

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, NW 

Mail Code 2242A

Washington, DC 20460 

or

(If by commercial delivery service)

Director, Air Enforcement Division

Office of Enforcement and Compliance Assurance

U.S. Environmental Protection Agency

Ariel Rios South Building, Room 1119

1200 Pennsylvania Avenue, NW 

Washington, DC 20004 

and

Director

Air, Pesticides and Toxics Management Division 

U.S. EPA- Region 4 

Sam Nunn Atlanta Federal Center 

61 Forsyth Street, SW

Atlanta, GA 30303-8960

As to Alabama:

Chief, Air Division

Alabama Department of Environmental Management

1400 Coliseum Boulevard

Montgomery, AL 36110-2059
86

As to Kentucky:

Director 

Division for Air Quality

Energy and Environment Cabinet

200 Fair Oaks Lane

Frankfort, KY 40601

As to North Carolina:

Director

NCDENR, Division of Air Quality

1641 Mail Service Center

Raleigh, NC 27699-1641

Senior Deputy Attorney General

Environmental Division

North Carolina Department of Justice

P.O. Box 629 (114 W. Edenton Street, Room 306A) 

Raleigh, NC 27602-0629

As to Tennessee:

Division Director/Technical Secretary

Tennessee Department of Environment & Conservation

Air Pollution Control Division

401 Church Street

L&C Annex, 9th Floor

Nashville, TN 37243-1548

As to the Citizen Plaintiffs:

George E. Hays

Attorney at Law

236 West Portal Avenue #110 

San Francisco, CA 94127

Office: 415/566-5414 Fax: 415/731-1609

e-mail: georgehays@mindspring.com

William J. Moore, III

1648 Osceola Street

Jacksonville, FL 32204
87

(904) 685-2172 (phone)

(904) 685-2175 (fax)

wmoore@wjmlaw.net

As to TVA:

Vice President, Environmental Permitting and Compliance

Tennessee Valley Authority

1101 Market Street

Chattanooga, TN 37402

and

Assistant General Counsel, Environment

Tennessee Valley Authority

400 West Summit Hill Drive

Knoxville, TN 37902

189. All notifications, communications or submissions made pursuant to this Section 

shall be sent either by (a) overnight mail or overnight delivery service, or (b) certified or 

registered mail, return receipt requested. In addition to the foregoing, notification may also be 

made through electronic mail. All notifications, communications, and transmissions that are 

properly addressed and prepaid and are (a) sent by overnight, certified or registered mail shall be 

deemed submitted on the date they are postmarked, or (b) sent by overnight delivery service shall 

be deemed submitted on the date they are delivered to the delivery service.

190. Any Party (and EPA) may change either the notice recipient or the address for 

providing notices to it by serving all other Parties (and EPA) with a notice setting forth such new 

notice recipient or address.

IX. SALES OR TRANSFERS OF OPERATIONAL OR OWNERSHIP INTERESTS

191. If TVA proposes to sell or transfer an Operational or Ownership Interest to an

entity unrelated to TVA (“Third Party”), TVA shall advise the Third Party in writing of the 
88

existence of this Consent Decree prior to such sale or transfer, and shall send a copy of such 

written notification to EPA, the States, and the Citizen Plaintiffs pursuant to Section VIII

(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 the Plaintiffs (in consultation with EPA) have executed a modification 

pursuant to Section XII (Modification) of this Consent Decree making the Third Party a party to 

this Consent Decree and jointly and severally liable with TVA for all the requirements of this 

Consent Decree that may be applicable to the transferred or purchased Operational or Ownership 

Interests. 

193. This Consent Decree shall not be construed to impede the transfer of any 

Operational or Ownership Interests between TVA 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 between TVA and any Third Party of the burdens of compliance 

with this Consent Decree, provided that TVA shall remain liable to the Plaintiffs for the 

obligations of the Consent Decree applicable to the transferred or purchased Operational or 

Ownership Interests.

194. If the Plaintiffs (in consultation with EPA) agree, the Plaintiffs, TVA, and the 

Third Party that has become a party to this Consent Decree pursuant to Paragraph 192, may 

execute a modification that relieves TVA of its liability under this Consent Decree for, and 

makes the Third Party liable for, all obligations and liabilities applicable to the purchased or 

transferred Operational or Ownership Interests. Notwithstanding the foregoing, however, no 

obligation under this Consent Decree may be assigned, transferred or released in connection with 
89

any sale or transfer of any Ownership Interest that is not specific to the purchased or transferred 

Operational or Ownership Interests, including the obligations set forth in Sections III.F

(Environmental Mitigation Projects) and III.G (Civil Penalty), and Paragraphs 67 and 82. TVA 

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 Operational or Ownership Interests, to the extent such obligations may 

be adequately separated in an enforceable manner using the methods provided by or approved 

under Section III.L (Permits). 

195. Paragraphs 191-194 of this Consent Decree do not apply if an Operational or 

Ownership Interest is sold or transferred solely as collateral security in order to consummate a 

financing arrangement (not including a sale-leaseback), so long as TVA (a) remains the operator 

(as that term is used and interpreted under the Act) of the subject TVA System Unit(s); (b) 

remains subject to and liable for all obligations and liabilities of this Consent Decree; and (c) 

supplies EPA 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(s) and General Counsel(s) of the Tennessee 

Valley Authority (“TVA”), hereby jointly certify under Title 18 U.S.C. Section 1001, on 

our own behalf and on behalf of TVA, that any change in TVA=s Ownership Interest in 

any 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 TVA 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 TVA=s ability, legally or otherwise, to comply timely with all terms 

and provisions of the Consent Decree entered in Alabama et al. v. Tennessee Valley 

Auth., [insert case number] (E.D. Tenn. filed April 2011); (c) does not affect TVA=s 

operational control of any Unit covered by that Consent Decree in a manner that is 

inconsistent with TVA=s performance of its obligations under the Consent Decree; and (d) 

in no way affects the status of TVA=s obligations or liabilities under that Consent Decree. 

 
90

X. EFFECTIVE DATE

196. The effective date of this Consent Decree shall be the Date of Entry.

XI. RETENTION OF JURISDICTION

197. 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 the interpretation, construction, execution, or 

modification of the Consent Decree, or for 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.

XII. MODIFICATION

198. Except for a Party’s request to modify this Consent Decree to conform to any 

modification to the Compliance Agreement, the terms of this Consent Decree may be modified 

only by a subsequent written agreement signed by the Parties. A Party shall provide notice to all 

other Parties (and to EPA) at least ten (10) business days before moving this Court to modify this 

Consent Decree to conform it to any modification of the Compliance Agreement. Except as 

otherwise specified herein, where the modification constitutes a material change to any term of 

this Consent Decree, it shall be effective only upon approval by the Court.

XIII. GENERAL PROVISIONS

199. At any time prior to conditional and/or partial termination of enforcement through 

this Consent Decree, TVA may request approval from EPA to implement a pollution control 

technology or pollution reduction activity for SO2 or NOx other than what is required by this 

Consent Decree. In seeking such approval, TVA must demonstrate that such alternative control 
91

technology or activity is capable of achieving and maintaining pollution reductions equivalent to 

an FGD (for SO2) or SCR (for NOx) at the Units in the TVA System at which TVA seeks 

approval to implement such other control technology or activity for SO2 or NOx. Approval of 

such a request is solely at the discretion of EPA (in consultation with the States and the Citizen 

Plaintiffs) provided that TVA shall not implement (and the Compliance Agreement prohibits 

EPA from approving) an alternative control technology or activity if TVA fails to demonstrate 

that such alternative control technology or activity is capable of achieving and maintaining 

pollution reductions equivalent to an FGD (for SO2) or SCR (for NOx) at the Units in the TVA 

System. If EPA approves TVA=s request, nothing in this Paragraph shall relieve TVA from 

complying with any other requirement of this Consent Decree applicable to such Unit (e.g., the 

requirement to obtain a federally enforceable non-Title V permit that includes the Unit-specific 

performance, operational, maintenance, and control technology requirements for such Unit in 

addition to the system-wide requirements and any plant-wide requirements also applicable to 

such Unit).

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

Decree does not guarantee compliance with any applicable federal, state, and/or local laws and/or 

regulations. The emission limitations set forth herein do not relieve TVA from any obligation to 

comply with other state and federal requirements under the Act, including TVA=s obligation to 

satisfy any modeling requirements set forth in the Act.

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

202. In any subsequent action initiated by EPA, the States, or the Citizen Plaintiffs

relating to the facilities covered by this Consent Decree, TVA shall not assert any defense or 
92

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 EPA and/or any of the States or the Citizen Plaintiffs in the subsequent proceeding 

were brought, or should have been brought, in the instant case; provided, however, that nothing 

in this Paragraph is intended to affect the validity of Section III.H (Resolution of Claims Against 

TVA).

203. Except as specifically provided by this Consent Decree, nothing in this Consent 

Decree shall relieve TVA of its obligation to comply with all applicable federal, state, and/or

local laws and/or regulations, including, but not limited to, TVA’s obligation to apply for a Clean 

Water Act NPDES permit(s) or permit renewal for the discharge of wastewater from the 

operation of the FGDs at any TVA System Unit, and in connection with any such application or 

application for permit renewal, to provide the NPDES permitting authority with all information 

necessary to appropriately characterize effluent from its operations and develop, if applicable, 

appropriate effluent limitations; provided, however, that no claimed violation of this provision 

regarding NPDES permitting shall be enforceable as a violation of this Consent Decree, by way 

of stipulated penalty or otherwise. Subject to the provisions in Section III.H (Resolution of 

Claims Against TVA), nothing contained in this Consent Decree shall be construed to prevent or 

limit the rights of EPA, the States, or the Citizen Plaintiffs to obtain penalties or injunctive relief 

under the Act or other federal, state, or local statutes, regulations, or permits.

204. 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 
93

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. 

205. Each limit and/or other requirement established by or under this Consent Decree

is a separate, independent requirement. 

206. 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. TVA 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 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. TVA shall report data to the number of 

significant digits in which the standard or limit is expressed.

207. Except as otherwise provided by law, this Consent Decree does not limit, enlarge 

or affect the rights of any Party to this Consent Decree as against any third parties.

208. 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.
94

XIV. SIGNATORIES AND SERVICE

209. 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.

210. This Consent Decree may be signed in counterparts, and such counterpart 

signature pages shall be given full force and effect. 

211. 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.

XV. PUBLIC COMMENT

212. The Parties agree and acknowledge that entry of this Consent Decree shall occur 

only after EPA has completed the public notice and comment process that is specified in 

Paragraph 211 of the Compliance Agreement. The Parties shall not oppose entry of this Consent 

Decree by this Court or challenge any provision of this Consent Decree unless EPA has notified 

TVA, the States, and the Citizen Plaintiffs in writing that due to the substance of comments 

received during the notice and comment period specified in Paragraph 211 of the Compliance 

Agreement, EPA no longer consents to the Compliance Agreement as originally executed by 

EPA and TVA. The Parties reserve the right to seek, prior to entry, modifications to this Consent 

Decree consistent with any modifications that EPA and TVA make to the Compliance 

Agreement pursuant to Paragraph 211 of the Compliance Agreement. 
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XVI. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER DECREE

213. Termination as to Completed Tasks at a Unit. As soon as TVA completes a 

requirement of this Consent Decree pertaining to a particular Unit that is not ongoing or 

recurring, TVA may, by written letter to the States and the Citizen Plaintiffs, seek termination of 

the provision or provisions of this Consent Decree that imposed the requirement. 

214. Conditional Termination of Enforcement Through the Consent Decree. After 

TVA:

a. has successfully completed construction of all pollution control technology 

or such other Control Requirement described in Paragraphs 69 and 85, and has maintained 

Continuous Operation of all pollution control technology or such other Control Requirement at 

the TVA System Units as required by this Consent Decree for at least two (2) years; and

b. has obtained final permits and/or site-specific SIP amendments (i) as 

required by Section III.L (Permits) 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-specific and 

TVA System performance, operational, maintenance, and control technology requirements 

specified in this Consent Decree;

then TVA may so certify these facts to the States and the Citizen Plaintiffs. If the States and the 

Citizen Plaintiffs (in consultation with EPA) do not object in writing with specific reasons within 

forty-five (45) days of receipt of TVA=s certification, then, for any Consent Decree violations that 

occur after the certification is submitted, the States and the Citizen Plaintiffs shall pursue 

enforcement through the applicable permit(s) required pursuant to Paragraphs 50, 150, 154, 155, 

156, and 158 and/or other enforcement authority, and not through this Consent Decree.
96

215. Resort to Enforcement under this Consent Decree. Notwithstanding Paragraph 

214, if enforcement of a provision in this Consent Decree cannot be pursued by the States and the 

Citizen Plaintiffs under the applicable permits required by this Consent Decree or other 

enforcement authority, or if a Consent Decree requirement was intended to be part of a 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.

XVI. FINAL JUDGMENT

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

Decree shall constitute a final judgment among the Parties.
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Signature Page for Consent Decree in:

Alabama et al. 

v. 

Tennessee Valley Auth.

FOR THE STATE OF ALABAMA AND THE ALABAMA DEPARTMENT OF 

ENVIRONMENTAL MANAGEMENT:

____________________________________

LANCE R. LEFLEUR, Director

Alabama Department of 

Environmental Management

1400 Coliseum Boulevard

Montgomery, AL 36130-1463

LUTHER STRANGE, Attorney General

By:_________________________________

S. SHAWN SIBLEY (ASB-2802-Y49S)

Assistant Attorney General and

Associate General Counsel

Alabama Department of 

Environmental Management

1400 Coliseum Boulevard

Montgomery, AL 36130-1463
99

Signature Page for Consent Decree in:

Alabama et al. 

v. 

Tennessee Valley Auth.

FOR THE COMMONWEALTH OF KENTUCKY:

____________________________________

DR. LEONARD K. PETERS, Secretary

Energy and Environment Cabinet

500 Mero Street

12th Floor, Capital Plaza Tower

Frankfort, Kentucky 40601

____________________________________

C. MICHAEL HAINES, General Counsel

Energy and Environment Cabinet

Office of General Counsel

2 Hudson Hollow Road

Frankfort, Kentucky 40601
100

Signature Page for Consent Decree in:

Alabama et al. 

v. 

Tennessee Valley Auth.

FOR THE STATE OF NORTH CAROLINA:

____________________________________

ROY COOPER

Attorney General

North Carolina Department of Justice

P.O. Box 629

114 West Edenton Street

Raleigh, NC 27602

(919) 716-6400

Fax: (919) 716-0803
101

Signature Page for Consent Decree in:

Alabama et al. 

v. 

Tennessee Valley Auth.

FOR THE STATE OF TENNESSEE:

____________________________________

ROBERT E. COOPER, JR.

Attorney General & Reporter

Tenn. BPR No. 10934

____________________________________

PHILLIP R. HILLIARD

Senior Counsel

Office of the Tennessee Attorney

General & Reporter

Environmental Division

P.O. Box 20207

425 Fifth Avenue North

Nashville, TN 37202

(615) 741-4612

Fax: (615) 741-8724

Phillip.Hilliard@ag.tn.gov

Tenn. BPR No. 21524
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Signature Page for Consent Decree in:

Alabama et al. 

v. 

Tennessee Valley Auth.

FOR NATIONAL PARKS CONSEVATION ASSOCIATION:

____________________________________

ELIZABETH FAYAD 

General Counsel
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Signature Page for Consent Decree in:

Alabama et al. 

v. 

Tennessee Valley Auth.

FOR SIERRA CLUB:

____________________________________

BRUCE E. NILLES

Deputy Conservation Director
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Signature Page for Consent Decree in:

Alabama et al. 

v. 

Tennessee Valley Auth.

FOR OUR CHILDREN’S EARTH FOUNDATION:

____________________________________

TIFFANY SCHAUER

Executive Director
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Signature Page for Consent Decree in:

Alabama et al. 

v. 

Tennessee Valley Auth.

FOR THE TENNESSEE VALLEY AUTHORITY:

____________________________________

TOM KILGORE

President and Chief Executive Officer

Tennessee Valley Authority