UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) and ) ) STATE OF KANSAS ) ) Plaintiff-Intervenor, ) ) v. ) Civil Action No. 09-CV-2059 JAR/DJW ) WESTAR ENERGY, INC. ) ) Defendant. ) )

CONSENT DECREE Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 1 of 72TABLE OF CONTENTS
I. JURISDICTION AND VENUE ...................................................................................................2 II. APPLICABILITY .......................................................................................................................3 III. DEFINITIONS ...........................................................................................................................3 IV. NO X EMISSION REDUCTIONS AND CONTROLS ............................................................10 A. Installation and Operation of NOx Emissions Controls ......................................10 B. Election To Install Second SCR ..........................................................................11 C. Use and Surrender of NOx Allowances.............................................. 13 D. Super-Compliance Allowances ...........................................................................14 E. Method for Surrender of NOx Allowances .........................................................14 F. NOx Monitoring Provisions ................................................................................15 V. SO 2 EMISSION REDUCTIONS AND CONTROLS ..............................................................16 A. Plant-Wide 12-Month Rolling Tonnage Limitation for SO 2 ...............................16 B. SO 2 Emission Controls ........................................................................................16 C. Use and Surrender of SO 2 Allowances ................................................................16 D. Super-Compliance Allowances ...........................................................................17 E. Method for Surrender of SO 2 Allowances ...........................................................17 F. SO 2 Monitoring Provisions ..................................................................................19 VI. PM EMISSION REDUCTIONS AND CONTROLS..............................................................19 A. Optimization of Existing PM Control Devices ...................................................19 B. PM Emission Rates ..............................................................................................20 C. PM Emissions Monitoring ...................................................................................20 VII. PROHIBITION ON NETTING CREDI TS OR OFFSETS FROM REQUIRED CONTROLS ....................................................................................................................23 VIII. ENVIRONMENTAL MITIGATION PROJECTS ...............................................................24 IX. CIVIL PENALTY ...................................................................................................................26 Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 2 of 72X. RESOLUTION OF CERTAIN CIVIL CLAIMS .....................................................................27 XI. PERIODIC REPORTING .......................................................................................................28 XII. REVIEW AND APPROV AL OF SUBMITTALS ................................................................31 XIII. STIPULATED PENALTIES ................................................................................................31 XIV. FORCE MAJEURE ..............................................................................................................39 XV. DISPUTE RESOLUTION .....................................................................................................42 XVI. PERMITS................................................................................................................... ...........43 XVII. INFORMATION COLLE CTION AND RETENTION ......................................................45 XVIII. NOTICES ...........................................................................................................................46 XIX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS ...............................................48 XX. EFFECTIVE DATE ...............................................................................................................50 XXI. RETENTION OF JURISDICTION ......................................................................................50 XXII. MODIFICATION ................................................................................................................50 XXIII. GENERAL PROVISIONS.................................................................................................50 XXIV. SIGNATORIES .................................................................................................................53 XXV. PUBLIC COMMENT .........................................................................................................53 XXVI. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER DECREE ...............54 XXVII. FINAL JUDGMENT ........................................................................................................55 Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 3 of 721 WHEREAS, the United States of America (" the United States"), on behalf of the United States Environmental Protection Agency ("EPA"), filed a Complaint against Westar Energy, Inc. ("Westar") pursuant to Sections 113(b) and 167 of th e Clean Air Act (the "Act"), 42 U.S.C. §§ 7413(b) and 7477, for injunctive relief and civil penalties for alleged violations of: (a) the Prevention of Significant Deterioration provisions in Part C of Subchapter I of the Act, 42 U.S.C. §§ 7470-92; (b) Title V of the Act, 42 U.S.C. § 7661 et seq.; and (c) the federally-enforceable State Implem entation Plan developed by the State of Kansas; at the Jeffrey Energy Center, a coal-fired power plant located in Potta watomie County, Kansas; WHEREAS, in its Complaint, Plaintiff alleges, inter alia, that Westar failed to obtain the necessary permits and install the controls necessary under the Act to reduce its sulfur dioxide ("SO 2 "), nitrogen oxides ("NOx"), and/ or particulate matter ("PM") emissions, and that Westar failed to obtain an operating perm it under Title V of the Act that reflects applicable requirements imposed under Part C of Subchapter I of the Ac t for each of the coal-fir ed electric generating units at the Jeffrey Energy Center; WHEREAS, the Complaint alleges claims upon which relief can be granted against Westar under Sections 113 and 167 of the Act, 42 U.S.C. §§ 7413 and 7477, and 28 U.S.C. § 1355; WHEREAS Westar has denied and continue s to deny the violations alleged in the Complaint; maintains that it has been and remains in compliance with the Act and is not liable for civil penalties or injunctive relief; and states that it is agreeing to the obligations imposed by this Decree solely to avoid the costs and uncertainti es of litigation and to improve the environment; Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 4 of 722 WHEREAS, EPA provided West ar and the State of Kansas with actual notices of violations pertaining to Westar’s alleged violations, in accordan ce with Section 113(a)(1) and (b) of the Act, 42 U.S.C. § 7413(a)(1) and (b); WHEREAS, the Parties anticipate that the in stallation and operation of pollution control equipment pursuant to this Consent Decree will achieve significant reductions in SO 2 , NOx and PM emissions and thereby improve air quality; WHEREAS, the United States, the State of Kansas, and Westar have agreed, and the Court by entering this Consent Decree finds that this Consent Decree has been negotiated in good faith and at arms length; that this settlement is fair, reasonable, consistent with the goals of the Act, in the best interest of the Parties and in th e public interest; and that entry of this Consent Decree without further litigation is the most a ppropriate means of resolving this matter; and WHEREAS, the United States, th e State of Kansas, and Westar have consented to entry of this Consent Decree without trial of any issue; NOW, THEREFORE, without a ny admission of fact or law, and without any admission of the violations alleged in the Complaint, not ice of violation and ot herwise; it is hereby ORDERED, ADJUDGED, AND DECREED as follows: I. JURISDICTION AND VENUE 1. This Court has jurisdiction over this ac tion, the subject matter herein, and the Parties consenting hereto, pursuant to 28 U.S.C. §§ 1331, 1345, and 1355, and 1367, and Sections 113 and 167 of the Act, 42 U.S.C. §§ 7413 and 7477. Venue is proper under Section 113(b) of the Act, 42 U.S.C. § 7413(b), and under 28 U.S.C. § 1391(b) and (c). Solely for the purposes of this Consent Decree and the underlying Complaint, Westar waives all objections and defenses that it may have to the Court’ s jurisdiction over this action, to the Court’s jurisdiction over Westar, and to venue in this Dist rict. Westar shall not challenge the terms of this Consent Decree Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 5 of 723 or this Court’s jurisdiction to enter and enfo rce this Consent Decree. Except as expressly provided for herein, this Consent Decree shall not create any right s in any party other than the United States and Westar. Except as provided in Section XXV (Public Comment) of this Consent Decree, the Parties consent to entry of this Consent Decr ee without further notice. II. APPLICABILITY 2. Upon entry, the provisions of this Consent Decree shall apply to and be binding upon the United States, the State of Kansas, and Westar, its successo rs and assigns, and Westar’s officers, employees, and agents solely in their capacities as such.
3. Westar shall provide a copy of this C onsent 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 Consen t Decree, Westar shall be responsible for ensuring that all work is perf ormed in accordance with the requirements of this Consent Decree. In any action to enforce this Consent Decree, Westar shall not assert as a defense the failure of its officers, directors, em ployees, servants, agents, or contractors to take actions necessary to comply with this Consent D ecree, unless Westar establishes that such failure resulted from a Force Majeure Event, as defi ned in Paragraph 132 of this Consent Decree. III. DEFINITIONS
4. Every term expressly defined by this Cons ent Decree shall have the meaning given to that term by this Consent D ecree and, except as otherwise pr ovided in this Consent Decree, every other term used in this Consent Decree that is also a term under th e Act or the regulations implementing the Act shall mean in this Consen t Decree what such term means under the Act or those implementing regulations. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 6 of 724 5. A "30-Day Rolling Average Unit Emission Rate" for a Unit means an emission limit expressed in lb/mmBTU and calculated in acco rdance with the following procedure: first, sum the total pounds of the pollutant in questi on emitted from the Unit during an Operating Day and the previous twenty-nine (29) Operating Days; second, sum the to tal heat input to the Unit in mmBTU during the Operating Day and during the pr evious twenty-nine (29) Operating Days; and third, divide the total number of pounds of the pollutant emitted during the thirty (30) Operating Days by the total heat input during the thirty (30) Operat ing Days. A new 30-Day Rolling Average Unit Emission Rate shall be calculated for each new Operating Day. Each 30-Day Rolling Average Unit Emission Rate shall include a ll emissions that occur during all periods of operation within an Operating Day, includi ng Startup, Shutdown and Malfunction.
6. A "30-Day Rolling Average Unit Removal Efficiency" for SO 2 means, and shall be expressed as, the percent reduction in the mass of SO 2 achieved by a Unit’s FGD system over a 30-Operating Day period and shall be calculated as follows: step one, sum the total pounds of SO 2 emitted from the Unit during the current Operating Day and the previous twenty-nine (29) Operating Days as measured at the outlet of the FGD system for that Unit; step two, sum the total pounds of SO 2 delivered to the inlet of the FGD system for the Unit during the current Operating Day and the previous twenty-nin e (29) Operating Days as measured at the inlet to the FGD system for that Unit; step three, subtract the outlet SO 2 emissions calculated in step one from the inlet SO 2 emissions calculated in step tw o; step four, divide the diffe rence calculated in step three by the inlet SO 2 emissions calculated in step two; and step five, multiply the quotient calculated in step four by 100 to express the emission limit re moval efficiency percentage. A new 30-day Rolling Average Unit Removal Efficiency shall be calculated for each new Operating Day, and shall include all emissions that occur during all periods within each Operating Day, including Startup, Shutdown, and Malfunction. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 7 of 725 7. "CEMS" or "Continuous Emission Monito ring System" means, for obligations involving monitoring of NOx and SO 2 emissions under this Consent Decree, the devices defined in 40 C.F.R. § 72.2, the inlet SO 2 lb/mmBtu monitors, and the co mputer system for recording, calculating, and storing data and equati ons required by this Consent Decree.
8. "Clean Air Act" or "Act" means the federal Clean Air Act, 42 U.S.C. §§7401-7671q, and its implementing regulations.
9. "Consent Decree" or "Decree" means this Consent Decree and the Appendix hereto, which is incorporated into this Consent Decree.
10. "Day" means a calendar day unless expre ssly stated to be a Business Day. “Business Day” means a day other than a Saturday, Sunday or federal holiday.
11. "Electrostatic Precipitator" or "ESP" means a device for removing particulate matter from combustion gases by imparting an electri c charge to the particles and then attracting them to a metal plate or screen of opposite char ge before the combustion gases are exhausted to the atmosphere.
12. "Emission Rate" means the number of pounds of pollutant emitted per million BTU of heat input ("lb/mmBTU") measured in accordance with th is Consent Decree.
13. "EPA" means the United States Environmental Protection Agency.
14. "Forced Outage" means, for the purpose of Paragraph 35, an unplanned outage caused by a component failure or other breakdow n that requires the SCR-controlled Unit be removed from service before the end of the next weekend. A common cause of forced outages is boiler tube failure. 15. "Flue Gas Desulfurization System," or "FGD," means a pollution control device that employs flue gas desulfurization t echnology for the reduction of sulfur dioxide. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 8 of 726 16. "Fossil Fuel" means natural gas, petroleum, coal, and any form of solid, liquid, or gaseous fuel derived from such material s for the purpose of creating useful heat.
17. "JEC" means the Jeffrey Energy Center locat ed near St. Marys, Kansas, consisting of the following coal-fired Units: Unit 1 (720 MW), Unit 2 (720 MW) and Unit 3 (720 MW).
18. “KDHE” means Kansas Department of Health and Environment. 19. "lb/mmBTU" means one pound of a pollutant per million British thermal units of heat input.
20. "Low NOx Combustion System" means bur ners and associated combustion air control equipment, including overfire air, for combusting pulverized coal, which control mixing characteristics of the pulverized coal and oxygen, lower the combustion rate, lower oxygen concentration and heat temperat ure during the initial phase of combustion, and thereby restrain the formation of NOx created by both the nitroge n content of the pulveri zed coal and by heat.
21. "Malfunction" means any sudden, infrequent, and not reasonably preventable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner. Failures that are caused in part by poor maintenance or careless operation are not Malfunctions.
22. "MW" means a megawatt or one million Watts.
23. "National Ambient Air Quality Standard s" or "NAAQS" means national ambient air quality standards that are promulgated pursuant to Section 109 of the Act, 42 U.S.C. § 7409.
24. "Netting" shall mean the process of de termining whether a particular physical change or change in the method of operation of a ma jor stationary source results in a net emissions increase, as that term is defined at 40 C.F.R. § 52. 21(b)(3)(i) and at K.A.R. 28-19-350 of the Kansas SIP. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 9 of 727 25. "NOx" means oxides of nitrogen, measured at the boiler stack in accordance with the provisions of th is Consent Decree.
26. "NOx Allowance" means any allowance, 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 establishe d under the Act or a State Im plementation Plan. The Parties acknowledge that at the time of lodging of this Consent Decree no NOx Allowance program is applicable to any Unit at JEC.
27. "Nonattainment NSR" means the nonattainment area New Source Review program under Part D of Subchapter I of the Act, 42 U.S.C. §§ 7501-7515, and the federal regulations codified at 40 C.F.R. Part 51, and the federally approved provisions of the Kansas SIP, K.A.R. 28-19-16 through 28-19-16m.
28. "Operating Day" means any Day on which a Unit fires Fossil Fuel. 29. "Ownership Interest" means all or part of Westar's legal or equitable interest in any JEC Unit.
30. "Parties" means Westar, the United States of America, and the State of Kansas, and "Party" means any one of the three named "Parties."
31. "Plaintiff" means the United States of America.
32. “Plaintiff-Intervenor” or “Intervenor” means the State of Kansas through the Kansas Department of Health and Environment.
33. "Plant-Wide 30-Day Rolling Average Emission Rate" means an emission limit expressed in lb/mmBTU and calculated in accordan ce with the following procedure: first, sum the total pounds of the pollutant in question emitted from all JEC Units during a Plant-Wide Operating Day and the previous twenty-nine (29) Plant-Wide Operating Days; second, sum the total heat input to all JEC Units in mmBTU du ring the Plant-Wide Oper ating Day and during the Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 10 of 728 previous twenty-nine (29) Plant-Wide Operatin g Days; and third, divide the total number of pounds of the pollutant emitted during the thirty (30) Plant-Wide Operating Days by the total heat input during the thirty (30) Plant-Wide Oper ating Days. A new Plant-Wide 30-Day Rolling Average Emission Rate shall be calculated for each new Plant-Wide Operating Day. Each Plant-Wide 30-Day Rolling Average Emission Rate shall include all emissi ons that occur during all periods of operation within a Plant-Wide Op erating Day, including Startup, Shutdown and Malfunction.
34. "Plant-Wide 12-Month Rolling Tonnage" means the sum of the tons of the pollutant in question emitted from all three JEC Units in the most recent complete month and the previous eleven (11) months. A new Plant-Wide 12-Month Rolling Tonnage shall be calculated for each new complete month in accordance with the provisions of this Consent Decree. Each Plant-Wide 12-Month Rolling Tonnage shall include all emissions of NOx and SO 2 that occur during all periods of operation, includ ing Startup, Shutdown and Malfunction. 35. "Plant-Wide Operating Day" means a day on which any JEC Unit fires Fossil Fuel, except that any day during which a Unit equipped with an SCR is not firing Fossil Fuel due to a Forced Outage or a Scheduled Outage for that Unit shall not be included as a Plant-Wide Operating Day.
36. "PM" means filterable particulate matter, as measured in accordance with the requirements of this Consent Decree.
37. "PM Emission Rate" means the number of pounds of PM emitted per million BTU of heat input (lb/mmBTU), as measured in annual stack tests in accordance with 40 C.F.R. Part 60, App. A, Method 5, 5B (filterable portion only), or 17.
38. "PM CEMS" or "PM Continuous Emission Monitoring System" means, for obligations involving the monitori ng of PM emissions under this Consent Decree, the equipment Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 11 of 729 that samples, analyzes, measures, and provides, by readings taken at frequent intervals, an electronic and/or paper r ecord of PM emissions. 39. "Project Dollars" means Westar’s expenditu res and payments incurred or made in carrying out the Environmental Mitigation Projec ts identified in Sect ion VIII (Environmental Mitigation Projects) of this Consent Decree to the extent that such expenditures or payments both: (a) comply with the requirements set forth in Section VIII (Environmental Mitigation Projects) of this Consent Decree and (b) constitute Westar’s di rect payments for such projects, or Westar’s external costs for contractor s, vendors, and equipment.
40. "PSD" means Prevention of Significant Dete rioration within the meaning of Part C of Subchapter I of the Clean Air Act, 42 U.S.C. §§ 7470 - 7492, the federal regulations codified at 40 C.F.R. Part 51.166, and the federally approve d provisions of the Kansas SIP, K.A.R. 28-19-350.
41. "Scheduled Outage" means, for the purpos e of Paragraph 35, an outage that is planned in advance for the purposes of maintenan ce or repairs of the SC R-controlled Unit, and, excludes time periods when the Unit is not ope rating due to a lack of demand or economic considerations.
42. "Selective Catalytic Reduction System" or "SCR" means a pollution control device that employs selective cataly tic reduction technology for th e reduction of NOx emissions.
43. "Selective Non-Catalytic Reduction System " or "SNCR" means a pollution control device for the reduction of NOx emissions that utilizes amm onia or urea injection or a functionally similar material into the boiler.
44. “Shutdown” means the cessation of ope ration of any Unit for any purpose. 45. "SO 2 " means sulfur dioxide, measured at th e boiler stack in accordance with the provisions of this Consent Decree. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 12 of 7210 46. "SO 2 Allowance" means an authorization or credit to emit a specified amount of
SO 2 that is allocated or issued under an emissions trading or ma rketable permit program of any kind that has been established under the Clean Ai r Act or the Kansas State Implementation Plan.
47. “Startup” means the setting in operation of any Unit for any purpose.
48. "Title V Permit" means the permit require d of Westar’s JEC under Subchapter V of the Act, 42 U.S.C. §§ 7661-7661e. 49. "Unit" means, solely for the purposes of this Consent Decree, collectively, the boiler coal pulverizers, the boiler that produces steam for the steam turbine including pollution control equipment, the steam turbine and the generator. IV. NO X EMISSION REDUCTIO NS AND CONTROLS
A. Installation and Operation of NOx Emissions Controls 1. Optimization of Low NOx Combusti on Systems at JEC Units 1 and 3 50. No later than ninety (90) days after en try of this Consent Decree, Westar shall implement a plan to optimize NOx emission re ductions from the existing Low NOx Combustion Systems at JEC Units 1 and 3. Beginning on December 31, 2011, and continuing thereafter, Westar shall continuously operate the Low NOx Combustion Systems at JEC Units 1 and 3 so as to achieve and maintain a 30-Day Rolling Aver age Unit Emission Rate for NOx of no greater than 0.180 lb/mmBTU.
2. Installation and Operation of Low NOx Combustion System at JEC Unit 2 51. Westar shall install a new Low NOx Combustion System at JEC Unit 2 no later than December 31, 2011. As soon as practicable , but in no event later than December 31, 2011, Westar shall continuously operate the new Low NOx Combustion Syst em at JEC Unit 2 so as to achieve and maintain a 30-Day Rolling Average Un it Emission Rate for NOx of no greater than 0.180 lb/mmBTU. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 13 of 7211 52. Westar shall continuously operate the Low NOx Combustion Systems at each JEC Unit, at all times that the Units they serve ar e in operation, consistent with the technological limitations, manufacturers’ specifications, and good engineering and maintenance practices for the Low NOx Combustion Systems for minimizi ng emissions to the extent practicable.
3. Installation and Operation of New SCR 53. Westar shall install and co mmence operation of an SCR on one of the JEC Units no later than December 31, 2014. No later than one hundred and twenty (120) days after installation, and continuing therea fter, Westar shall co ntinuously operate the SCR on that Unit so as to achieve and maintain a 30-Day Rolling Av erage Unit Emission Rate for NOx of no greater than 0.080 lb/mmBTU. 54. No later than one hundred and twenty (120) days after installation, and continuing thereafter, Westar shall continuous ly operate the SCR at all times that the Unit it serves is in operation, consistent with the technological li mitations, manufacturers’ specifications, and good engineering and maintenance practices for the SCR for minimizing emissions to the extent practicable.
B. Election To Install Second SCR 55. No later than ninety (90) days after en try of this Consent Decree, Westar shall begin testing, evaluating, and analyzing the NOx emission reductions that Westar would achieve from the installation of SNCR and othe r NOx reduction technologies at JEC. 56. No later than December 31, 2012, Westar shal l elect to either (a) install a second SCR on one of the other JEC Units or (b) m eet a 0.100 lb/mmBTU Plant-Wide 12-Month Rolling Average Emission Rate for NOx. Westar shall notify EPA and KDHE in writing of its election no later than December 31, 2012. If Westar elects to install a second SCR, Westar’s notice to EPA and KDHE shall identify which JEC Unit will be equipped with the second SCR. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 14 of 7212 57. If Westar elects not to install a second SCR at JE C pursuant to Paragraph 56, Westar shall comply with the requirements in Paragraph 58. Otherwise, Westar shall comply with the requirements in Paragraph 59.
1. Requirements If Westar Elects Not To Install Second SCR 58. If Westar elects not to install a second SCR pursuan t to Paragraph 56, Westar shall:

a. achieve and thereafter maintain a Plant-Wide 30-Day Rolling Average Emission Rate for NOx at JEC of 0.100 lb/mmBtu no later than one hundred and twenty (120) days after installation of the SCR required by Paragraph 53; and b. achieve, maintain and comply w ith a Plant-Wide 12-Month Rolling Tonnage limitation for NOx at JEC of 9600 tons by December 31, 2014.
2. Requirements If Westar El ects To Install Second SCR 59. If Westar elects to install a second SCR at JEC pursuant to Paragraph 56, Westar shall:

a. install an SCR on the JEC Unit identified in the written election submitted to EPA and KDHE and commence operation of the SCR no later than December 31, 2016. No later than ninety (90) days after installation, and continuing thereafter, Westar shall continuously operate the SCR on that Unit so as to achieve and maintain a 30-Day Rolling Average Unit Emission Rate for NOx of no greater than 0.070 lb/mmBTU. No later than ninety (90) days after installation, an d continuing therea fter, Westar shall continuously operate the SCR at all tim es that the Unit it serves is in operation, consistent with the techno logical limitations, manufacturers’ Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 15 of 7213 specifications, and good engineering a nd maintenance practices for the SCR for minimizing emissions to the extent practicable; and b. achieve, maintain and comply with the Plant-Wide 12-Month Rolling Tonnage limitations for NOx set forth below at JEC by the following dates:

Compliance Date Plant-Wide 12-Month Rolling Tonnage Limitation For NOx December 31, 2014 12,400 tons December 31, 2016 and each year thereafter 9,600 tons

C. Use and Surrender of NOx Allowances
60. Westar 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 Consent Decree by using, tendering, or otherwise applying NOx Allowa nces to offset any excess emissions.
61. Westar shall surrender all NOx Allowances allocated to JEC that Westar does not need in order to meet its own federal and/or stat e Clean Air Act regulatory requirements for JEC. NOx Allowances allocated to JEC may be used by JEC to meet its own federal and/or state Clean Air Act regulatory requirements for the JEC Units. The requirements of this Paragraph shall apply in the first calendar year in which the program allocates allowances to the JEC Units and requires annual retirement to offset NOx emissi ons in that calendar year, and continuing annually thereafter, consistent with the progr am’s schedule for annual retirement.
62. Nothing in this Consent Decree shall prev ent Westar from purchasing or otherwise obtaining NOx Allowances from another source fo r purposes of complying with federal and/or state Clean Air Act regulatory requirements to the extent otherwise allowed by law. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 16 of 7214 63. The requirements in this Consent Decree pertaining to Westar’s use and surrender of NOx Allowances are permanent injunctions not subject to any termina tion provision of this
Consent Decree. D. Super-Compliance Allowances
64. Provided that Westar is in compliance w ith the applicable Plant-Wide 12-Month Rolling Tonnage limitation for NOx, nothing in this Consent Decree shall preclude Westar from selling or transferring NOx Allowa nces allocated to JEC that beco me available for sale or trade solely as a result of achievement and ma intenance of an Emission Rate below: a. The Plant-Wide 30-Day Rolling Average NOx Emission Rate if Westar elects not to install a second S CR pursuant to Pa ragraph 56; or b. The 30-Day Rolling Average Unit Emission Rates if Westar elects to install a second SCR pursuant to Paragraph 56. E. Method for Surrender of NOx Allowances 65. Westar shall surrender, or transfer to a non-profit third party se lected by Westar for surrender, all NOx Allowances required to be surrendered annually purs uant to Paragraph 61 within 45 days from receipt of annual deducti on reports from EPA. Any surrender need not include the specific NOx Allowances that were allo cated to Westar, so long as Westar surrenders NOx allowances that are from the same or earlier year and that are equal to the number required to be surrendered unde r this Subsection.
66. If any NOx Allowances required to be surrendered under this Consent Decree are transferred directly to a non-prof it third party, Westar shall include a description of such transfer in the next report submitted to EPA and KDHE purs uant to Section XI (P eriodic Reporting) of this Consent Decree. Such report shall: (i) identify th e non-profit third party recipient(s) of the NOx Allowances and list the serial numbers of th e transferred NOx Allowances; and (ii) include a Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 17 of 7215 certification by the non-profit third pa rty recipient(s) stating that th e recipient(s) will not sell, trade, or otherwise exchange any of the allowanc es and will not use any of the NOx Allowances to meet any obligation imposed by any environmental law. No later than the third periodic report due after the transfer of any NOx Allowances, We star shall include a stat ement that the non-profit third party recipient(s) surrende red the NOx Allowances for permanent surrender to EPA within one (1) year after Westar tran sferred the NOx Allowances to them. Westar shall not have complied with the NOx Allowance surrender requirem ents of this Paragraph until all third party recipient(s) have actually surrendered the transferred NOx Allowances to EPA. F. NOx Monitoring Provisions
67. In determining the Plant-Wide 30-Day Rolling Average Emission Rate and 30-Day Rolling Average Unit Emission Rate for NOx, West ar shall use CEMS in accordance with the procedures of 40 C.F.R. Part 75, except that: (1) NOx emissions data need not be bias adjusted, (2) for any CEMS with a span less than 100 pa rts per million (“ppm”), the calibration drift and out-of-control criteria in Procedure 1, section 4.3 of Part 60, A ppendix F shall apply in lieu of the low emitter specifications in Part 75, Appendix B, section 2.1, (3) for any CEMS with a span less than or equal to 30 ppm the exemption from the Pa rt 75 linearity check will not apply and either the Part 75 linearity check or the cylinder gas au dit described in Procedure 1, section 5.1.2 of Part 60, Appendix F shall be performed on a quarterly basis, and (4) for any Unit controlled by SCR, an annual relative accuracy test audit shall meet, at a minimum, a relative accuracy of less than 20% or an accuracy of less than 0.015 lb/mmB tu (expressed as the difference between the monitor mean and the reference value mean).
68. For purposes of calculating the Plant-Wi de 12-Month Rolling Tonnage limitation for NOx, Westar shall use CEMS in accordance with the procedures specified in 40 C.F.R. Part 75. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 18 of 7216 V. SO 2 EMISSION REDUCTIONS AND CONTROLS A. Plant-Wide 12-Month Rolling Tonnage Limitation for SO 2 69. Beginning 90 days after entry of this Consent Decree, Westar shall achieve, maintain and comply with a Plant-Wide 12-Month Rolling Tonnage limitation for SO 2 at JEC of 6,600 tons.
B. SO 2 Emission Controls
70. No later than ninety (90) days after en try of this Consent Decree, Westar shall commence continuous operation of FGDs at all thr ee JEC Units so as to achieve and thereafter maintain, a 30-Day Rolling Average Unit Removal Efficiency for SO 2 of at least ninety-seven percent (97%) or a 30-Day Rolling Average Unit Emission Rate for SO 2 of no greater than 0.070 lb/mmBTU.
71. No later than ninety (90) days after en try of this Consent Decree and continuously thereafter, Westar shall operate each FGD covered under this Consen t Decree at all times that the Unit it serves is in operation, consistent with the technological limita tions, manufacturers’ specifications, and good engineering and mainte nance practices for the FGD for minimizing emissions to the extent practicable.
C. Use and Surrender of SO 2 Allowances 72. Except as may be necessary to comply w ith Section XIII (Stipulated Penalties), Westar shall not use SO 2 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 SO 2 Allowances to offset any excess emissions.
73. Beginning in calendar year 2011, and continui ng each calendar year thereafter, Westar shall surrender all SO 2 Allowances allocated to JEC for that calendar year that Westar does not need in order to meet its own federal and/or state Clean Air Ac t regulatory requirements Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 19 of 7217 for JEC. SO 2 Allowances allocated to JEC may be used by JEC to meet its own federal and/or state Clean Air Act regulatory requirements for the JEC Units.
74. Nothing in this Consent Decree shall prev ent Westar from purchasing or otherwise obtaining SO 2 Allowances from another source for purposes of complying with federal and/or state Clean Air Act regulatory requirements to the extent otherwise allowed by law. 75. The requirements in this Consent Decree pertaining to Westar’s use and surrender of SO 2 Allowances are permanent injunctions not s ubject to any terminati on provision of this
Consent Decree.
D. Super-Compliance Allowances
76. Provided that Westar is in compliance with the Plant-Wide 12-Month Rolling Tonnage limitation for SO 2 nothing in this Consent Decree sha ll preclude Westar from selling or transferring SO 2 Allowances allocated to JEC that become available for sale or trade solely as a result of: a. the installation and operation of any SO 2 pollution control technology or technique that is not otherwise re quired by, or necessary to maintain compliance with, any provision of th is Consent Decree, and is not otherwise required by law; or b. achievement and maintenance of an Emission Rate below the applicable 30-Day Rolling Average Unit Emission Rate or 30-Day Rolling Average Unit Removal Efficiency for SO 2 . E. Method for Surrender of SO 2 Allowances
77. Westar shall surrender, or transfer to a non-profit third party se lected by Westar for surrender, all SO 2 Allowances required to be surrendered pu rsuant to Paragraph 73 within 45 days from receipt of SO 2 Allowances Annual Deduction Reports fr om EPA. Any surrender need not Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 20 of 7218 include the specific SO 2 Allowances that were allocated to Westar, so long as Westar surrenders
SO 2 Allowances that are from the same or earlier y ear and that are equal to the number required to be surrendered under this Subsection.
78. If any SO 2 Allowances required to be surrend ered under this Consent Decree are transferred directly to a non-prof it third party, Westar shall include a description of such transfer in the next report submitted to EPA and KDHE purs uant to Section XI (P eriodic Reporting) of this Consent Decree. Such report shall: (i) identify th e non-profit third party recipient(s) of the
SO 2 Allowances and list the serial numbers of the transferred SO 2 Allowances; and (ii) include a certification by the non-profit third pa rty recipient(s) stating that th e recipient(s) will not sell, trade, or otherwise exchange any of the allowances and will not use any of the SO 2 Allowances to meet any obligation imposed by any environmental la w. No later than the third periodic report due after the transfer of any SO 2 Allowances, Westar shall include a statement that the non-profit third party recipient(s) surrendered the SO 2 Allowances for permanent surrender to EPA in accordance with the provisions of Paragraph 79 within one (1) year after Westar transferred the
SO 2 Allowances to them. Westar sh all not have complied with the SO 2 Allowance surrender requirements of this Paragraph until all third part y recipient(s) have actually surrendered the transferred SO 2 Allowances to EPA.
79. For all SO 2 Allowances required to be surrend ered, Westar or the third party recipient(s) (as the case may be) shall first submit an SO 2 Allowance transfer request form to EPA’s Office of Air and Radiatio n’s Clean Air Markets Division di recting the transfer of such
SO 2 Allowances to the EPA Enforcement Surrender Account or to any other EPA account that EPA may direct in writing. As part of submitting th ese transfer requests, Westar or the third party recipient(s) shall irrevocably au thorize the transfer of these SO 2 Allowances and identify by name Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 21 of 7219 of account and any applicable seri al or other identific ation numbers or station names the source and location of the SO 2 Allowances being surrendered.
F. SO 2 Monitoring Provisions
80. In determining the 30-Day Rolling Average Unit Emission Rate and the 30-Day Rolling Average Unit Removal Efficiency for SO 2 , Westar shall use CEMS in accordance with the procedures of 40 C.F.R. Part 75, except that: (1) SO 2 emissions data need not be bias adjusted, (2) for any CEMS with a span less than 100 ppm, the calibration drift and out-of-control criteria in Procedure 1, section 4.3 of Part 60, Appendi x F shall apply in lieu of the low emitter specifications in Part 75, Appendix B, section 2.1, (3) for any CEMS with a span less than or equal to 30 ppm the exemption from the Part 75 linearity check will not apply and either the Part 75 linearity check or the cylinder gas audit de scribed in Procedure 1, section 5.1.2 of Part 60, Appendix F shall be performed on a quarterly basis, and (4) an annual relative accuracy test audit shall meet, at a minimum, a relative accuracy of less than 20% or an accuracy of less than 0.015 lb/mmBtu (expressed as the difference between the monitor mean and the reference value mean).
81. For purposes of calculating the Plant-Wi de 12-Month Rolling Tonnage limitation for SO 2 , Westar shall use CEMS in acco rdance with the procedures specified in 40 C.F.R. Part 75. VI. PM EMISSION REDUCTIONS AND CONTROLS
A. Optimization of Existing PM Control Devices
82. Beginning thirty (30) days after entry of this Consent Decree, and continuing thereafter, Westar shall opera te each ESP and FGD system on each JEC Unit to maximize PM emission reductions at all times when the Unit is in operation. Consistent with the technological limitations, manufacturers’ specifications, and good engineering and maintenance practices for each control device, Westar shall: (a) energize and maintain power levels to each section of the ESPs; (b) operate an automatic control system on each ESP to assure that the plate-cleaning and Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 22 of 7220 discharge-electrode-cleaning systems and associ ated performance parameters, including cycle time, cycle frequency, rapper-vib rator intensity, and number of strikes per cleaning event, maximize the overall PM collection efficiency; and (c) inspect and repair any failed ESP sections, openings in control equipment cas ings, ductwork and expansion jo ints to minimize air leakage during the next planned Unit outage or unplanned outage of sufficient length.
83. No later than December 31, 2013, Westar shal l rebuild the ESPs on Units 1 and 2. Within two hundred seventy (270) days after rebuilding the ESPs, Westar shall complete performance testing, in accordan ce with the methods in Paragraph 86, to demonstrate that the Units are meeting the 0.030 lb/mmBtu PM Emi ssions Rate. The PM performance testing completed by Westar to update its CAM plans for Un its 1 and 2 may be used to demonstrate that the PM Emissions Rate in Paragraph 84 is being met, as long as such performance testing is conducted in accordance with Paragraph 86.
B. PM Emission Rates
84. No later than thirty (30) days from the date of entry of this Consent Decree, and continuing thereafter, Westar sh all continuously operate the ESPs and FGD system at each JEC Unit so that each Unit achieves and maintains a PM Emission Rate of no greater than 0.030 lb/mmBTU as demonstrated by the st ack testing required by Paragraph 85.
C. PM Emissions Monitoring

a. PM Stack Tests 85. Beginning in calendar year 2011, and continuing in each calendar year thereafter, Westar shall conduct a PM stack test at each JEC Unit. The annual stack test requirement imposed on each JEC Unit by this Paragraph may be satisfied by stack te sts conducted by Westar as part of enhancing or redevelo ping its CAM plans or as required by its permits from the State of Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 23 of 7221 Kansas for any year that such st ack tests are required under the permits, as long as such testing is conducted in accordance with Paragraph 86.
86. The reference methods and procedures (f ilterable portion only) for performing PM stack tests and for determining compliance with th e PM Emission Rate shall be those specified in 40 C.F.R. Part 60, Appendix A-3, Reference Method 5B or alternative stack tests or methods that are requested by Westar and approved by EPA an d KDHE. Each test shall consist of three separate runs performed under representative operating conditions not including periods of Startup, Shutdown, or Malfunction. The sampling time for each run shall be at least 120 minutes and the volume of each run shall be 1.70 dry standa rd cubic meters (60 dry standard cubic feet). Westar 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 and KDHE within sixty (60) days of completion of each test.
87. Beginning in calendar year 2011, and continuing in each calendar year thereafter until termination of this Consent Decree, West ar shall also conduct a PM stack test for condensable PM at each JEC Unit using the refe rence methods and procedures set forth at 40 C.F.R. Part 51, Appendix M, Method 202. Each test shall consist of three separate runs performed under representative operating condi tions not including period s of Startup, Shutdown, or Malfunction. The sampling time for each run sh all be at least 120 minutes and the volume of each run shall be 1.70 dry standard cubic meters (60 dry standard cubic feet). Westar shall calculate the number of pounds of condensable PM emitted per million BTU of heat input (lb/mmBTU) from the stack test results in accordan ce with 40 C.F.R. § 60.8(f). The results of the PM stack test conducted pursuant to this Para graph shall not be used for the purpose of determining compliance with the PM Emission Ra tes required by this Cons ent Decree. Westar Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 24 of 7222 shall submit the results of each PM stack test required by this Paragraph to EPA and KDHE within sixty (60) days of completion of each test. b. PM CEMS
88. No later than December 31, 2011, Westar shal l install, correlate, maintain, and operate a PM CEMS on one JEC Unit as specified below. The PM CEMS shall comprise a continuous particle mass monitor measuring par ticulate matter concen tration, directly or indirectly, on an hourly average basis and a diluen t monitor used to convert the concentration to units expressed in lb/mmBTU. The PM CEMS mu st be appropriate for the anticipated stack conditions and capable of measuring PM concentrat ions on an hourly averag e basis. Westar shall maintain, in an electronic database, the hour ly average emission values produced by the PM CEMS in lb/mmBTU. Except for periods of monito r Malfunction, maintenance, or repair, Westar shall continuously operate the PM CEMS at all times when the Unit it serves is operating. 89. No later than ninety (90) days before the installation of the PM CEMS, Westar shall submit to EPA and KDHE for review and approval pursuant to Section XII (Review and Approval of Submittals) of this Consent Decree a plan for the installation and correlation of the
PM CEMS. 90. No later than forty-five (45) days before the installation of the PM CEMS, Westar shall submit to EPA and KDHE for review and approval pursuant to Section XII (Review and Approval of Submittals) of this Consent Decree a proposed Quality Assurance/Quality Control ("QA/QC") protocol that shall be followed in co rrelating such PM CEMS. In developing both the plan for installation and correlation of the PM CEMS and the QA/QC protocol, Westar 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 EP A of the plans and prot ocol, in consultation Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 25 of 7223 with KDHE, Westar shall thereafter operate each PM CEMS in accordance with the approved plans and QA/QC protocol.

c. PM Reporting 91. Following the installation of the PM CEMS , Westar shall begin and continue to report, pursuant to Section XI (Periodic Re porting), the data recorded by the PM CEMS, expressed in lb/mmBTU on a 3 hour rolling average basis in electronic format to EPA. 92. Although stack testing shall be used to determine compliance with the PM Emission Rate established by this Consent Decree, data from the PM CEMS shall be used, at a minimum, to monitor progress in reducing PM emissions. 93. Nothing in this Consent Decree is inte nded to, or shall, alter or waive any applicable law (including but not limited to any defenses, entitlements, challenges, or clarifications related to the Credible Evidence Rule, 62 Fed. Reg. 8314 (Feb. 24, 1997)) concerning the use of data for any purpose under the Act. VII. PROHIBITION ON NETTING CR EDITS OR OFFSETS FROM REQUIRED CONTROLS 94. Emission reductions at JEC that result from actions to be taken by Westar after entry of this Consent Decree to comply with the requirements of this Consent Decree shall not be considered as a creditable contemporaneous emission decrease for the purpose of obtaining a netting credit or offset under the Clean Ai r Act’s Nonattainment NSR and PSD programs. 95. The limitations on the generation and use of netting credits or offsets set forth in Paragraph 94 above do not appl y to emission reductions achie ved by any JEC Unit that are greater than those requir ed under this Consent Decree. For pu rposes of this Paragraph, emission reductions from a JEC Unit are grea ter than those required under this Consent Decree if they result from Westar compliance with federally-enf orceable emission limits that are more stringent Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 26 of 7224 than those limits imposed on JEC Units unde r this Consent Decree and under applicable provisions of the Clean Air Act or th e Kansas State Implementation Plan.
96. Nothing in this Consent Decree is inte nded to preclude the emission reductions generated under this Consent Decr ee from being considered by th e State of Kansas or EPA as creditable contemporaneous emission decreases fo r the purpose of attainment demonstrations submitted pursuant to § 110 of the Act, 42 U.S.C. § 7410, or in determining impacts on NAAQS, PSD increment, or air quality related values , including visibilit y, in a Class I area. VIII. ENVIRONMENTAL MITIGATION PROJECTS 97. Westar shall implement the Environmenta l Projects ("Projects") described in Appendix A in compliance with the approved plan s and schedules for such Projects and other terms of this Consent Decree. Westar shall subm it plans for the Projects to the United States and KDHE for review and approval pursuant to Secti on XII (Review and Appr oval of Submittals) of this Consent Decree in accordance with the sche dules set forth in Appendix A. In implementing the Projects, Westar shall spend no less than $6 million in Project Dollars in accordance with the schedule provided in Appendix A. 98. Westar shall maintain, and present to the United States and KDHE, upon request, all documents to substantiate the Project Dollar s expended and shall provide these documents to the United States within thirty (30) days of a request by the United States or KDHE for the documents.
99. All plans and reports prepared by Westar pursuant to the requirements of this Section of the Consent D ecree shall be publicly available without charge.
100. Westar shall certify, as part of each pl an submitted to the United States and KDHE for any Project, that Westar is not otherwise required by law to perform the Project described in the plan, that Westar is unaware of any othe r person who is required by law to perform the Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 27 of 7225 Project, and that Westar will not use any Project, or portion thereof, to satisfy any obligations that it may have under other applicable requirements of law, including any applicable renewable portfolio standards.
101. Westar shall use good faith efforts to secu re as much benefit as possible for the Project Dollars expended, consiste nt with the applicable requirements and limits of this Consent
Decree. 102. If Westar elects (where su ch an election is allowed) to undertake a Project by contributing funds to another person or instrument ality that will carry out the Project, that person or instrumentality must in writing: (a) identify its legal authority for accepting such funding and (b) identify its legal auth ority to conduct the Project for wh ich Westar contributes the funds. Regardless of whether Westar elects (where such election is allowed) to undertake a Project by itself or to do so by contributing funds to anothe r person or instrumentality that will carry out the Project, Westar acknowledges that it will receive credit for the expenditure of such funds as Project Dollars only if Westar de monstrates that the funds have been actually spent by either Westar or by the person or instrumentality r eceiving them, and that su ch expenditures met all requirements of this Consent Decree.
103. Westar shall comply with the reporti ng requirements described in Appendix A.
104. Within sixty (60) days following the completion of each Project required under this Consent Decree, Westar sh all submit to the United States and KDHE a report that documents the date that the Project was completed, Westar’s results of implementing the Project, including the emission reductions or other environmenta l benefits achieved, a nd the Project Dollars expended by Westar in implementing the Project. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 28 of 7226 105. Westar shall not financially benefit to a greater extent than any other member of the general public from the sale or transfer of technology obtained in the course of implementing any Project.
106. Project Dollar credit given for any Projec t shall reflect Westar’s net cost in implementing the Project, except for payments to Westar from a co-owner of JEC or from MidKansas Electric Company (MKEC) or its succe ssor or assign pursuant to the purchase power agreement between Westar and MKEC dated Augus t 11, 2006, for their pro rata share (each an 8% share at the time of the execution of this Consent Decree) of Project Dollars.
107. Beginning one (1) year after entry of this Consent Decree, Westar shall provide the United States and KDHE with semi-annual updates concerning the progress of each Project. IX. CIVIL PENALTY
108. No later than thirty (30) days from the da te of entry of this Consent Decree, Westar shall pay to the United States a civil penalty in the amount of $2.75 million. The civil penalty shall be paid by Electronic Funds Transfer ("EFT") to the United States Department of Justice, in accordance with current EFT procedures, re ferencing USAO File Number 2009v00090 and DOJ Case Number 90-5-2-1-08242 and the civil action cas e name and case number of this action. The costs of such EFT shall be Westar’s responsibil ity. Payment shall be made in accordance with instructions provided to Westar by the Financial Litigation Unit of the U.S. Attorney’s Office for the District of Kansas. Any funds received after 2:00 p.m. EDT shall be credited on the next business day. At the time of payment, Westar shall provide notice of payment, referencing the USAO File Number, the DOJ Case Number, and th e civil action case name and case number, to the Department of Justice and to EPA in accordan ce with Section XVIII (Notices) of this Consent
Decree. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 29 of 7227 109. No later than thirty (30) days from the da te of entry of this Consent Decree, Westar shall pay to the Intervenor a civil penalty of $250,000 by certified or co rporate check made payable to the Kansas Department of Health and Environment and sent to the following address: Mr. Vick Cooper Bureau of Air Kansas Department of Health and Environment 1000 SW Jackson, Suite 310 Topeka, Kansas 66612-1366.
110. Failure to timely pay the civil penalty sh all subject Westar to interest accruing from the date payment is due until the date paymen t is made at the rate prescribed by 28 U.S.C. § 1961, and shall render Westar liable for all charges, costs, fees, and penalties established by law for the benefit of a creditor or of the United States in securing payment.
111. Payments made pursuant to this Secti on are penalties within the meaning of Section 162(f) of the Internal Revenue Code, 26 U.S.C. § 162(f), and ar e not tax-deductible expenditures for purposes of federal law. X. RESOLUTION OF CERTAIN CIVIL CLAIMS
112. Entry of this Consent Decree shall resolve all civil claims of the United States and Intervenor against Westar that arose from any m odifications commenced at JEC before the date of lodging of this Consent Decree, including but not limited to those modifications alleged in the United States’ Complaint in this civil action, in the Notice of Violation issued to Westar on January 22, 2004, and in the Complaint In Interv ention filed by the Stat e of Kansas under:

a. Part C of Subchapter I of the Clean Air Act, 42 U.S.C. §§ 7470 to 7492 ; b. Standards of Performance for New Sta tionary Sources Program, 42 U.S.C. §§ 7411 and 40 C.F.R. § 60.14 and K.A.R. 28-19-720; Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 30 of 7228 c. The federally-approved and enforc eable Prevention of Significant Deterioration program of the Kansas State Implementation Plan, K.A.R. 28-19-350; d. Sections 502(a) and 504(a ) of the Clean Air Act, §§ 7661 to 7661f and K.A.R. 28-19-500 through 518 , but only to the extent that such claims are based on Westar’s failure to obtai n an operating permit that reflects applicable requirements imposed under Pa rt C of Subchapter I of the Clean Air Act; and

e. The federally-approved and enforcea ble Construction Permit program of the Kansas State Implementation Plan, K.A.R. 28-19-300 through 304. The claims resolved for purposes of this Paragra ph under Part C of Subchapter I of the Clean Air Act shall not include claims based upon carbon di oxide (“CO2”) even if CO2 becomes regulated under Part C of Subchapter I of the Clean Air Act after the date of lodging of this Consent
Decree. XI. PERIODIC REPORTING
113. After entry of this Consent Decree, West ar shall submit to the United States and KDHE a periodic report, within sixty (60) days af ter the end of each half of the calendar year (January through June and July through Decembe r). The report shall include the following information:

a. all information necessary to determine compliance with the requirements of the following Paragraphs of this Consent Decree: Paragraphs 50 through 68 concerning NOx emissions and m onitoring, and the surrender of NOx Allowances; Paragraphs 69 through 81 concerning SO 2 emissions and monitoring, and the surrender of SO 2 Allowances; and Paragraphs 82 Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 31 of 7229 through 87 concerning PM emissions a nd monitoring. Westar shall include in these reports all data for which th e bias adjustment factor has been excluded pursuant to Paragraphs 67 and 80; b. all data recorded by the PM CEMS as required by Paragraph 91, and all periods of monitor Malfunction, maintena nce, and/or repair as provided in Paragraph 88;

c. all information relating to Super-Compliant NOx and SO 2 Allowances that Westar claims to have generated in accordance with Paragraphs 64 and 76 through compliance beyond the requirem ents of this Consent Decree; d. all information indicating that the installation and commencement of operation for a pollution control device may be delayed, including the nature and cause of the delay, and any steps taken by Westar to mitigate such delay; and

e. all information relating to the NOx Offset Requirements pursuant to Paragraph 121.
114. In any periodic report submitted pursuan t to this Section (Periodic Reporting), Westar may incorporate by reference informa tion previously submitted under its Title V permitting requirements, provided that Westar att aches the Title V permit report (or the pertinent portions of such report) and provides a specific re ference to the provisions of the Title V permit report that are responsive to the inform ation required in the periodic report. 115. In addition to the report required by Paragr aph 114, if Westar violates or deviates from any provision of this Consent Decree, West ar shall submit to the United States and KDHE a report on the violation or deviation within ten (10) Business Da ys after Westar knew or should have known of the event. In the report, Westar shall explain the cause or causes of the violation Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 32 of 7230 or deviation and any measures ta ken or to be taken by Westar to cure the reported violation or deviation or to prevent such viola tion or deviation in the future. If at any time, the provisions of this Consent Decree are included in Title V Permits, consistent with the requirements for such inclusion in this Consent Decree, then the de viation reports required under applicable Title V regulations shall be deemed to satisfy all the requirements of this Paragraph.
116. Each Westar report shall be signed by Westar’s Title V Responsible Official for JEC, 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 su bmitted. Based on my evaluation, or the direction and my inquiry of the pers on(s) who manage the system, or the person(s) directly responsible for gather ing 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 signif icant penalties for submitting false, inaccurate, or incomplete information to the United States.
117. If any NOx or SO 2 Allowances are surrendered to any non-profit third party pursuant to Sections IV (NOx Emissi ons Reductions and Controls) and V (SO 2 Emissions Reductions and Controls), the non -profit third party’s certificati on shall be signed by a managing officer of the non-profit third party a nd shall contain the following language: I certify under penalty of law that _____________ [name of non-profit third party] will not sell, trade, or otherwise exchange any of the allowances and will not use any of the allowances to meet any obligation imposed by any Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 33 of 7231 environmental law. I understand that there are significant penalties for making misrepresentations to or misleading the United States. XII. REVIEW AND APPROVAL OF SUBMITTALS
118. Westar shall submit each plan, report, or other submission to EPA and KDHE whenever such a document is required to be submitted for review or approval pursuant to this Consent Decree. EPA, in consultation with KDHE, may approve the submittal or decline to approve it and provide written comments. Within sixty (60) days of re ceiving written comments from EPA, in consultation with KDHE, Westar sh all either: (a) revise the submittal consistent with the written comments and provide the revised submittal for final approval to EPA, in consultation with KDHE; or (b) submit the matter for dispute resolution, including the period of informal negotiations, under Section XV (Disput e Resolution) of this Consent Decree. 119. Upon receipt of EPA’s final approval of the submittal, or upon completion of the submittal pursuant to dispute resolution, West ar shall implement the approved submittal in accordance with the schedule specified therein. XIII. STIPULATED PENALTIES
120. For any failure by Westar to comply with the terms of this Consent Decree, and subject to the provisions of S ections XIV (Force Majeure) and XV (Dispute Resolution), Westar shall pay, within thirty (30) days after receipt of written demand to Westar by the United States, the following stipulated pena lties to the United States:

Consent Decree Violation Stipulated Penalty
a. Failure to pay the civil pena lty as specified in Section IX (Civil Penalty) of this Consent Decree $10,000 per day Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 34 of 7232 b. Failure to comply with any applicable 30-Day Rolling Average Unit Emission Rate for NOx or SO 2 , 30-Day Rolling Average Unit Removal Efficiency for SO 2 , Plant-Wide 30-Day Rolling Average Emission Rate or Emission Rate for PM, where the violation is less th an 5% in excess of the limits set forth in this Consent Decree $2,500 per day per violation

c. Failure to comply with any applicable 30-Day Rolling Average Unit Emission Rate for NOx or SO 2 , 30-Day Rolling Average Unit Removal Efficiency for SO 2 , Plant-Wide 30-Day Rolling Average Emission Rate or Emission Rate for PM, where the violation is equal to or greater than 5% but less than 10% in excess of the limits set forth in this Consent Decree $5,000 per day per violation

d. Failure to comply with any applicable 30-Day Rolling Average Unit Emission Rate for NOx or SO 2 , 30-Day Rolling Average Unit Removal Efficiency for SO 2 , Plant-Wide 30-Day Rolling Average Emission Rate or Emission Rate for PM, where the violation is equa l to or greater than 10% in excess of the limits set forth in this Consent Decree $10,000 per day per violation

e. Failure to comply with a Plant-Wide 12-Month Rolling Tonnage limitation for SO 2 $5,000 per ton for the first 100 tons, and $10,000 per ton for each additional ton above 100 tons, p lus the surrender of SO 2 Allowances in an amount equal to two times the number of tons by which the limitation was exceeded. f. Failure to comply with a Plant-Wide 12-Month Rolling Tonnage limitation for NOx $5,000 per ton for the first 100 tons, and $10,000 per ton for each additional ton above 100 tons, p lus offset NOx emissions in an amount that is at least equal to the number of tons by which the limitation was exceeded, in accordance with the requirements of Paragraph 121, below g. Failure to install, commence operation, or continue operation of the NOx, SO 2 , and PM pollution control devices on any Unit $10,000 per day per violation during the first 30 days, $37,500 p er day per violation thereafte r h. Failure to install or oper ate CEMS as required by this Consent Decree $1,000 per day per violation Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 35 of 7233 i. Failure to conduct annual st ack tests of PM emissions, as required in Paragraph 85 $5,000 per day per violation

j . Failure to apply for any permit required by Section XVI $1,000 per day per violation k. Failure to timely submit, modify, or implement, as approved, the reports, plans, studi es, analyses, protocols, or other submittals required by this Consent Decree $750 per day per violation during the first ten days, $1,000 per day p er violation thereafte r l. Using, selling, or transferring SO 2 Allowances, except as p ermitted by this Consent Decree the surrender, pursuant to the p rocedures set forth in this Consent Decree, of SO 2 Allowances in an amount equal to four times the number of SO 2 Allowances used, sold, or transferred in violation of this Consent Decree

m. Using, selling or transferring NOx Allowances except as p ermitted by this Consent Decree the surrender, pursuant to the p rocedures set forth in this Consent Decree, of NOx Allowances in an amount equal to four times the number of NOx Allowances used, sold, or transferred in violation of this Consent Decree
n. Failure to surrender an SO 2 Allowance as required by this Consent Decree (a) $37,500 per day plus (b) $1,000 per SO 2 Allowance

o. Failure to demonstrate the third-party surrender of an SO 2 Allowance. $2,500 per day per violation

p . Failure to undertake and complete any of the Environmental Mitigation Projects in compliance with Section VIII (Environmental Mitigation Projects) of this Consent Decree $1,000 per day per violation during the first 30 days, $5,000 p er day per violation thereafter
q. Any other violation of this Consent Decree $1,000 per day per violation

121. NOx Offset Requirements Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 36 of 7234 a. No later than ninety (90) days following written demand by the United States for stipulated penalties pursu ant to Paragraph 120(f), Westar shall submit a plan pursuant to Secti on XII (Review and Approval of Submittals), to obtain actual emission reductions of NOx from sources in Kansas other than JEC to offset excess NOx emissions as required by Paragraph 120(f). b. Such plan shall describe the manne r in which Westar will obtain the required NOx emission reductions, and sha ll ensure that the total tons of NOx emissions that exceeded the Plant-Wide 12-Month Rolling Tonnage limitation for NOx are offset, no later than three (3) years from the date the plan is approved pursuant to Sec tion XII (Review and Approval of Submittals).

c. Westar shall implement the project(s) in the approved plan in a manner which ensures that the offsetting NOx emissions are obtained no later than three (3) years from the date the plan is approved pursuant to Section XII (Review and Approval of Submittals). In the next report submitted to EPA pursuant to Section XI (Periodic Repor ting) following three (3) years from the date the plan is approved, West ar shall provide documentation to demonstrate that it fully and timely obtained the offsetting NOx emission reductions in accordance with the approved plan. d. NOx emission reductions required by th e Clean Air Act, its implementing regulations, or a state implementatio n plan shall not be approved as emission reductions to offset NOx emi ssions pursuant to Paragraph 120(f). EPA will apply Clean Air Act § 173(c), 40 C.F.R. § 51.165, and Appendix Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 37 of 7235 S to Part 51 for purposes of determin ing whether to approve the proposed plan.
122. Violations of any limit based on a 30-day rolling average constitute thirty (30) days of violation but where such a violation (for the same pollutant and from the same Unit) recurs within periods less than thirty (30) da ys, Westar shall not be obligated to pay a daily stipulated penalty for any day of the recurrence for which a stipulated penalty has already been paid.
123. All stipulated penalties shall begin to accrue on the day after the performance is due or on the day a violation occu rs, whichever is applicable, a nd shall continue to accrue until performance is satisfactorily completed or until the violation ceases. Nothing in this Consent Decree shall prevent the simultaneous accrual of separate stipulated penalties for separate violations of this Consent Decree.
124. Westar shall pay all stipulated penalties to the United States within thirty (30) days of receipt of written demand to Westar from the United States, and shall continue to make such payments every thirty (30) da ys thereafter until the violation( s) no longer continues, unless Westar elects within 20 days of receipt of written demand to West ar from the United States to dispute the accrual of stipulat ed penalties in accordance with the provisions in Section XV (Dispute Resolution) of th is Consent Decree. 125. Stipulated penalties shall continue to accrue as provided in accordance with Paragraph 120 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 agreem ent, or by a decision of Plaintiff pursuant to Section XV (Dispute Resolutio n) of this Consent Decree that is Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 38 of 7236 not appealed to the Court, accrued stipulated penalties agreed or determined to be owing, together with accrued interest, shall be paid within thirty (30) days of the effective date of the agreement or of the receipt of EPA’s decision; b. If the dispute is appealed to the Court and Plaintiff prevails in whole or in part, Westar shall, within sixty (60) da ys of receipt of the Court’s decision or order, pay all accrued stipulated pe nalties determined by the Court to be owing, together with accrued interest , except as provided in Subparagraph c., below;

c. If the Court’s decision is appealed by any Party, Westar shall, within fifteen (15) days of receipt of the final appellate court decision, pay all accrued stipulated penalties determined to be owing, together with accrued interest. For purposes of this Paragraph, the accrued stipul ated penalties agreed by the Parties, or determined by the Plaintiff through Dispute Re solution, to be owing may be less than the stipulated penalty amounts set forth in Paragraph 120.
126. All stipulated penalties shall be paid in the manner set forth in Section IX (Civil Penalty) of this Consent Decree.
127. Should Westar fail to pay stipulated penalt ies in compliance with the terms of this Consent Decree, the United States shall be entitled to collect in terest on such penalties, as provided for in 28 U.S.C. § 1961.
128. The stipulated penalties provided for in this Consent Decree sha ll be in addition to any other rights, remedies, or sanctions availabl e to the United States by reason of Westar’s failure to comply with any requirement of this C onsent Decree or applicable law, except that for Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 39 of 7237 any violation of the Act for which this Consen t Decree provides for payment of a stipulated penalty, Westar shall be allowed a credit for s tipulated penalties paid against any statutory penalties also imposed for such violation. 129. Affirmative Defense for Malfunctions . If Westar exceeds any 30-Day Rolling Average Unit Emission Rate, 30-Day Rolling Averag e Unit Removal Efficiency or Plant-Wide 30-Day Rolling Average Emission Rate due to a Malfunction, Westar, bearing the burden of proof, has an affirmative defense to stipulated penalties under this C onsent Decree if Westar complies with the reporting requir ements of Paragraph 131, and dem onstrates all of the following:

a. the excess emissions were caused by a sudden, unavoidable breakdown of technology, beyond Westar’s control; b. the excess emissions (1) did not stem from any activity or event that could have been foreseen and avoided, or planned for, and (2) could not have been avoided by better operation and maintenance practices;

c. to the maximum extent practicable, th e air pollution control equipment and processes were maintained and operated in a manner consistent with good practice for minimizing emissions; d. repairs were made in an expeditious fashion when We star knew or should have known that an applicable 30-Day Rolli ng Average Unit Emission Rate, 30-Day Rolling Average Unit Removal Efficiency or Plant-Wide 30-Day Rolling Average Emission Rate was being or would be exceed ed. Off-shift labor and overtime must have been utilized, to the extent practicable , to ensure that such repairs were made as expeditiously as practicable;

e. the amount and duration of the excess emissions (including any bypass) were minimized to the maximum extent practi cable during periods of such emissions; Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 40 of 7238 f. all possible steps were taken to minimi ze the impact of the excess emissions on ambient air quality;
g. all emission monitoring systems were ke pt in operation if at all possible; h. Westar’s actions in response to the ex cess emissions were documented by properly signed, contemporaneous operating logs , or other relevant evidence; i. the excess emissions were not part of a r ecurring pattern indicative of inadequate design, operation, or maintenance; and j. Westar properly and promptly notif ied EPA and KDHE as required by this
Consent Decree.
130. To assert an affirmative defense fo r Malfunction under Paragraph 129, Westar shall submit all data demonstrating the actual em issions for the day the Malfunction occurs and the 29-day period following the day the Malfunction o ccurs. Westar may also, if it elects, submit emissions data for the same 30-day peri od but that excludes the excess emissions.
131. Westar shall provide notice to EPA and KDHE in writing of its intent to assert an affirmative defense for Malfunction under Paragra ph 129 as soon as practicable, but in no event later than twenty-one (21) days following the date of the Malfunction. This notice shall be submitted to EPA and KDHE pursuant to Section XVIII (Notices), include all information to demonstrate that Westar satisfies the criteria specified in Para graph 129, above, and include all of the following information:

a. the magnitude of the excess emissions expressed in lb/mmBTU or % removal efficiency and the operating data and calculations used in determining the magnitude of the excess emissions; b. the time and duration or expected duration of the excess emissions;

c. the identity of the equipment from which the excess emissions emanated; Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 41 of 7239 d. the nature and cause of the Malfunction;

e. the steps taken to remedy the Malfuncti on and the steps taken or planned to prevent the recurrence of the Malfunction; f. the steps that were or are being taken to limit the excess emissions; and
g. if applicable, a list of the steps taken to comply with permit conditions governing JEC Unit’s operation during periods of Malfunction. XIV. FORCE MAJEURE
132. For purposes of this Consent Decree, a "F orce Majeure Event" shall mean an event that has been or will be caused by circumstances beyond the control of Westar, its contractors, or any entity controlled by Westar th at delays compliance with any pr ovision of this Consent Decree or otherwise causes a violation of any provision of this Consent Decree despite Westar’s best efforts to fulfill the obligation. "Best efforts to fu lfill 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.
133. Notice of Force Majeure Events . If any event occurs or has occurred that may delay compliance with or otherwise cause a vi olation of any obligati on under this Consent Decree, as to which Westar intends to assert a claim of Force Majeure, Westar shall notify EPA and KDHE in writing as soon as pr acticable, but in no event later than twenty-one (21) Business Days following the date Westar first knew, or by the exercise of due diligence should have known, that the event caused or ma y cause such delay or violation. In this notice, Westar 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 dela y or violation, all measures taken or to be taken by Westar to pr event or minimize the delay and a ny adverse environmental effect Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 42 of 7240 of the violation, the schedule by which Westar proposes to implement those measures, and Westar’s rationale for attributi ng a delay or violation to a Force Majeure Event. Westar shall adopt all reasonable measures to avoid or minimi ze such delays or viola tions and any resulting adverse environmental effects. Westar shall be deemed to know of any circumstance which Westar, its contractors, or a ny entity controlled by Westar knew or should have known.
134. Failure to Give Notice . If Westar fails to comply with the notice requirements of this Section, EPA, in consultation with KDHE ma y void Westar’s claim for Force Majeure as to the specific event for which Westar has faile d to comply with such notice requirement. 135. EPA’s Response . EPA shall notify Westar in writ ing regarding Westar’s claim of Force Majeure as soon as reasonabl y practicable. If EPA, in cons ultation with KDHE agrees that a delay in performance has been or will be caused by a Force Majeure Event, EPA and Westar 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 pur suant to Section XXII (Modification) of this
Consent Decree.
136. Disagreement . If EPA, in consultation with KDHE does not accept Westar’s claim of Force Majeure, or if EPA, in consultati on with KDHE and Westar cannot agree on the length of the delay actually caused by the Force Majeure Event, the matter shall be resolved in accordance with Section XV (Dispute Reso lution) of this Consent Decree.
137. Burden of Proof . In any dispute regarding Force Majeure, Westar shall bear the burden of proving that any delay in performance or any other violation of a ny requirement of this Consent Decree was caused by or will be caused by a Force Majeure Event. Westar shall also bear the burden of proving that Westar gave the notice required by this Section and the burden of proving the anticipated durat ion and extent of any delay(s) attrib utable to a Force Majeure Event. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 43 of 7241 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.
138. Events Excluded . Unanticipated or increased costs or expenses associated with the performance of Westar's obliga tions under this Consent Decree shall not constitute a Force Majeure Event. 139. Potential Force Majeure Events . The Parties agree that, depending upon the circumstances related to an event and Westar’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; Ma lfunction of a Unit or emission control device; unanticipated coal supply or pollution c ontrol reagent delivery interruptions; acts of God; act s of war or terrorism; and or ders by a government official, government agency, other regulatory authority, or a regional transmission organization, acting under and authorized by applicable law, that dire cts Westar to supply electricity in response to a system-wide (state-wide or regional) emergency. Depending upon the circumstances and Westar’s response to such circumstances, failure of a permitting authorit y 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 Westar and Westar 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 ad ditional information by the permitting authority in a timely fashion; and accepting lawful pe rmit terms and conditions after expeditiously exhausting any legal rights to appeal terms a nd conditions imposed by the permitting authority.
140. As part of the resolution of any matte r submitted to this Court under Section XV (Dispute Resolution) of this Consent Decree rega rding a claim of Force Majeure, the Parties by agreement, or this Court by order, may in a ppropriate circumstances extend or modify the Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 44 of 7242 schedule for completion of work under this Consen t Decree to account for the delay in the work that occurred as a resu lt of any delay agreed to by the Unite d States or approved by the Court. Westar shall be liable for stipulat ed penalties for its failure thereafter to complete the work in accordance with the extended or modified schedule. XV. DISPUTE RESOLUTION 141. The dispute resolution procedure provided by this Section sha ll be available to resolve all disputes arising unde r this Consent Decree, provided that the Party invoking such procedure has first made a good faith attempt to resolve the matter w ith the other Party.
142. The dispute resolution procedure required herein shall be invoked by one Party giving written notice to the other Party advising of a dispute pursuan t to this Section. The notice shall describe the nature of the dispute and shal l state the noticing Party’ s position with regard to such dispute. The Party receiving such a noti ce shall acknowledge receipt of the notice, and the Parties in dispute shall expediti ously schedule a meeting to disc uss the dispute informally not later than fourteen (14) days following receipt of such notice.
143. Disputes submitted to dispute resolution under this Section shall, in the first instance, be the subject of info rmal negotiations among the dispu ting Parties. Such period of informal negotiations shall not extend beyond thirty (30) days from the date of the first meeting among the Parties’ representatives unless they agree in writing to shorten or extend this period. During the informal negotiations period, the dispu ting Parties may also su bmit their dispute to a mutually-agreed-upon alternative di spute resolution (ADR) forum if the Parties agree that the ADR activities can be completed within the 30-da y informal negotiations period (or such longer period as the Parties may agree to in writing).
144. If the Parties are unable to reach agreement during the informal negotiation period, EPA or KDHE shall provide Westar with a written summary of its position regarding the dispute. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 45 of 7243 The written position provided by EPA shall be cons idered binding unless, within forty-five (45) days thereafter, Westar seeks judicial resolution of the dispute by filing a petition with this Court. EPA may respond to the petition within forty-five (45) days of filing. 145. Where the nature of the dispute is such that a more timely resolution of the issue is required, the time periods set forth in this Sec tion may be shortened upon motion of one of the Parties to the dispute.
146. This Court shall not draw any inferences nor establish any presumptions adverse to either Party as a result of invocat ion of this Section or the Partie s' inability to reach agreement.
147. As part of the resoluti on of any dispute under this Section, in appropriate circumstances the Parties may agree, or this Court may order, an extension or modification of the schedule for the completion of the activities requ ired under this Consent Decree to account for the delay that occurred as a result of dispute resolution. We star shall be liable for stipulated penalties for its failure thereafter to complete the work in accordance with the extended or modified schedule, provided that Westar sh all not be precluded from assert ing that a Force Majeure Event has caused or may cause a delay in complying with the extended or modified schedule.
148. The Court shall decide all disputes pursua nt to applicable pr inciples of law for resolving such disputes. In their initial filin gs with the Court under Paragraph 144, the Parties shall state their respective positions as to the applicable standard of law for resolving the particular dispute. XVI. PERMITS 149. Unless expressly stated othe rwise in this Consent Decr ee, in any instance where otherwise applicable law or this Consent Decree requires Westar to secure a permit to authorize construction or operation of any device, includi ng all preconstruction, construction, and operating permits required under state law, Westar shall make such appl ication(s) to KDHE in a timely Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 46 of 7244 manner. EPA will use its best efforts to expeditiously review all permit applications submitted by Westar in order to meet the requi rements of this Consent Decree. 150. When permits are required as described in Paragraph 149, West ar shall complete and submit applications for such permits to KDHE and any other appropriate authorities to allow sufficient time for all legally required processi ng and review of the permit request, including requests for additional information by the permitting authorities. Any failure by Westar to submit a timely permit application for any JEC Unit shall bar any use by Westar of Section XIV (Force Majeure) of this Consent Decree, where a For ce Majeure claim is based on permitting delays. 151. Notwithstanding the reference to Title V or other federally enforceable permits in this Consent Decree, the enforcement of such pe rmits shall be in accordance with their own terms and the Act. The Title V or other federally enfo rceable permits shall not be enforceable under this Consent Decree, although any term or limit established by or under this Consent D ecree shall be enforceable under this Consent Decree regardless of whether such term has or will become part of a Title V or other federally enforceable permit, subject to the terms of Section XXVI (Conditional Termination of Enforcement Under Decree) of this Consent Decree. 152. Within one hundred eighty (180) days afte r entry of this Cons ent Decree, Westar shall amend any applicable Title V permit applic ation, or apply for amendments of its Title V permits, to include a schedule for all Unit-specif ic and plant-specific performance, operational, maintenance, and control technology requirements established by this Consent Decree including, but not limited to, emission rates, removal effici encies, tonnage limitations, and the requirement in Paragraph 73 pertaining to the surrender of SO 2 Allowances. 153. Within one (1) year from the commencem ent of operation of each pollution control device to be installed, upgrade d, or operated on a Unit under this Consent Decree, Westar shall apply to include the requirements and limitations e numerated in this Consent Decree in either a Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 47 of 7245 federally enforceable non-Title V permit or request a site-specific amendment to the Kansas SIP to include the requirement and limitations enumerat ed in this Consent Decree. The permit or SIP amendment shall require complian ce with the following: (a) any applicable rolling average unit emission rate or rolling average unit removal efficiency for SO 2 , (b) the allowance surrender requirements set forth in this C onsent Decree, and (c) any applicab le plant-wide emissions limit set forth in this Consent Decree. 154. For each JEC Unit, Westar shall provide EP A with a copy of each application for a permit to address or comply with any provision of this Consent Decree, as well as a copy of any permit proposed as a result of such application, to allow for timely participation in any public comment opportunity. 155. If Westar sells or transfers to an en tity unrelated to Westar ("Third Party Purchaser") part or all of its ownership interest in any JEC Un it ("Ownership Interest") covered under this Consent Decree, Westar shall comply w ith the requirements of Section XIX (Sales or Transfers of Ownership Interest) with regard to th at Ownership Interest before any such sale or transfer unless, following any such sale or tran sfer, Westar remains the holder of the Title V or other federally enforceable permit for such facility. XVII. INFORMATION CO LLECTION AND RETENTION 156. Any authorized representative of the United States or KDHE, including their attorneys, contractors, and consul tants, upon presentation of credential s, shall have a right of entry upon the premises of JEC at any reasonable time for the purpose of:

a. monitoring the progress of activities required under this Consent Decree; b. verifying any data or information submitted to the United States in accordance with the terms of this Consent Decree; Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 48 of 7246 c. obtaining samples and, upon request, split s of any samples taken by Westar or its representatives, contra ctors, or cons ultants; and d. assessing Westar’s compliance with this Consent Decree. 157. Westar shall retain, and instruct its co ntractors and agents to preserve, all non-identical copies of all reco rds and documents (including reco rds and documents in electronic form) now in its or its contractors’ or agents’ pos session or control, and that directly relate to Westar’s performance of its oblig ations under this C onsent Decree for the following periods: (a) until December 31, 2020, for records concerning phys ical or operational changes undertaken in accordance with Section IV (NOx Emission Re ductions and Controls) and Section V (SO 2 Emission Reductions and Controls); and (b) until December 31, 2017, for all other records. This record retention requirement sha ll apply regardless of any corporate document retention policy to the contrary. 158. All information and documents submitted by Westar pursuant to this Consent Decree shall be subject to any requests under ap plicable law providing pu blic disclosure of documents unless (a) the information and documents are subject to legal privileges or protection or (b) Westar claims and substantiates in accord ance with 40 C.F.R. Part 2 that the information and documents contain confid ential business information. 159. Nothing in this Consent Decree shall lim it the authority of the EPA to conduct tests and inspections at Westar’s facilities under Section 114 of the Act, 42 U.S.C. § 7414, or any other applicable federal or stat e laws, regulations or permits. XVIII. NOTICES 160. Unless otherwise provided herein, when ever notifications, submissions, or communications are required by this Consent Decree, they shall be made in writing and addressed as follows: Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 49 of 7247 As to the United States of America : Chief, Environmental Enforcement Section Environment and Natura l Resources Division U.S. Department of Justice P.O. Box 7611, Ben Franklin Station 601 D Street Washington, D.C. 20044-7611 DJ# 90-5-2-1-08242 and Director, Air Enforcement Division Office of Enforcement and Compliance Assurance U.S. Environmental Protection Agency Ariel Rios Building [2242A] 1200 Pennsylvania Avenue, N.W. Washington, DC 20460 and Regional Administrator U.S. EPA Region VII 901 North 5th Street Kansas City, Kansas 66101 As to Intervenor the State of Kansas : Section Chief, Compliance and Enforcement Section Bureau of Air and Radiation Kansas Department of Health and Environment 1000 SW Jackson, Suite 310 Topeka, Kansas 66612-1366
As to Westar : Vice President - Generation Ken Johnson Westar Energy 818 S. Kansas Ave. P. O. Box 889 Topeka, KS 66601 and Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 50 of 7248 General Counsel Larry Irick Westar Energy 818 S. Kansas Ave. P. O. Box 889 Topeka, KS 66601 and Director-Environmental Services William L. Eastman Westar Energy 818 S. Kansas Ave. P. O. Box 889 Topeka, KS 66601 and John M. Holloway III Elizabeth C. Williamson Winston & Strawn LLP 1700 K Street, N.W. Washington, DC 20006-3817
161. All notifications, communications or subm issions made pursuant to this Section shall be sent either by: (a) overn ight mail or delivery service, or (b) certified or registered mail, return receipt requested. All notifications, communications and transmissions (a) sent by overnight, certified or registered mail shall be deemed submitted on the da te they are postmarked, or (b) sent by overnight delivery service shall be deemed submitted on the date they are delivered to the delivery service.
162. Any Party may change either the notice recipient or the address for providing notices to it by serving the other Party with a notice setting forth such new notice recipient or address. XIX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS 163. If Westar proposes to sell or transfer an Ownership Interest to a Third Party Purchaser, it shall advise the Third Party Purcha ser in writing of the existence of this Consent Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 51 of 7249 Decree prior to such sale or tr ansfer, and shall send a copy of such written notification to the Plaintiff and Intervenor pursuant to Section XVIII (Notices) of this Consent Decree at least sixty (60) days before such pr oposed sale or transfer.
164. No sale or transfer of an Ownership Inte rest shall take place before the Third Party Purchaser and EPA and KDHE have executed, and the Court has approved, a modification pursuant to Section XXII (Modifica tion) of this Consent Decree making the Third Party Purchaser a party defendant to this Consent Decree and jointly and severally liable with Westar for all the requirements of this Decree that may be applicab le to the transferred or purchased Ownership Interests, except as provi ded in Paragraph 166. 165. This Consent Decree shall not be constr ued to impede the transfer of any Ownership Interests between Westar and any Third Party Purchaser as long as the requirements of this Consent Decree are met. This Consent Decree shall not be construed to prohibit a contractual allocation – as between Westar and any Third Party Purchaser of Ownership Interests – of the burdens of compliance with this Decree, provi ded that both Westar and such Third Party Purchaser shall remain jointly and severally liable to the United States and Intervenor for the obligations of the Decree applicab le to the transferred or purchased Ownership Interests, except as provided in Paragraph 166.
166. If the United States agrees, the United States, Intervenor, Westar, and the Third Party Purchaser that has become a party defendant to this Consent Decree pursuant to Paragraph 164, may execute a modification that relieves West ar of its liability under this Consent Decree for, and makes the Third Party Purchaser liable for, all obligations and liabilities applicable to the purchased or transferred Ownership Interests. Notwithstanding the foregoing, however, Westar may not assign, and may not be released from, an y obligation under this C onsent Decree that is not specific to the purchased or transferred Own ership Interests, including the obligations set Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 52 of 7250 forth in Sections VIII (Environmental Mitigation Projects) and IX (Civil Penalty). Westar may propose and the United States may ag ree to restrict the scope of jo int and several liability of any purchaser or transferee for any obligations of this Consent Decree that are not specific to the transferred or purchased Ownership Interests, to the extent such obligations may be adequately separated in an enforceable manner. XX. EFFECTIVE DATE 167. The effective date of this Consent D ecree shall be the date upon which this Consent Decree is entered by the Court. XXI. RETENTION OF JURISDICTION 168. Continuing Jurisdiction . The Court shall retain jurisdiction of this case after entry of this Consent Decree to enforce compliance with the terms and conditions of this Consent Decree and to take any action necessary or ap propriate for its interpretation, construction, execution, modification, or adjudi cation of disputes. During the term of this Consent Decree, either Party to this Consent Decree may apply to the Court for any relief necessary to construe or effectuate this Consent Decree. XXII. MODIFICATION 169. The terms of this Consent Decree may be modified only by a subsequent written agreement signed by both Parties. Where the modi fication constitutes a material change to any term of this Decree, it shall be e ffective only upon approval by the Court. XXIII. GENERAL PROVISIONS
170. At any time prior to termination of th is Consent Decree, Westar may request approval from EPA, in consultation with KDHE, to implement control technology for NO x to meet the required Emission Rate applicable to an y JEC Unit, other than what is required by this Consent Decree. In seeking such approval, Westar must demonstrate that such alternative control Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 53 of 7251 technology is capable of achieving an d maintaining the Emissions Rate applicable to the Unit, and that the alternative control technology will allo w Westar to achieve and thereafter maintain a Plant-Wide 30-Day Rolling Average Emission Rate for NO x of no less stringent than 0.100 lb/mmBTU. Approval of such a reques t is solely at the discretion of EPA. If EPA, in consultation with KDHE approves Westar’s reque st, nothing in this Paragra ph shall relieve Westar from complying with any other requirement of this Consent Decree applicable to such Unit (e.g. , PlantWide 30-Day Rolling Average Emission Rates, Pl ant-Wide 12-Month Tonnage limitations, and the requirement to obtain a federally enfor ceable non-Title V permit that includes the Unitspecific performance, operational, maintenance, and control technology requirements for such Unit).
171. This Consent Decree is not a permit. Co mpliance with the terms of this Consent Decree does not guarantee compliance with all app licable federal, state, or local laws or regulations. The emission rates set forth herein do not relieve Westar from any obligation to comply with other state and federal requirement s under the Clean Air Act, including Westar’s obligation to satisfy any state modeling requirement s set forth in the Kansas State Implementation Plan.
172. This Consent Decree does not apply to any claim(s) of alleged criminal liability.
173. In any subsequent administrati ve or judicial action initia ted by the United States or Intervenor for injunctive relief or civil penalties relating to the Jeffrey Energy Center, Westar shall not assert any defense or claim based upon pr inciples of waiver, re s judicata, collateral estoppel, issue preclusion, claim preclusion, or claim splitting, or any other defense based upon the contention that the claims raised by the Un ited States or Intervenor in the subsequent proceeding were brought, or should have been brought, in the instant case; provided, however, Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 54 of 7252 that nothing in this Paragraph is intended to aff ect the validity of Secti on X (Resolution of Certain Civil Claims).
174. Except as specifically provided by this C onsent Decree, nothing in this Consent Decree shall relieve Westar of its obligation to comp ly with all applicable federal, state, and local laws and regulations. Subject to the provisions in Section X (Resol ution of Certain Civil Claims), nothing contained in this Consent Decree shall be construed to prevent or limit the rights of the United States to obtain penalties or injunctive relief under the Act or other federal, state, or local statutes, regulations, or permits. 175. Each limit and/or other requirement es tablished by or under this Decree is a separate, independent requirement.
176. Performance standards, emissions limits, and other quantitative standards set by or under this Consent Decree must be met to the numb er of significant digits in which the standard or limit is expressed. For example, an Emissi on Rate of 0.100 is not met if the actual Emission Rate is 0.101. Westar shall round th e 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 digi ts. 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. Westar shall report data to the number of significant digits in which the standard or limit is expressed.
177. For the purpose of determining compliance with any Plant-Wide 12-Month Rolling Tonnage limit in this Consent Decree, such limit sh all apply prospectively from the specified date on which the 12 month period begins. For example, if Westar must comply with a Plant-Wide Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 55 of 7253 12-Month Rolling Tonnage limit on June 1, 2010, co mpliance with the limit will first be determined 12 months after June 1, 2010.
178. In computing any period of time under th is Consent Decree for any notification, submission, or communication, where the last da y would fall on a Saturday, Sunday, or federal holiday, the period shall run until the next Business Day. 179. This Consent Decree does not limit, enlarge or affect the rights of any Party to this Consent Decree as against any third parties.
180. This Consent Decree constitutes the final, complete and exclusive agreement and understanding between the Partie s with respect to the settlem ent embodied in this Consent Decree, and supercedes a ll prior agreements and unde rstandings between the Parties related to the subject matter herein. No document, represen tation, inducement, agreement, understanding, or promise constitutes any part of this Decree or the settlement it represents, nor shall they be used in construing the terms of this Consent Decree.
181. Each Party to this action shall bear its own costs and a ttorneys' fees. XXIV. SIGNATORIES 182. 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.
183. This Consent Decree may be signed in counterparts, and such counterpart signature pages shall be gi ven full force and effect. XXV. PUBLIC COMMENT 184. The Parties agree and acknowledge that final approval by the United States and entry of this Consent Decree is subject to the procedures of 28 C.F.R. § 50.7, which provides for notice of the lodging of this Consent Decree in the Federal Register, an opportunity for public Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 56 of 7254 comment, and the right of the Un ited States to withdraw or w ithhold consent if the comments disclose facts or considerations which indicate that the Consent Decree is inappropriate, improper or inadequate. Westar shall not oppose entry of this Consent Decree by th is Court or challenge any provision of this Consent Decree unless the United States has notified Westar, in writing, that the United States no longer supports entry of the Consent Decree. XXVI. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER DECREE 185. Termination as to Completed Tasks . As soon as Westar completes a construction project or any other requirement of this Consen t Decree that is not ongoing or recurring, Westar may, by motion to this Court, seek termination of the provision or provisions of this Consent Decree that imposed the requirement.
186. Conditional Termination of Enfor cement Through the Consent Decree . After
Westar:

a. has successfully completed construction, and has maintained operation, of all pollution controls as required by th is Consent Decree for a period of two years; and b. has obtained all the final permits requir ed by Section XVI (Permits) of this Consent Decree covering JEC that include as federally enforceable permit terms, all of the Unit and Plant performance and other requirements specified in this Consent Decree; then Westar may so certify these facts to the Un ited States, Intervenor, and this Court. If the United States or Intervenor does not object in writing with specific reasons within forty-five (45) days of receipt of Westar’s cer tification, then, for any Consent D ecree violations that occur after Westar’s certification, the United States or Intervenor shall pursue enforcement through the applicable permit(s) and not through this Consent Decree. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 57 of 7255 187. Resort to Enforcement under this Consent Decree . Notwithstanding Paragraphs 185 and 186, if enforcement of a provision in this Decree cannot be pursued by the United States under the applicable permit(s) issued pursuant to the Clean Air Act or its implementing regulations ("CAA Permit"), or if a Decree requirement was intended to be part of a CAA Permit and did not become or remain part of such perm it, then such requirement may be enforced under the terms of this D ecree at any time. XXVII. FINAL JUDGMENT 188. Upon approval and entry of this Consent D ecree by the Court, this Consent Decree shall constitute a final judgme nt in the above-captioned matter between the United States and
Westar. SO ORDERED, THIS ____ DAY OF ________________, 2010.

_________________________________________ JULIE A. ROBINSON United States District Judge Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 58 of 72Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 59 of 72Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 60 of 72Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 61 of 7259

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Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 63 of 7261Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 64 of 72Appendix A Environmental Mitigation Projects In compliance with, and in addition to, the prov isions of Section VIII of this Consent Decree (Environmental Mitigation Projects), Westar shall comply with th e provisions of this Appendix to ensure that the benefits of the $6 million in Project Dollars are achieved. Of such amount, at least $1 million in Project Dollars shall be spent on the Clean Diesel Retrofit Project and/or the Third-Party Wind Project.
I. Overall Environmental Mitigation Projects Schedule and Budget A. Except for the plan related to item V below, within one hundred twenty (120) days from entry of this Consent Decree, as further described below, Westar shall submit plans to EPA for review and a pproval, in consultation with KDHE, for spending $6 million in Project Dollars to implement the Projects specified in this Appendix in accordance with the deadlines established in this Appendix. Within thirty-six (36) months from entry of this Consent Decree, Westar shall submit plans to EPA for review and approval, in consultation with KDHE, related to item V. The purpose of the Environmental Mitigation Projects shall be to mitigate the effects of Westar’s actions in the period during which the allegations set forth in the EPA’s complaint transpired. As part of each plan submitted, Westar shall explain the manner in which the Project wi ll mitigate the effect of its prior actions.
B. Westar may, at its election, consolidate the plans established by this Appendix into a single plan. C. To coincide with the periodic reports to be submitted at the end of each calendar year pursuant to Paragraph 113 of the Cons ent Decree, beginning sixty days after the end of the 2010 calendar year, and continuing annually thereafter until completion of each Project (including any applicable periods of demonstration or testing), Westar shall provide EPA and KDHE with written re ports detailing the progress of each Project, including an account ing of Project Dollars spent to date.
D. As provided in Paragraph 104 of the Cons ent Decree, within sixty (60) days following the completion of each Project agreed to under this Consent Decree (including any applicable periods of de monstration or testing), Westar shall submit to the United States and KDHE a re port that documents the date that the Project was completed, the results of im plementing the Project, including the emission reductions or other environmen tal benefits achieved, and the Project Dollars expended by Westar in implementing the Project.
E. Upon EPA’s approval of the plans proposed in this Appendi x, Westar shall complete the Environmental Mitigation Pr ojects according to the approved plans. Nothing in the Consent Decree or this A ppendix shall be interpreted to prohibit Westar from completing the Environmental Mitigation Projects before the deadlines specified in the sc hedule of an approved plan. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 65 of 722 II. Clean Diesel Retrofit Project A. Within one hundred twenty (120) days from entry of this Consent Decree, Westar shall submit a plan to EPA for review and approval, in consultation with KDHE, to retrofit in-service diesel engines w ith emission control equipment further described in this Section, designed to reduce emissions of particulates and/or ozone precursors and fund the operati on and maintenance of the retrofit equipment for the time-period described be low (the “Clean Diesel Project”). Eligible vehicles, engines and equipmen t must be owned or operated by or on behalf of a public entity. Preference shall be given to school buses. This Project shall include, where necessary, technique s, administration and infrastructure needed to support the Clean Diesel Projec t. Westar shall complete the retrofit projects required by this pa ragraph within two years of the date of EPA approval of the Clean Diesel Project plan. The parties may, by agreement, extend the deadline to complete these pr ojects by up to one year.
B. The plan shall also satisfy the following criteria: 1. Involve vehicles based in and equi pment located in Westar’s service territory. 2. Provide for the retrofit of diesel engines with EPA verified emissions control technologies to achieve the gr eatest measurable mass reductions of particulates and/or ozone precursors for the fleet that participate(s) in this Project. Depending upon the particul ar EPA verified emissions control technology selected, the re trofit diesel engines must achieve emission reductions of particulates and/or ozone precursors by 30%-90%, as measured from the pre-retrofit emissions for the particular diesel engine. 3. Describe the process Westar will use to determine the most appropriate emissions control technology for each di esel engine that will achieve the greatest mass reduction of particulates and/or ozone precursors. In making this determination, Westar must take into account the particular operating criteria required for the EPA veri fied emissions control technology to achieve the verified emissions reductions. 4. Provide for the retrofit of diesel engine s with either: (a) diesel particulate filters, (b) diesel oxidation catalysts and closed crankcase ventilation systems, or (c) EPA-verified idli ng reduction technologies; cleaner fuel use; EPA-verified aerodynamics tec hnologies and low rolling resistance tires; and engine re-power ing (i.e., replacing olde r engines with newer, cleaner engines). 5. Describe the process Westar will use to notify fleet operators and owners that their fleet may be eligible to pa rticipate in the Clean Diesel Project and to solicit their interest in participating in the Project. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 66 of 723 6. Describe the process and criteria West ar will use to select the particular fleet to participate in this Project, co nsistent with the requirements of this Section. 7. For each of the recipient fleet owners and operators describe the amount of Project Dollars that will cover the costs associated with: (a) purchasing the verified emissions control technolog y, (b) installation of the verified emissions control technology (inclu ding data logging), and (c) training costs associated with repair and ma intenance of the verified emissions control technology (including technology cleaning and proper disposal of waste generated from cleaning). This Project shall not include costs for normal repair or operation of the retrofit diesel fleet. 8. Describe the process Westar will use for determining which diesel engines in a particular fleet will be included in the Clean Diesel Project with the verified emissions control technolo gy, consistent with the criteria specified in Section II.B.2 above. 9. Ensure that recipient fleet owners an d/or operators, or their funders, do not otherwise have a legal obligation to reduce emi ssions through the retrofit of diesel engines. 10. For any outside party with whom Westar might contract to carry out this Project, establish minimum standards that include prior experience in a Clean Diesel Project and a record of pr ior ability to interest and organize fleets, and community groups to join a clean di esel program. 11. Ensure that the recipient fleets comp ly with local, state, and federal requirements for the disposal of the waste generated from the verified emissions control technology. 12. Include a schedule and budget for comp leting each portion of the Project. C. In addition to the information required to be included in th e report pursuant to Section I.C above, Westar shall also desc ribe the fleet owner/ operator; where it implemented this Project; the particular types of verified emissions control technology (and the number of each type) that it installed pursuant to this Project; the type, year, and horsepower of each retrofit; an estimate of the number of citizens affected (if applicable) by this Proj ect, and the basis for this estimate; and an estimate of the emission reductions for each Project or engine, as appropriate (using the manufacturer’s estimated reduc tions for the particular verified emissions control technology), includ ing particulates, hydrocarbons, carbon monoxide, and nitrogen oxides.
D. Upon EPA’s approval of the plan, Westar sh all complete the Cl ean Diesel Project according to the approved plan and schedule. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 67 of 724 III. Third-Party Wind Generation Within one hundred twenty (120) days from en try of this Consent Decree, Westar shall submit a plan to EPA for review and approval, in consultation with KDHE, to install Third-Party Wind Generation. Third-Party Wind Generation sha ll be in addition to any existing renewable energy commitments. Upon approval of plan by the EPA, Westar shall complete the mitigation project according to the approved plan and schedule, but in no ev ent later than five (5) years from the date of entry of this Consent Decree. The plan shall also satisfy the following criteria: 1. The selection of a person or entity who will own or operate the third party wind generation, including, without limitation, the person or entity who receives any electric power or financial benefit from the wind generation (“Project Recipient” or “Recipient”), shall be at Westar’s sole discretion, provided that: (a) the Project Recipient is a school or non-profit; (b) the Recipient is not an entity or person in which Westar or its subsidiaries or affiliates has a financial interest; (c) the site is in Kansas; and (d) the Recipient agrees to cooperate in Westar’s efforts to comply with this Consent Decree, including providing information to Westar so that it may be reported to the United States and allowing Westar the right to inspect the third party wind generation. 2. A written, signed certification from the Project Recipient stating that Project Dollars will allow the installation of third party wind generation that would not otherwise have been installed at the site, although wind generation purchased with Project Dollars may be in addition to, and/or augment any existing wind generation at the site. The notification shall also identify the site where the third-party wind generation will be installed, the number of megawatts installed, the success of the Project in terms of megawatts per yearproduced, and the emissions reductions achieved through the use of the thirdparty wind generation. 3. Wind generation shall be designed to provide electric power to the site and to provide any surplus electric power not needed by the project recipient(s) to the local electric grid. 4. Upon completion of the Project, the Project Recipient shall have complete and sole ownership of the wind generation and Westar shall have no ownership or property interest in the wind generation, except that Westar shall inspect, at least once, the wind generation at the site following installation. Westar shall describe the results of that inspection in the report submitted to the United States pursuant to Paragraph 103 of the Consent Decree , specifically: (a) stating that Westar confirmed the installation of the wind generation; (b) reporting the megawatts (MW) of electric power provided by the wind generation; and (c) providing any other information necessary to demonstrate compliance with this Decree that was learned at the inspection. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 68 of 725 5. Include a budget and schedule for completing each portion of the Project, including operation and maintenance costs for up to ten (10) years following approval of the plan. IV. Advanced Truck Stop El ectrification Project 1. Within one hundred twenty (120) days after entry of this Consent Decree, Westar shall submit a plan to the EPA for review and approval, in consultation with KDHE, for the completion of the installation of Advanced Truck Stop Electrification. Long-haul truck drivers typically idle their engines at nigh t at rest areas to supply heat or cooling in their sleeper cab compartments, and to main tain vehicle battery charge while electrical appliances such as TVs, computers and microwaves are in use. Modifications to rest areas to prov ide parking spaces with electrical power, heat and air conditioning will a llow truck drivers to turn their engines off. Truck driver utilization of the Advanced Truck Stop Electrification will result in reduced idling time and therefore reduced fuel usage, reduced emissions of PM, NOx, VOCs and toxics, and reduced noise. This Project shall include, where necessary, techniques and infrastructure needed to support such project. 2. The proposed plan shall satis fy the following criteria:

a. Describe how the work or project to be performed is consistent with requirements of Section I. above. b. Provide for the constructi on of Advanced Truck Stop Electrification stations with established technologies and equipment designed to reduce emi ssions of particulates and/or ozone precursors.

c. Account for hardware procurement and installation costs at the recipient truck stops. d. Include a schedule for completing each portion of the project.

e. Describe generally the expected environmental benefits of the project. 3. Performance - Upon approval of the plan by EPA, Westar shall complete the mitigation project according to the approved plan and schedule, but in no event later than five (5) years from the date of entry of this Consent Decree. V. Plug-in Hybrid Infrastructure 1. Within thirty-six (36) months after entry of this Consent Decree, Westar shall submit a plan to EPA for review and approval, in consultation with KDHE, for either (a) completing the installation of Plug-in Hybrid Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 69 of 726 Infrastructure or (b) spending the re maining Project Dollars on one or more of the other Projects specified in this Appendix. 2. Battery powered and hybrid vehicles need Plug-in Infrastructure to recharge their batteries. Increase d use of battery powered and hybrid vehicles results in reduced fuel us age, reduced emissions of PM, NOx, VOCs and toxics, and reduced noise. Th is Project shall include, where necessary, techniques and infrastructure needed to support such project. 3. In the event Westar elects to install Plug-in Hybrid Infrastructure ,the proposed plan shall satisfy the following criteria:

a. Describe how the work or project to be performed is consistent with requirements of Section I. above. b. Provide for the construction of Plug- in Hybrid Infrastructure with established technologies.

c. Account for hardware procurement and installation costs at the recipient locations. d. Describe generally the expected environmental benefits of the project. 4. In the event Westar elects to spend the remaining Project Dollars on other Projects specified in this Appendix, the proposed plan shall satisfy the requirements specified in this A ppendix for those other Projects. 5. Performance - Upon approval of the plan by EPA, Westar shall complete the mitigation project(s) according to the approved plan and schedule, but in no event later than six (6) years fro m the date of entry of this Consent Decree. VI. Fleet Conversion 1. Within one hundred twenty (120) days from entry of this Consent Decree, Westar shall submit a plan to EPA for review and approval, in consultation with KDHE, for undertaki ng a Fleet Conversion. Westar has a fleet of trucks, locomotives and heavy equipment powered by diesel engines, as well as a fleet of ga soline-powered motor vehicles. The retrofit of these diesel engines and the use of hybrid engine technologies in Defendants’ vehicles, such as diesel -electric engines, will improve fuel efficiency and reduce emissions of NO X , PM, VOCs, and other air pollutants. 2. The proposed Fleet Conv ersion plan shall:

a. Propose the replacement of conve ntional gasoline or diesel powered motor vehicles (such as bucket trucks) with Hybrid Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 70 of 727 Vehicles. For purposes of this subsection of this Appendix, “Hybrid Vehicle” means a vehicle that can generate and utilize electric power to reduce the vehi cle’s consumption of fossil fuel. Any Hybrid Vehicle proposed for inclusion in the Hybrid Fleet Project shall meet all applicable engine standards, certifications, and/or verifications. Westar shall only receive credit toward Project Dollars for the incrementa l cost of Hybrid Vehicles as compared to the cost of a newly manufactured, similar motor vehicle. b. Propose the retrofit of existing di esel engines with EPA verified emissions control technologies to achieve the greatest measurable mass reductions of particulates and/or ozone precursors for Westar’s diesel fleet. Depending upon the particular EPA verified emissions control technology select ed, the retrofit diesel engines must achieve emission reductions of particulates and/or ozone precursors by 30%-90%, as measured from the pre-retrofit emissions for the particul ar diesel vehicle.

c. Describe the process Westar will use to determine the most appropriate emissions control tech nology for each diesel engine that will achieve the greatest mass reduction of particulates and/or ozone precursors. In making this determination, Westar must take into account the particular operati ng criteria requir ed for the EPA verified emissions control techno logy to achieve the verified emissions reductions. d. Provide for the retrofit of diesel engines with either: (a) diesel particulate filters, (b) diesel oxidation catalysts and closed crankcase ventilation systems, or (c) other projects such as EPAverified idling reduction technol ogies; cleaner fuel use; EPAverified aerodynamics technology an d low rolling resistance tire; vehicle replacement; or engine re -powering (i.e., replacing older engines with newer, cleaner e ngines), if approved by EPA.

e. Prioritize the replacement of diesel -powered vehicles in Westar’s fleet. f. Provide a method to account for th e costs of the Hybrid Vehicles, including the incremental costs of such vehicles as compared to conventional gasoline or diesel motor vehicles and potential savings associated with the replacement. Before Westar is required to submit a plan pursu ant to Section III.D., EPA will provide guidance to Westar on es timating the savings associated with replacement of other vehi cles with Hybrid Vehicles. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 71 of 728 g. Certify that Defendants will use the Hybrid Vehicles and other retrofit vehicles or equipment for their useful life (as defined in the proposed plan). h. Include a schedule for completing each portion of the Project. 3. Performance - Upon approval of plan by the EPA, Westar shall complete the mitigation project according to the approved plan and schedule, but in no event later than five (5) years from the date of entry of this Consent Decree. Case 2:09-cv-02059-JAR-DJW Document 67 Filed 03/26/10 Page 72 of 72