IN THE UNITED STATES DISTRICT COURT
 

FOR THE SOUTHERN DISTRICT OF INDIANA
 

UNITED STATES OF AMERICA )
 

)
 

Plaintiff, )
 

)
 

v. )
 

SOUTHERN INDIANA GAS & ELECTRIC )
 

COMPANY, INC. )
 

)
 

Defendant.	 ) 

) 

) 

Civil Action No. IP99-1692 C-M/F 

CONSENT DECREE
 
TABLE OF CONTENTS 

I. JURISDICTION AND VENUE ................................................3

II. APPLICABILITY ..........................................................3

III. DEFINITIONS ............................................................4

IV. UNIT TO BE RE-POWERED AND CONTROLLED OR RETIRED .................8

V. NOx EMISSION REDUCTIONS AND CONTROLS ...............................8

A. NOx Emission Controls ................................................8

x B. Use of NO Emission Allowances or Credits ...............................10

C. General NOx Provisions ...............................................10

VI. SO2 EMISSION REDUCTIONS AND CONTROLS .............................10

A. SO2 Emission Controls ................................................10

B. Use and Surrender of SO2 Allowances ....................................11

C. General SO2 Provisions ...............................................14

VII. PM EMISSION REDUCTIONS AND CONTROLS .............................14

A. Optimization of PM Controls ...........................................14

B. Installation and Operation of a Baghouse .................................14

C. PM Monitoring .....................................................15

VIII. PROHIBITION ON NETTING CREDITS FROM REQUIRED CONTROLS .........15

IX. ENVIRONMENTAL PROJECT .............................................15

X. CIVIL PENALTY ..........................................................17

XI. RESOLUTION OF PAST CLAIMS ..........................................18

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XII. PERIODIC REPORTING ..................................................19

XIII. REVIEW AND APPROVAL OF SUBMITTALS ..............................20

XIV. STIPULATED PENALTIES ...............................................20

XV. FORCE MAJEURE .......................................................25

XVI. DISPUTE RESOLUTION .................................................28

XVII. PERMITS AND STATE IMPLEMENTATION PLAN .........................30

XVIII. INFORMATION COLLECTION AND RETENTION .........................31

XIX. NOTICES ..............................................................33

XX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS .......................34

XXI. EFFECTIVE DATE ......................................................35

XXII. RETENTION OF JURISDICTION .........................................36

XXIII. MODIFICATION ......................................................36

XXIV. GENERAL PROVISIONS ...............................................36

XXV. SIGNATORIES AND SERVICE ..........................................38

XXVI. PUBLIC COMMENT ...................................................38

XXVII. TERMINATION OF CONSENT DECREE .................................39

XVIII. FINAL JUDGMENT ...................................................40

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

States Environmental Protection Agency (“EPA”), has filed an Amended Complaint, against 

Southern Indiana Gas and Electric Company, Inc. (“SIGECO”) pursuant to Sections 113(b) and 

167 of the Clean Air Act (the “Act"), 42 U.S.C. §§ 7413(b) and 7477, for injunctive relief and 

the assessment of civil penalties at SIGECO’s F.B. Culley Station (“Culley Station”) coal fired 

electric generation plant, 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) the New Source Performance Standards (NSPS) in 42 U.S.C. §7411; and 

(c) the federally approved and enforceable Indiana State Implementation Plan (“Indiana 

SIP”). 

WHEREAS, in the Amended Complaint, Plaintiff alleges, inter alia, that SIGECO failed 

to obtain the necessary permits and install the controls necessary under the Act to reduce its 

sulfur dioxide, nitrogen oxides, and/or particulate matter emissions, and that such emissions can 

damage human health and the environment; 

WHEREAS, Plaintiff alleges that its Amended Complaint states claims upon which relief 

can be granted against SIGECO under Sections 113 and 167 of the Act, 42 U.S.C. §§ 7413 and 

7477, and 28 U.S.C. § 1355; 

WHEREAS, SIGECO has denied and continues to deny the violations alleged in the 

Amended 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 Consent Decree solely to avoid the costs and uncertainties of litigation, and to 

1
 
reduce its emissions; also, SIGECO acknowledges that had the United States succeeded in this 

litigation, SIGECO would have been required, among other things, to install Best Available 

Control Technology at the Culley units in order to continue operation of the units; 

WHEREAS, EPA provided SIGECO and the State of Indiana with actual notice of 

violations pertaining to SIGECO’s alleged violations, in accordance with Section 113(a)(1)of the 

Act; 

WHEREAS, the parties anticipate that the installation and operation of pollution control 

equipment pursuant to this Consent Decree will achieve significant reductions in SO2, NOx and 

PM emissions and thereby improve air quality and that certain actions that SIGECO has agreed 

to undertake are expected to advance technologies and methodologies for reducing certain air 

emissions; 

WHEREAS, Plaintiff and SIGECO 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, in the best interest of the Parties and in the public interest, 

consistent with the goals of the Act; and that entry of this Consent Decree without further 

litigation as to the Culley Station is the most appropriate means of resolving this matter; 

and 

WHEREAS, Plaintiff and SIGECO have consented to entry of this Consent Decree 

without trial of any issue; 

NOW, THEREFORE, without any admission of fact or law, and without any admission 

of the violations alleged in the Amended Complaint, it is hereby ORDERED, ADJUDGED, 

AND DECREED as follows: 

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I. JURISDICTION AND VENUE 

1. This Court has jurisdiction over this action, the subject matter herein, and the 

Parties consenting hereto, pursuant to 28 U.S.C. §§ 1331, 1345, 1355, and 1367, Sections 113(b) 

and 167 of the Act, 42 U.S.C. §§ 7413(b) and 7477, and the Indiana SIP, 40 C.F.R. § 52.23. 

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 Plaintiff’s underlying 

Amended Complaint, SIGECO waives all objections and defenses that it may have to the claims 

set forth in the underlying Amended Complaint, and to the jurisdiction of the Court over 

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

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

purposes of the Amended Complaint filed by Plaintiff in this matter and resolved by the Consent 

Decree, and for purposes of entry and enforcement of this Decree, SIGECO waives any defense 

or objection based on standing. Except as expressly provided for herein, this Consent Decree 

shall not create any rights in any Party other than Plaintiff and SIGECO. Except as provided by 

Section XXVI (Public Comment), the Parties consent to entry of this Consent Decree without 

further notice. 

II. APPLICABILITY 

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

upon the United States and upon SIGECO, its successors and assigns, and SIGECO’s officers, 

employees, and agents solely in their capacities as such. 

3. SIGECO shall provide a copy of this Consent Decree to all vendors, suppliers, 

consultants, contractors, agents, and any other company or organization retained to perform any 

3
 
of the work required by this Consent Decree. Notwithstanding any retention of contractors, 

subcontractors, or agents to perform any work required under this Consent Decree, SIGECO 

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

of Sections IV, V, VI , VII, and IX of this Consent Decree. In any action to enforce this Consent 

Decree, SIGECO shall not assert as a defense the failure of its officers, directors, employees, 

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

unless SIGECO establishes that such failure resulted from a Force Majeure Event, as defined in 

Paragraph 100 of this Consent Decree. 

III. DEFINITIONS 

4. A “30-Day Rolling Average Emission Rate” shall be determined by calculating an 

arithmetic average of all hourly emission rates in lb/mmBTU for the current day and the previous 

29 Operating Days. A new 30-Day Rolling Average Emission Rate shall be calculated for each 

new Operating Day. Each 30-Day Rolling Average Emission Rate shall include all start-up, shut 

down and Malfunction periods within each Operating Day. A Malfunction shall be excluded 

from this Emission Rate, however, if it is determined to be a Force Majeure Event and satisfies 

the Force Majeure provisions of this Consent Decree. 

5. “30-Day Rolling Average Removal Efficiency” means the percent reduction in 

the mass of a pollutant achieved by a Unit’s pollution control device over a 30-day period. This 

percentage shall be calculated by subtracting the outlet 30-Day Rolling Average Emission Rate 

from the Unit’s inlet 30-Day Rolling Average Emission Rate, dividing that difference by the 

Unit’s inlet 30-Day Rolling Average Emission Rate, and then multiplying by 100. A new 30-

Day Rolling Average Removal Efficiency shall be calculated for each new Operating Day, and 

4
 
shall include all periods of startup, shutdown and Malfunction within an Operating Day. A 

Malfunction shall be excluded from this removal efficiency, however, if it is determined to be a 

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

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

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

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

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

7671q, and its implementing regulations. 

8. “Consent Decree” means this Consent Decree. 

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

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

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

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

reduction of particulate matter (PM). 

12. “Flue gas desulfurization system,” or “FGD,” means a pollution control device 

that employs flue gas desulfurization technology for the reduction of sulfur dioxide. 

13. “Fossil fuel” means any hydrocarbon fuel, including coal, petroleum oil, or 

natural gas. 

14. “lb/mmBTU” means one pound of a pollutant per million British Thermal Units 

of heat input. 

15. “Malfunction” means malfunction as that term is defined under 40 C.F.R.§ 60.2. 

16. “MW” means a megawatt, or one million Watts. 

5
 
17. “NOx” means oxides of nitrogen, as measured in accordance with the provisions 

of this Consent Decree. 

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

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

19. “Operating Day” means any calendar day on which a Unit fires fossil fuel. 

20. “Party” means SIGECO or the United States. 

21. “Plaintiff” means the United States. 

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

this Consent Decree. 

23. “PM Emission Rate” means the pounds of PM emitted per million BTU of heat 

input (“lb/mmBTU”), as measured in accordance with the reference methods set forth in 40 

C.F.R. Part 60, Appendix A, Method 5. 

24. “PM Control Device” means an electrostatic precipitator (ESP) or baghouse 

technology designed to reduce emissions of particulate matter from coal at coal-fired units, 

including Illinois basin coal currently used at the Culley Station as of the date of lodging of this 

Consent Decree. 

25. “PPM” means parts per million. 

26. “Project Dollars” means SIGECO’s expenditures and payments incurred or made 

in carrying out the project identified in Section IX of this Consent Decree (Environmental 

Project) to the extent that such expenditures or payments both: (a) comply with the Project 

Dollar and other requirements set by this Consent Decree in Section IX of this Consent Decree 

(Environmental Project); and (b) constitute SIGECO’s external costs for contractors, vendors, 

6
 
and equipment, and its internal costs consisting of employee time, travel, and other expenses 

specifically attributable to this particular project and documented in accordance with Generally 

Accepted Accounting Principles (“GAAP”). 

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

C of Subchapter I of the Clean Air Act, 42 U.S.C. §§ 7470 - 7492 and 40 C.F.R. Part 52. 

28. “SCR” means a device that employs selective catalytic reduction technology for 

the reduction of nitrogen oxides. 

29. “SIGECO” means the Southern Indiana Gas and Electric Company, Inc. 

30. “SIGECO Culley Station” means, solely for purposes of this Consent Decree, the 

three (3) coal-fired, steam generating boilers designated as (with the rated MW(gross) capacity of 

each Unit noted in parentheses): F.B. Culley Unit 1 (50 MW), F.B. Culley Unit 2 (100 MW), and 

F.B. Culley Unit 3 (287 MW). 

31. “SO2 ” means sulfur dioxide, as measured in accordance with this Consent 

Decree. 

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

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

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

33. “State” means the State of Indiana. 

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

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

35. “Unit” means, for the purpose of this Consent Decree, collectively, the coal 

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

7
 
for the steam turbine, the steam turbine, the generator, the equipment necessary to operate the 

generator, steam turbine and boiler, and all ancillary equipment, including pollution control 

equipment, or systems necessary for the production of electricity. An electric utility steam 

generating station may be comprised of one or more Unit. 

IV. UNIT TO BE RE-POWERED AND CONTROLLED OR RETIRED 

36. By no later than December 31, 2004, SIGECO shall elect and notify EPA of such 

decision, to either re-power the F.B. Culley Unit 1 from a coal-fired to a natural gas fired unit, or 

retire and permanently cease to operate Unit 1. 

37. By no later than December 31, 2006, SIGECO shall either complete the re-power 

of F.B. Culley Unit 1 from a coal-fired to a natural gas fired unit and satisfy the NOx emission 

control requirements of Paragraphs 38 and 41, or retire and permanently cease to operate Unit 1. 

V. NOx EMISSION REDUCTIONS AND CONTROLS 

A. NOx Emission Controls 

38. If SIGECO elects to re-power F.B. Culley Unit 1 under Paragraph 36 above with 

a new combined cycle system, SIGECO shall install and commence continuous operation of 

Selective Catalytic Reduction technology ("SCR") so as to achieve a 30-Day Rolling Average 

Emission Rate not greater than 3.5 ppm NOx at F.B. Culley Unit 1 by no later than December 31, 

2006. If SIGECO elects to repower F.B. Culley Unit 1 under Paragraph 36 above using the 

existing boiler system, SIGECO shall install and commence continuous operation of the SCR for 

Culley Unit 1 so as to achieve a BACT-level emission rate for NOx as determined by the State 

permitting process, at F.B. Culley Unit 1 by no later than December 31, 2006. 

39. SIGECO shall continuously operate the SCR currently installed at F.B. Culley 

8
 
Unit 3 so as to achieve and maintain a 30-Day Rolling Average Emission Rate for NO 

greater than 0.100 lb/mmBTU by no later than September 1, 2003. 

x of not 

40. At any time after September 30, 2003, SIGECO may submit to the Plaintiff a 

proposed revision to the applicable 30-Day Rolling Average Emissions Rate for NOx on any 

SIGECO Culley Station Unit equipped with SCR and subject to a 30-Day Rolling Average 

Emission Rate. To make a successful petition, SIGECO must demonstrate that it cannot 

consistently achieve the Decree-mandated NOx emissions rate for the Unit in question, 

considering all relevant information, including but not limited to the past performance of the 

SCR, reasonable measures to achieve the designed level of performance of the SCR in question, 

the expected frequency of catalyst replacement, the performance of other NOx controls installed 

at the Unit, and the operational history of the Unit. SIGECO shall include in such proposal an 

alternative 30-Day Rolling Average Emissions Rate. SIGECO also shall retain a qualified 

contractor to assist in the performance and completion of the petition for an alternate 30-Day 

Rolling Average Emissions Rate for NOx. SIGECO shall deliver with each submission all 

pertinent documents and data that support or were considered in preparing such submission. If 

the Plaintiff disapproves the revised emission rate, such disagreement is subject to Section XVI 

(“Dispute Resolution”). SIGECO shall make any submission for any Unit under this Paragraph 

no later than fifteen months after the compliance date specified for that Unit in Paragraph 39. 

41. SIGECO shall continuously operate each SCR at Units 1 (if elected) and 3 at all 

times that the Unit it serves is in operation, consistent with the technological limitations, 

manufacturers’ specifications, and good operating practices for the SCR. 

9
 
B. Use of NOx Emission Allowances or Credits 

42. For any and all actions taken by SIGECO to conform to the requirements of this 

x 

emissions trading or marketing program of any kind. 

Consent Decree, SIGECO shall not sell or trade any resulting NO allowances or credits in an 

43. For any and all actions taken by SIGECO to conform to the requirements of this 

Consent Decree, NOx Allowances or credits generated at Culley Units 1, 2, and 3, may be used at 

Culley Units 1, 2, and 3 only, for compliance with any emissions trading or marketing program 

requirement. However, nothing in this Consent Decree shall be deemed to prohibit the use 

system-wide of any early reduction NOx credits resulting from the operation of Culley Unit 3 

SCR during the 2003 NOx ozone season, in accordance with the Indiana NOx SIP. 

44. SIGECO may not use, purchase or otherwise obtain NOx allowances or credits 

from another source for purposes of complying with the requirements of this Consent Decree. 

C. General NOx Provisions 

45. In determining Emission Rates for NOx, 

with those reference methods specified in 40 C.F.R. Part 75. 

SIGECO shall use CEMS in accordance 

46. In calculating the 30-day Rolling Average Emission Rate for NO 

Unit, SIGECO shall not exclude any period of time that the Unit is in operation, including 

x emission control technology for those Units is not in operation. 

x for a given 

periods in which any NO 

VI. SO2 EMISSION REDUCTIONS AND CONTROLS 

A. SO2 Emission Controls 

47. SIGECO shall improve the FGD serving Units 2 and 3 so as to achieve and 

maintain a 30-Day Rolling Average SO2 Removal Efficiency of at least 95 percent, by no later 

10
 
than June 30, 2004. 

48. SIGECO shall continuously operate the FGD serving Units 2 and 3 at all times 

that the Units are in operation, except as provided in Paragraph 49 below. Following startup of 

the Units, SIGECO need not operate the FGD until either Unit is fired with any coal. 

49. In the event of a planned FGD outage, SIGECO may continue to operate Unit 2 

but shall burn down the coal existing in the Unit 2 bunker to the extent practicable, and, prior to 

shutting down the FGD, load Compliance Coal into the bunker for use until such time as the 

FGD resumes operation. In the event of an unplanned FGD outage, SIGECO shall feed 

Compliance Coal to the Unit 2 bunker until such time as the FGD resumes operation. 

Compliance Coal is defined as 2.0 lb/mmBTU SO2 as demonstrated by a 4-hour composite 

sample of the feed stock. 

B. Use and Surrender of SO2 Allowances 

50. SIGECO shall not sell or trade, in an emissions trading or marketing program of 

any kind, SO2 Allowances that correspond to the incremental emissions reductions that result 

from: (1) the improved percent removal efficiency of the Unit 2 and 3 FGD system as described 

in Paragraph 47 (the difference between a 95 percent removal efficiency and the average 

removal efficiency from the years 2000, 2001, and 2002 as applied to the year in question); (2) 

the emissions reductions associated with the Unit 1 natural gas repowering or retirement as 

described in Paragraph 36; and (3) the emissions reductions associated with the feeding of 

Compliance Coal to Unit 2 in accordance with Paragraph 49. 

51. SIGECO may use the incremental emissions allowances described in Paragraph 

50 only to satisfy the operational needs of Culley Station, provided SIGECO first uses 

11
 
Allowances allocated for the given year that the emissions occur that are not the incremental 

allowances described in Paragraph 50 to satisfy the Culley Station operational needs. 

52. SIGECO shall surrender the incremental allowances described in Paragraph 50 

that exceed such allowances allocated for the given year necessary to meet the Culley Station 

operational needs as described in Paragraph 51. 

53. SIGECO may not use, purchase or otherwise obtain SO2 allowances from another 

source for purposes of complying with the requirements of this Consent Decree. 

54. For purposes of this Subsection, the “surrender of allowances” means 

permanently surrendering allowances from the accounts administered by EPA for all units at 

SIGECO’s Culley Station as specified in Paragraph 52, so that such allowances can never be 

used to meet any compliance requirement under the Clean Air Act, the Indiana State 

Implementation Plan, or this Consent Decree. 

55. Beginning with calendar year 2004, SIGECO shall surrender to EPA, or transfer 

to a non-profit third party selected by SIGECO for surrender, any SO2 Allowances that are 

required to be surrendered under Paragraph 52. Surrender shall occur annually thereafter and 

within 45 days of SIGECO’s receipt from EPA of the Annual Deduction Reports for SO2. 

SIGECO shall surrender SO2 Allowances by the use of applicable United States Environmental 

Protection Agency Acid Rain Program Allowance Transfer Form. 

56. If any allowances are transferred directly to a third party for purposes of 

surrender, SIGECO shall include a description of such transfer in the next report submitted to the 

Plaintiff pursuant to Section XII (Periodic Reporting) of this Consent Decree. Such report shall: 

(i) provide the identity of the non-profit third-party recipient(s) of the SO2 Allowances and a 

12
 
listing of the serial numbers of the transferred SO2 Allowances; and (ii) include a certification by 

the third-party recipient(s) stating that the recipient will not sell, trade, or otherwise exchange 

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

imposed by any environmental law. No later than the next periodic report due 12 months after 

the first report due after the transfer, SIGECO shall include in the periodic report to Plaintiff, 

required under Section XII, a statement that the third-party recipient(s) surrendered the SO2 

Allowances for permanent surrender to EPA within one year after SIGECO transferred the SO2 

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

requirements of this Paragraph until all third-party recipient(s) shall have actually surrendered 

the transferred SO2 Allowances to EPA for surrender. 

57. For all SO2 Allowances surrendered to EPA, SIGECO shall first submit an SO2 

Allowance transfer request form to EPA’s Office of Air and Radiation’s Clean Air Markets 

Division directing the transfer of the SO2 Allowances held or controlled by SIGECO to the EPA 

Enforcement Surrender Account or to any other EPA account that the Agency may direct. As 

part of submitting these transfer requests, SIGECO shall irrevocably authorize the transfer of 

these SO2 Allowances and identify -- by name of account and any applicable serial or other 

identification numbers or station names -- the source and location of the SO2 Allowances being 

surrendered. 

58. The requirements in Paragraphs 52 and 55 of this Decree pertaining to SIGECO’s 

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

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

13
 
C. General SO2 Provisions 

59. In determining Emission Rates for SO2, SIGECO shall use CEMS in accordance 

with those reference methods specified in 40 C.F.R. Part 75 and 40 C.F.R. Part 60. 

60. For Units that are required to be equipped with SO2 control equipment and that 

are subject to the 95% removal provisions, the outlet SO2 Emission Rate and the inlet SO2 

Emission Rate shall be determined in accordance with 40 C.F.R. § 75.15 (using SO2 CEMS data 

from both the inlet and outlet of the control device). 

VII. PM EMISSION REDUCTIONS AND CONTROLS 

A. Optimization of PM Controls 

61. By no later than July 15, 2003 and continuing thereafter, SIGECO shall 

continuously operate, at all times the Unit is combusting coal, each ESP on its Culley Station 

Units to maximize PM emission reductions, consistent with the operational and maintenance 

limitations of the Units. Specifically, SIGECO shall take measures including: (a) energize each 

section of the ESP for each Unit, regardless of whether that action is needed to comply with 

opacity limits; (b) maintain the energy or power levels delivered to the ESPs for each Unit to 

achieve the greatest possible removal of PM; and (c) make best efforts to expeditiously repair 

and return to service transformer-rectifier sets when they fail. 

B. Installation and Operation of a Baghouse 

62. By no later than June 30, 2007, SIGECO shall install and operate a Baghouse (a 

PM Control Device) at Unit 3 that achieves and maintains a PM Emission Rate of 0.015 

lb/mmBTU. 

63. SIGECO shall continuously operate the Baghouse at all times that Unit 3 is 

14
 
combusting coal. 

C. PM Monitoring 

64. By no later than December 31, 2003, and continuing biennially thereafter, 

SIGECO shall conduct performance testing on F.B. Culley Unit 3. Such performance tests may 

be satisfied by stack tests conducted in accordance with SIGECO’s permit from the State of 

Indiana. 

65. In determining the PM Emission Rate, SIGECO shall use the reference methods 

specified in 40 C.F.R. Part 60, Appendix A, Method 5, using stack tests, or alternative methods 

that are requested by SIGECO and approved by EPA. SIGECO shall also calculate the PM 

Emission Rates from biennial stack tests in accordance with 40 C.F.R. § 60.8(f). The results of 

each PM stack test shall be submitted to EPA within 45 days of completion of each test. 

VIII. PROHIBITION ON NETTING CREDITS FROM REQUIRED CONTROLS 

66. For any and all actions taken by SIGECO to comply with the requirements of this 

Consent Decree, any emission reductions generated shall not be considered as a creditable 

contemporaneous emission decrease for the purpose of obtaining a netting credit under the Clean 

Air Act’s PSD program. 

IX. ENVIRONMENTAL PROJECT 

67. SIGECO shall design, construct, operate, and analyze a Sulfuric Acid Reduction 

Project (“Project”) to reduce SO3 content in the flue gas of Culley Unit 3. The Project requires 

the injection of sodium bi-sulfite/sulfate in variable concentrations to determine the removal 

efficiency and viability of operation. The Project includes, but is not limited to, installation of 

pollution control technology including an injection grid, piping, pumps, storage tanks and a 

15
 
control system. 

68. SIGECO shall, by no later than June 30, 2004, commence operation of the 

Project. 

69. By no later than December 31, 2003, SIGECO shall submit to the Plaintiff for 

review and approval pursuant to Section XIII of this Consent Decree a plan for the 

implementation of the Project, including the date by which SIGECO will commence design and 

construction of the Project. To the extent that any changes to the Project may be required, 

SIGECO shall notify the Plaintiff of such changes within 60 days of becoming aware a change is 

necessary. SIGECO shall implement the Project in compliance with the schedules and terms of 

this Consent Decree and the plans for such Project approved under this Decree. 

70. For purposes of this Consent Decree, in performing the Project, including costs of 

operation (which includes the fair market value of the sodium bisulfite/sulfate solution), 

SIGECO shall, prior to December 31, 2007, spend no less than $2.5 million in Project Dollars 

(measured in calendar year 2003 constant dollars). SIGECO shall maintain all documents 

required by Generally Accepted Accounting Principles to substantiate the Project Dollars spent 

by SIGECO, and shall provide copies of these documents to the Plaintiff within 30 days of a 

request by the Plaintiff for these documents. 

71. All plans and reports prepared by SIGECO pursuant to the requirements of this 

Section in this Consent Decree shall be publicly available without charge, subject to the 

limitations contained in Paragraph 127. 

72. SIGECO shall certify, as part of each plan submitted to the Plaintiff for the 

Project, that it is unaware that the Project is required by law, other than by this Consent Decree. 

16
 
73. Within 60 days following the completion of the Project, SIGECO shall submit to 

EPA a report that documents the date that the Project was completed, SIGECO’s results of 

implementing the Project, including the emission reductions, the ability to ameliorate any 

incremental particulate loading from the SCR, or other environmental benefits achieved, and the 

Project Dollars expended by SIGECO in implementing the Project. 

74. Following the expenditure of $2.5 million for this Project, SIGECO shall continue 

to operate the Project, unless the Parties agree that the Project is no longer viable and effective to 

reduce emission of sulfuric acid, or the Project is no longer cost-effective to operate. In no event 

shall SIGECO be required to continue to operate the Project beyond December 31, 2010. 

75. SIGECO shall not financially benefit from the sale or transfer of the technology 

or the collection or distribution of information collected during the Project. 

76. SIGECO shall provide EPA with semi-annual updates concerning the progress of 

the Project. SIGECO also shall make information concerning the performance of the Project 

available to the public in an expeditious manner. Such information disclosure shall include, but 

not be limited to, release of periodic progress reports identifying the reduction of sulfuric acid, 

sorbent injection rates, and cost. In addition, periodic technology transfer open houses and plant 

tours shall be scheduled. 

X. CIVIL PENALTY 

77. Within thirty (30) calendar days of entry of this Consent Decree, SIGECO shall 

pay to the United States a civil penalty in the amount of $600,000. The civil penalty shall be 

paid by Electronic Funds Transfer ("EFT") to the United States Department of Justice, in 

accordance with current EFT procedures, referencing the USAO File Number 1999V00828 and 

17
 
DOJ Case Number 90-5-2-1-06966 and the civil action case name and case number of this 

action, with notice given to the Plaintiff, in accordance with Section XIX (Notices) of this 

Consent Decree. The costs of such EFT shall be SIGECO’s responsibility. Payment shall be 

made in accordance with instructions provided to SIGECO by the Financial Litigation Unit of 

the U.S. Attorney's Office for the Southern District of Indiana. Any funds received after 2:00 

p.m. EDT shall be credited on the next business day. At the time of payment, SIGECO shall 

provide notice of payment, referencing the USAO File Number, DOJ Case Number 90-5-2-1-

06966, and the civil action case name and case number, to the Department of Justice and to EPA, 

as provided in Paragraph 129 (Notice) of this Consent Decree. 

78. Failure to timely pay the civil penalty shall subject SIGECO to interest accruing 

from the date payment is due until the date payment is made at the rate prescribed by 28 U.S.C. § 

1961, and shall render SIGECO 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. 

79. Payments made pursuant to this Section are penalties within the meaning of 

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

expenditures for purposes of federal law. 

XI. RESOLUTION OF PAST CLAIMS 

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

arose from any modifications that commenced at the Culley plant prior to the date of lodging of 

this Consent Decree, including those modifications alleged against SIGECO in the Amended 

Complaint filed January 4, 2000. 

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XII. PERIODIC REPORTING 

81. Within 180 days of the installation of the Baghouse in Paragraph 62, or the SCR 

on Unit 1 if elected in accordance with Paragraph 36, SIGECO shall conduct performance tests 

that demonstrate compliance with the Emission Rate or Removal Efficiency required by this 

Consent Decree. Within 45 days of each such performance test, SIGECO shall submit the results 

of the performance test to EPA at the address specified in Section XIX (Notices) of this Consent 

Decree. 

82. Beginning thirty days after the calendar quarter ending December 31, 2003, 

continuing on a semi-annual basis until December 31, 2010, unless prior to this date the Consent 

Decree terminates under Section XXVII, and in addition to any other express reporting 

requirement in this Consent Decree, SIGECO shall submit to EPA a progress report. 

83. The progress report shall contain the following information: 

a. all information necessary to determine compliance with this Consent 

Decree; and 

b. all information indicating that the installation and/or commencement of 

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

cause of the delay, and any steps taken by SIGECO to mitigate such delay. 

84. In any periodic progress report submitted pursuant to this Section, SIGECO may 

incorporate by reference information previously submitted under its Title V permitting 

requirements, provided that SIGECO attaches the Title V permit report and provides a specific 

reference to the provisions of the Title V permit report that are responsive to the information 

sought in the periodic progress report. 

19
 
85. In addition to the progress reports required pursuant to this Section, SIGECO 

shall provide a written report to the Plaintiff of any violation of the requirements of this Consent 

Decree, including, but not limited to, exceedances of required Emission Rates and removal 

efficiencies, within 10 business days of when SIGECO knew or should have known of any such 

violation. In this report, SIGECO shall explain the cause or causes of the violation and all 

measures taken or to be taken by SIGECO to prevent such violations in the future. 

86. Each SIGECO report shall be signed by a SIGECO Vice President, 

Environmental Director, the General Counsel, or similarly ranked company official, and shall 

contain the following certification: 

This information was prepared either by me or under my direction or supervision 

in accordance with a system designed to assure that qualified personnel properly 

gather and evaluate the information submitted. Based on my evaluation, or the 

directions and my inquiry of the person(s) who manage the system, or the 

person(s) directly responsible for gathering the information, I hereby certify under 

penalty of law that, to the best of my knowledge and belief, this information is 

true, accurate, and complete. I understand that there are significant penalties for 

submitting false, inaccurate, or incomplete information to the United States. 

87. If any allowances are surrendered to any third party pursuant to Section VI.B of 

this Consent Decree, the third party’s certification shall be signed by a managing officer of the 

third party and shall contain the following language: 

I certify under penalty of law that,_____________ [name of third party] 

will not sell, trade, or otherwise exchange any of the allowances and will not use 

any of the allowances to meet any obligation imposed by any environmental law. 

I understand that there are significant penalties for making false, inaccurate, or 

incomplete information to the United States. 

XIII. REVIEW AND APPROVAL OF SUBMITTALS 

88. SIGECO shall submit and complete each plan, report, or other item to Plaintiff 

whenever such a document is required to be submitted for review or approval pursuant to this 

20
 
Consent Decree. EPA may approve the submittal or decline to approve it and provide written 

comments. Within 60 days of receiving written comments from EPA, SIGECO shall either: (i) 

alter the submittal consistent with the written comments and provide the revised submittal for 

final approval to EPA if called for in this Consent Decree; or (ii) submit the matter for dispute 

resolution, including the period of informal negotiations, under Section XVI (Dispute 

Resolution) of this Consent Decree. 

89. Upon receipt of EPA’s final approval of the submittal, or after dispute resolution, 

SIGECO shall implement the approved submittal or the submittal as revised by dispute 

resolution. 

XIV. STIPULATED PENALTIES 

90. For any failure by SIGECO to comply with the terms of this Consent Decree, and 

subject to the provisions of Sections XV (Force Majeure) and XVI (Dispute Resolution), 

SIGECO shall pay, within 30 days after written demand to SIGECO by the United States the 

following stipulated penalties to EPA: 

Consent Decree Violation Stipulated Penalty 

(Per day per violation, unless 

otherwise specified) 

a. Failure to pay the civil penalty as specified in Section X 

(Civil Penalty) of this Consent Decree 

$10,000 

b. Failure to meet any 30-Day Rolling Average Emission 

Rate, any 30-Day Rolling Average Removal Efficiency, or 

any other Emission Rate or emission limitation, where the 

violation is less than 5% in excess of the limits set forth in 

this Consent Decree 

$2,500 

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c. Failure to meet any 30-Day Rolling Average Emission 

Rate, any 30-Day Rolling Average Removal Efficiency, or 

any other Emission Rate or emission limitation, 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 

d. Failure to meet any 30-Day Rolling Average Emission 

Rate, any 30-Day Rolling Average Removal Efficiency, or 

any other Emission Rate or emission limitation, where the 

violation is equal to or greater than 10% in excess of the 

limits set forth in this Consent Decree 

$10,000 

e. Failure to install, commence operation, or continue 

operation of the NOx, SO2, and PM pollution control 

devices on any Unit, or failure to retire a Unit 

$10,000 during the first 30 

days, $27,500 thereafter 

f. Failure to conduct performance tests of PM emissions, as 

required by Section VII 

$1,000 

g. Failure to apply for the permits required by Section 

XVII 

$1,000 

h. Failure to timely submit, modify, or implement as 

approved the reports, plans, studies, analyses, protocols, or 

other submittals required by this Consent Decree 

$750 for the first ten days, 

$1,000 thereafter. 

i. Using, selling, or transferring SO2 Allowances in 

contravention of Section VI 

(a) $2,000 per SO2 Allowance 

ton, plus (b) the surrender of 

SO2 Allowances in an amount 

equal to the SO2 Allowances 

used, sold, or transferred in 

violation of the Decree 

j. Using, selling or transferring NOx allowances or credits in 

contravention of Section V 

(a) $4,000 per NOx Allowance 

and credit ton, plus (b) the 

surrender of NOx allowances or 

credits in an amount equal to 

the NOx allowances or credits 

used, sold, or transferred in 

violation of the Decree 

k. Failure to surrender an SO2 Allowance in accordance 

with Section VI 

(a) $27,500 plus (b) $1,000 per 

SO2 Allowance 

22
 
l. Failure to demonstrate the third-party surrender of an 

SO2 Allowance in accordance with Section VI 

$2,500 

m. Failure to undertake and complete the Environmental 

Project in compliance with Section IX (Environmental 

Project) 

$1,000 for the first 30 days, 

$5,000 thereafter 

n. Any other violation of this Consent Decree $1,000 

91. Violation of an Emission Rate or Removal Efficiency that is based on a 30-Day 

Rolling Average is a violation on every day on which the average is based. 

92. Where a violation of a 30-Day Rolling Average Emission Rate or Removal 

Efficiency (for the same pollutant and from the same source) recurs within periods less than 30 

days, SIGECO shall not pay a daily stipulated penalty for any day of the recurrence for which a 

stipulated penalty has already been paid. 

93. All stipulated penalties shall begin to accrue on the day after the performance is 

due or on the day a violation occurs, whichever is applicable, and shall continue to accrue until 

performance is satisfactorily completed or until the violation ceases. Nothing herein shall 

preclude the simultaneous accrual of separate penalties for separate violations of this Consent 

Decree. 

94. SIGECO shall not be liable for stipulated penalties for failure to meet the 

emissions rate requirement in Paragraph 39 until January 1, 2004. 

95. SIGECO shall pay all stipulated penalties to the United States, in the manner set 

forth below in Paragraph 97, within 30 days of any violation of this Consent Decree, and shall 

continue to make such payments every 30 days thereafter until the violation(s) no longer 

continues, unless SIGECO elects within 20 days of the violation to dispute the accrual of 

stipulated penalties in accordance with the provisions in Section XVI (Dispute Resolution) of 

23
 
this Consent Decree. 

96. Penalties shall continue to accrue as provided in accordance with Paragraph 93 

during any dispute, with interest on accrued penalties payable and calculated at the rate 

established by the Secretary of the Treasury, pursuant to 28 U.S.C. § 1961, but need not be paid 

until the following: 

a.	 If the dispute is resolved by agreement or by a decision of the Plaintiff that is not 

appealed to the Court, accrued penalties determined to be owing, together with 

accrued interest, shall be paid to the United States within thirty (30) days of the 

effective date of the agreement or the receipt of EPA’s decision or order; 

b.	 If the dispute is appealed to the Court and the Plaintiff prevails in whole or in 

part, SIGECO shall, within sixty (60) days of receipt of the Court’s decision or 

order, pay all accrued penalties determined by the Court to be owing, together 

with accrued interest, except as provided in Subparagraph c, below; 

c.	 If the District Court’s decision is appealed by any Party, SIGECO shall, within 

fifteen (15) days of receipt of the final appellate court decision, pay all accrued 

penalties determined to be owing to the United States, together with accrued 

interest. 

97. All stipulated penalties must be paid within thirty (30) days of the date payable, 

and payment shall be made in the manner set forth in Section X of this Consent Decree (Civil 

Penalty). 

98. Should SIGECO fail to pay stipulated penalties in compliance with the terms of 

this Consent Decree, the United States shall be entitled to collect interest on such penalties, as 

24
 
provided for in 28 U.S.C. § 1961. 

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

to any other rights, remedies, or sanctions available to the Plaintiff by reason of SIGECO’s 

failure to comply with any requirement of this Consent Decree or applicable law, except that for 

any violation of the Act for which this Consent Decree also provides for payment of a stipulated 

penalty, SIGECO shall be allowed a credit for stipulated penalties paid against any statutory 

penalties imposed for such violation. 

XV. FORCE MAJEURE 

100. For purposes of this Consent Decree, a “Force Majeure Event” shall mean an 

event that has been or will be caused by circumstances beyond the control of SIGECO, its 

contractors, or any entity controlled by SIGECO that delays compliance with any provision of 

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

despite SIGECO’s best efforts to fulfill the obligation. “Best efforts to fulfill the obligation” 

includes using best efforts to anticipate any potential Force Majeure Event and to address the 

effects of any such event (a) as it is occurring and (b) after it has occurred, such that the delay or 

violation is minimized to the greatest extent possible. 

101. Notice. If any event occurs or has occurred that may delay compliance with or 

otherwise cause a violation of any obligation under this Consent Decree, as to which SIGECO 

intends to assert a claim of force majeure, SIGECO shall notify the Plaintiff in writing as soon as 

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

first knew, or by the exercise of due diligence should have known, that the Force Majeure Event 

caused or may cause such delay or violation. In this notice SIGECO shall reference this 

25
 
Paragraph of this Consent Decree and describe the anticipated length of time that the delay or 

violation may persist, the cause or causes of the delay or violation, all measures taken or to be 

taken by SIGECO to prevent or minimize the delay or violation, the schedule by which SIGECO 

proposes to implement those measures, and SIGECO’s rationale for attributing a delay or 

violation to Force Majeure Event. SIGECO shall adopt all reasonable measures to avoid or 

minimize such delays or violations. SIGECO shall be deemed to know of any circumstance of 

which SIGECO, its contractors, or any entity controlled by SIGECO knew or should have 

known. 

102. Failure to Give Notice. If SIGECO fails to comply with the notice requirements 

of this Section, the Plaintiff may void SIGECO’s claim for Force Majeure as to the specific event 

for which SIGECO has failed to comply with such notice requirement. 

103. Plaintiff’s Response. The EPA shall notify SIGECO in writing regarding 

SIGECO’s claim of Force Majeure within (20) twenty business days of receipt of the notice 

provided under Paragraph 101. If the Plaintiff agrees that a delay in performance has been or 

will be caused by a Force Majeure Event, the Parties shall stipulate to an extension of deadline(s) 

for performance of the affected compliance requirement by a period not to exceed the delay 

actually caused by the event. In such circumstances, an appropriate modification shall be made 

pursuant to Section XXIII of this Consent Decree (Modification). 

104. Disagreement. If the Plaintiff does not accept SIGECO’s claim of Force Majeure, 

the matter shall be resolved in accordance with Section XVI of this Consent Decree (Dispute 

Resolution). 

105. Burden of Proof. In any dispute regarding Force Majeure, SIGECO shall bear the 

26
 
burden of proving that any delay in performance or any other violation of any requirement of this 

Consent Decree was caused by or will be caused by a Force Majeure Event. SIGECO shall also 

bear the burden of proving that SIGECO gave the notice required by this Section and the 

anticipated duration and extent of any delay(s) attributable to a Force Majeure Event. An 

extension of one compliance date based on a particular event may, but will not necessarily, result 

in an extension of a subsequent compliance date. 

106. Events Excluded. Unanticipated or increased costs or expenses associated with 

the performance of SIGECO’s obligations under this Consent Decree shall not constitute a 

Force Majeure Event. 

107. Potential Force Majeure Events. The Parties agree that, depending upon the 

circumstances related to an event and SIGECO’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; acts of God; acts of war or 

terrorism; and Malfunctions, as defined herein. Depending upon the circumstances and 

SIGECO’s response to such circumstances, failure of a permitting authority to issue a necessary 

permit in a timely fashion may constitute a Force Majeure Event where the failure of the 

permitting authority to act is beyond the control of SIGECO and SIGECO has taken all steps 

available to it to obtain the necessary permit, including, but not limited to, submitting a complete 

permit application, responding to requests for additional information by the permitting authority 

in a timely fashion, accepting lawful permit terms and conditions, and prosecuting in an 

expeditious fashion appeals of any allegedly unlawful terms and conditions imposed by the 

permitting authority. 

27
 
108. For purposes of this Section, a “Malfunction” shall have the meaning set forth in 

40 C.F.R. § 60.2: 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. 

109. As part of the resolution of any matter submitted to this Court under this Section, 

the Parties by agreement, or this Court by order, may in appropriate circumstances extend or 

modify the schedule for completion of work under this Consent Decree to account for the delay 

in the work that occurred as a result of any delay agreed to by the Plaintiff or approved by this 

Court. SIGECO shall be liable for stipulated penalties for its failure thereafter to complete the 

work in accordance with the extended or modified schedule. 

XVI. DISPUTE RESOLUTION 

110. The dispute resolution procedure provided by this Section shall be available to 

resolve all disputes arising under this Consent Decree, except as provided in either this Section 

(Dispute Resolution) or Section XV (Force Majeure) of this Consent Decree, provided that the 

Party making such application has first made a good faith attempt to resolve the matter with the 

other Party. 

111. The dispute resolution procedure required herein shall be invoked by one Party to 

this Consent Decree giving written notice to the other party to this Consent Decree advising of a 

dispute pursuant to this Section. The notice shall describe the nature of the dispute and shall 

state the noticing Party's position with regard to such dispute. The Party receiving such a notice 

shall acknowledge receipt of the notice, and the Parties in dispute shall expeditiously schedule a 

meeting to discuss the dispute informally not later than fourteen (14) days following receipt of 

28
 
such notice. 

112. Disputes submitted to dispute resolution under this Section shall, in the first 

instance, be the subject of informal negotiations among the disputing Parties. Such period of 

informal negotiations shall not extend beyond thirty (30) calendar days from the date of the first 

meeting among the disputing Parties’ representatives unless they agree to shorten or extend this 

period. 

113. If the disputing Parties are unable to reach agreement during the informal 

negotiation period, the Plaintiff shall provide SIGECO with a written summary of its position 

regarding the dispute. The written position provided by the Plaintiff shall be considered binding 

unless, within forty-five (45) calendar days thereafter, SIGECO seeks judicial resolution of the 

dispute by filing with this Court a petition. The Plaintiff may respond to the petition within 

forty-five (45) calendar days of filing. 

114. Where the nature of the dispute is such that a more timely resolution of the issue 

is required, the time periods set out in this Section may be shortened upon motion of one of the 

Parties to the dispute. 

115. This Court shall not draw any inferences nor establish any presumptions adverse 

to any disputing Party as a result of invocation of this Section or the disputing Parties' inability to 

reach agreement. 

116. As part of the resolution of any dispute under this Section, in appropriate 

circumstances the disputing Parties may agree, or this Court may order, an extension or 

modification of the schedule for the completion of the activities required under this Consent 

Decree to account for the delay that occurred as a result of dispute resolution. SIGECO shall be 

29
 
liable for stipulated penalties for its failure thereafter to complete the work in accordance with 

the extended or modified schedule. 

117. The Court shall decide all disputes pursuant to applicable principles of law for 

resolving such disputes. In their initial filings with the Court under Paragraph 113, the disputing 

Parties shall state their respective positions as to the applicable standard of law for resolving the 

particular dispute. 

XVII. PERMITS AND STATE IMPLEMENTATION PLAN 

118. Unless expressly stated otherwise in this Consent Decree, in any instance where 

otherwise applicable law or this Consent Decree requires SIGECO to secure a permit to 

authorize constructing or operating any device, including all preconstruction, construction, and 

operating permits required under state law, SIGECO shall make such application in a timely 

manner. EPA will use its best efforts to expeditiously review all permit applications submitted 

pursuant to this Consent Decree. 

119. When permits are required by Paragraph 118, SIGECO shall complete and submit 

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

required processing and review of the permit request. Any failure by SIGECO to submit a 

timely permit application for any Unit at the Culley plant shall bar any use by SIGECO of 

Section XV (Force Majeure), where a Force Majeure claim is based on that permitting delay. 

120. Notwithstanding the reference to Title V permits in this Consent Decree, the 

enforcement of such permits shall be in accordance with their own terms and the Act. The Title 

V permits shall not be directly enforceable under this Decree, although any term or limit 

established by or under this Decree shall be enforceable under this Decree regardless of whether 

30
 
such term has or will become part of a Title V permit, subject to the terms of Section XXVII 

(Termination of Consent Decree). 

121. Within ninety (90) days of entry of this Consent Decree, SIGECO shall amend 

any applicable Title V permit application, or apply for amendments of its Title V permits, to 

include a schedule for all performance, operational, maintenance, and control technology 

requirements established by this Consent Decree, including but not limited to, Emission Rates, 

Removal Efficiencies, and the requirements in Paragraphs 52 and 55 pertaining to surrender of 

SO2 Allowances. 

122. Within one year from the commencement of operation of each pollution control 

device to be installed, upgraded or operated on a continuous basis under this Consent Decree, 

SIGECO shall apply to modify its Title V permit for the Unit where such device is installed, 

upgraded or operated to reflect all new requirements applicable to that Unit, including, but not 

limited to any applicable 30-Day Rolling Average Emission Rate or Removal Efficiency. 

123. SIGECO shall provide Plaintiff with a copy of each application to amend its Title 

V permit, 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. 

124. SIGECO shall request a source-specific SIP revision that incorporates enforceable 

unit-specific emission limitations and control requirements. 

XVIII. INFORMATION COLLECTION AND RETENTION 

125. Any authorized representative of the United States or Indiana, including their 

attorneys, contractors, and consultants, upon presentation of credentials, shall have a right of 

entry upon the premises of the Culley Generation Station at any reasonable time for the purpose 

31
 
of: 

a. monitoring the progress of activities required under this Consent Decree; 

b.	 verifying any data or information submitted to the Plaintiff in accordance with the 

terms of this Consent Decree; 

c.	 obtaining samples and, upon request, splits of any samples taken by SIGECO or 

its representatives, contractors, or consultants; and 

d. assessing SIGECO’s compliance with this Consent Decree. 

126. SIGECO shall retain, and instruct its contractors and agents to preserve all nonidentical copies of all records and documents (including records and documents in electronic 

form) now in its or its contractors’ or agents’ possession or control, and that directly relate to 

SIGECO’s performance of its obligations under this Consent Decree for a period of ten years 

from date of entry of the decree. This record retention requirement shall apply regardless of any 

corporate document-retention policy to the contrary. 

127. All information and documents submitted by SIGECO pursuant to this Consent 

Decree shall be subject to any requests under applicable law providing public disclosure of 

documents unless (a) the information and documents are subject to legal privileges or protection 

or (b) SIGECO claims and substantiates that the information and documents contain confidential 

business information in accordance with 40 C.F.R. Part 2. 

128. Nothing in this Consent Decree shall limit the authority of the Plaintiff to conduct 

tests and inspections at Culley Generation Station under Section 114 of the Act, 42 U.S.C. 

§ 7414, or any other applicable federal or state laws, regulations, or permits. 

32
 
XIX. NOTICES 

129. Unless otherwise provided herein, whenever notifications, submissions, or 

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

addressed as follows: 

As to the United States of America: 

Chief, Environmental Enforcement Section 
 

Environment and Natural Resources Division 
 

U.S. Department of Justice 
 

P.O. Box 7611, Ben Franklin Station 
 

Washington, D.C. 20044-7611
 

DJ# 90-5-2-1-06966
 

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 V
 

77 West Jackson Blvd.
 

Chicago, Illinois 60604-3590
 

As to SIGECO :
 

Angila M. Retherford, Environmental Director
 

SOUTHERN INDIANA GAS & ELECTRIC COMPANY
 

20 NW Fourth Street
 

Evansville, Indiana 47741
 

and
 

Ronald E. Christian
 

Executive Vice President
 

33
 
SOUTHERN INDIANA GAS & ELECTRIC COMPANY
 

20 NW Fourth Street
 

Evansville, Indiana 47741
 

130. All notifications, communications, or submissions made pursuant to this Section 

shall be sent by overnight mail or by certified or registered mail, return receipt requested. All 

notifications, communications, and transmissions sent by overnight, certified or registered mail 

shall be deemed submitted on the date they are postmarked. 

131. Any Party may change either the notice recipient or the address for providing 

notices to it by serving all other Parties with a notice setting forth such new notice recipient or 

address. 

XX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS 

132. If SIGECO proposes to sell or transfer part or all of its ownership interest in any 

Unit at SIGECO Culley Station (“Ownership Interest”) to an entity unrelated to SIGECO (Third 

Party Purchaser), it shall advise the Third Party Purchaser in writing of the existence of this 

Consent Decree prior to such sale or transfer, and shall send a copy of such written notification 

to the Plaintiff pursuant to Section XIX (Notices) at least 60 days before such proposed sale or 

transfer. 

133. No sale or transfer of an Ownership Interest shall take place before the Third 

Party Purchaser and EPA have executed, and the Court has approved, a modification pursuant to 

Section XXIII (Modification) of this Consent Decree making the Third Party Purchaser a party 

defendant to this Consent Decree and jointly and severally liable with SIGECO for all the 

requirements of this Decree that may be applicable to the transferred or purchased Ownership 

Interests, including joint and several liability with SIGECO for all requirements specific to the 

34
 
Units at SIGECO Culley Station, as well as all requirements in this Consent Decree that are not 

specific to these Units, except as provided in Paragraph 135. 

134. This Consent Decree shall not be construed to impede the transfer of any 

Ownership Interests between SIGECO and any Third Party Purchaser as long the requirements 

of this Consent Decree are met. This Consent Decree shall not be construed to prohibit a 

contractual allocation – as between SIGECO and any Third Party Purchaser of Ownership 

Interests – of the burdens of compliance with this Decree, provided that SIGECO and such Third 

Party Purchaser shall remain liable to the Plaintiff for the obligations of the Decree applicable to 

the transferred or purchased Ownership Interests, except as provided in Paragraph 135. 

135. If EPA agrees, EPA, SIGECO, and the Third Party Purchaser that has become a 

party defendant to this Consent Decree pursuant to Paragraph 133 above, may execute a 

modification that relieves SIGECO of its liability under this Consent Decree and makes the 

Third Party Purchaser liable for all obligations and liabilities applicable to the purchased or 

transferred Ownership Interests. Notwithstanding the foregoing, however, SIGECO may not 

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

specific to the purchased or transferred Ownership Interests, including the obligations set forth in 

Sections IX (Environmental Project) and X (Civil Penalty). SIGECO may propose and the EPA 

may agree to restrict the scope of joint and several liability of any purchaser or transferee for any 

obligations of this Consent Decree that are not specific to the Unit, to the extent such obligations 

may be adequately separated in an enforceable manner. 

XXI. EFFECTIVE DATE 

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

35
 
Consent Decree is entered by the Court. 

XXII. RETENTION OF JURISDICTION 

137. Continuing Jurisdiction. The Court shall retain jurisdiction of this case after entry 

of this Consent Decree to enforce compliance with the terms and conditions of this Consent 

Decree and to take any action necessary or appropriate for its interpretation, construction, 

execution, modification, or adjudication of disputes. During the term of this Consent Decree, 

any Party to this Consent Decree may apply to the Court for any relief necessary to construe or 

effectuate this Consent Decree. 

XXIII. MODIFICATION 

138. The terms of this Consent Decree may be modified only by a subsequent written 

agreement signed by all the Parties. Where the modification constitutes a material change to any 

term of this Decree, it shall be effective only upon approval by the Court. 

XXIV. GENERAL PROVISIONS 

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

Decree does not guarantee compliance with all applicable Federal, State, or Local laws or 

regulations. 

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

141. In any subsequent administrative or judicial action initiated by the Plaintiff for 

injunctive relief or civil penalties relating to the facilities covered by this Consent Decree, 

SIGECO shall not assert any defense or claim based upon principles of waiver, res judicata, 

collateral estoppel, issue preclusion, claim preclusion, or claim splitting, or any other defense 

based upon the contention that the claims raised by the Plaintiff in the subsequent proceeding 

36
 
were brought, or should have been brought, in the instant case; provided, however, that nothing 

in this Paragraph is intended to affect the validity of Section XI (Resolution of Past Claims). 

142. Except as specifically provided by this Consent Decree, nothing in this Consent 

Decree shall relieve SIGECO of its obligation to comply with all applicable Federal, State, and 

Local laws and regulations. Subject to the provisions in Section XI (Resolution of Past Claims) 

of this Consent Decree, nothing contained in this Consent Decree shall be construed to prevent 

or limit the United States’s rights to obtain penalties or injunctive relief under the Act or other 

federal, state, or local statutes, regulations, or permits. 

143. Every term expressly defined by this Consent Decree shall have the meaning 

given to that term by this Consent Decree, and, except as otherwise provided in this Decree, 

every other term used in this Decree that is also a term under the Act or the regulations 

implementing the Act shall mean in this Decree what such term means under the Act or those 

implementing regulations. 

144. Nothing in this Consent Decree alters or waives any applicable law (including but 

not limited to, any defenses, entitlements, or clarifications related to the Credible Evidence Rule 

(62 Fed. Reg. 8314, Feb. 27, 1997)), concerning the use of data for any purpose under the Act, 

generated by the reference methods specified herein or otherwise. 

145. Each limit and/or other requirement established by or under this Decree is a 

separate, independent requirement. 

146. This Consent Decree does not limit, enlarge or affect the rights of any Party to 

this Consent Decree as against any third parties. 

147. This Consent Decree constitutes the final, complete and exclusive agreement and 

37
 
understanding among the Parties with respect to the settlement embodied in this Consent Decree, 

and supercedes all prior agreements and understandings among the Parties related to the subject 

matter herein. No document, representation, inducement, agreement, or 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. 

148. Each Party to this action shall bear its own costs and attorneys' fees. 

149. This Decree may be executed in two or more counterparts, each of which shall be 

deemed an original, but all of which together shall constitute one and the same Decree. 

XXV. SIGNATORIES AND SERVICE 

150. 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 the Party he or she represents to this document. 

151. This Consent Decree may be signed in counterparts, and such counterpart 

signature pages shall be given full force and effect. 

152. Each Party hereby agrees to accept service of process by mail with respect to all 

matters arising under or relating to this Consent Decree and to waive the formal service 

requirements set forth in Rule 4 of the Federal Rules of Civil Procedure and any applicable Local 

Rules of this Court including, but not limited to, service of a summons. 

XXVI. PUBLIC COMMENT 

153. 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 

38
 
comment, and the right of the United States to withdraw or withhold consent if the comments 

disclose facts or considerations which indicate that the Consent Decree is inappropriate, 

improper, or inadequate. SIGECO shall not oppose entry of this Consent Decree by this Court or 

challenge any provision of this Consent Decree unless the United States has notified SIGECO, in 

writing, that the United States no longer supports entry of the Consent Decree. 

XXVII. TERMINATION OF CONSENT DECREE 

154. Termination as to Completed Tasks. As soon as SIGECO completes a 

construction project or any other requirement of this Consent Decree that is not ongoing or 

recurring, SIGECO may seek termination of the provisions of this Consent Decree that impose 

the requirement. 

155. Plaintiff or SIGECO may seek termination of this Consent Decree, provided 

SIGECO: 

a. has successfully installed and commenced operation of all pollution controls 

required by this Decree; 

b. has requested and obtained a source-specific SIP revision that incorporates 

enforceable unit-specific emission limitations and other requirements under this Consent Decree; 

c. has requested and obtained a final Title V permit as required by the terms of 

this Consent Decree, that covers all Units in this Consent Decree, and that includes as 

enforceable permit terms all of the Unit performance and other requirements under Section XVII 

(Permits); 

d. has paid all penalties prescribed in Sections X and XIV, and has expended 

$2.5 million for the Project described in Section IX; 

39
 
e. has otherwise complied with every other obligation of this Consent Decree; 

and 

f. has certified the information in a, b, c, d, and e above, and the Plaintiff agrees, 

following receipt of SIGECO’s certification, that the obligations outlined in a, b, c, d, and e 

above have been met. 

156. In the event that the State of Indiana does not act on SIGECO’s request set forth 

in Paragraph 155b and c above, SIGECO may nevertheless seek to terminate this Consent 

Decree, with the exception of emission rates or limitations and monitoring requirements of the 

Consent Decree. 

XVIII. FINAL JUDGMENT 

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

Decree shall constitute a final judgment between the Plaintiff and SIGECO. 

SO ORDERED, THIS _____ DAY OF ________________, 2003. 

_________________________________________ 

UNITED STATES DISTRICT COURT JUDGE 

40
 
FOR THE UNITED STATES OF AMERICA:

_________________________________

THOMAS L. SANSONETTI

Assistant Attorney General

Environmental and Natural Resources Division

United States Department of Justice

_________________________________

ARNOLD ROSENTHAL

Senior Attorney

Environmental Enforcement Section

Environmental and Natural Resources Division

United States Department of Justice
SUSAN W. BROOKS 

United States Attorney 

____________________________
 

THOMAS E. KIEPER
 

Assistant U.S. Attorney
 

U.S. Attorney’s Office
 

Southern District of Indiana
 
________________________________
 

JOHN PETER SUAREZ
 

Assistant Administrator
 

Office of Enforcement and Compliance Assurance
 

United States Environmental Protection Agency
 

________________________________
 

BRUCE C. BUCKHEIT
 

Director, Air Enforcement Division
 

Office of Enforcement and Compliance Assurance
 

United States Environmental Protection Agency
 

________________________________
 

LOAN K.P. NGUYEN
 

Attorney Advisor
 

Air Enforcement Division
 

Office of Enforcement and Compliance Assurance
 

United States Environmental Protection Agency
 
________________________________
 

THOMAS V. SKINNER
 

Regional Administrator
 

Region 5
 

United States Environmental Protection Agency
 

________________________________
 

REGINALD A. PALLESEN
 

Associate Regional Counsel
 

Region 5
 

United States Environmental Protection Agency
 
FOR SIGECO :
 

_____________________________
 

WILLIAM S. DOTY
 

President
 

SOUTHERN INDIANA GAS & ELECTRIC
 

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