IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

 

UNITED STATES OF AMERICA, et al., ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Action No: 2:99-CV-1181 

 ) JUDGE EDMUND A. SARGUS, JR. 

 ) 

OHIO EDISON COMPANY and PENNSYLVANIA) 

POWER COMPANY, subsidiary of Ohio Edison, ) 

 ) 

 Defendants. ) 

 ) 

 

CONSENT DECREE

March 18, 2005 
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TABLE OF CONTENTS

I. JURISDICTION AND VENUE ......................................................................................... 2 

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

III. DEFINITIONS.................................................................................................................... 3 

IV. NOX EMISSION REDUCTIONS AND CONTROLS....................................................... 9 

A. NOX Emission Controls ...................................................................................................... 9 

B. Plant-Wide Annual Cap for NOX...................................................................................... 15 

C. Interim NOX Emission Reductions ................................................................................... 16 

D. Use of NOX Allowances ................................................................................................... 16 

E. General NOX Provisions ................................................................................................... 19 

V. SO2 EMISSION REDUCTIONS AND CONTROLS ...................................................... 20 

A. SO2 Emission Controls ..................................................................................................... 20 

B. Plant-Wide Annual and Monthly Caps for SO2 ................................................................ 26 

C. SO2 Interim Emission Reductions .................................................................................... 27 

D. Surrender of SO2 Allowances ........................................................................................... 28 

E. General SO2 Provisions..................................................................................................... 30 

VI. PM EMISSION REDUCTIONS AND CONTROLS....................................................... 31 

A. Demonstration and Compliance with PM Emission Limit............................................... 31 

B. PM Monitoring ................................................................................................................. 31 

VII. SUBSTITUTION OF ECO TECHNOLOGY .................................................................. 32 

VIII. PROHIBITION ON NETTING CREDITS OR OFFSETS FROM REQUIRED 

CONTROLS ..................................................................................................................... 36

IX. ENVIRONMENTALLY BENEFICIAL PROJECTS ..................................................... 37 

X. CIVIL PENALTY............................................................................................................. 39

XI. RESOLUTION OF CLAIMS ........................................................................................... 39 

XII. PERIODIC REPORTING................................................................................................. 40 

XIII. REVIEW AND APPROVAL OF SUBMITTALS........................................................... 42 

XIV. STIPULATED PENALTIES............................................................................................ 42 

XV. FORCE MAJEURE .......................................................................................................... 46 

XVI. DISPUTE RESOLUTION................................................................................................ 49 

XVII. PERMITS.......................................................................................................................... 50 
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XVIII. INFORMATION COLLECTION AND RETENTION ................................................... 52 

XIX. NOTICES.......................................................................................................................... 53 

XX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS............................................ 56 

XXI. EFFECTIVE DATE.......................................................................................................... 57

XXII. RETENTION OF JURISDICTION.................................................................................. 57 

XXIII. MODIFICATION ............................................................................................................. 58 

XXIV. GENERAL PROVISIONS ............................................................................................... 58 

XXV. SIGNATORIES AND SERVICE..................................................................................... 60 

XXVI. PUBLIC COMMENT....................................................................................................... 60 

XXVII. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER CONSENT 

DECREE........................................................................................................................... 61 

XXVIII. FINAL JUDGMENT ...................................................................................................... 62 
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CONSENT DECREE

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

the United States Environmental Protection Agency (“EPA”), and Plaintiffs-Intervenors, the 

States of New York, New Jersey and Connecticut (“States”), filed complaints or amended 

complaints for injunctive relief and civil penalties pursuant to Sections 113(b)(2) and 167 of the 

Clean Air Act (the “Act”), 42 U.S.C. §§ 7413(b)(2) and 7477, and Section 304(a) of the Act, 42 

U.S.C. § 7604(a), alleging that Defendants, Ohio Edison Company and Pennsylvania Power 

Company, a subsidiary of Ohio Edison (“Ohio Edison”), which in turn is a subsidiary of 

FirstEnergy Corp. (“FirstEnergy”), undertook construction projects at major emitting facilities in 

violation of the Prevention of Significant Deterioration provisions of Part C of Subchapter I of 

the Act, 42 U.S.C. §§ 7470-7492, the New Source Review provisions of the Act, 42 U.S.C. §§ 

7501-7515, and in violation of the federally approved and enforceable Ohio State 

Implementation Plan; 

 WHEREAS, in its Amended Complaint, the United States and the States (“Plaintiffs”) 

allege, inter alia, that Ohio Edison 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; 

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

against Ohio Edison under Sections 113 and 167 of the Act, 42 U.S.C. §§ 7413 and 7477; 

 WHEREAS, the United States and some or all of the States provided Ohio Edison and the 

State of Ohio with actual notice of Ohio Edison’s alleged violations in accordance with Section 

113(a)(1) of the Act, 42 U.S.C. § 7413(a)(1); 

 WHEREAS, on August 7, 2003, the United States District Court for the Southern District 

of Ohio, Eastern Division, issued an opinion in the liability phase of this matter holding that 

Ohio Edison failed to obtain pre-construction permits for eleven projects it undertook at its 

Sammis Plant; and further held that the projects were “major modifications” and that Ohio 

Edison had violated 42 U.S.C. § 7475 and associated regulations; but did not reach the remedy 

phase of the trial and did not address the level of air pollution controls or other remedies 

required, if any, or the level of impact, if any, to public health or the environment; 
2

 WHEREAS, there are unique difficulties associated with retrofitting SCRs and FGDs at 

the smaller units (Units 1-5) at the Sammis Plant, due to the location of the Sammis Plant 

between State Route 7 and the Ohio River to the east and steep terrain to the west, prior 

retrofitting of particulate emission control devices located on decking built over State Route 7, 

existing facilities to the north and south of the plant, and the close proximity between the seven 

Sammis Plant units, and the Parties have considered these circumstances and overall benefit to 

the environment in reaching agreement herein; 

 WHEREAS, the Clean Air Interstate Rule (“CAIR”) was proposed on January 30, 2004 

and a Supplemental Proposal was proposed on June 10, 2004 (69 Fed. Reg. 4,566 (Jan. 30, 

2004); 69 Fed. Reg. 32,684 (June 10, 2004)); and CAIR was promulgated as a final rule on 

March 9, 2005, it is anticipated that under CAIR, other owners of electric generating units in 

affected areas also will reduce their emissions of NOX and SO2; 

 WHEREAS, the Parties recognize, and the Court by entering this Consent Decree finds, 

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

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

 WHEREAS, the Parties have consented to entry of this Consent Decree without trial on 

remedy; 

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

the Parties and in the public interest, and that entry of this Consent Decree without further 

litigation is the most appropriate means of resolving this matter; 

 NOW, THEREFORE, without any admission of fact or law or concession of any liability 

on the part of Ohio Edison but solely for purposes of resolving this case, it is hereby ORDERED, 

ADJUDGED, AND DECREED as follows: 

I. JURISDICTION AND VENUE

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

consenting hereto, pursuant to 28 U.S.C. §§ 1331, 1345, 1355, and 1367, and pursuant to 

Sections 113 and 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, Ohio 

Edison waives all objections and defenses that it may have to the Court’s jurisdiction 
3

over this action, to the Court’s jurisdiction over Ohio Edison, and to venue in this 

District. The Parties 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 

Complaints filed by the Plaintiffs in this matter and resolved by the Consent Decree, and 

for purposes of entry and enforcement of this Consent Decree, Ohio Edison waives any 

defense or objection based on standing as to the Plaintiffs. Except as expressly provided 

for herein, this Consent Decree shall not create any rights in any party other than the 

Parties to this Consent Decree. Except as provided in Section XXVI (Public Comment) 

of this Consent Decree, 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 

Plaintiffs and Ohio Edison and their successors and assigns, and upon Ohio Edison’s 

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

3. Ohio Edison shall provide notice of and access to a copy of this Consent Decree to all 

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

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

Notwithstanding any retention of contractors, subcontractors, or agents to perform any 

work required under this Consent Decree, Ohio Edison shall be responsible for ensuring 

that all work is performed in accordance with the requirements of this Consent Decree. 

In any action to enforce this Consent Decree, Ohio Edison 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 Ohio Edison establishes 

that such failure resulted from a Force Majeure Event, as defined in Paragraph 157. 

 

III. DEFINITIONS

4. “30-Day Rolling Average Emission Rate” shall be determined in accordance with 40 

C.F.R. Part 60, subpart Da, except that in calculating all 30-Day Rolling Average 

Emission Rates Ohio Edison: 
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 A. shall include all emissions and Btus from startup and shutdown events from the time 

the unit is synchronized with a utility electric distribution system through the time that 

the unit ceases to combust fossil fuel and the fire is out in the boiler, except as provided 

by Subparagraph B or C; 

 B. may exclude emissions of NOX and Btus occurring during the fifth and subsequent 

Cold Start Up Period(s) that occur in any 30-Day period if inclusion of such emissions 

would result in a violation of any applicable 30-Day Rolling Average Emission Rate, and 

if Ohio Edison has installed, operated and maintained the SCR, ECO, or other approved 

NOX control technology in question consistent with good engineering practices. A “Cold 

Start Up Period” occurs whenever there has been no fire in the boiler of a unit (no 

combustion of any fossil fuel) for a period of six hours or more. The emissions to be 

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

(1) those NOX emissions emitted during the eight-hour period commencing when the unit 

is synchronized with a utility electric distribution system and concluding eight hours 

later; or (2) those emitted prior to the time that the flue gas has achieved the SCR 

operational temperature range as specified by the catalyst manufacturer; and 

 C. may exclude NOX and SO2 emissions and Btus occurring during any period of 

Malfunction as defined at 40 C.F.R.§ 60.2, provided Ohio Edison (1) makes reasonable 

best efforts to correct the Malfunction and (2) provides notice to the United States and the 

States in writing containing the information specified in Paragraph 158 of this Consent 

Decree as soon as practicable, but in no event later than fourteen (14) business days 

following the date Ohio Edison first knew or by the exercise of due diligence should have 

known of the Malfunction. 

5. “Additional Burger Plant NOX Reductions” shall be expressed as tons of NOX and 

calculated in accordance with the following procedure: first, sum the total mmBtu heat 

input for Burger Units 4 and 5 measured by the CEMS for the subject year; second, 

multiply the total mmBtu heat input for Burger Units 4 and 5 by 0.411 lbs/mmBtu; third, 

divide the total number of pounds of NOX for Burger Units 4 and 5 by 2,000 to calculate 

NOX tons for the subject year; fourth, subtract the sum of the total NOX tons for Burger 

Units 4 and 5 measured by the CEMS for the subject year. 
5

6. “Additional Burger Plant SO2 Reductions” shall be expressed as tons of SO2 and 

calculated in accordance with the following procedure: first, sum the total mmBtu heat 

input for Burger Units 4 and 5 measured by the CEMS for the subject year; second, 

multiply the total mmBtu heat input for Burger Units 4 and 5 by 3.45 lbs/mmBtu; third, 

divide the total number of pounds of SO2 for Burger Units 4 and 5 by 2,000 to calculate 

SO2 tons for the subject year; fourth, subtract the sum of the total SO2 tons for Burger 

Units 4 and 5 measured by the CEMS for the subject year. 

7. “Additional Eastlake Plant NOX Reductions” shall be expressed as tons of NOX and 

calculated in accordance with the following procedure: first, sum the total mmBtu heat 

input for Eastlake Unit 5 measured by the CEMS for the subject year; second, multiply 

the total mmBtu heat input for Eastlake Unit 5 by 0.894 lbs/mmBtu; third, divide the total 

number of pounds of NOX for Eastlake Unit 5 by 2,000 to calculate NOX tons for the 

subject year; fourth, subtract the sum of the total NOX tons for Eastlake Unit 5 measured 

by the CEMS for the subject year. 

8. “Additional Mansfield Plant SO2 Reductions” shall be expressed as tons of SO2 and 

calculated in accordance with the following procedure: first, sum the total mmBtu heat 

input for Mansfield Units 1, 2 and 3 measured by the CEMS for the subject year; second, 

multiply the total mmBtu heat input for Mansfield Units 1, 2 and 3 by 0.43 lbs/mmBtu; 

third, divide the total number of pounds of SO2 for Mansfield Units 1, 2 and 3 by 2,000 to 

calculate SO2 tons for the subject year; fourth, subtract the sum of the total SO2 tons for 

Mansfield Units 1, 2 and 3 measured by the CEMS for the subject year. 

9. “Additional Reductions” means the additional tons reduced at the Burger Plant, 

Mansfield Plant, and Eastlake Plant. 

10. “Annual Average Removal Efficiency” shall be determined in accordance with 40 C.F.R. 

Part 60, subpart Da, provided that ASTM fuel sampling and analysis may be used in lieu 

of inlet SO2 emission monitoring where the inlet sampling location does not meet the 

minimum requirements specified in 40 C.F.R. Part 60, Appendix A, EPA Reference 

Method 1. 

11. “Burger Plant” means the R.E. Burger Plant located near Shadyside, Ohio.

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

NOX and SO2 under this Consent Decree, the devices defined in 40 C.F.R. § 72.2 and 
6

installed and maintained (including quarterly quality assurance procedures) as specified 

by 40 C.F.R. Part 75 except as provided for in Paragraphs 80 and 109 relating to data 

substitution provisions. 

13. “Consent Decree” means this Consent Decree and the Appendices hereto, which are 

incorporated into this Consent Decree. 

14. “Design Removal Efficiency” means the minimum removal efficiency for which a design 

is developed for a new or modified air pollution control device, when operating at full 

load maximum continuous rating (“MCR”) of the boiler. The design removal efficiency 

shall provide the capability of attaining and maintaining at least the specified removal 

efficiency at MCR. 

15. “Eastlake Plant” means the Eastlake Plant located near Eastlake, Ohio. 

16. “Electric-Catalytic Oxidation” or “ECO” means a barrier discharge reactor, wet flue gas 

desulfurization and wet electrostatic precipitator (“wet ESP”), which combine to remove 

multiple pollutants from flue gas. 

17. “Emission Rate” for a given pollutant means the number of pounds of that pollutant 

emitted per million British thermal units of heat input (lb/mmBtu), measured in 

accordance with this Consent Decree. 

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

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

PM. 

20. “FirstEnergy System” means, collectively, the Ohio Edison System, any existing units 

owned by a FirstEnergy subsidiary, and any new or existing units that might be built or 

acquired by a FirstEnergy subsidiary, provided that FirstEnergy and/or a subsidiary has a 

greater than 50% ownership interest in such newly-built or acquired units. 

21. “Flash Dryer Absorber” means a flue gas desulfurization technology employing a 

fluidized bed-type absorber utilizing recycled fly ash and lime injection for SO2 removal 

upstream of a pollution control device for the reduction of PM. 

22. “Flue Gas Desulfurization System” or “FGD” means a pollution control device that 

employs flue gas desulfurization technology, including absorber(s) for the reduction of 

sulfur dioxide emissions. 
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23. “Fossil Fuel” means any hydrocarbon fuel, including coal, petroleum coke, petroleum oil, 

or natural gas. 

24. “Induct Scrubber” means a flue gas desulfurization technology in which an atomized lime 

slurry is injected into the ductwork for SO2 removal upstream of a pollution control 

device for the reduction of PM. 

25. “KW” means kilowatt or one thousand Watts. 

26. “lb/mmBtu” means pound of a pollutant per million British thermal units of heat input. 

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

28. “Mansfield Plant” means the Bruce Mansfield Plant located near Shippingport, PA. 

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

30. “Monthly Cap” means the sum of the tons of the pollutant in question emitted during all 

periods of operation from Sammis Units 1 through 5 in a calendar month, including the 

pollutants emitted during periods of startup and shutdown, and Malfunction. 

31. “NOX” means oxides of nitrogen, measured in accordance with the provisions of this 

Consent Decree. 

32. “NOX Allowance” means an authorization or credit to emit a specified amount of NOX

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

any kind that has been established under the Clean Air Act or a State Implementation 

Plan. 

33. “Ohio Edison System” means, collectively, the Sammis Plant, Mansfield Plant and 

Burger Plant. 

34. “Operational needs” means the allowances needed to comply with federal and/or State 

Clean Air Act regulatory requirements for the units at the Sammis Plant and any other 

existing, new, and newly acquired unit in the FirstEnergy system. 

35. “Parties” means the United States of America; the States of New York, New Jersey and 

Connecticut; and Ohio Edison and Pennsylvania Power Company. “Party” means one of 

the six named “Parties.” 

36. “Plant-Wide Annual Cap” means the sum of the tons of the pollutant in question emitted 

during all periods of operation from the Sammis Plant in a calendar year, including the 

pollutants emitted during periods of startup and shutdown, and Malfunction. 
8

37. “PM” means total particulate matter, measured in accordance with the provisions of this 

Consent Decree. 

38. “PM Emission Rate” means pounds of PM emitted per million Btu of heat input 

(lb/mmBtu), as measured in annual stack tests, in accordance with the reference methods 

set forth in 40 C.F.R. Part 60, Appendix A, Method 5 or Method 5B if allowed by the 

State of Ohio or local authority. 

39. “Prevention of Significant Deterioration” or “PSD” means the prevention of significant 

deterioration of air quality program under Part C of Subchapter I of the Clean Air Act, 42 

U.S.C. §§ 7470 - 7492, and 40 C.F.R. Part 52. 

40. “Removal Efficiency” means the percent of an air pollutant removed from flue gas by an 

air pollution control device based on the mass emission rate before and after the air 

pollution control device. 

41. “Renewable Energy Sources” means wind, solar power, or landfill gas or any other 

approved project. 

42. “Restricted NOX Allowances” means the NOX Allowances allocated annually to Ohio 

Edison that were made available for sale, trade, or transfer after the date of entry of this 

Consent Decree as a result of the requirements of this Consent Decree, but the use of 

which is restricted by this Consent Decree. 

43. “Restricted SO2 Allowances” means (1) the SO2 Allowances resulting from the one-time 

Additional Mansfield PlantReductions required by Paragraph 92 for calendar years 2006 

of 4,000 tons and for 2007 of 8,000 tons; (2) the SO2 Allowances resulting from the onetime SO2 Interim Emission Reductions required by Paragraph 97 of 35,000 tons and by 

Paragraph 98 of 24,600 tons; and (3) 67,503 SO2 Allowances allocated annually to the 

Sammis Plant beginning January 2011. 

44. “Sammis Plant” means the W. H. Sammis Plant, located along the Ohio River on State 

Route 7 in the Village of Stratton, Saline Township, Jefferson County, Ohio. 

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

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

46. “SNCR” means a pollution control device that employs selective non-catalytic reduction, 

utilizing ammonia or urea injection in the boiler, for the reduction of NOX emissions. 
9

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

Decree. 

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

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

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

dioxide.” 

49. “Super-compliant NOX Allowances” means those allowances attributable to reductions 

beyond the requirements of this Consent Decree and in accordance with Paragraph 76. 

NOX allowances that become available as a result of emission reductions used to 

demonstrate compliance with Paragraph 72 shall not be Super-compliant NOX

Allowances. 

50. “Super-compliant SO2 Allowances” means those allowances attributable to reductions 

beyond the requirements of this Consent Decree and in accordance with Paragraph 106. 

SO2 allowances that become available as a result of emission reductions used to 

demonstrate compliance with Paragraph 97 shall not be Super-compliant SO2

Allowances. 

51. “Surrender” means permanently surrendering allowances from the accounts administered 

by EPA for the Ohio Edison System so that such allowances can no longer be used to 

meet any compliance requirement under the Clean Air Act. 

52. “NOX System-Wide Annual Emission Rate” means the annual average emission rate for 

NOX from the FirstEnergy System during a calendar year calculated in accordance with 

the procedures and equation set forth in 40 C.F.R. § 76.11 (d)(1)(ii)(A). 

53. “Title V Permit” means the permit required of each of Ohio Edison’s major sources under 

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

IV. NOX EMISSION REDUCTIONS AND CONTROLS

A. NOX Emission Controls

1. SCRs on Sammis Units 6 and 7

54. Ohio Edison shall install an SCR (or the equivalent NOX control technology approved by 

Plaintiffs pursuant to Paragraph 55) at either Sammis Unit 6 or Unit 7 no later than 

December 31, 2010, and install a second SCR at either Sammis Unit 6 or 7 no later than 
10

December 31, 2011. Each SCR to be installed by Ohio Edison under this paragraph shall 

have at least a 90% Design Removal Efficiency for NOX. Upon operation of the unit 

with the installed SCR and thereafter, Ohio Edison shall continuously operate each SCR 

at Sammis Units 6 and 7 at all times that each unit the SCR serves is combusting Fossil 

Fuel, consistent with good engineering practices for NOX control, to minimize NOX

emissions to the extent practicable. The preceding sentence shall not be construed to 

require that Ohio Edison achieve a more stringent unit emission rate than required by this 

Consent Decree. No later than 180 days after the installation date required above and 

thereafter, Ohio Edison shall operate each SCR so as to achieve and thereafter maintain a 

30-Day Rolling Average Emission Rate for NOX of 0.100 lb/mmBtu. 

55. With prior written notice to and written approval from EPA and the States, Ohio Edison 

may, in lieu of installing and operating an SCR (or ECO, if approved pursuant to Section 

VII) at any unit specified in Paragraph 54, install and operate equivalent NOX control 

technology, so long as such equivalent NOX control technology is designed for a 90% 

Removal Efficiency for NOX and achieves and thereafter maintains a 30-Day Rolling 

Average Emission Rate for NOX not greater than 0.100 lb/mmBtu. 

2. SNCRs at Sammis Units 1 -7, Eastlake Unit 5 and Burger Units 4-5

56. No later than thirty days after entry of the Consent Decree, Ohio Edison shall 

continuously operate each SNCR at Sammis Units 2 and 7 at all times that each unit the 

SNCR serves is combusting Fossil Fuel, consistent with good engineering practices for 

NOX control, to minimize NOX emissions to the extent practicable. The preceding 

sentence shall not be construed to require that Ohio Edison achieve more stringent unit 

emission rate(s) than required by this Consent Decree. No later than 210 days after entry 

of this Consent Decree, Ohio Edison shall operate the SNCR so as to achieve and 

thereafter maintain a 30-Day Rolling Average Emission Rate for NOX of 0.250 lb/mmBtu 

at Sammis Unit 2. 

57. Ohio Edison shall install an SNCR (or equivalent NOX control technology approved 

pursuant to Paragraph 68) at either Sammis Unit 1, Unit 3, or Unit 4, no later than 

October 31, 2006; and install a second SNCR at either Sammis Unit 1, Unit 3, or Unit 4 

no later than October 31, 2007; and install one additional SNCR at Sammis Unit 1, Unit 
11

3, or Unit 4 no later than December 31, 2007. Upon operation of the unit with the 

installed SNCR and thereafter, Ohio Edison shall continuously operate each SNCR at 

Sammis Units 1, 3 and 4 at all times that each unit the SNCR serves is combusting Fossil 

Fuel, consistent with good engineering practices for NOX control, to minimize NOX

emissions to the extent practicable. The preceding sentence shall not be construed to 

require that Ohio Edison achieve more stringent unit emission rate(s) than required by 

this Consent Decree. No later than 180 days after the installation date required above and 

thereafter, Ohio Edison shall operate each SNCR so as to achieve and thereafter maintain 

a 30-Day Rolling Average Emission Rate for NOX of 0.250 lb/mmBtu. 

58. No later than December 31, 2007, Ohio Edison shall install an SNCR (or equivalent NOX

control technology approved pursuant to Paragraph 68) at Sammis Unit 5. Upon 

operation of the unit with the installed SNCR and thereafter, Ohio Edison shall 

continuously operate the SNCR at Sammis Unit 5 at all times that the unit the SNCR 

serves is combusting Fossil Fuel, consistent with good engineering practices for NOX

control, to minimize NOX emissions to the extent practicable. The preceding sentence 

shall not be construed to require that Ohio Edison achieve more stringent unit emission 

rate(s) than required by this Consent Decree. No later than 180 days after the installation 

date required above and thereafter, Ohio Edison shall operate the SNCR so as to achieve 

and thereafter maintain a 30-Day Rolling Average Emission Rate for NOX of 0.290 

lb/mmBtu. 

59. No later than June 30, 2005, Ohio Edison shall install an SNCR at Sammis Unit 6. Ohio 

Edison shall continuously operate the SNCR at Sammis Unit 6 at all times that the unit 

the SNCR serves is combusting Fossil Fuel, consistent with good engineering practices 

for NOX control, to minimize NOX emissions to the extent practicable. The preceding 

sentence shall not be construed to require that Ohio Edison achieve more stringent unit 

emission rate(s) than required by this Consent Decree. 

60. No later than December 31, 2006, Ohio Edison shall cause the FirstEnergy System to 

install low NOX burners, overfired air and SNCR (or equivalent NOX control technology 

approved pursuant to Paragraph 68) at Eastlake Unit 5. Upon operation of the unit with 

the installed NOX controls referred to above and thereafter, Ohio Edison shall cause the 

FirstEnergy System to continuously operate the NOX controls referred to above at 
12

Eastlake Unit 5 at all times that the unit is combusting Fossil Fuel, consistent with good 

engineering practices for NOX control, to minimize NOX emissions to the extent 

practicable. The preceding sentence shall not be construed to require Ohio Edison to 

cause the FirstEnergy System to achieve more stringent unit emission rate(s) than 

required by this Consent Decree. 

61. If the FirstEnergy System does not install and commence continuous operation of low 

NOX burners, overfired air, and SNCR (or equivalent NOX control technology approved 

pursuant to Paragraph 68) as required in Paragraph 60, Ohio Edison shall submit to the 

Plaintiffs for approval, and implement upon approval, a substitute compliance plan that 

would provide for an alternative means of achieving emission reductions within the 

FirstEnergy System units located in Ohio and/or Pennsylvania in the same time frame 

through use of post-combustion NOX emission control devices, equivalent to or 

exceeding the emission reductions that Ohio Edison anticipated achieving by installation 

and operation of the low NOX burners, overfired air, and SNCR at Eastlake Unit 5. 

62. Ohio Edison shall cause the FirstEnergy System to achieve Additional Eastlake Plant 

NOX Reductions of 11,000 tons of NOX per year commencing in calendar year 2007 

provided, however, that this obligation shall be eliminated upon permanent shutdown in 

which Eastlake Unit 5 has been permanently retired from service and has been physically 

disabled. If Ohio Edison determines that it will be unable to achieve any portion of the 

reductions of 11,000 tons of NOX at Eastlake Unit 5 in any calendar year due to planned 

or unplanned outages, or any combination thereof, Ohio Edison shall submit to the 

Plaintiffs for approval, and upon approval, shall implement or cause to be implemented, a 

substitute compliance plan (“plan”). The plan shall demonstrate how Ohio Edison will 

achieve elsewhere in the FirstEnergy System and within the same year (or if that is not 

possible, within the next succeeding calendar year) all the remaining Additional Eastlake 

Plant NOX Reductions. The plan must identify the plant(s) in Pennsylvania and/or Ohio 

where any remaining Additional Eastlake Plant NOX Reductions are to be achieved. 

Ohio Edison shall use best efforts to submit the plan no later than 30 days after Ohio 

Edison determines that it will be unable to achieve Additional Eastlake Plant NOX

Reductions, but in no event later than January 31 of the year following the year in which 

Ohio Edison makes such determination. For purposes of this paragraph, the amount of 
13

Additional Eastlake Plant NOX Reductions to be achieved at such other FirstEnergy 

plant(s) shall be calculated based on the decrease from that plant’s 2003 actual emission 

rate (lb/mmBtu). Compliance with the approved plan shall be considered compliance 

with the Additional Eastlake Plant NOX Reductions requirement. The terms of this 

provision are in addition to, and shall not alter or affect, the provisions of Section XV 

relating to Force Majeure. 

63. Subject to Paragraph 62, Ohio Edison shall cause the FirstEnergy System to use 

reasonable best efforts to achieve Additional Eastlake Plant NOX Reductions of 11,000 

tons of NOX per year commencing in calendar year 2007, but in no case shall the 

Additional Eastlake Plant NOX Reductions be less than 10,000 tons in any given year 

commencing in 2007. In the event that Ohio Edison expects to be unable to achieve 

Additional Eastlake Plant NOX Reductions of at least 11,000 tons of NOX in 2007 or any 

year thereafter, Ohio Edison shall submit to the Plaintiffs for approval, and upon 

approval, shall implement or cause to be implemented, a substitute compliance plan to 

achieve elsewhere in the FirstEnergy system and within the same calendar year all the 

remaining Additional Eastlake Plant NOX Reductions up to 1,000 tons of NOX that will 

not be realized that year at the Eastlake Plant. Such a plan must identify the plants, in 

Pennsylvania and/or Ohio, and the controls at those plants where any remaining 

Additional Eastlake Plant NOX Reductions that will not be realized that year at the 

Eastlake Plant are to be achieved. 

64. No later than December 31, 2008, Ohio Edison shall install SNCRs (or equivalent NOX

control technology approved pursuant to Paragraph 68) at Burger Unit 4 and Unit 5. 

Upon operation of the unit with the installed SNCR and thereafter, Ohio Edison shall 

continuously operate each SNCR at the Burger Units 4 and 5 at all times that each unit 

the SNCR serves is combusting Fossil Fuel, consistent with good engineering practices 

for NOX control, to minimize NOX emissions to the extent practicable. The preceding 

sentence shall not be construed to require that Ohio Edison achieve more stringent unit 

emission rate(s) than required by this Consent Decree. 

65. Ohio Edison shall achieve Additional Burger Plant NOX Reductions of 1,400 tons of 

NOX per year commencing in calendar year 2009 provided, however, that this obligation 

shall be eliminated upon permanent shutdown in which one or more of the Burger units 
14

has been permanently retired from service and has been physically disabled. If Ohio 

Edison determines that it will be unable to achieve any portion of the reductions of 1,400 

tons at the Burger Plant in any calendar year due to planned or unplanned outages, or any 

combination thereof, Ohio Edison shall submit to the Plaintiffs for approval, and upon 

approval, shall implement or cause to be implemented, a substitute compliance plan 

(“plan”). The plan shall demonstrate how Ohio Edison will achieve elsewhere in the 

FirstEnergy System and within the same year (or if that is not possible, within the next 

succeeding calendar year) all the remaining Additional Burger Plant NOX Reductions. 

The plan must identify the plant(s) in Pennsylvania and/or Ohio where any remaining 

Additional Burger Plant NOX Reductions are to be achieved. Ohio Edison shall use best 

efforts to submit the plan no later than 30 days after Ohio Edison determines that it will 

be unable to achieve Additional Burger Plant NOX Reductions, but in no event later than 

January 31 of the year following the year in which Ohio Edison makes such 

determination. For purposes of this paragraph, the amount of Additional Burger Plant 

NOX Reductions to be achieved at such other FirstEnergy plant(s) shall be calculated 

based on the decrease from that plant’s 2003 actual emission rate (lb/mmBtu). 

Compliance with the approved plan shall be considered compliance with the Additional 

Burger Plant NOX Reductions requirement. The terms of this provision are in addition to, 

and shall not alter or affect, the provisions of Section XV relating to Force Majeure. 

66. Subject to Paragraph 65, Ohio Edison shall use reasonable best efforts to achieve 

Additional Burger Plant NOX Reductions of 1,400 tons of NOX per year commencing in 

calendar year 2009, but in no case shall the Additional Burger Plant NOX Reductions be 

less than 1,300 tons in any given year commencing in 2009. In the event that Ohio 

Edison expects to be unable to achieve Additional Burger Plant NOX Reductions of at 

least 1,400 tons of NOX in 2009 or any year thereafter, Ohio Edison shall submit to the 

Plaintiffs for approval, and upon approval implement, a substitute compliance plan to 

achieve elsewhere in the FirstEnergy system and within the same calendar year all the 

remaining Additional Burger Plant NOX Reductions up to 100 tons of NOX that will not 

be realized that year at the Burger Plant. Such a plan must identify the plants, in 

Pennsylvania and/or Ohio, and the controls at those plants where any remaining 
15

Additional Burger Plant NOX Reductions that will not be realized that year at the Burger 

Plant are to be achieved. 

67. No later than thirty days following entry of this Consent Decree, Ohio Edison shall 

complete installation and operation of low NOX burners on Sammis Units 1, 2, 4, 5, 6, 

and 7 and overfired air on Sammis Units 1, 2, 4, 6 and 7. No later than December 1, 

2005, Ohio Edison shall complete installation and operation of low NOX burners and 

overfired air on Sammis Unit 3, and advanced combustion control optimization with 

software to minimize NOX emissions from Sammis Units 1 through 5. 

68. With prior written notice to and written approval from EPA and the States, Ohio Edison 

may, in lieu of installing and operating an SNCR at any unit specified in Paragraphs 56, 

57, 58, 60, and 66, install and operate equivalent NOX control technology, so long as such 

equivalent NOX control technology achieves and thereafter maintains a 30-Day Rolling 

Average Emission Rate for NOX not greater than 0.250 lb/mmBtu, or 0.290 lb/mmBtu for 

Sammis Unit 5. 

B. Plant-Wide Annual Cap for NOX

69. Ohio Edison shall comply with the following Plant-Wide Annual Cap for the Sammis 

Plant for NOX, which applies collectively to all units within the Sammis Plant:

For the Periods Commencing on the 

Dates Specified Below: 

Plant-Wide Annual Cap 

For NOX

July 1, 2005 through December 31, 2005 11,371 tons 

January 1, 2006 through December 31, 

2006 21,251 tons 

 January 1, 2007 through December 31, 

2007 20,596 tons 

January 1, 2008 through December 31, 

2008 18,903 tons 

January 1, 2009 through December 31, 

2009 17,328 tons 

January 1, 2010 through December 31, 

2010 17,328 tons 

January 1, 2011 through December 31, 

2011 14,845 tons 
16

January 1, 2012 and every calendar year 

thereafter 11,863 tons 

70. Compliance with the Plant-Wide Annual Cap in Paragraph 69 shall be determined by 

calculating actual annual emissions during all periods of operation from the Sammis plant 

using CEMS. The amount of NOX allowances in the possession of Ohio Edison shall not 

be used in determining compliance with the Plant-Wide Annual Cap in Paragraph 69. 

71. Periods of nonoperation of a unit are not violations of a unit specific emission obligation 

of this Consent Decree. If Ohio Edison ceases operations for more than 12 months, the 

Plant-Wide Annual Cap in Paragraph 69 shall be reduced by one-half of the shutdown 

unit’s(s’) pro rata nameplate MW share of the Plant-Wide Annual Cap for the Sammis 

Plant for NOX, unless Ohio Edison demonstrates to Plaintiffs that it intends to start up the 

unit(s) within the following 12 months and actually starts up in the following 12 months. 

C. Interim NOX Emission Reductions

72. Between July 1, 2005 and no later than December 31, 2010, Ohio Edison shall achieve 

reductions in the amount of 2,483 tons of NOX using any combination of the following: 

(1) using a low sulfur coal at Burger Units 4 and 5; (2) operating the SCRs currently 

installed at Mansfield Units 1 through 3 during the months of October through April; 

and/or (3) emitting fewer tons than the Plant-Wide Annual Cap for NOX required under 

Paragraph 69 in a given year at the Sammis Plant. For purposes of determining that 

amount of reductions achieved at Burger, Ohio Edison shall use the procedure for 

determining Additional Burger Plant NOX Reductions. For purposes of this paragraph, 

the amount of NOX emission reductions to be achieved at the Mansfield Plant shall be 

calculated based on the decrease from that plant’s 2003 actual emission rate (lb/mmBtu). 

D. Use of NOX Allowances

73. Except as provided in this Consent Decree, Ohio Edison shall not sell, trade, or transfer 

any Restricted NOX Allowances. 

74. Restricted NOX Allowances resulting from actions taken by Ohio Edison to comply with 

the requirements of this Consent Decree may be used by Ohio Edison to meet the 

Operational Needs of the plant to which they were allocated but not at any other plant or 
17

to sell, trade, or transfer to a third-party. In addition, Restricted NOX Allowances 

resulting from actions taken by Ohio Edison to comply with the requirements of this 

Consent Decree may be used by Ohio Edison and/or FirstEnergy to meet the Operational 

Needs of the FirstEnergy System but not to sell, trade, or transfer to a third-party, 

provided that commencing January 1, 2015, and continuing thereafter, actual NOX

emissions from the FirstEnergy System do not exceed a NOX System-Wide Annual 

Emission Rate of 0.15 lb/mmBtu. For purposes of this paragraph, the FirstEnergy 

System is limited to the coal-fired units listed below less any of these units FirstEnergy or 

its subsidiaries sells. 

Current FirstEnergy Coal-Fired Units 

Mansfield 1 

Mansfield 2 

Mansfield 3 

Sammis 1 

Sammis 2 

Sammis 3 

Sammis 4 

Sammis 5 

Sammis 6 

Sammis 7 

Burger 1 

Burger 2 

Burger 3 

Burger 4 

Burger 5 

Ashtabula 5 

Bay Shore 1 

Bay Shore 2 
18

Bay Shore 3 

Bay Shore 4 

Eastlake 1 

Eastlake 2 

Eastlake 3 

Eastlake 4 

Eastlake 5 

Lake Shore 18 

Toronto 5 

Toronto 6 

Toronto 7 

75. If Ohio Edison installs SCR, ECO if approved pursuant to Section VII, or equivalent 

control technology on any unit in the FirstEnergy System that is not required by this 

Consent Decree, the difference between the average annual NOX emissions of the 2 years 

before the control device is installed and the NOX Allowances allocated to such unit shall 

no longer be considered Restricted NOX Allowances. 

76. After Ohio Edison reports the generation of Super-compliant NOX Allowances in 

accordance with Section XII (Periodic Reporting), nothing in this Consent Decree shall 

preclude Ohio Edison from selling, trading, or transferring these reported NOX

Allowances that become available for sale or trade as a result of: 

a. the installation and operation of any NOX pollution control technology or 

technique that is not otherwise required under this Consent Decree; 

b. the installation and operation of any SCR (or ECO if approved pursuant to 

Section VII or other approved equivalent NOX control technology pursuant to 

Paragraph 55) or SNCR, prior to the date required under this Consent Decree; or 

c. achievement and maintenance of NOX emission rates that are below the 30-Day 

Rolling Average Emission Rate of 0.100 lb/mmBtu for Sammis Units 6 and 7, 

the 30-Day Rolling Average Emission Rate of 0.250 lb/mmBtu for Sammis 

Units 1 through 4, and the 30-Day Rolling Average Emission Rate of 0.290 
19

lb/mmBtu for Sammis Unit 5, and the applicable Plant-wide Annual Cap of 

11,863 tons. 

77. Except as provided in Paragraph 121, Ohio Edison may not purchase or otherwise obtain 

NOX Allowances from another source for purposes of complying with the requirements 

of this Consent Decree. However, nothing in this Consent Decree shall prevent Ohio 

Edison from purchasing or otherwise obtaining NOX Allowances from another source for 

purposes of complying with state or federal Clean Air Act requirements to the extent 

otherwise allowed by law. 

78. If Ohio Edison transfers Restricted NOX Allowances to a unit within the FirstEnergy 

System not covered by this Consent Decree, Ohio Edison must provide or cause to 

provide right of entry as required by Paragraph 181. 

E. General NOX Provisions

79. In determining 30-Day Rolling Average Emission Rates for NOX, Ohio Edison shall 

operate CEMS at each unit, provided, however, that due to the common stack CEMS at 

Sammis Units 1 to 4, NOX pollutant concentration monitors certified in accordance with 

40 C.F.R. Part 60 shall determine the 30-Day Rolling Average Emission Rates for NOX

at each of Sammis Units 1 to 4. In determining compliance with the Plant-Wide Annual 

NOX Cap, Ohio Edison shall operate CEMS at each stack (including the common stacks 

that serve Sammis Units 1 and 2 and Units 3 and 4). 

80. If both primary and secondary CEMS have a missing data event, Ohio Edison shall use 

40 C.F.R. Part 60 to show compliance with a 30-Day Rolling Average Emission Rate for 

NOX, provided that Ohio Edison (1) has secondary CEMS installed, and (2) places them 

in service within one hour of a missing data event from the primary CEMS but the 

secondary CEMS also fails. If Ohio Edison does not meet conditions in (1) and (2) 

above, Ohio Edison shall use 40 C.F.R. § 75.33 to determine compliance with the 30-Day 

Rolling Average Emission Rate for NOX. If there is a missing data event, Ohio Edison 

shall use the data substitution provisions in 40 C.F.R. § 75.33 to show compliance with 

the Plant-Wide Annual Cap for NOX. 
20

V. SO2 EMISSION REDUCTIONS AND CONTROLS

A. SO2 Emission Controls

1. New FGD Installations at Sammis Units 6-7 and Burger Units 4-5

81. Ohio Edison shall install an FGD (or equivalent SO2 control technology approved 

pursuant to Paragraph 84) at each Sammis Unit 6 and Unit 7 no later than December 31, 

2010. Each FGD to be installed by Ohio Edison under this paragraph shall have at least a 

95% Design Removal Efficiency for SO2. Upon operation of the unit with the installed 

FGD and thereafter, Ohio Edison shall continuously operate each FGD at Sammis Units 6 

and 7 at all times that each unit the FGD serves is combusting Fossil Fuel, consistent with 

good engineering practices for SO2 control, to minimize SO2 emissions to the extent 

practicable. The preceding sentence shall not be construed to require that Ohio Edison 

achieve more stringent unit emission rate(s) than required by this Consent Decree. No 

later than 180 days after the installation date required above and thereafter, Ohio Edison 

shall operate each FGD so as to achieve and thereafter maintain a 30-Day Rolling 

Average Emission Rate for SO2 of 0.130 lb/mmBtu. 

82. Subject to Paragraph 83 below, no later than December 31, 2010, Ohio Edison shall 

install and commence continuous operation of wet FGDs or ECO (or equivalent SO2 

control technology approved pursuant to Paragraph 85) on Burger Units 4 and 5, which 

shall have at least a 95% Design Removal Efficiency. Ohio Edison shall achieve 

Additional Burger Plant SO2 Reductions of 25,000 tons of SO2 per year commencing on 

or before calendar year 2011 provided, however, that this obligation shall be eliminated 

upon permanent shutdown in which one or more of the Burger units is permanently 

retired from service and has been physically disabled. If Ohio Edison determines that it 

will be unable to achieve any portion of the reductions of 25,000 tons of SO2 at the 

Burger Plant in any calendar year due to planned or unplanned outages, or any 

combination thereof, Ohio Edison shall submit to the Plaintiffs for approval, and upon 

approval, shall implement or cause to be implemented, a substitute compliance plan 

(“plan”). The plan shall demonstrate how Ohio Edison will achieve elsewhere in the 

FirstEnergy System and within the same year (or if that is not possible, within the next 

succeeding calendar year) all the remaining Additional Burger Plant SO2 Reductions. 
21

The plan must identify the plant(s) in Pennsylvania and/or Ohio where any remaining 

Additional Burger Plant SO2 Reductions are to be achieved. Ohio Edison shall use best 

efforts to submit the plan no later than 30 days after Ohio Edison determines that it will 

be unable to achieve Additional Burger Plant SO2 Reductions, but in no event later than 

January 31 of the year following the year in which Ohio Edison makes such 

determination. For purposes of this paragraph, the amount of Additional Burger Plant 

SO2 Reductions to be achieved at such other FirstEnergy plant(s) shall be calculated 

based on the decrease from that plant’s 2003 actual emission rate (lb/mmBtu). 

Compliance with the approved plan shall be considered compliance with the Additional 

Burger Plant SO2 Reductions requirement. The terms of this provision are in addition to, 

and shall not alter or affect, the provisions of Section XV relating to Force Majeure. 

83. No later than December 31, 2008, Ohio Edison shall elect either to satisfy the emission 

control requirements of Paragraph 82 for Burger Units 4 and 5, or: 

 a. Shut down Burger Units 4 and 5 no later than December 31, 2010; or 

b. Repower Burger Units 4 and 5 no later than December 31, 2012, including 

through construction of circulating fluidized bed boilers or other clean coal technologies 

of equivalent environmental performance that at a minimum achieve and maintain a 30-

Day Rolling Average Emission Rate not greater than 0.100 lb/mmBtu for SO2 or a 

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

Average Emission Rate not greater than 0.100 lb/mmBtu for NOX; and a PM Emission 

Rate not greater than 0.015 lb/mmBtu. In measuring the PM Emission Rate, Ohio Edison 

shall conduct periodic stack tests in accordance with 40 C.F.R. Part 60, Appendix A, 

Method 5, or Method 5B if allowed by the State of Ohio or local authority, or alternative 

methods requested by Ohio Edison and approved by EPA. For units that are required to 

be equipped with SO2 control equipment and that are subject to the percent removal 

efficiency requirements of this Consent Decree, the outlet SO2 Emission Rate and the 

inlet SO2 Emission Rate shall be determined based on the data generated in accordance 

with 40 C.F.R. Part 75 (using SO2 CEMS data from both the inlet and outlet of the 

control device), except that, if it is not feasible to install SO2 CEMS at the inlet of the 

control device, Ohio Edison may use fuel sampling consistent with ASTM protocols and 

standards to compute the inlet SO2 Emission Rate. 
22

84. With prior written notice to and written approval from EPA and the States, Ohio Edison 

may, in lieu of installing and operating wet FGDs at Sammis Units 6 and 7 (or ECO, if 

approved pursuant to Section VII), install and operate equivalent SO2 control technology 

at Sammis Units 6 and 7 so long as such equivalent SO2 control technology is designed 

for at least a 95% removal efficiency for SO2 and achieves and thereafter maintains a 30-

Day Rolling Average Emission Rate for SO2 not greater than 0.130 lb/mmBtu. 

85. With prior written notice to and written approval from EPA and the States, Ohio Edison 

may, in lieu of installing and operating wet FGDs or ECO at Burger Units 4 and 5, install 

and operate equivalent SO2 control technology so long as such equivalent SO2 control 

technology is designed for at least a 95% Removal Efficiency for SO2. 

2. Flash Dryer Absorber at Sammis Unit 5

86. No later than December 31, 2008, Ohio Edison shall install a Flash Dryer Absorber or 

ECO (or equivalent SO2 control technology approved pursuant to Paragraph 90) at 

Sammis Unit 5, which shall have at least a 50% Design Removal Efficiency for SO2. 

Upon operation of the unit with the installed Flash Dryer or ECO and thereafter, Ohio 

Edison shall continuously operate the Flash Dryer at Sammis Unit 5 at all times that the 

unit the Flash Dryer or ECO serves is combusting Fossil Fuel, consistent with good 

engineering practices for SO2 control, to minimize SO2 emissions to the extent 

practicable. The preceding sentence shall not be construed to require that Ohio Edison 

achieve more stringent unit emission rate(s) than required by this Consent Decree. No 

later than 180 days after the installation date required above and thereafter, Ohio Edison 

shall operate the Flash Dryer Absorber or ECO so as to achieve and thereafter maintain a 

30-Day Rolling Average Emission Rate for SO2 of 1.100 lb/mmBtu. If Ohio Edison 

cannot install the Flash Dyer (or ECO, if so elected) on Sammis Unit 5 because of a 

failure to obtain a necessary permit, Ohio Edison shall submit to the Plaintiffs for 

approval, and implement upon approval, a substitute compliance plan that would provide 

for an alternative means of achieving emission reductions within the FirstEnergy System 

units located in Ohio and/or Pennsylvania in the same time frame through use of postcombustion SO2 emission control devices, equivalent to or exceeding the emission 
23

reductions that Ohio Edison anticipated achieving by installation and operation of the 

Flash Dryer at Sammis Unit 5. 

87. With prior written notice to and written approval from EPA and the States, Ohio Edison 

may, in lieu of installing and operating a Flash Dryer Absorber or ECO at Sammis Unit 5, 

install and operate equivalent SO2 control technology so long as such equivalent SO2

control technology has at least a 50% Design Removal Efficiency and attains a 30-Day 

Rolling Average Emission Rate for SO2 of 1.100 lb/mmBtu. 

88. No later than July 1, 2007, Ohio Edison may seek written approval from the EPA and the 

States of a plan to install and operate an improved SO2 control technology at Sammis 

Unit 5 by no later than December 31, 2010. If Ohio Edison demonstrates that the 

improved SO2 control technology is designed to meet a 75% or greater Design Removal 

Efficiency, Plaintiffs will approve the plan to install and operate an improved SO2 control 

technology, in lieu of installing and operating a Flash Dryer Absorber or ECO at Sammis 

Unit 5. If Plaintiffs approve the plan, Ohio Edison shall implement and complete 

construction of the improved SO2 control technology no later than December 31, 2010. 

No later than 180 days after the installation date required above and thereafter, Ohio 

Edison shall achieve and maintain at Sammis Unit 5 a 30-Day Rolling Average Emission 

Rate for SO2 as defined by the following formula: 

 2.3 lbs/mmBtu x (100% - % Design Removal Efficiency as approved). 

 In no event shall the 30-Day Rolling Average Emission Rate requirement for SO2 be 

greater than 0.550 lb/mmBtu or below 0.130 lb/mmBtu for Sammis Unit 5. 

3. Induct Scrubbing at Sammis Units 1-4

89. Ohio Edison shall install an Induct Scrubber (or equivalent SO2 control technology 

approved pursuant to Paragraph 90) at Sammis Unit 1, Unit 2, Unit 3, or Unit 4 no later 

than September 30, 2008; and install a second Induct Scrubber at either Sammis Unit 1, 

Unit 2, Unit 3, or Unit 4 no later than December 31, 2008; and install two additional 

Induct Scrubbers at Sammis Unit 1, Unit 2, Unit 3 or Unit 4 no later than December 31, 

2009. Each Induct Scrubber to be installed by Ohio Edison under this paragraph shall 
24

have at least a 50% Design Removal Efficiency for SO2. Upon operation of the unit with 

the installed Induct Scrubber and thereafter, Ohio Edison shall continuously operate the 

Induct Scrubber at the unit at all times that the unit the Induct Scrubber serves is 

combusting Fossil Fuel, consistent with good engineering practices for SO2 control, to 

minimize SO2 emissions to the extent practicable. The preceding sentence shall not be 

construed to require that Ohio Edison achieve more stringent unit emission rate(s) than 

required by this Consent Decree. No later than 180 days after the installation date 

required above and thereafter, Ohio Edison shall operate each Induct Scrubber so as to 

achieve and thereafter maintain a 30-Day Rolling Average Emission Rate for SO2 of 

1.100 lb/mmBtu. 

90. With prior written notice to and written approval from EPA and the States, Ohio Edison 

may, in lieu of installing and operating Induct Scrubbers at Sammis Units 1 through 4, 

install and operate equivalent SO2 control technology so long as such equivalent SO2

control technology is designed for at least a 50% removal efficiency for SO2 and a 

30-Day Rolling Average Emission Rate for SO2 of 1.100 lb/mmBtu. 

4. FGD Upgrades for Mansfield Units 1-3 

91. No later than the dates specified below, Ohio Edison shall upgrade the FGDs currently 

installed at Mansfield Units 1, 2 and 3 according to the following schedule: 

Mansfield Unit Upgrade Date 

Unit 1 December 31 , 2005 

Unit 2 December 31, 2006 

Unit 3 October 31, 2007 

The upgrade of the Mansfield FGDs shall be designed to achieve at least a 95% Design 

Removal Efficiency on Mansfield Units 1, 2 and 3. No later than 180 days after the 

upgrade dates specified above, Ohio Edison shall conduct a performance test to 

demonstrate a 95% Removal Efficiency. Every subsequent year, Ohio Edison shall either 

conduct a performance test or submit CEMS data (or combination of CEMS data and coal 

sampling) equivalent to the sampling period of a performance test that show that each 

FGD has achieved a 95% Removal Efficiency. If Ohio Edison cannot demonstrate a 95% 
25

Removal Efficiency during a performance test, Ohio Edison shall modify the equipment 

as necessary and re-test to demonstrate a 95% Removal Efficiency. 

92. Ohio Edison shall achieve Additional Mansfield Plant SO2 Reductions on or before the 

following dates: 

Calendar Year 

Additional Mansfield Plant SO2

Reductions (tons per year) 

2006 4,000 

2007 8,000 

2008 and every calendar year 

thereafter 12,000 

 This obligation shall be eliminated upon permanent shutdown in which one or more of 

the Mansfield units is permanently retired from service and has been physically disabled. 

If Ohio Edison determines that it will be unable to achieve any portion of the reductions 

of 12,000 tons of SO2 at the Mansfield Plant in any calendar year due to planned or 

unplanned outages, or any combination thereof, Ohio Edison shall submit to the Plaintiffs 

for approval, and upon approval, shall implement or cause to be implemented, a 

substitute compliance plan (“plan”). The plan shall demonstrate how Ohio Edison will 

achieve elsewhere in the FirstEnergy System and within the same year (or if that is not 

possible, within the next succeeding calendar year) all the remaining Additional 

Mansfield Plant SO2 Reductions. The plan must identify the plant(s) in Pennsylvania 

and/or Ohio where any remaining Additional Mansfield Plant SO2 Reductions are to be 

achieved. Ohio Edison shall use best efforts to submit the plan no later than 30 days after 

Ohio Edison determines that it will be unable to achieve Additional Mansfield Plant SO2

Reductions, but in no event later than January 31 of the year following the year in which 

Ohio Edison makes such determination. For purposes of this paragraph, the amount of 

Additional Mansfield Plant SO2 Reductions to be achieved at such other FirstEnergy 

plant(s) shall be calculated based on the decrease from that plant’s 2003 actual emission 

rate (lb/mmBtu). Compliance with the approved plan shall be considered compliance 

with the Additional Mansfield Plant SO2 Reductions requirement. The terms of this 
26

provision are in addition to, and shall not alter or affect, the provisions of Section XV 

relating to Force Majeure. 

B. Plant-Wide Annual and Monthly Caps for SO2

93. Ohio Edison shall comply with the following Plant-Wide Annual Cap for the Sammis 

Plant for SO2, which applies to all units collectively within the Sammis Plant: 

For the Periods Commencing on the 

Dates Specified Below: Plant-Wide Annual Cap for SO2

July 1, 2005 through December 31, 

2005 58,000 tons 

January 1, 2006 through December 31, 

2006 116,000 tons 

 January 1, 2007 through December 31, 

2007 116,000 tons 

January 1, 2008 through December 31, 

2008 114,000 tons 

January 1, 2009 through December 31, 

2009 101,500 tons 

January 1, 2010 through December 31, 

2010 101,500 tons 

January 1, 2011 and every calendar year 

thereafter 29,900 tons 

94. Ohio Edison shall comply with the following Monthly Caps, which applies to Sammis 

Units 1 through 5 collectively: 

 a. May 1, 2010 to September 30, 2010: 

1) If Plaintiffs approve an improved SO2 control technology under Paragraph 

88: 

Calendar Months 

Sammis Units 1 through 5 

Monthly Cap for SO2

May, July, August 3,242 tons 

June, September 3,137 tons 
27

2) If Ohio Edison installs the SO2 control technology otherwise required under 

Paragraph 86: 

Calendar Months 

Sammis Units 1 through 5 

Monthly Cap for SO2

May, July, August 2,533 tons 

June, September 2,451 tons 

b. May 1, 2011 to September 30, 2011 and thereafter: 

Calendar Months 

Sammis Units 1 through 5 

Monthly Cap for SO2

May, July, August 2,533 tons 

June, September 2,451 tons 

95. Compliance with the Plant-wide Annual and Monthly Caps in Paragraphs 93 and 94 shall 

be determined by calculating actual annual or monthly emissions from the Sammis plant 

using CEMS in accordance with the reference methods specified in 40 C.F.R. Part 75 

except as provided for in Paragraphs 80 and 109 relating to data substitution provisions. 

The SO2 Allowances in the possession of Ohio Edison shall not be used in determining 

compliance with the Plant-wide Annual and Monthly Caps in Paragraphs 93 and 94. 

96. Periods of non-operation of a unit are not violations of a unit specific emission obligation 

of this Consent Decree. If Ohio Edison ceases operations for more than 12 months, the 

Plant-Wide Annual Cap in Paragraph 93 shall be reduced by one-half of the shutdown 

unit’s(s’) pro rata nameplate MW share of the Plant-Wide Annual Cap for the Sammis 

Plant for SO2 unless Ohio Edison demonstrates to Plaintiffs that it intends to start up the 

unit(s) within the following 12 months and actually starts up in the following 12 months. 

C. SO2 Interim Emission Reductions

97. Beginning on January 1, 2006, and ending on December 31, 2010, Ohio Edison shall 

achieve reductions of SO2 emissions in the amount of 35,000 tons by achieving 

reductions of SO2 emissions in the amount of 7,000 tons per year on a rolling average 

basis during the applicable five-year period through the use of low sulfur coal at Burger 

Units 4 and 5. For purposes of determining the amount of reductions achieved at Burger 
28

Units 4 and 5 through the use of low sulfur coal, Ohio Edison shall use the procedure for 

determining Additional Burger Plant SO2 Reductions. 

98. No later than December 31, 2007, Ohio Edison shall submit to the Plaintiffs for approval, 

and upon approval, shall implement or cause to be implemented a plan to achieve a 

reduction of SO2 emissions from the FirstEnergy System in the amount of 24,600 tons by 

or before December 31, 2010. The plan must identify the plant(s) in Pennsylvania and/or 

Ohio where the SO2 reductions will be achieved. The plan may provide that some or all 

of the 24,600-ton reduction will be achieved through emitting fewer tons than the PlantWide Annual Cap for SO2 required under Paragraph 93 in a given year at the Sammis 

Plant. For purposes of determining any amount of the 24,600-ton reduction achieved at 

Mansfield and/or Burger, Ohio Edison shall use the procedure for determining Additional 

Burger Plant SO2 Reductions and Additional Mansfield Plant SO2 Reductions. If 

emission reductions from other FirstEnergy plants are used to achieve the SO2 emission 

reductions of 24,600 tons, or a portion thereof, the amount of SO2 Interim Emission 

Reductions to be achieved at such other FirstEnergy plant(s) shall be calculated based on 

the decrease from that plant’s 2003 actual emission rate (lb/mmBtu). 

D. Surrender of SO2 Allowances 

99. Beginning on January 1, 2006 and every year thereafter, Ohio Edison may use, sell or 

transfer any Restricted SO2 Allowances only to satisfy the Operational Needs at the 

Sammis Plant, Burger Plant, Mansfield Plant and/or the Operational Needs of existing 

and new units within the FirstEnergy System that are equipped with emission controls for 

SO2 that are operated year-round and that meet an Annual Average Removal Efficiency 

of 96% or a Annual Average Emission Rate of 0.100 lb/mmBtu for SO2 (“SO2 Emission 

Control Standards”). 

100. For calendar years 2006 through 2017, Ohio Edison may accumulate for its own use 

Restricted SO2 Allowances for use at the Sammis Plant, Burger Plant, and Mansfield 

Plant, and for use at units within the FirstEnergy System that are equipped with “SO2

Emission Control Standards.” Notwithstanding this provision, however: 

 1. Ohio Edison cannot use, sell or transfer Restricted SO2 Allowances to meet the 

Operational Needs of an existing unit equipped with “SO2 Emission Control Standards” 
29

until after such unit first uses all of the SO2 Allowances allocated in that given year to 

such unit to meet the operational needs of that unit; and 

 2. If Ohio Edison, in advance of compliance with this Consent Decree, sells or 

transfers to a third party SO2 Allowances that, if such SO2 Allowances had not been sold 

would be classified as Restricted SO2 Allowances, Ohio Edison cannot use Restricted 

SO2 Allowances to meet the Operational Needs of the Sammis Plant or any other plant 

that is allowed to use Restricted SO2 Allowances under this Consent Decree until it first 

buys back or re-transfers all of those sold or transferred SO2 Allowances and uses them to 

meet the Operational Needs of that unit. 

101. If Ohio Edison installs an FGD, ECO if approved pursuant to Section VII, or equivalent 

control technology on any unit in the FirstEnergy System that is not required by this 

Consent Decree, the difference between the average annual SO2 emissions of the 2 years 

before the control device is installed and the SO2 Allowance allocation of such unit shall 

be deducted and no longer be considered Restricted SO2 Allowances. 

102. For each calendar year beginning with calendar year 2018, Ohio Edison shall surrender to 

EPA any Restricted SO2Allowances that were not used pursuant to Paragraphs 99 or 100. 

Surrender of unused Restricted SO2 Allowances shall occur annually thereafter and 

within 45 days of Ohio Edison’s receipt from EPA of the Annual Deduction Reports for 

SO2. 

103. Ohio Edison shall surrender Restricted SO2 Allowances by the use of applicable United 

States Environmental Protection Agency Acid Rain Program Allowance Transfer Form 

or transfer to a nonprofit third party selected by Ohio Edison for surrender. 

104. If any Restricted SO2 Allowances are transferred directly to a third party, Ohio Edison 

shall include a description of such transfer in the next report submitted to the Plaintiffs 

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 Restricted SO2

Allowances and a 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 Restricted 

SO2 Allowances to meet any obligation imposed by any environmental law. No later 

than the next Section XII periodic report due 12 months after the first report due after the 
30

transfer, Ohio Edison shall include in a statement that the third-party recipient(s) 

surrendered the Restricted SO2 Allowances for permanent surrender to EPA within one 

year after Ohio Edison transferred the Restricted SO2 Allowances to them. Ohio Edison 

shall not have complied with the Restricted SO2 Allowance surrender requirements of 

this Paragraph until all third-party recipient(s) have actually surrendered the transferred 

Restricted SO2 Allowances to EPA.

105. The requirements in Paragraphs 99-102 of this Consent Decree pertaining to Ohio 

Edison’s use and surrender of Restricted SO2 Allowances are permanent injunctions not 

subject to any termination provision of this Decree. These provisions shall survive any 

termination of this Consent Decree in whole or in part. 

106. After Ohio Edison reports the generation of Super-compliant SO2 Allowances in 

accordance with Section XII (Periodic Reporting), nothing in this Consent Decree shall 

preclude Ohio Edison from selling, trading, or transferring these reported Supercompliant SO2 Allowances that become available for sale or trade as a result of: 

a. activities that occur prior to the date of entry of this Consent Decree; 

b. Ohio Edison’s achieving SO2 emissions at Sammis Plant that are below the 

30-Day Rolling Average Emission Rate of 0.130 lb/mmBtu for Sammis Units 6 

and 7 and the 30-Day Rolling Average Emission Rate of 1.100 lb/mmBtu for 

Sammis Units 1 through 5 (or the applicable rate for Sammis Unit 5 as determined 

under Paragraph 88), and the applicable Plant-wide Annual Cap of 29,900 tons; or 

c. the installation and operation of SO2 pollution controls at units covered under this 

Consent Decree prior to the dates required under Section V (SO2Emission 

Reductions and Controls) of this Consent Decree. 

107. If Ohio Edison transfers Restricted SO2 Allowances to a unit within the FirstEnergy 

System not covered by this Consent Decree, Ohio Edison must provide or cause to 

provide right of entry as required by Paragraph 181. 

E. General SO2 Provisions

108. In determining 30-Day Rolling Average Emission Rates for SO2, Ohio Edison shall 

operate CEMS at each unit; provided, however, that due to the common stacks CEMS at 

Sammis Units 1 to 4, SO2 pollutant concentration monitors certified in accordance with 
31

40 C.F.R. Part 60 shall determine the 30-Day Rolling Average Emission Rates for SO2 at 

each of Sammis Units 1 to 4. In determining compliance with the Plant-Wide Annual 

SO2 Cap and the Monthly Cap, Ohio Edison shall operate CEMS at each stack (including 

the common stacks that serve Sammis Units 1 and 2 and Units 3 and 4). 

109. If both primary and secondary CEMS have a missing data event, Ohio Edison shall use 

40 C.F.R. Part 60 to show compliance with a 30-Day Rolling Average Emission Rate for 

SO2, provided that Ohio Edison (1) has secondary CEMS installed, and (2) places them in 

service within one hour of a missing data event from the primary CEMS but the 

secondary CEMS also fails. If Ohio Edison does not meet conditions in (1) and (2) 

above, Ohio Edison shall use 40 C.F.R. § 75.33 to determine compliance with the 30-Day 

Rolling Average Emission Rate for SO2. If there is a missing data event, Ohio Edison 

shall use the data substitution provisions in 40 C.F.R. § 75.33 to show compliance with 

the Plant-Wide Annual Caps and Monthly Caps for SO2. 

VI. PM EMISSION REDUCTIONS AND CONTROLS

A. Demonstration and Compliance with PM Emission Limit

110. No later than January 1, 2010, Ohio Edison shall achieve and maintain a PM Emission 

Rate of no greater than 0.030 lb/mmBtu at Sammis Units 6 and 7. 

111. Ohio Edison shall continuously operate each ESP at Sammis Units 6 and 7 at all times 

that each unit the ESP serves is combusting Fossil Fuel, consistent with good engineering 

practices for PM control, to minimize PM emissions to the extent practicable. The 

preceding sentence shall not be construed to require that Ohio Edison achieve more 

stringent unit emission rate(s) than required by this Consent Decree. 

B. PM Monitoring

112. By no later than December 31, 2005, and continuing annually thereafter, Ohio Edison 

shall conduct PM performance testing on Sammis Units 6 and 7. Such annual 

performance tests may be satisfied by stack tests conducted in a given year, in accordance 

with Ohio Edison’s permit from the State of Ohio. 

113. In determining the PM Emission Rate, Ohio Edison shall use the reference methods 

specified in 40 C.F.R. Part 60, Appendix A, Method 5, or Method 5B if allowed by the 
32

State of Ohio or local authority, or alternative methods requested by Ohio Edison and 

approved by EPA. Ohio Edison shall also calculate the PM Emission Rates from annual 

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 30 days of completion of each test. 

VII. SUBSTITUTION OF ECO TECHNOLOGY

114. Overview of ECO. The Parties recognize the significant potential environmental and 

economic benefits that may be available if Electro-Catalytic Oxidation (“ECO”) pollution 

control technology, which is currently being demonstrated at Ohio Edison’s Burger Plant, 

becomes sufficiently reliable and effective to enable it to be used as substitute technology 

for control of nitrogen oxide, sulfur dioxide and particulate matter emissions from 

Sammis Units 6 and 7 in accordance with the requirements of this Consent Decree. ECO 

uses a form of wet scrubber technology to control SO2 and a form of wet electrostatic 

precipitator technology to control PM, and it is a promising technology to control NOX. 

ECO is anticipated to have the additional environmental benefits of controlling mercury, 

preventing a visible stack plume, and producing a commercially valuable fertilizer that 

minimizes waste disposal requirements, none of which is required by this Consent Decree 

or sought in this action. ECO is expected to be at least as effective as the conventional 

technology required by Sections V and VI of this Consent Decree in reducing emissions 

of sulfur dioxide and particulate matter; further development of the ECO technology will 

be required before it can provide the level of reduction of nitrogen oxides required by this 

Consent Decree. The performance goals for the ECO technology include emission rates 

of 0.010 lb/mmBtu for particulate matter, 98% removal of sulfur dioxide, 90% removal 

of nitrogen oxide, and 90% removal of mercury from power plant emissions. If the ECO 

technology achieves these goals, installation of that technology at Sammis Units 6 and 7 

will provide greater reduction of emissions of pollutants specified by this Consent Decree 

than the conventional technology, at a potentially lower cost with the added benefits of 

significant reduction of mercury emissions. 

115. Demonstration Requirements for Substitution of ECO Control Technology on Sammis 

Units 6 and 7. No later than December 31, 2007, Ohio Edison may seek Plaintiffs’ 

approval to install ECO control technology on both Sammis Units 6 and 7 by December 
33

31, 2010 in lieu of the requirements of Paragraphs 54 and 81 of the Consent Decree to 

install two FGDs by December 31, 2010 and one SCR control system for NOX by 

December 31, 2010. Ohio Edison shall make a good faith effort to submit the data 

necessary for such demonstration by December 31, 2006 and shall have the right to 

supplement this data until December 31, 2007. To obtain Plaintiffs’ approval, Ohio 

Edison must demonstrate that ECO technology installed at the Burger plant or another 

full scale commercial facility: 

a. has achieved the reliability criterion set forth in Paragraph 116 below on a 

consistent basis for a period of no less than 180 consecutive calendar days that 

ends within a year of seeking approval; 

b. has met the emission reduction requirements for SO2 and PM set forth in 

Paragraph 117 below continuously, i.e. at least 95% of the time that the control 

equipment is running; and 

c. for at least a 135 consecutive calendar day test period, has achieved a 30-Day 

Rolling Average Emission Rate of NOX such that operation of ECO at both 

Sammis Units 6 and 7 would reduce total NOX emissions by at least ten percent 

(10%) more than the 30-Day Rolling Average Emission Rate for a single SCR at 

either Sammis Unit 6 or 7 as required in Paragraph 54 of this Consent Decree for 

95% of the time that the control equipment is running at the Burger plant or any 

other plant in full-scale commercial operation. 

116. Reliability Criteria. The reliability criterion for Plaintiffs’ approval of the substitution of 

the ECO technology on Sammis Units 6 and 7, for purposes of Paragraph 115.a., is 95% 

availability, i.e. Ohio Edison must demonstrate that the ECO control itself has not caused 

outages on the unit(s) on which it has been installed more than 5% of the time those units 

were in operation or called upon to operate. 

117. Emission Reduction Requirements for SO2 and PM. The SO2 and PM emission reduction 

requirements for demonstration of ECO technology under this paragraph shall be the 

limitations set forth in this Consent Decree for the emission of such pollutants from 

Sammis Units 6 and 7. The limitation for SO2 emissions from Units 6 and 7, as provided 

in Paragraph 81 of this Consent Decree, is a 30-Day Rolling Average Emission Rate for 
34

SO2 of 0.130 lb/mmBtu. The limitation for PM emissions from Units 6 and 7, as 

provided in Paragraph 110 of this Consent Decree, is 0.030 lb/mmBtu. 

118. Plaintiffs’ Review and Approval. Plaintiffs shall review Ohio Edison’s proposal for 

substitution of ECO technology on Sammis Units 6 and 7 in accordance with Section 

XIII of this Consent Decree (Review and Approval of Submissions) and this paragraph, 

as follows: 

a. Substitution of ECO Technology From December 31, 2010 to December 31, 

2011. If Ohio Edison demonstrates that ECO has met the requirements of 

Paragraph 115, Plaintiffs will approve the substitution of ECO controls at Sammis 

Units 6 and 7 in lieu of the requirements of Sections IV and V of this Consent 

Decree that one SCR and two conventional FGDs be installed by December 31, 

2010. 

b. Dispute Resolution. If Plaintiffs do not grant their approval, Ohio Edison may 

seek dispute resolution from the Court pursuant to Section XVI of this Consent 

Decree. Ohio Edison shall have the burden of demonstrating that ECO meets the 

approval criteria of Paragraph 115. If Plaintiffs do not agree that ECO meets the 

requirements of Paragraph 115, Plaintiffs nonetheless reserve the right to grant 

their approval if, based on the facts and circumstances then appearing, including 

but not limited to engineering concerns involving scale-up and reliability, they 

conclude that there is a substantial likelihood that ECO will meet the requirements 

of this Consent Decree at the Sammis plant on a reliable and consistent basis. If 

the criteria set forth in Paragraph 115 are not met and Plaintiffs do not otherwise 

grant approval in accordance with the preceding sentence, such denial shall not be 

reviewable and not subject to dispute. 

119. Adjustment of Installation Dates. In the event that Plaintiffs approve the installation of 

ECO on both Sammis Units 6 and 7, or the Court reverses Plaintiffs’ denial of approval, 

the schedule and requirements for installation of controls at Sammis Units 6 and 7 shall 

be adjusted as follows: Ohio Edison shall install ECO control technology on Units 6 and 

7 by December 31, 2010. This shall be in lieu of the requirements of Sections IV and V 

of this Consent Decree to install two FGDs and one SCR on those units by that date. By 

December 31, 2010, Ohio Edison shall complete such engineering for installation of 
35

SCRs on Units 6 and 7, so that Ohio Edison is prepared, if necessary, to install such 

SCRs expeditiously in the event that such installation is required by December 31, 2011 

under Paragraph 123 below. 

120. At all times that ECO is installed, Ohio Edison shall use reasonable best efforts to meet a 

30-Day Rolling Average Emission Rate of 0.100 lb/mmBtu for NOX at Sammis Units 6 

and 7. Reasonable best efforts shall include operation of SNCR and any other NOX

controls, consistent with good engineering practices, at Sammis Units 6 and 7. The 

preceding two sentences shall not be construed to require that Ohio Edison achieve a 

more stringent unit emission rate than required by this Consent Decree. 

121. Penalties and Makeup Tons for Failure to Achieve NOX Emission Limitations Between 

December 31, 2010 and December 31, 2011. If Ohio Edison elects to install ECO 

technology on Sammis Units 6 and 7 and fails to achieve the emission limitation for NOX

of 0.100 lb/mmBtu on a 30-day rolling average basis as required under this Consent 

Decree, it shall be subject to the stipulated penalties requirements of Section XIV of this 

Consent Decree. If Ohio Edison fails to achieve a 30-Day Rolling Average Emission 

Rate for NOX of 0.100 lb/mmBtu or the Plant-Wide Annual Cap for NOX provided under 

Section IV of this Consent Decree, Ohio Edison, in addition to paying stipulated penalties 

under Section XIV of this Consent Decree, shall purchase and retire NOX credits from the 

market equivalent to 1.25 times the excess tons emitted by any violation. The assessment 

of stipulated penalties in accordance with this paragraph is not subject to the Dispute 

Resolution procedures of Section XVI of this Consent Decree. In order to assure that the 

makeup tons are obtained from an area that is upwind from and impacts the air quality in 

Plaintiffs’ States to the maximum extent practicable, Ohio Edison further agrees to seek 

to purchase such credits from facilities in Ohio or Pennsylvania, and to pay up to a 5% 

premium for such credits if necessary. 

122. Evaluation. By July 31, 2011, Ohio Edison shall submit a certified report to Plaintiffs 

and the Court demonstrating that ECO has continuously met the emission limitation 

requirements of Sections IV, V, and VI of this Consent Decree for emissions from 

Sammis Units 6 and 7, i.e., 30-Day Rolling Average Emission Rate of 0.130 lb/mmBtu 

for SO2, 0.030 lb/mmBtu for PM and 30-Day Rolling Average Emission Rate of 0.100 

lb/mmBtu for NOX, for 98% of the time that the control equipment is running following a 
36

shakedown period of not more than 180 days, and meeting the reliability criteria in 

Paragraph 116 above. The report shall include all emission data and all data showing the 

performance of the ECO technology at Units 6 and 7 during the evaluation period. The 

report shall also include reliability data identifying all outages of the ECO control system, 

the duration of such outages, and the causes or reasons for such outages. 

123. Final Approval of ECO or Installation of SCRs. If Plaintiffs agree that Ohio Edison’s 

report, submitted pursuant to the preceding paragraph, demonstrates that the ECO and the 

combination of other pollution control technologies installed on Sammis Units 6 and 7 

have continuously met the 30-Day Rolling Average Emission Rate of 0.130 lb/mmBtu 

for SO2, 30-Day Rolling Average Emission Rate of 0.100 lb/mmBtu for NOX, and PM 

Emission Rate of 0.030 lb/mmBtu at Sammis Units 6 and 7 as required by this Consent 

Decree, and has proven to be reliable, installation of SCRs shall not be required on Units 

6 and 7. If Plaintiffs do not agree that Ohio Edison has made and adequately supported 

this demonstration for NOX, Ohio Edison shall install SCRs on Units 6 and 7 as 

expeditiously as possible, but in no event later than December 31, 2011. Any dispute as 

to whether Ohio Edison has made the required demonstration shall be subject to the 

Dispute Resolution procedures of Section XVI of this Consent Decree. Until the SCRs 

are installed, Ohio Edison shall continue to operate the ECO and other pollution control 

technologies to maximize reductions of emissions from Sammis Units 6 and 7, consistent 

with good engineering practices. 

VIII. PROHIBITION ON NETTING CREDITS OR OFFSETS FROM REQUIRED 

CONTROLS

124. Emission reductions generated by Ohio Edison 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 under the Clean Air Act’s PSD 

program. 

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

under this Consent Decree from being considered by EPA as creditable contemporaneous 

emission decreases for the purpose of attainment demonstrations submitted pursuant to 

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

increment, visibility, air quality related values, or any other air quality impact assessment. 
37

IX. ENVIRONMENTALLY BENEFICIAL PROJECTS

126. Ohio Edison shall fund and/or implement the Environmentally Beneficial Projects 

(“Projects”) described in this Section in compliance with the terms of this Consent 

Decree. In funding and/or implementing the Projects, Ohio Edison shall expend moneys 

and/or implement Projects cumulatively valued at $25 million as allocated below. 

127. All plans and reports prepared by Ohio Edison pursuant to the requirements of this 

Section of the Consent Decree shall be publicly available electronically without charge. 

128. Ohio Edison shall certify for each Project that Ohio Edison is not otherwise required by 

law to perform the Project, that Ohio Edison is unaware of any other person who is 

required by law to perform the Project, and that Ohio Edison will not use any Project, or 

portion thereof, to satisfy any obligations that it may have under other applicable 

requirements of law in effect at the time of lodging of this Consent Decree. 

129. Cash Contribution to States: The States shall jointly submit environmentally beneficial 

projects to Ohio Edison for funding in amounts not to exceed $2 million per calendar 

year for up to five (5) years following the entry of the Consent Decree beginning as early 

as calendar year 2005. The funds for these projects will be apportioned by and among 

the States, and Ohio Edison shall not have approval rights for the projects or the 

apportionment. Ohio Edison shall pay proceeds as designated by the States in accordance 

with the environmentally beneficial projects submitted for funding each year within 75 

calendar days after being notified in writing by the States. Notwithstanding the $2 

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

or more years are less than $2 million, the difference between that amount and $2 million 

will be available for funding by Ohio Edison of new or previously submitted projects in 

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

years after entry of this Consent Decree shall expire. 

130. Renewable Energy Development Projects. Within three and a half years after entry of 

this Consent Decree, Ohio Edison shall provide proof to the Plaintiffs that it has entered 

into one or more contracts with providers of wind energy for purchase of at least 93 

megawatts if federal tax credits are applicable to a project (or 23 megawatts if federal tax 

credits are not applicable). These renewable energy development projects have a net 
38

present value of $14.385 million. Such power purchase contracts shall be for 20 years of 

electric generation capacity generated by wind in Pennsylvania, New Jersey and/or 

western New York at such megawattage described above. Ohio Edison shall enter into 

one or more power purchase contracts within one year of entry of the Consent Decree for 

a minimum of 15 megawatts if federal tax credits are applicable to a project (or a 

minimum of 3.7 megawatts if tax credits are not applicable). The amount of megawatts 

shall be adjusted pro rata depending on the proportion of megawatts for which tax credits 

are or are not applicable. 

131. With Plaintiffs’ written approval, Ohio Edison may, in lieu of some or all of the wind 

projects under Paragraph 130, enter into contract(s) for electricity from new landfill gas 

projects in New Jersey, Connecticut, or New York. 

132. Allegheny County Project(s). Ohio Edison shall provide to the Allegheny County Clean 

Air Fund $400,000 for municipal clean energy projects, as more fully described in 

Appendix A. Ohio Edison shall pay proceeds as designated by Allegheny County within 

75 calendar days after being notified in writing by Allegheny County. 

133. National Park Service Project(s). The National Park Service shall submit to Ohio Edison 

a plan for using $215,000 in accordance with the Park System Resource and Protection 

Act, 16 U.S.C. § 19jj, for a project or projects to improve air quality by addressing air 

quality and/or air deposition issues in and about the Shenandoah National Park. Ohio 

Edison shall not have approval rights for the plan or these projects. Ohio Edison shall 

transfer the sum of $215,000 to the Natural Resource Damage and Assessment Fund 

(instructions to be provided in the National Park Service plan) within 75 calendar days 

after receipt of the plan. 

134. Ohio Edison agrees that neither it, its affiliates nor the project developer shall sell, 

transfer, or otherwise use any renewable energy credits or any other benefits from the 

purchase power agreements for the wind and/or landfill gas projects undertaken (except 

for the federal tax credit if applicable) under any law or program enacted, adopted or 

promulgated on or before the date of lodging of the Consent Decree and any re-enacted 

or amended versions of such programs that come into effect thereafter, including, but not 

limited to, the Renewable Portfolio Standards enacted in Connecticut, New York, New 

Jersey and Pennsylvania. 
39

X. CIVIL PENALTY

135. Within thirty (30) calendar days after entry of this Consent Decree, Ohio Edison shall pay 

to the United States a civil penalty in the amount of $8.5 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, referencing USAO File Number 2003v02237 

and DOJ Case Number 90-5-2-1-06894 and the civil action case name and case number 

of this action. The costs of such EFT shall be Ohio Edison’s responsibility. Payment 

shall be made in accordance with instructions provided to Ohio Edison by the Financial 

Litigation Unit of the U.S. Attorney’s Office for the Southern District of Ohio. Any 

funds received after 2:00 p.m. EDT shall be credited on the next business day. At the 

time of payment, Ohio Edison shall provide notice of payment, referencing the USAO 

File Number, the DOJ Case Number, and the civil action case name and case number, to 

the Department of Justice and to EPA in accordance with Section XIX (Notices) of this 

Consent Decree. 

136. Failure to timely pay the civil penalty shall subject Ohio Edison 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 Ohio Edison 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. 

137. 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 CLAIMS

138. Entry of this Consent Decree shall resolve all civil claims of the Plaintiffs that arose from 

any modifications that commenced at Sammis Units 1 through 7 prior to the date of 

lodging of this Consent Decree (including but not limited to those modifications alleged 

in the Complaint in this civil action) under Parts C or D of Subchapter I of the Clean Air 

Act, under the New Source Performance Standard program of Section 111 of the Clean 

Air Act, or under the relevant provisions of the federally approved and enforceable Ohio 

State Implementation Plan (Ohio Admin. Code Chapter 3745-31). 
40

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

Parts C or D of Subchapter I of the Clean Air Act and regulations promulgated as of the 

date of lodging of this Consent Decree, where such claims are based on a modification, 

completed before December 31, 2012, that this Consent Decree directs Ohio Edison to 

undertake. 

140. Upgrades of Units 6 and 7. The United States agrees that, in conjunction with the 

installation of emission controls on Sammis Units 6 and 7 pursuant to this Consent 

Decree, Ohio Edison may make modifications to one or both of those units that increase 

each of their maximum hourly emission rates by up to 10%, provided that: 

a. any modifications for each unit occur simultaneously with, or no more than one 

year after, the installation and operation of the last of the controls as required 

under this Consent Decree for that unit, pursuant to Paragraphs 54, 81, and 118; 

b. Ohio Edison is in compliance with all of the requirements of the Consent Decree 

for installation of emission controls pursuant to Paragraphs 54, 81, and 118, and 

for achieving and maintaining levels of emissions reductions pursuant to 

Paragraphs 69 and 93 (Plant-Wide Annual Caps for NOX and SO2); and 

c. the modifications for each unit, either individually or collectively, do not increase 

the maximum hourly emission rate of each unit for NOX or SO2 (as measured by 

40 C.F.R. § 60.14(b) and (h)) by more than 10%. 

 If modifications occur in compliance with this paragraph, the United States agrees not to 

assert any claims for these modifications under Parts C and D of Subchapter I of the 

Clean Air Act, seeking the installation of additional NOX, SO2, and PM pollution controls 

on Units 6 and 7, other than those required by this Consent Decree. Nothing herein shall 

affect Ohio Edison’s obligations under Ohio law, including any permitting requirements. 

XII. PERIODIC REPORTING

141. Beginning forty-five (45) days after the end of the first full calendar quarter following the 

entry of this Consent Decree, continuing on a semi-annual basis until December 31, 2015, 

Ohio Edison shall submit to EPA and the States a periodic report in compliance with 

Appendix B. 
41

142. In any periodic report submitted pursuant to this Section, Ohio Edison may incorporate 

by reference information previously submitted under its Title V permitting requirements, 

provided that Ohio Edison attaches the Title V permit report (or pertinent portions of 

such report) and provides a specific reference to the provisions of the Title V permit 

report that are responsive to the information required in the periodic progress report. 

143. In addition to the periodic reports required pursuant to this Section, Ohio Edison shall 

provide a written report to Plaintiffs of the following violations of the requirements of 

this Consent Decree: (1) the 30-Day Rolling Average Emission Rates, (2) PM Emission 

Rates, (3) Annual and Monthly Caps, (4) Additional and Interim Reductions, and (5) 

Restricted SO2 Allowance surrender within ten (10) business days of when Ohio Edison 

knew or should have known of any such violation. In this report, Ohio Edison shall 

explain to the best of its knowledge the cause or causes of the violation and all measures 

taken or to be taken by Ohio Edison to prevent such violations in the future. Pursuant to 

Section XXVII (Conditional Termination of Enforcement Under Consent Decree), when 

provisions of the Consent Decree are included in Title V Permits, the deviation reports 

required under applicable Title V regulations shall be deemed to satisfy all requirements 

of this paragraph. 

144. Each Ohio Edison report shall be signed by Ohio Edison's Manager, Environmental 

Reporting and Compliance or, in his or her absence, Ohio Edison's Vice President of 

Environmental, or higher ranking official, and shall contain the following certification: 

 his information was prepared either by me or under my 

direction or supervision in accordance with a system designed 

to assure that qualified personnel properly gather and evaluate 

the information submitted. Based on my evaluation, or the 

direction and my inquiry of the person(s) who manage the 

system, or the person(s) directly responsible for gathering the 

information, I hereby certify under penalty of law that, to the 

best of my knowledge and belief, this information is true, 

accurate, and complete. I understand that there are significant 

penalties for submitting false, inaccurate, or incomplete 

information to the United States. 
42

XIII. REVIEW AND APPROVAL OF SUBMITTALS

145. Ohio Edison shall submit each plan, report, or other submission to EPA and the States on 

or before the date that document is required or allowed to be submitted for review or 

approval pursuant to this Consent Decree. Plaintiffs shall within ninety (90) days of 

receipt of a plan, report, or other submission approve or decline to approve it and provide 

written comments. Plaintiffs’ failure to respond within ninety (90) days shall not be 

construed as an approval or a disapproval of the submission, a wavier of the right to 

review the submission, or a basis to excuse compliance with the Consent Decree. Within 

sixty (60) days of receiving written comments from Plaintiffs, Ohio Edison shall either: 

(a) revise the submittal consistent with the written comments and provide the revised 

submittal for final approval to Plaintiffs; or (b) submit the matter for dispute resolution, 

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

this Consent Decree. 

146. Upon receipt of Plaintiffs’ final approval of the submittal or upon completion of the 

submittal pursuant to dispute resolution, Ohio Edison shall implement the approved 

submittal in accordance with the schedule specified therein. 

XIV. STIPULATED PENALTIES

147. For any failure by Ohio Edison to comply with the terms of this Consent Decree, and 

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

of this Consent Decree, Ohio Edison shall pay, within thirty (30) days after receipt of 

written demand to Ohio Edison by the United States, the following stipulated penalties to 

the United States: 

Consent Decree Violation 

Stipulated Penalty 

(Per day per violation, unless 

otherwise specified) 

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

(Civil Penalty) of this Consent Decree 

$10,000 
43

Consent Decree Violation 

Stipulated Penalty 

(Per day per violation, unless 

otherwise specified) 

b. Failure to comply with any applicable 30-Day Rolling 

Average Emission Rate for NOX or SO2, or Emission Rate 

for PM, where the violation is less than 5% in excess of the 

limits set forth in this Consent Decree 

$2,500 

c. Failure to comply with any applicable 30-Day Rolling 

Average Emission Rate for NOX or SO2, 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 

d. Failure to comply with any applicable 30-Day Rolling 

Average Emission Rate for NOX or SO2, or Emission Rate 

for PM, 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 comply with the Plant-Wide Annual Caps for 

SO2 and NOX, and the Sammis Units 1 through 5 Monthly 

Cap for SO2

$60,000 per ton for the first 100 

tons over the limit, and $120,000 

per ton for each additional ton 

over the limit. 

f. Failure to achieve the required Additional Reductions for 

SO2 and NOX

$30,000 per ton for the first 100 

tons not achieved, and $60,000 

per ton for each additional ton 

not achieved. 

g. Failure to achieve the required Interim Reductions for 

SO2 and NOX

$30,000 per ton for the first 100 

tons not achieved, and $60,000 

per ton for each additional ton 

not achieved. 

h. Failure to install, commence operation, or continue 

operation of the NOX, SO2, and PM pollution control devices 

on any unit, or failure to cease operations of a unit. This 

stipulated penalty will only accrue if the unit is operated 

without the required control device after the date by which 

the control device was required to be installed under this 

Consent Decree. 

$10,000 during the first 30 days, 

$27,000 thereafter. 
44

Consent Decree Violation 

Stipulated Penalty 

(Per day per violation, unless 

otherwise specified) 

i. Failure to install or operate CEMS as required in 

Paragraphs 79 and 108 

$1,000 

j. Failure to conduct annual performance tests of PM 

emissions, as required in Paragraph 112 

$1,000 

k. Failure to apply for any permit required by Section XVII $1,000 

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

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

other submittals required by this Consent Decree 

$750 during the first ten days, 

$1,000 thereafter. 

m. Using, selling, or transferring SO2 Allowances, except as 

permitted in Section V.C. 

the surrender, pursuant to the 

procedures set forth in 

Paragraphs 103 and 104 of this 

Consent Decree, of SO2

Allowances in an amount equal 

to three times the number of SO2

Allowances used, sold, or 

transferred in violation of this 

Consent Decree. 

n. Selling, trading, or transferring NOX Allowances, except 

as permitted in Section IV.C. 

the surrender of NOX

Allowances in an amount equal 

to three times the number of 

NOX Allowances sold or 

transferred in violation of this 

Consent Decree. 

o. Failure to surrender an SO2 Allowance as required by 

Paragraph 102 

(a) $27,500 plus (b) 100 

additional SO2 Allowances per 

day per violation. 

p. Failure to fund and/or implement any of the 

Environmentally Beneficial Projects in compliance with 

Section IX (Environmentally Beneficial Projects) of this 

Consent Decree 

$1,000 during the first 30 days, 

$5,000 thereafter. 

q. Any other violation of this Consent Decree $1,000 
45

148. Violation of a 30-Day Rolling Average Emission Rate is a violation on every day on 

which the average is based. Violation of the Plant-Wide Annual Cap or Sammis Units 1 

through 5 Monthly Cap is a single violation. 

149. Where a violation of a 30-Day Rolling Average Emission Rate (for the same pollutant 

and from the same source) recurs within periods of less than thirty (30) days, Ohio 

Edison shall not pay a daily stipulated penalty for any day of the recurrence for which a 

stipulated penalty has already been paid. 

150. Ohio Edison shall not be assessed or required to pay any stipulated penalties for any day 

on which a unit is not operated for failure to comply with a unit-specific requirement 

under this Consent Decree. 

151. 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 in this 

Consent Decree shall prevent the simultaneous accrual of separate stipulated penalties for 

separate violations of this Consent Decree. 

152. Ohio Edison shall pay all stipulated penalties to the United States within thirty (30) days 

of receipt of written demand to Ohio Edison from the United States, and shall continue to 

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

continues, unless Ohio Edison elects within 20 days of receipt of written demand to Ohio 

Edison from the United States to dispute the accrual of stipulated penalties in accordance 

with the provisions in Section XVI (Dispute Resolution) of this Consent Decree. 

153. Stipulated penalties shall continue to accrue as provided in accordance with Paragraph 

151 during any dispute, with interest on accrued stipulated penalties payable and 

calculated at the rate established by the Secretary of the Treasury, pursuant to 28 U.S.C. § 

1961, but need not be paid until the following: 

a. If the dispute is resolved by agreement, or by a decision of Plaintiffs pursuant to 

Section XVI (Dispute Resolution) of this Consent Decree that is not appealed to 

the Court, accrued stipulated penalties agreed or determined to be owing, together 

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

the agreement or of the receipt of Plaintiffs’ decision; 
46

b. If the dispute is appealed to the Court and Plaintiffs prevail in whole or in part, 

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

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

together with accrued interest, except as provided in Subparagraph 153.c.; 

c. If the Court’s decision is appealed by any Party, Ohio Edison 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. 

 or purposes of this paragraph, the accrued stipulated penalties agreed by the Parties, or 

determined by the Plaintiffs through Dispute Resolution, to be owing may be less than 

the stipulated penalty amounts set forth in Paragraph 147. 

154. All stipulated penalties shall be paid in the manner set forth in Section X (Civil Penalty) 

of this Consent Decree. 

155. Should Ohio Edison fail to pay stipulated penalties in compliance with the terms of this 

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

provided for in 28 U.S.C. § 1961. 

156. The stipulated penalties provided for in this Consent Decree shall be in addition to any 

other rights, remedies, or sanctions available to any Plaintiff by reason of Ohio Edison’s 

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

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

stipulated penalty, Ohio Edison shall be allowed a credit for stipulated penalties paid 

against any statutory penalties also imposed for such violation. 

XV. FORCE MAJEURE

157. For purposes of this Consent Decree, including but not limited to Paragraphs 69, 93, and 

94 (Plant-Wide Annual Cap and Monthly Cap), a “Force Majeure Event” shall mean an 

event that has been or will be caused by circumstances beyond the control of Ohio 

Edison, its contractors, or any entity controlled by Ohio Edison that delays compliance 

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

provision of this Consent Decree despite Ohio Edison’s best efforts to fulfill the 

obligation. “Best efforts to fulfill the obligation” include using best efforts to anticipate 

any potential Force Majeure Event and to address the effects of any such event (a) as it is 
47

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

greatest extent possible. 

158. Notice of Force Majeure Events. If any event occurs or has occurred that may delay 

compliance with or otherwise cause a violation of any obligation under this Consent 

Decree, as to which Ohio Edison intends to assert a claim of Force Majeure, Ohio Edison 

shall notify the United States and the States in writing as soon as practicable, but in no 

event later than fourteen (14) business days following the date Ohio Edison first knew, or 

by the exercise of due diligence should have known, that the event caused or may cause 

such delay or violation. In this notice, Ohio Edison shall reference this paragraph of this 

Consent Decree and describe the anticipated length of time that the delay or violation 

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

taken by Ohio Edison to prevent or minimize the delay or violation, the schedule by 

which Ohio Edison proposes to implement those measures, and Ohio Edison’s rationale 

for attributing a delay or violation to a Force Majeure Event. Ohio Edison shall adopt all 

reasonable measures to avoid or minimize such delays or violations. Ohio Edison shall 

be deemed to know of any circumstance which Ohio Edison, its contractors, or any entity 

controlled by Ohio Edison knew or should have known. 

159. Failure to Give Notice. If Ohio Edison fails to comply with the notice requirements in 

Paragraph 158, the Plaintiffs may void Ohio Edison’s claim for Force Majeure as to the 

specific event for which Ohio Edison has failed to comply with such notice requirement. 

160. Plaintiffs’ Response. The Plaintiffs shall notify Ohio Edison in writing regarding Ohio 

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

provided under Paragraph 158. If the Plaintiffs agree that a delay in performance has 

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

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

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

appropriate modification shall be made pursuant to Section XXIII (Modification) of this 

Consent Decree. 

161. Disagreement. If the Plaintiffs do not accept Ohio Edison’s claim of Force Majeure, or if 

the Parties cannot agree on the length of the delay actually caused by the Force Majeure 
48

Event, the matter shall be resolved in accordance with Section XVI (Dispute Resolution) 

of this Consent Decree. 

162. Burden of Proof. In any dispute regarding Force Majeure, Ohio Edison shall bear the 

burden of proving that any delay in performance or any other violation of any 

requirement of this Consent Decree was caused by or will be caused by a Force Majeure 

Event. Ohio Edison shall also bear the burden of proving that Ohio Edison gave the 

notice required by Paragraph 158 and the burden of proving the anticipated duration and 

extent of any delay(s) attributable to a Force Majeure Event. An extension of one 

compliance date based on a particular event may, but will not necessarily, result in an 

extension of a subsequent compliance date. 

163. Events Excluded. Unanticipated or increased costs or expenses associated with the 

performance of Ohio Edison’s obligations under this Consent Decree shall not constitute 

a Force Majeure Event. 

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

circumstances related to an event and Ohio Edison’s response to such circumstances, the 

kinds of events listed below are among those that could qualify as Force Majeure Events 

within the meaning of this Section: construction, labor, or equipment delays; 

Malfunction of a unit or emission control device; coal supply interruption; acts of God; 

acts of war or terrorism; and orders by a government official, government agency, or 

other regulatory body acting under and authorized by applicable law that directs Ohio 

Edison to supply electricity in response to a system-wide (state-wide or regional) 

emergency. Depending upon the circumstances and Ohio Edison’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 Ohio Edison and Ohio Edison has taken all steps 

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

complete permit application; responding to requests for additional information by the 

permitting authority in a timely fashion; and accepting lawful permit terms and 

conditions after expeditiously exhausting any legal rights to appeal terms and conditions 

imposed by the permitting authority. 
49

165. As part of the resolution of any matter submitted to this Court under Section XVI 

(Dispute Resolution) of this Consent Decree regarding a claim of Force Majeure, the 

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

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

delay in the work that occurred as a result of any delay agreed to by the United States and 

the States or approved by the Court. Ohio Edison 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

166. The dispute resolution procedure provided by this Section shall be available to resolve all 

disputes arising under this Consent Decree, provided that the Party invoking such 

procedure has first made a good faith attempt to resolve the matter with the other Parties. 

167. The dispute resolution procedure required herein shall be invoked by one Party giving 

written notice to the other Parties advising of a dispute pursuant to this Section. The 

notice shall describe the nature of the dispute and shall state the noticing Party’s position 

with regard to such dispute. The Parties receiving such a notice shall acknowledge 

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

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

notice. 

168. Disputes submitted to dispute resolution under this Section shall, in the first instance, be 

the subject of informal negotiations among the disputing Parties. Such period of informal 

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

meeting among the disputing Parties’ representatives unless they agree in writing to 

shorten or extend this period. During the informal negotiations period, the disputing 

Parties may also submit their dispute to a mutually-agreed-upon alternative dispute 

resolution (“ADR”) forum if the Parties agree that the ADR activities can be completed 

within the 30-day informal negotiations period (or such longer period as the Parties may 

agree to in writing). 

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

period, the Plaintiffs shall provide Ohio Edison with a written summary of their position 
50

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

binding unless, within forty-five (45) calendar days thereafter, Ohio Edison seeks judicial 

resolution of the dispute by filing a petition with this Court. The Plaintiffs may respond 

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

170. 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. 

171. 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. 

172. 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. Ohio Edison shall be 

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

with the extended or modified schedule, provided that Ohio Edison shall not be precluded 

from asserting that a Force Majeure Event has caused or may cause a delay in complying 

with the extended or modified schedule. 

173. 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 169, the disputing 

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

resolving the particular dispute. 

XVII. PERMITS

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

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

to authorize construction or operation of any device, including all preconstruction, 

construction, and operating permits required under state law, Ohio Edison shall make 

such application in a timely manner. The United States will use its best efforts to 

expeditiously review all permit applications submitted by Ohio Edison in order to meet 

the requirements of this Consent Decree. 
51

175. When permits are required as described in Paragraph 174, Ohio Edison 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, including 

requests for additional information by the permitting authorities. Any failure by Ohio 

Edison to submit a timely permit application for any unit in the Ohio Edison System shall 

bar any use by Ohio Edison of Section XV (Force Majeure) of this Consent Decree, 

where a Force Majeure claim is based on permitting delays. 

176. Title V Permits. Whenever Ohio Edison applies for Title V Permit(s) or for 

amendment(s) to existing Title V Permit(s) to include any of the requirements of this 

Consent Decree in such permit, Ohio Edison shall send, at the same time, a copy of such 

application to each Plaintiff. Also, upon receiving a copy of any permit proposed for 

public comment as a result of such application, Ohio Edison shall promptly send a copy 

of such proposal to each Plaintiff, thereby allowing for timely participation in any public 

comment opportunity. 

177. Title V Permits Enforceable on Their Own Terms. 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 Consent Decree, though any term or limit established by or under this Consent 

Decree shall be enforceable under this Consent Decree regardless of whether such term 

has or will become part of a Title V Permit subject to the limits of Section XXVII 

(“Conditional Termination of Enforcement Under Consent Decree”). 

178. Consent Decree Requirements To Be Proposed for Inclusion in Title V Permits. 

Whenever Ohio Edison applies for Title V Permit(s), or for amendment(s) to existing 

Title V Permit(s) to include any of the requirements of this Consent Decree in such 

permit, Ohio Edison shall include in such application all “applicable requirements” (as 

defined in the Title V program regulations) including but not limited to (1) unit specific 

emission rates, (2) Plant-Wide Annual and Monthly Sammis Caps, (3) Additional and 

Interim Reductions and (4) SO2 Allowance surrender requirements and NOX Allowance 

restrictions. The NOX Allowance restrictions that are based upon the FirstEnergy 

System-Wide Emission Rate required in Paragraph 74 shall be incorporated into the 

Sammis facility Title V permit. 
52

179. New Source Review Permits. This Consent Decree shall not be construed to require 

Ohio Edison to apply for or obtain a permit pursuant to the New Source Review 

requirements of Parts C and D of Title I of the Act. 

180. If Ohio Edison sells or transfers to an entity unrelated to Ohio Edison (“Third Party 

Purchaser”) part or all of its ownership interest in a unit in the Ohio Edison System 

(“Ownership Interest”) covered under this Consent Decree, Ohio Edison shall comply 

with the requirements of Paragraph 178 with regard to that unit prior to any such sale or 

transfer unless, following any such sale or transfer, Ohio Edison remains the holder of the 

Title V permit for such facility. 

XVIII. INFORMATION COLLECTION AND RETENTION

181. Any authorized representative of the Plaintiffs, including their attorneys, contractors, and 

consultants, upon presentation of credentials, shall have a right of entry upon the 

premises of Sammis, Mansfield, Burger, Eastlake, and any facility that Ohio Edison must 

provide or cause to provide right of entry as required by Paragraphs 78 and 98, 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 Plaintiffs in accordance with 

the terms of this Consent Decree; 

c. obtaining samples and, upon request, splits of any samples taken by Ohio Edison 

or its representatives, contractors, or consultants; and 

d. assessing Ohio Edison’s compliance with this Consent Decree. 

182. Ohio Edison 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 Ohio Edison’s performance of its obligations under this Consent Decree, 

until December 31, 2020. This record retention requirement shall apply regardless of any 

corporate document retention policy to the contrary. 

183. All information and documents submitted by Ohio Edison 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 
53

protection or (b) Ohio Edison claims and substantiates in accordance with 40 C.F.R. Part 

2 that the information and documents contain confidential business information. 

184. Nothing in this Consent Decree shall limit the authority of the Plaintiffs to conduct tests 

and inspections at facilities covered under this Consent Decree under Section 114 of the 

Act, 42 U.S.C. § 7414, or any other applicable federal or state laws, regulations or 

permits. 

XIX. NOTICES

185. 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# 90-5-2-1-06894 

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 

 Air Enforcement & Compliance Assurance Branch 

U.S. EPA Region V 

77 West Jackson Blvd. 

 Mail Code AE17J 

 Chicago, IL 60604-3590 
54

As to the State of New York: 

Chief, Environmental Protection Bureau 

New York State Attorney General’s Office 

120 Broadway 

New York, NY 10271 

 As to the State of New Jersey:

Administrator, Air and Environmental Quality Compliance and Enforcement 

 P.O. Box 422 

 401 East State Street, Floor 4 

 Trenton, NJ 08625 

 and 

 Section Chief, Environmental Enforcement Section Division of Law 

 Richard J. Hughes Justice Complex 

 25 Market Street 

 P.O. Box 093 

 Trenton, NJ 08625-0093 

 

 As to the State of Connecticut:

Department Head 

Environment Department 

State of Connecticut 

Office of the Attorney General 

55 Elm Street 

Hartford, CT 06106 

and 

Bureau Chief 

Air Bureau 

State of Connecticut 

Department of Environmental Protection 

79 Elm Street 

Hartford, CT 06106 
55

 As to Ohio Edison: 

 Leila Vespoli 

 Senior Vice President and General Counsel 

 Ohio Edison Company 

 76 South Main Street 

 Akron, OH 44308 

 and 

 

 Daniel V. Steen 

 Vice President of Environmental 

 Ohio Edison Company 

 76 South Main Street 

 Akron, OH 44308 

 and 

 Douglas J. Weber 

 Environmental Counsel 

 Ohio Edison Company 

 76 South Main Street 

 Akron, OH 44308 

 and 

 E. Donald Elliott 

 Willkie Farr & Gallagher LLP 

 1875 K Street, NW 

 Washington, DC 20006 

 and 

 Robert L. Brubaker 

Porter, Wright, Morris & Arthur LLP 

41 S. High Street 

Columbus, Ohio 43215 

186. All notifications, communications or submissions made pursuant to this Section shall be 

sent either by: (a) overnight mail or delivery service; (b) certified or registered mail, 

return receipt requested; or (c) electronic transmission, unless the recipient is not able to 

review the transmission in electronic form. All notifications, communications and 

transmissions (a) sent by overnight, certified or registered mail shall be deemed 
56

submitted on the date they are postmarked, or (b) sent by overnight delivery service shall 

be deemed submitted on the date they are delivered to the delivery service. All 

notifications, communications, and submissions made by electronic means shall be 

electronically signed and certified, and shall be deemed submitted on the date that Ohio 

Edison receives written acknowledgment of receipt of such transmission. 

187. Any Party may change either the notice recipient or the address for providing notices to it 

by serving the other Parties with a notice setting forth such new notice recipient or 

address. 

XX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS

188. If Ohio Edison proposes to sell or transfer part or all of its ownership interest in any of its 

real property or operations subject to this Consent Decree (“Ownership Interest”) to an 

entity unrelated to FirstEnergy (“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 Plaintiffs pursuant to Section 

XIX (Notices) no later than thirty (30) days before closing. 

189. At the time of sale or transfer of an Ownership Interest (but in no case later than ten (10) 

days after closing) Ohio Edison shall move the Court for a modification of this Consent 

Decree to make the purchaser or transferee a party to this Consent Decree and jointly and 

severally liable with Ohio Edison for all requirements of this Consent Decree that are 

applicable to the transferred or purchased Ownership Interests. Until the Court approves 

the modification of the Consent Decree, Ohio Edison shall remain fully liable for 

compliance with the Consent Decree notwithstanding the sale or transfer. 

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

Interests between Ohio Edison and/or FirstEnergy 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 Ohio Edison and/or First 

Energy and any Third Party Purchaser of Ownership Interests – of the burdens of 

compliance with this Consent Decree, provided that both Ohio Edison and such Third 

Party Purchaser shall remain jointly and severally liable for the obligations of the 
57

Consent Decree applicable to the transferred or purchased Ownership Interests, except as 

provided in Paragraph 191. 

191. If the Plaintiffs agree that the conditions of Paragraph 189 are satisfied and determine in 

their sole and unreviewable discretion that a transfer of liability and obligations is 

justified upon consideration of the Third Party Purchaser’s technical capability, financial 

capability, and recent history of environmental compliance, Plaintiffs, Ohio Edison, 

and/or the Third Party Purchaser that has become a party to this Consent Decree pursuant 

to Paragraph 189 may move the Court for a modification that relieves Ohio Edison of its 

liability under this Consent Decree for the obligations of the Consent Decree applicable 

to the transferred or purchased Ownership Interests and makes the Third Party Purchaser 

solely liable for all requirements under the Consent Decree that are applicable to the 

transferred Ownership Interests. 

192. Unless and until such modification relieving Ohio Edison of liability for the obligations 

and liabilities associated with the transferred Ownership Interest is entered by the Court, 

Ohio Edison shall remain liable for all the requirements of this Consent Decree, including 

those that may be applicable to the purchased or transferred Ownership Interests. 

193. Notwithstanding the foregoing, however, Ohio Edison shall not assign, and shall not be 

released from, any obligation under this Consent Decree that is not specifically applicable 

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

Sections IX (Environmentally Beneficial Projects) and X (Civil Penalty). 

XXI. EFFECTIVE DATE

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

Decree is entered by the Court. 

XXII. RETENTION OF JURISDICTION

195. 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. 
58

XXIII. MODIFICATION

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

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

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

XXIV. GENERAL PROVISIONS

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

does not guarantee compliance with all applicable federal, state, or local laws or 

regulations. The emission rates set forth herein do not relieve Ohio Edison from any 

obligation to comply with other state and federal requirements under the Clean Air Act, 

including Ohio Edison’s obligation to satisfy any state modeling requirements set forth in 

the Ohio State Implementation Plan. 

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

199. In any subsequent administrative or judicial action initiated by the United States for 

injunctive relief or civil penalties relating to the facilities covered by the Complaint in 

this action, Ohio Edison 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 

Plaintiffs in the subsequent proceeding were brought, or should have been brought, in the 

instant case; provided, however, that nothing in this paragraph is intended to, or shall, 

affect the validity of Section XI (Resolution of Claims) of this Consent Decree. 

200. Ohio Edison shall be bound by the law and/or regulations under Parts C & D of 

Subchapter I of the Clean Air Act in effect at the time of any physical change in, or 

change in the method of operation of, a stationary source. 

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

shall relieve Ohio Edison of its obligation to comply with all applicable federal, state, and 

local laws and regulations, nor shall be construed to prevent or limit the rights of the 

Plaintiffs to obtain penalties or injunctive relief under the Act or other federal, state, or 

local statutes, regulations, or permits. 

202. Every term expressly defined by this Consent Decree shall have the meaning given to that 

term by this Consent Decree and, except as otherwise provided in this Consent Decree, 
59

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

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

means under the Act or those implementing regulations. 

203. Nothing in this Consent Decree is intended to, or shall, alter or waive any applicable law 

(including but not limited to any defenses, entitlements, challenges, or clarifications 

related to the Credible Evidence Rule, 62 Fed. Reg. 8315 (Feb. 27, 1997)) concerning the 

use of data for any purpose under the Act, generated either by the reference methods 

specified herein or otherwise. 

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

separate, independent requirement. 

205. Performance standards, emissions limits, and other quantitative standards set by or under 

this Consent Decree must be met to the number of significant digits in which the standard 

or limit is expressed. For example, an Emission Rate of 0.100 is not met if the actual 

Emission Rate is 0.101. Ohio Edison shall round the fourth significant digit to the 

nearest third significant digit, or the third significant digit to the nearest second 

significant digit, depending upon whether the limit is expressed to three or two significant 

digits. For example, if an actual Emission Rate is 0.1004, that shall be reported as 0.100, 

and shall be in compliance with an Emission Rate of 0.100, and if an actual Emission 

Rate is 0.1005, that shall be reported as 0.101, and shall not be in compliance with an 

Emission Rate of 0.100. Ohio Edison shall report data to the number of significant digits 

in which the standard or limit is expressed. 

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

Consent Decree as against or on behalf of any third parties. Entry of this Consent Decree 

shall be solely for purposes of resolving this case and does not affect any other claims, 

including any claims by third parties. Entry of this Consent Decree as a final judgment 

shall not be considered binding on Ohio Edison in litigation with third parties. Except as 

provided in Paragraph 178, no portion of this Consent Decree or any prior rulings or 

orders in this case shall be enforceable by any person or entity other than the Parties. 

Ohio Edison’s settlement of this case without exercising its right of appeal shall not be 

construed in any litigation between Ohio Edison and third parties as a final judgment or 

final determination on the issues addressed by the prior rulings or orders in this case. 
60

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

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

Decree, and supercedes all prior agreements and understandings among the Parties 

related to the subject matter herein. No document, representation, inducement, 

agreement, understanding, or promise constitutes any part of this Consent Decree or the 

settlement it represents, nor shall they be used in construing the terms of this Consent 

Decree. 

208. Each Party to this action shall bear its own costs and attorneys’ fees. 

XXV. SIGNATORIES AND SERVICE

209. Each undersigned representative of the Parties certifies that he or she is fully authorized 

to enter into the terms and conditions of this Consent Decree and to execute and legally 

bind to this document the Party he or she represents. 

210. This Consent Decree may be signed in counterparts, and such counterpart signature pages 

shall be given full force and effect. 

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

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

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

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

XXVI. PUBLIC COMMENT

212. 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 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. Ohio Edison 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 Ohio Edison, in writing, that the United States no longer 

supports entry of the Consent Decree. 
61

XXVII. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER CONSENT 

DECREE

213. Termination as to Completed Tasks. As soon as Ohio Edison completes a construction 

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

Ohio Edison may, by motion to this Court, seek termination of the provision or 

provisions of this Consent Decree that imposed the requirement. 

214. Conditional Termination of Enforcement Through the Consent Decree. After Ohio 

Edison: 

a. has successfully completed construction, and has maintained operation, of all 

pollution controls as required by this Consent Decree; 

b. has obtained final Title V permits (i) as required by the terms of this Consent 

Decree; (ii) that cover all units in this Consent Decree; and (iii) that include as 

enforceable permit terms all of the unit performance and other requirements 

specified in Section XVII (Permits) of this Consent Decree; and 

c. certifies that the date is later than December 31, 2015; 

 Ohio Edison may so certify these facts to the Plaintiffs and this Court. If the Plaintiffs do 

not object in writing with specific reasons within forty-five (45) days of receipt of Ohio 

Edison’s certification, then, for any Consent Decree violations that occur after the filing 

of notice, the Plaintiffs shall pursue enforcement of the requirements contained in the 

Title V permit through the applicable Title V permit and not through this Consent 

Decree. 

215. Resort to Enforcement under this Consent Decree. Notwithstanding Paragraph 214, if 

enforcement of a provision in this Consent Decree cannot be pursued by a Party under the 

applicable Title V permit, or if a Consent Decree requirement was intended to be part of a 

Title V Permit and did not become or remain part of such permit, such requirement may 

be enforced under the terms of this Consent Decree at any time. 
62

XXVIII. FINAL JUDGMENT

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

constitute a final judgment in the above-captioned matter between the Plaintiffs and Ohio 

Edison. 

SO ORDERED, THIS _____ DAY OF ________________, 2005. 

 ______________________________________ 

 UNITED STATES DISTRICT COURT JUDGE 
63

FOR THE UNITED STATES OF AMERICA: 

 

THOMAS L. SANSONETTI 

Assistant Attorney General 

Environment and Natural Resources Division 

United States Department of Justice 

 

CATHERINE R. MCCABE 

Deputy Chief 

Environmental Enforcement Section 

Environment and Natural Resources Division 

United States Department of Justice 

 

ARNOLD S. ROSENTHAL 

Senior Counsel 

Environmental Enforcement Section 

Environment and Natural Resources Division 

United States Department of Justice 

 

 JEROME W. MACLAUGHLIN 

 Trial Attorney 

Environmental Enforcement Section 

Environment and Natural Resources Division 

United States Department of Justice 
64

 

THOMAS V. SKINNER 

Acting Assistant Administrator 

Office of Enforcement and Compliance Assurance 

United States Environmental Protection Agency 

 

ADAM M. KUSHNER 

Acting Director, Air Enforcement Division 

Office of Enforcement and Compliance Assurance 

United States Environmental Protection Agency 

 

RICHARD ALONSO 

Attorney Advisor 

Air Enforcement Division 

Office of Enforcement and Compliance Assurance 

United States Environmental Protection Agency 
65

 

BHARAT MATHUR 

Acting Regional Administrator 

U.S. Environmental Protection Agency 

Region 5 

 

JOHN C. MATSON 

Associate Regional Counsel 

U.S. Environmental Protection Agency 

Region 5 
66

FOR THE STATE OF NEW YORK: 

 

ELIOT SPITZER 

Attorney General 

State of New York 

 

PETER LEHNER 

Assistant Attorney General 

State of New York 

 

ROBERT ROSENTHAL 

Assistant Attorney General 

State of New York 
67

FOR THE STATE OF NEW JERSEY: 

 

 PETER C. HARVEY 

 Attorney General 

 State Of New Jersey 

 

 

 KEVIN P. AUERBACHER 

 Deputy Attorney General 

 State of New Jersey 

 

 

 JEAN P. REILLY 

 Deputy Attorney General 

 State of New Jersey 
68

FOR THE STATE OF CONNECTICUT: 

 

RICHARD BLUMENTHAL 

Attorney General 

State of Connecticut 

 

KIMBERLY P. MASSICOTTE 

Assistant Attorney General 

State of Connecticut 

 

LORI D. DIBELLA 

Assistant Attorney General 

State of Connecticut 
69

FOR DEFENDANTS OHIO EDISON COMPANY AND PENNSYLVANIA POWER 

COMPANY: 

 

RICHARD H. MARSH 

Senior Vice President and Chief Financial Officer 

Ohio Edison Company and Pennsylvania Power 

Company 

 

E. DONALD ELLIOTT 

CARRIE F. JENKS 

Willkie Farr & Gallagher LLP 

 

ROBERT L. BRUBAKER 

JAMES A. KING 

JAMES B. HADDEN 

Porter, Wright, Morris & Arthur LLP 

 

MICHAEL L. HARDY 

Thompson Hine LLP 
1

APPENDIX A - ALLEGHENY COUNTY ENVIRONMENTALLY BENEFICIAL 

PROJECTS 

In accordance with Paragraph 132, the following describes the Environmentally Beneficial 

Projects for the residents of Allegheny County, Pennsylvania. 

A. A 52 kW-DC rated Grid Connected Solar Power System, described below. This 

project shall be installed on the roof of the Monument Hill Building, 808 Ridge 

Avenue, Pittsburgh, PA 15212-6097. This environmentally beneficial project is 

estimated to prevent the emission of 68.5 tons of CO2, 0.38 tons of SO2, and 0.10 

tons of NOX per year of operation. 

B. Project Parameters: 

The Grid Connected Solar Power System is a 52 kW-DC rated grid tied design. 

This system is configured as twenty-four parallel-connected arrays, each 

dedicated to an inverter. Within each array are twenty-two 100 watt modules. 

The system will include a PV performance monitoring system to provide a system 

display. The system will also include appropriate DC and AC disconnects, 

ground fault protection, and lightning surge protection. Additional hardware 

requirements may be imposed by Duquesne Light (the local electric utility). The 

estimated roof area for this installation is 5,800 square feet. The GCSPS will be 

mounted to the roof via a standard industrial roof mounting system. The GCSPS 

design and installation must be completed in accordance with the National 

Electric Code Section 690 provisions pertaining to photovoltaic systems. 

C. Specific components include: 

1. 528 Solar Power Industries M100 100 watt modules (SPI-M100) 

designed to meet “World Class” quality, reliability and performance 

requirements, and UL 1703 and IEC 612215 certification requirements. 

The SPI-M100 modules include 150mm square multi-crystalline solar 

cells, PECVD antireflective coating, heavy duty anodized aluminum 

frames, tempered low iron front cover glass, EVA encapsulation and 
2

multi-layer back sheet protection, high capacity junction box with 

diodes, and quick connect polarized DC connectors. 

2. Twenty-four (24) 2500 watt SunnyBoy inverters, model 2500U, housed 

in NEMA 4X stainless steel outdoor enclosures, with an efficiency of at 

least 90% at maximum output. The Sunny Boy inverters must include 

DC and AC disconnects to isolate the inverters from the photovoltaic 

array and grid, respectively. 

3. Twenty-four (24) SunnyBoy PC options to monitor each inverter’s 

performance, to be connected to the central PC. 

4. One (1) Sunny Control Lite Unit 

5. Twenty-four (24) 250V safety switches 

6. One 250 Amp AC Load Center 

7. One (1) RS-485 Cable 

8. Twenty-four (24) Cutler Hammer Heavy Duty Disconnect Switches 

(30A dc) 

9. Twenty-four (24) Lightning Surge Arrestors 

10. One (1) UniRac Roof Mount System, including mounting hardware 

11. Thirty thousand (30,000) feet of Use 2 wire 

12. One (1) personal computer and display monitor 

13. Two (2) Installation and Operations manuals 

D. Payments to fund this project shall be made to the order of the Allegheny County 

Clean Air Fund, and submitted to the following address: 

 Allegheny County Health Department 

 Air Quality Program 

 301 Thirty-ninth Street 

 Pittsburgh, Pennsylvania 15201-1891 
1

APPENDIX B – REPORTING REQUIREMENTS 

I. Semi-annual Reporting Requirements 

Ohio Edison shall submit semi-annual reports, electronically and in hard copy, as 

required by Paragraph 141 and certified as required by Paragraph 144 of this Consent 

Decree. Ohio Edison shall provide the following information in each of the semi-annual 

reports. 

A. Installation of NOX and SO2 Removal Equipment 

Report the progress of construction of NOX and SO2 removal equipment, including: 

1. If construction is not underway, the construction schedule, dates of contract 

execution, and major component delivery; 

2. If construction is underway, the estimated percent of installation and 

estimated construction completion date; and 

3. Once construction is complete, the date of final installation and of acceptance 

testing. 

B. 30-Day Rolling Average Emission Rates for NOX and SO2 

1. Report a NOX and SO2 30-Day Rolling Average Emission Rate (lb/mmBtu), 

as defined in Paragraph 4, for each operating day of a Sammis unit 

commencing on the thirtieth day after 30-Day Rolling Average Emission 

Rates become applicable. 

2. Within the first report that identifies a 30-Day Rolling Average Emission Rate 

(lb/mmBtu) at least five (5) example calculations (including hourly CEMS 

data in electronic format for the calculation) used to determine the 30-Day 

Rolling Average Emission Rate. If at any time Ohio Edison changes the 

methodology used in determining the 30-Day Rolling Average Emission Rate, 

Ohio Edison shall explain the change and the reason for using the new 

methodology. 
2

3. Report all deviations from any 30-Day Rolling Average Emission Rate in 

lb/mmBtu. Ohio Edison shall identify any corrective actions taken in 

response to such deviation. 

4. Commencing when a unit becomes subject to a 30-Day Rolling Average 

Emission Rate, Ohio Edison shall also report: 

a. The date and time that the unit initially combusts any fuel; 

b. The date and time that the unit is synchronized with a utility electric 

distribution system; 

c. The date and time that the fire is extinguished in the unit; and 

d. For the fifth and subsequent Cold Start Up Period that occurs within 

any 30-Day period, the earlier of the date and time that (1) is eight 

hours after the unit is synchronized with a utility electric distribution 

system, or (2) the flue gas has reached the SCR operational 

temperature range specified by the catalyst manufacturer. 

C. PM Emission Rates 

1. Commencing when a PM Emission Rate becomes applicable, report the PM 

Emission Rate (lb/mmBtu) as defined in Paragraph 38, for Sammis Units 6 

and 7. 

2. For Sammis Units 6 and 7, attach a copy of the executive summary and results 

of any stack test to the next semi-annual report submitted. 

3. Report all deviations from the PM Emission Rate in lb/mmBtu. Ohio Edison 

shall identify any corrective actions taken in response to such deviations. 

D. Plant-Wide Annual Cap and Monthly Cap 

1. Commencing when the Plant-Wide Annual Caps becomes applicable, report 

the applicable NOX and SO2 Plant-Wide Annual Caps (tons) as defined in 

Paragraph 36, for the Sammis Plant. 
3

2. Commencing when the Monthly Cap becomes applicable, report the 

applicable SO2 Monthly Cap (tons) as defined in Paragraph 30, for Sammis 

Units 1-5. 

3. Deviations shall be reported once per year in the semi-annual report following 

the end of each calendar year. Ohio Edison shall identify the cause and any 

corrective actions, if necessary, taken for each deviation from the Plant-Wide 

Annual Caps and Monthly Cap reported above. 

E. Additional Reductions shall be reported once per year in the semi-annual report 

following the end of each calendar year. 

1. Commencing in calendar year 2008, report the amount of Additional Eastlake 

Plant NOX Reductions (tons) achieved for the applicable year for the Eastlake 

Plant and, if applicable, for each plant in addition to the Eastlake Plant where 

any remaining Additional Eastlake Plant NOX Reductions are achieved. 

2. Commencing in calendar year 2010, report the amount of Additional Burger 

Plant NOX Reductions (tons) achieved for the applicable year at the Burger 

Plant and, if applicable, for each plant in addition to the Burger Plant where 

any remaining Additional Burger Plant NOX Reductions are achieved. 

3. Commencing in calendar year 2011, unless Ohio Edison elects to satisfy the 

options for the Burger Plant in accordance with Paragraph 83.a. and b., report 

the amount of Additional Burger Plant SO2 Reductions achieved for the 

applicable year at the Burger Plant and, if applicable, for each plant in 

addition to the Burger Plant where any remaining Additional Burger Plant 

SO2 Reductions are achieved. 

a. If Ohio Edison elects to permanently shut down Burger Units 4 and 5 

pursuant to Paragraph 83.a., Ohio Edison shall provide proof that the 

units are in fact shut down. 

b. If Ohio Edison elects to repower Burger Units 4 and 5 pursuant to 

Paragraph 83.b., the 30-Day Rolling Average Emission Rates for NOX

and SO2 and the PM Emission Rate as defined in Paragraphs 4 and 38. 
4

4. Commencing in calendar year 2006, report the amount of Additional 

Mansfield Plant SO2 Reductions (tons) achieved for the applicable year at the 

Mansfield Plant and, if applicable, for each plant in addition to the Mansfield 

Plant where any remaining Additional Mansfield Plant SO2 Reductions are 

achieved and performance test data or CEMS data (or combination of CEMS 

data and coal sampling) equivalent to the sampling period of a performance 

test demonstrating that each FGD at Mansfield Units 1, 2, and 3 achieved a 

95% Removal Efficiency in accordance with Paragraph 91. 

F. Interim Reductions for NOX and SO2

Commencing in calendar year 2006, report the amount of Interim Emission 

Reductions (tons) achieved pursuant to Paragraphs 72, 97, and 98, including 

identifying the location from which such emissions are reduced and the methods by 

which such emission reductions are achieved. 

G. Surrender of Restricted SO2 Allowances 

1. Beginning in 2018, report the Restricted SO2 Allowances surrendered to EPA 

pursuant to Paragraph 102 and documentation verifying such surrender. 

2. If Ohio Edison surrenders any Restricted SO2 Allowances to a third party: 

a. Include a description of the transfer in accordance with the provisions 

of Paragraph 104; 

b. No later than the next semi-annual report due 12 months after the 

report containing in the information in a. above, include a statement 

that the third party permanently surrendered the SO2 Allowances to 

EPA within one year after Ohio Edison transferred the SO2

Allowances to the third party; and 

c. Report the amount of Restricted SO2 Allowances transferred and the 

units to which Ohio Edison transfers Restricted SO2 Allowances 

pursuant to Paragraph 100. 
5

H. Generation of Super-Compliant Allowances 

Report the generation of Super-compliant NOX and SO2 Allowances as defined in 

Paragraphs 49 and 50 and the calculations or data justifying the generation of the used 

or traded Super-compliant Allowances, annually as part of the Semi-annual report 

following the completion of a calendar year. 

I. NOX System-Wide Annual Emission Rate 

Commencing in calendar year 2016, report the NOX System-Wide Annual Emission 

Rate (lb/mmBtu) for the preceding year if Ohio Edison elects to use Restricted NOX

Allowances pursuant to the second sentence of Paragraph 74. 

J. Environmentally Beneficial Projects 

1. Cash Contributions for Environmentally Beneficial Projects. Report the 

payment of proceeds and amounts of proceeds for these projects made 

pursuant to Paragraphs 129, 132, and 133. 

2. Renewable Energy Development Projects. Report the execution of each 

purchase power contract pursuant to Paragraph 130, including the amount of 

megawatts to be purchased over a 20-year period; the location and description 

of the renewable energy development project; and the date of commencement 

of operation of any renewable energy development project. 

II. Deviation Reports 

In addition to the reporting requirements under Paragraph 143, a summary of all 

deviations from the requirements of the Consent Decree that occurred during the 

reporting period identifying the date and time that the deviation occurred, the date and 

time the deviation was corrected, the cause and any corrective actions, if necessary, taken 

for each deviation, and the date that the deviation was initially reported under Paragraph 

143. 

III. Ohio Edison Submissions 

A list of all plans or submissions and the date submitted to the Plaintiffs for the reporting 

period, identifying if any are pending the review and approval of the Plaintiffs.