IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION UNITED STATES OF AMERICA, and ) SOUTH CAROLINA DEPARTMENT OF ) HEALTH AND ENVIRONMENTAL CONTROL, ) ) Pl ai nt i ffs, ) ) v. ) C ivil Action No: ) SOUTH CAROLINA PUBLIC SERVICE ) AUTHORITY, ) ) Defendant. ) )

CONSENT DECREETABLE OF CONTENTS I

. J u r i s d i c t i o n a n d V e nu e ....................................................3 II. Applicability ...........................................................3 III. Def i nitions .............................................................4 IV. N O x E m i s s i o n R e d u c t i o n s a n d C o n t r o l s .....................................1 2 A. NO x E m i s s i o n C o n t r o l s ............................................1 2 B. System -W ide Annual Em ission Lim its for NO x .........................1 4 C. Use of NO x A l l o w a n c e s ............................................1 6 D. General NO x P r o v i s i o n s ............................................1 9 V. SO 2 E m i s s i o n R e d u c t i o n s A n d C o n t r o l s .....................................1 9 A. SO 2 E m i s s i o n C o n t r o l s ............................................ 1 9 B. System -W ide Annual Em ission Lim its for SO 2 . .........................2 2 C. Surrender of SO 2 A l l o w a n c e s .......................................2 4 D

. F u e l L i m i t a t i o n s ..................................................2 8 E. General SO 2 P r o v i s i o n s ............................................2 9 V I

. P M E m i s s i o n R e d u c t i o n s A n d C o n t r o l s .....................................3 0 A

. N e w P M E m i s s i o n C o n t r o l s ........................................ 3 0 B

. O p t i m i z a t i o n o f P M E m i s s i o n C o n t r o l s ............................... 3 0 C

. U p g r a d e o f E x i s t i n g P M E m i s s i o n C o n t r o l s ........................... 3 1 D

. P M a n d M e r c u ry M o n i t o r i n g ....................................... 3 5 E

. G e n e r a l P M P r o v i s i o n s ........................................... 4 0 V I I

. P r o h i b i t i o n o n N e t t i n g C r e d i t s o r O f f

s e t s f r o m R e qu i r e d C o n t r o l s ................ 4 1 -i-VIII. Environm entally Beneficial Projects

....................................... 4 2 I X

. C i v i l P e n a l t y ......................................................... 4 8 X

. R e s o l u t i o n o f C l a i m s ................................................... 4 9 A

. R e s o l u t i o n o f P l a i n t i f f

s ’ C i v i l C l a i m s .................................... 4 9 B

. P u r s u i t o f P l a i n t i f f

s ’ C i v i l C l a i m s O t h e rw i s e R e s o l v e d .......................5 2 X I

. P e r i o d i c R e p o r t i n g ......................................................5 5 XII. Review and Approval of Subm ittals ........................................5 8 XIII. Stipulated Penalties .....................................................5 8 X I V

. F o r c e M a j e u r e .........................................................6 3 X V

. D i s p u t e R e s o l u t i o n ......................................................6 7 X V I

. P e rm i t s ...............................................................6 9 X V I I

. I n f o rm a t i o n C o l l e c t i o n a n d R e t e n t i o n .......................................7 2 XVIII. Notices ...............................................................7 4 X I X

. S a l e s o r T r a n s f e r s o f O w n e r s h i p I n t e r e s t s ....................................7 5 X X

. E f f e c t i v e D a t e .........................................................7 8 X X I

. R e t e n t i o n o f J u r i s d i c t i o n .................................................7 8 X X I I

. M o d i f i c a t i o n ...........................................................7 8 XXIII. General Provisions ......................................................7 9 X X I V

. S i g n a t o r i e s a n d S e rv i c e ................................................. 8 1 XXV. Public Comm e nt ........................................................8 2 XXVI. C onditional Term ination of Enforcem ent Under Consent Decree .................8 2 XXVII. Final Judgm ent ...................................................8 3

-ii-Appendix S antee Cooper Environm ental Managem e nt System s ..................... 9 0

-iii-W H EREAS, Plaintiff, the United States of Am erica (“the United States”), on behalf of the United States Environm ental Protection Agency(“EPA”), and Plaintiff, the South Carolina Departm e nt of Health and Environm ental Control (“DHEC”), f iled a Com p laint f o r 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 Sections 48-1-50 and 48-1-330 of the South Carolina Pollution Control Act, alleging that Defendant, South Carolina Public Service Authority (“Santee Cooper”), has undertaken construction projects at m a jor em itting facilities in violation of the Prevention of Significant Deterioration provisi ons of Part C of Subchapter I of the Act, 42 U.S.C. §§ 7470-7492, and in violation of the fe derally-enforceable State Im plem entation Plan developed by the State of South Carolina; W H EREAS, in its Com p laint, the United States alleges, inter alia, that Santee Cooper failed to obtain the necessary perm its and install the controls necessary under the Act to reduce its sulfur dioxide, nitrogen oxides, and/or particulate m a tter em issions; W H EREAS, the Com p laint alleges claim s upon which relief can be granted against Santee Cooper under Sections 113 and 167 of the Act, 42 U.S.C. §§ 7413 and 7477; W H EREAS, the United States provided Santee Cooper and the State with actual notice of Santee Cooper’s alleged violations no later than June 1, 2003, and therefore provided Santee Cooper and the State with at least 30 days notice prior to the filing of such claim s , as required under Section 113(a)(1) of the Act, 42 U.S.C. § 7413(a)(1); W H EREAS, Santee Cooper has not answered or otherwise responded to the Com p laint in light of the settlem e nt m e m o rialized in this Consent Decree; W H EREAS, Santee Cooper has denied and continues to deny the violations alleged in

-1-the Com p laint, m a intains that it has been and rem a ins in com p liance with the Act and is not liable f o r civil penalties or injunctive relief , and states that it is agreeing to the obligations im posed by this Consent Decree solely to im prove the air quality of the region (including the Cape Rom a in Class I area), to benefit the environm ent generally, and to avoid the costs and uncertainties of litigation; W H EREAS, Santee Cooper has voluntarily undertaken, and continues to undertake, certain environm entally beneficial m easures, other than those required by this Consent Decree, including the use of renewable energy sources, the recycling of used oil, and other sim ilar

m easures within the State of South Carolina; W H EREAS, Santee Cooper has previously sought and obtained from DHEC and EPA an interim Alternative Em ission Lim it (“AEL”) f o r NO x at W i nyah Units 2, 3, and 4; W H EREAS, the United States, DHEC, and Santee Cooper (collectively, the “Parties”) have agreed that settlem e nt of these actions 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 m o st appropriate

m eans of resolving this m a tter; W H EREAS, 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; W H EREAS, the Parties have consented to en try of this Consent Decree without trial of any issue; NOW , THEREFORE, without any adm i ssion of fact or law, and without any adm i ssion

-2-of the violations alleged in the Com p laint, it is hereby ORDERED, ADJUDGED, AND DECREED as f o llows: I. JURISDICTION AND VENUE 1. This Court has jurisdiction over this action, the subject m a tter 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 Com p laint, Santee Cooper waives all objections and defenses that it m a y have to the Court’s jurisdiction over this action, to the Court’s jurisdiction over Santee Cooper, and to venue in this District. Santee Cooper shall not challenge the term s of this Consent Decree or this Court’s jurisdiction to enter and enforce this Consent Decree. For purposes of the Com p laint f iled by the Plaintif f

s in this m a tter and resolved by the Consent Decree, and for purposes of entry and enforcem ent of this Consent Decree, Santee Cooper waives any defense or objection based on standing. Except as expressly provided for herein, this Consent Decree shall not create any rights in any party other than the Parties to this Consent Decree. Except as provided in Section XXV (Public Comm e nt) 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 Santee Cooper and their successors and assigns, and upon Santee Cooper’s of f i cers, em ployees and agents solely in their capacities as such.

-3-3. Santee Cooper shall provide a copy of this Consent Decree to all vendors, suppliers, consultants, contractors, agents, and any other com p any or other organization retained to perform any of the work required by this C onsent Decree. Notwithstanding any retention of contractors, subcontractors, or agents to perform any work required under this Consent Decree, Santee Cooper shall be responsible for ensuring that all work is perform e d in accordance with the requirem e nts of this Cons ent Decree. In any action to enforce this Consent Decree, Santee Cooper shall not assert as a defense the failure of its officers, directors, em ployees, servants, agents, or contractors to take actions necessary to com p ly with this Consent Decree, unless Santee Cooper establishes that such failure resulted from a Force Majeure Event, as defined in Paragraph 155. III. DEFINITIONS 4. A “30-Day Rolling Average Em ission Rate” for a Unit shall be expressed as lb/mm B TU and calculated in accordance with the following procedure: first, sum the total pounds of the pollutant in question em itted f r om the Unit during an Operating Day and the previous twenty-nine (29) Operating Days; second, sum the total heat input to the Unit in mm B TU during the Operating Day and the previous twenty-nine (29) Operating Days; and third, divide the total num ber of pounds of the pollutant em itted during the thirty (30) Operating Days by the total heat input during the thirty (30) Operating Days. A new 30-Day Rolling Average Em ission Rate shall be calculated for each new Operating Day. Each 30-Day Rolling Average Em ission Rate shall include em issions that occur during all periods of startup, shutdown and Malfunction within an Operating Day, except as f o llows:

-4-a. Em issions of NO x that occur during the fifth and subsequent Cold Start Up Period(s) that occur in any 30-day period shall be excluded from the calculation of the 30-Day Rolling Average Em ission Rate if inclusion of such em issions would result in a violation of any applicable 30-Day Rolling Average Em ission Rate and Santee Cooper has installed, operated and m a intained the SCR in question in accordance with m a nufacturers’ specifications and good engineering practices. A “Cold Start Up Period” occurs whenever there has been no fire in the boiler of a Unit (no com bustion of any Fossil Fuel) for a period of six (6) hours or

m o re. The NO x em issions to be excluded during the fifth and subsequent Cold Start Up Period(s) shall be the lesser of (i) those NO x em issions em itted during the eight (8) hour period com m e ncing when the Unit is synchronized with a utility electric distribution system and concluding eight (8) hours later, or (ii) those NO x em issions em itted prior to the tim e that the f l ue gas has achieved the

m i nim u m SCR operational tem p erature specified by the catalyst m a nufacturer; b. For a Unit that has ceased firing Fossil Fuel, em issions of SO 2 that occur during any period, not to exceed two (2) hours (three (3) hours for Units at the W i nyah Plant), f r om the restart of the Unit to the tim e that the Unit is f i red with any coal, shall be excluded from the calculation of the 30-Day Rolling Average Em ission Rate; and

c. Em issions that occur during a period of Malfunction shall be excluded from the calculation of the 30-Day Rolling Average Em ission Rate if Santee Cooper provides notice of the Malfunction to EPA and DHEC in accordance with

-5-Paragraph 164 in Section XIV (Force Majeure) of this Consent Decree. 5. “30-Day Rolling Average Rem oval Efficiency” for a given pollutant m eans the percent reduction in the m a ss of that pollutant achieved by a Unit’s pollution control device over a 30-Operating-Day period. This percent reduction shall be calculated by subtracting the outlet 30-Day Rolling Average Em ission Rate from the inlet 30-Day Rolling Average Em ission Rate, dividing that difference by the inlet 30-Day Rolling Average Em ission Rate, and then m u ltiplying by 100. A new 30-Day Rolling Average Rem oval Efficiency shall be calculated for each new Operating Day. 6. “Capital Expenditure” m eans all capital expenditures, as defined by Generally Accepted Accounting Principles (“GAAP”) as those principles exist as of the date of entry of this Consent Decree, excluding the cost of installing or upgrading pollution control devices. 7. “CEMS” or “Continuous Em ission Monitoring System ,” m eans, for obligations involving NO x and SO 2 under this Consent Decree, the devices defined in 40 C.F.R. § 72.2 (2003) and installed and m a intained as required by 40 C.F.R. Part 75 (2003). 8. “Clean Air Act” or “Act” m eans the federal Clean Air Act, 42 U.S.C. §§7401-7671q, and its im plem enting regulations. 9. “Consent Decree” m eans this Consent Decree and the Appendix hereto, which is incorporated into this Consent Decree. 10. “Cross Plant” m eans the Cross Generating Station, located in Pineville, Berkeley County, South Carolina, consisting of the following coal-fired Units: Unit 1 (620 MW ), Unit 2 (540 MW ), Unit 3 (to be constructed), and Unit 4 (to be constructed). 11. “DHEC” m eans the South Carolina Departm e nt of Health and Environm ental Control.

-6-12. “Em i ssion Rate” for a given pollutant m eans the num ber of pounds of that pollutant

em itted per m illion British therm a l units of heat input (lb/m m B TU), m e asured in accordance with this Consent Decree. 13. “EPA” m eans the United States Environm ental Protection Agency. 14. “ESP” m eans electrostatic precipitator, a pollution control device for the reduction of PM. 15. “Excess Tons” m eans the num ber of tons of a pollutant that were em itted as a result of a violation of this Consent Decree that would not have been em itted had the violation not taken place. A fraction of a ton shall count as one ton in accordance with definition of “ton or tonnage” set forth in 40 C.F.R. § 72.2 (2003). 16. “Flue Gas Desulfurization System ” or “FGD” m eans a pollution control device that

em ploys flue gas desulfurization tec hnology for the reduction of sulfur dioxide

em issions. 17. “Fossil Fuel” m eans any hydrocarbon fuel, including coal, petroleum coke, petroleum oil, or natural gas. 18. “Grainger Plant” m eans the Dolphus M. Grainger Generating Station, located in Conway, Horry County, South Carolina, consisting of the following coal-fired Units: Unit 1 (85 MW ) and Unit 2 (85 MW ). 19. “Im p roved Unit” m eans, in the case of NO x , a Santee Cooper System Unit scheduled under this Consent Decree to be equipped with SCR (or equivalent NO x control technology approved pursuant to Paragraph 50), and, in the case of SO 2 , a Santee Cooper System Unit scheduled under this Consent Decree to be equipped with an FGD (or equivalent SO 2 control technology approved pursuant to Paragraph 65) or to undergo an -7-FGD upgrade in accordance with this Consent Decree. A Unit m a y be an Im proved Unit for one pollutant without being an Im proved Unit for the other. 20. “Jefferies Plant” m eans coal-fired Unit 3 (153 MW ) and coal-fired Unit 4 (153 MW ) (and shall exclude oil-fired Units 1 and 2) of the Jefferies Generating Station, located in Moncks Corner, Berkeley County, South Carolina. 21. “KW ” m eans kilowatt or one thousand W a tts. 22. “lb/mm B TU” m eans one pound of a pollutant per m illion British therm a l units of heat input. 23. “lb/TBTU” m eans one pound of a pollutant per trillion British therm a l units of heat input. 24. “Malfunction” m eans m a lfunction as that term is defined under 40 C.F.R. § 60.2 (2003). 25. “Mercury CEMS” or “Mercury Continuous Em ission Monitoring System ” m eans, as specified in Section VI.D . (PM and Mercury Monitoring) of this Consent Decree, the equipm ent that sam p les, analyzes, m easures, and provides, by readings taken at frequent intervals, an electronic or paper record of m e rcury em issions. 26. “MW ” m eans a m e gawatt or one m illion W a tts. 27. “National Am bient Air Quality Standards” or “NAAQS” m eans national am bient air quality standards that are prom ulgated pursuant to Section 109 of the Act, 42 U.S.C. § 7409. 28. “NO x ” m eans oxides of nitrogen, m easured in accordance with the provisions of this Consent Decree. 29. “NO x Allowance” m eans an authorization or credit to em it a specified am ount of NO that is allocated or issued under an em issions trading or m a rketable perm it program of

x

-8-any kind that has been established under the Clean Air Act or a State Im plem entation Plan. 30. “Nonattainm e nt NSR” m eans the nonattainm e nt area New Source Review program under Part D of Subchapter I of the Act, 42 U.S.C. §§ 7501 - 7515, and 40 C.F.R. Part 51 (2003). 31. “Operating Day” m eans any calendar day on which a Unit fires Fossil Fuel. 32. “Other Unit” m eans any Unit of the Santee Cooper System that is not an Im proved Unit for the pollutant in question. A Unit m a y be an Im proved Unit for NO Unit f o r SO 2 and vice versa. x and an Other

33. “Parties” m eans the United States of Am erica, DHEC, and Santee Cooper and “Party”

m eans one of the three nam e d “Parties.” 34. “PM” m eans total particulate m a tter, m easured in accordance with the provisions of this Consent Decree. 35. “PM CEMS” or “PM Continuous Em ission Monitoring System ” m e ans, as specified in Section VI.D . (PM and Mercury Monitoring) of this Consent Decree, the equipm ent that

sam p les, analyzes, m easures, and provides, by readings taken at frequent intervals, an electronic or paper record of PM em issions. 36. “PM Em ission Rate” m eans the num ber of pounds of PM em itted per m illion BTU of heat input (lb/mm B TU), as m easured in annual stack tests, in accordance with the reference m e thods set forth in 40 C.F.R. Part 60, Appendix A, Method 5 or Method 17 (2003). 37. “Prevention of Significant Deterioration” or “PSD” m eans the prevention of significant

-9-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 (2003). 38. “Project Dollars” m eans Santee Cooper’s expenditures and paym ents incurred or m a de in carrying out the Environm entally Beneficial Projects identified in Section VIII (Environm entally Beneficial Projects) of this Consent Decree to the extent that such expenditures or paym ents both: (a) com p ly with the requirem e nts set forth in Section VIII (Environm entally Benef i cial Projects) of this Consent Decree, and (b) constitute Santee Cooper’s direct paym ents for such projects, Santee Cooper’s external costs for contractors, vendors, and equipm ent, or Santee Cooper’s internal costs consisting of

em ployee tim e, travel, or out-of-pocket expenses specifically attributable to these particular projects and docum ented in accordance with GAAP. 39. “Santee Cooper System ” m eans, collectively, the Cross Plant, Grainger Plant, Jefferies Plant, and W i nyah Plant. 40. “Selective Catalytic Reduction System ” or “SCR” m eans a pollution control device that

em ploys selective catalytic reduction technology for the reduction of NO x em issions. 41. “SO 2 ” m eans sulfur dioxide, m easured in accordance with the provisions of this Consent Decree. 42. “SO 2 Allowance” m eans “allowance” as defined at 42 U.S.C. § 7651a(3): “an authorization, allocated to an affected unit by the Adm i nistrator [of EPA] under [Subchapter IV of the Act], to em it, during or after a specified calendar year, one ton of sulfur dioxide.” 43. “State” m eans the State of South Carolina. 44. A “System

- W i de 12-Month Rolling Average Em ission Rate” shall be expressed in -10-lb/mm B TU and calculated in accordance with the following procedure: first, sum the pounds of the pollutant in question em itted from the Santee Cooper System during the

m o st recent com p lete m onth and the previous eleven (11) m onths; second, sum the heat input to the Santee Cooper System in m m B TU during the m o st recent com p lete m onth and the previous eleven (11) m onths; and third, divide the total num ber of pounds of the pollutant em itted during the twelve (12) m onths by the total heat input during the twelve (12) m onths. A new System -W ide 12-Month Rolling Average Em ission Rate shall be calculated for each new com p lete m onth in accordance with the provisions of this Consent Decree. The calculation of each System -W ide 12-Month Rolling Average Em ission Rate shall include the pollutants em itted during periods of startup, shutdown, and Malfunction within each calendar m onth. 45. “System

- W i de 12-Month Rolling Tonnage” m eans the sum of the tons of the pollutant in question em itted from the Santee Cooper System in the m o st recent com p lete m onth and the previous eleven (11) m onths. A new System -W ide 12-Month Rolling Tonnage shall be calculated for each new com p lete m onth in accordance with the provisions of this Consent Decree. The calculation of each System -W ide 12-Month Rolling Tonnage shall include the pollutants em itted during periods of startup, shutdown, and Malfunction within each calendar m onth. 46. “Title V Perm it” m eans the perm it required of each of Santee Cooper’s m a jor sources under Subchapter V of the Act, 42 U.S.C. §§ 7661-7661e. 47. “Unit” m eans, for the purposes of this C onsent Decree, collectively, the coal pulverizer, stationary equipm ent that feeds coal to the boiler, the boiler that produces steam for the steam turbine, the steam turbine, the generator, the equipm ent necessary to operate the -11-generator, steam turbine and boiler, and all ancillary equipm ent, including pollution control equipm ent and system s necessary for the production of electricity. An electric utility steam generating station m a y com p rise one or m o re Units. 48. “W inyah Plant” m eans the W i nyah Generating Station, located in Georgetown, Georgetown County, South Carolina, consisting of the following coal-fired Units: Unit 1 (295 MW ), Unit 2 (295 MW ), Unit 3 (295 MW ), and Unit 4 (270 MW ). IV. NO x EMISSION REDUCTIONS AND CONTROLS A. NO x Em ission Controls 49. Santee Cooper shall install and comm e nce continuous operation of SCRs (or equivalent NO x control technology approved pursuant to Paragraph 50) at the following Units within the Santee Cooper System so as to achieve, by the dates specified below, and thereafter

m a intain, a 30-Day Rolling Average Em ission Rate not greater than the rates specified below: Unit Date by Which Santee Cooper Must Complete Installation and Continuously Operate SCR Date by Which Santee Cooper Must Comply w i th the 30-Day Rolling Average Emission Rate for NO x Maximum 30-Day Rolling Average Emission Rate for NO x (lb/mmBTU) Cross Unit 1 Upon Entry of this Consent Decree May 31, 2004 0.100 Cross Unit 2 Upon Entry of this Consent Decree May 31, 2004 0.110 May 31, 2007 0.100 Cross Unit 3 W ithin 180 Days of 1 st Start-Up W ithin 180 Days of 1 st Start-Up 0.080 Cross Unit 4 W ithin 180 Days of 1 st Start-Up W ithin 180 Days of 1 st Start-Up 0.080

-12-W i nyah Unit 1 May 31, 2004 Novem b er 30, 2004 0.110 Novem b er 30, 2007 0.100 W i nyah Unit 2 May 31, 2004 Novem b er 30, 2004 0.120
W i nyah Unit 3 May 31, 2005 Novem b er 30, 2005 0.140 Novem b er 30, 2008 0.120 W i nyah Unit 4 May 31, 2005 Novem b er 30, 2005 0.130 Novem b er 30, 2008 0.120 50. W ith prior written notice to and written approval from EPA and DHEC, Santee Cooper

m a y, in lieu of installing and operating an SCR at any Unit specified in Paragraph 49, install and operate equivalent NO x control technology so long as such equivalent NO x control technology achieves and thereafter m a intains a 30-Day Rolling Average Em ission Rate not greater than the rate set forth for that Unit in Paragraph 49. 51. At any tim e following entry of this Consent Decree, Santee Cooper m a y petition the Plaintif f

s to revise the applicable 30-Day Rolling Average Em ission Rate for NO x on any Santee Cooper System Unit equipped with an SCR and subject to a 30-Day Rolling Average Em ission Rate. In its proposal, Santee Cooper m u st dem onstrate that it cannot consistently achieve and m a intain the Consent Decree-m a ndated 30-Day Rolling Average Em ission Rate for NO x for the Unit in question under expected load variability, considering all relevant inform ation. Santee Cooper shall include in such petition an alternative 30-Day Rolling Average Em ission Rate f o r NO x . Santee Cooper shall also retain a qualif ied contractor to assist in the preparation and com p letion of the petition f o r an alternative 30-Day Rolling Average Em ission Rate for NO x . Santee Cooper shall deliver with each petition all pertinent docum ents and data. If the Plaintiffs disapprove -13-the alternative 30-Day Rolling Average Em ission Rate f o r NO x proposed by Santee Cooper, such disapproval shall be subject to the provisions of Section XV (Dispute Resolution) of this Consent Decree. Santee Cooper shall subm it any petition for any Unit under this Paragraph no later than six (6) m onths prior to the final com p liance date specified for that Unit in Paragraph 49. 52. Santee Cooper shall continuously operate each SCR (or equivalent NO x control technology approved pursuant to Paragraph 50) at all tim es that the Unit it serves is in operation , consistent with the technological lim itations, m a nufacturers’ specifications, and good engineering and m a intenance practi ces for the SCR or equivalent technology. Santee Cooper need not operate an SCR during periods of Malfunction of the SCR, provided Santee Cooper satisfies the notice requirem e nts for Malfunction Events as set forth in Paragraph 164 in Section XIV (Force Majeure) of this Consent Decree. 53. Upon entry of this Consent Decree, Santee Cooper shall operate only low NO x burners (or m o re stringent technology) on Grainger Unit 1, Jefferies Unit 3, and Jefferies Unit 4. 54. Beginning no later than May 1, 2004, Santee Cooper shall operate only low NO x burners (or m o re stringent technology) on Grainger Unit 2. B. System -W ide Annual Em ission Lim its for NO x 55. Santee Cooper shall com p ly with the following System -W ide 12-Month Rolling Average

x System : Em ission Rates for NO , which apply to all Units collectively within the Santee Cooper

-14-For the 12-Month Period Commencing on the Date Specified Below , and Each 12-Month Period Thereafter: System-Wide 12-Month Rolling Average Emission Rate for NO x January 1, 2005 0.300 lb/m m B TU January 1, 2007 0.180 lb/m m B TU January 1, 2010 0.150 lb/m m B TU 56. Santee Cooper shall com p ly with the following System -W ide 12-Month Rolling Tonnage lim itations for NOx, which apply to all Units collectively within the Santee Cooper System : For the 12-Month Period System-Wide 12-Month Commencing on the Date Specified Rolling Tonnage Limitation Below , and Each 12-Month Period for NO x Thereafter: January 1, 2005 30,000 tons January 1, 2007 25,000 tons January 1, 2010 20,000 tons 57. Each of the system -wide annual em issions lim its for NO x set forth in Paragraphs 55 and 56 shall apply prospectively from the specified date on which a 12-m onth period

comm e nces and shall end on the date that the subsequent system -wide lim it, if any, takes effect. Santee Cooper shall not use NO x Allowances to com p ly with these system -wide lim itations. 58. In the event that:

a. an Im proved Unit is unable to operate for an extended period of tim e due to unanticipated forced outage(s) caused by catastrophic events; b. the annual availability (as m easured by the Generating Availability Data System ) -15-of the Im proved Unit decreases by twenty-f ive percent (25%) below availability levels, as averaged over the previous two (2) years, due to the occurrence of the unanticipated forced outage(s);

c. Santee Cooper m u st com p ensate for the reduced utilization at the Im proved Unit by increasing the utilization of other Units within the Santee Cooper System that

em it NO x em issions at higher levels than those em itted by the Im proved Unit; d. the NO x em issions increase resulting from the increased utilization under Subparagraph 58.c. causes Santee Cooper to exceed the applicable System -W ide 12-Month Rolling Average Em ission Rate for NO x and/or the applicable System -W ide 12-Month Rolling Tonnage lim itation for NO x ; and

e. Santee Cooper notifies the Plaintiffs in writing as soon as practicable, but no later than fifteen (15) business days following the start of the unanticipated forced outage, then Santee Cooper shall be deem ed not to be in violation of such system -wide lim its, and shall not be liable for stipulated penalties under this Consent Decree for exceeding such lim its, if Santee Cooper offsets the em issions in excess of either the System -W ide 12-Month Rolling Average Em ission Rate for NO x or the System -W ide 12-Month Rolling Tonnage lim itation for NO x (“Excess Tons”), whichever is greater: (i) within twenty-four (24) m onths of the return to se rvice of the affected Unit where the outage is six (6) m onths or less; or (b) within thirty-six (36) m onths of the return to service of the affected Unit where the outage exceeds six (6) m onths. Santee Cooper m u st achieve this offset by reducing its System -W ide 12-Month Rolling Tonnage for NO x below the lim itation specified in Paragraph 56 by an am ount equal to the Excess Tons. Santee -16-Cooper shall dem onstrate in its subsequent periodic reports that it has achieved the required offset in its System -W ide 12-Month Rolling Tonnage for NO twenty-four (24) or thirty-six (36) m onth period, as applicable. x in the f o llowing

C. Use of NO x Allowances 59. Except as provided in this Consent Decree, Santee Cooper shall not sell or trade any NO x Allowances allocated to the Santee Cooper System that would otherwise be available for sale or trade as a result of the actions taken by Santee Cooper to com p ly with the requirem e nts of this Consent Decree. 60. NO x Allowances allocated to the Santee Cooper System m a y be used by Santee Cooper to m eet its own federal and/or State Clean Air Act regulatory requirem e nts. 61. Provided that Santee Cooper is in com p liance with the system -wide NO x em ission lim itations of this Consent Decree, nothing inthis Consent Decree shall preclude Santee Cooper from selling or transferring NO x Allowances allocated to the Santee Cooper System that becom e available for sale or trade as a result of:

a. activities that reduce NO x em issions at any Unit within the Santee Cooper System prior to the date of entry of this Consent Decree; b. the installation and operation of any NO x technique that is not otherwise required under this Consent Decree; pollution control technology or

c. the installation and operation of any NO x pollution control technology or technique that achieves and m a intains, prior to the date required under this Consent Decree, NO x em ission rates below the 30-Day Rolling Average Em ission Rates required by Paragraph 49; -17-d. achievem e nt and m a intenance of NO x em ission rates below the 30-Day Rolling Average Em ission Rates specified below, and in accordance with the following requirem e nts, but only to the extent specified below: Unit Date 30-Day Rolling Average Emission Rate Range (lb/mmBTU) In Which

Santee Cooper May Sell or Trade 50% of Allow a nces 30-Day Rolling Average Emission Rate (lb/mmBTU) Below Which Santee Cooper

May Sell or Trade 100% of Allow a nces Cross 1 B eginning May 31, 2004 N/A 0.100 Cross 2 M ay 31, 2004 - May 31, 2007 0.110 to 0.100 0.100 Beginning June 1, 2007 N/A 0.100 Cross 3 B eginning 180 Days After 1 st Start-Up N/A 0.080 Cross 4 B eginning 180 Days After 1 st Start-Up N/A 0.080
W i nyah 1 N ovem b er 30, 2004 -Novem b er 30, 2007 0.110 to 0.100 0.100 Beginning Decem ber 1, 2007 N/A 0.100 W i nyah 2 B eginning Novem b er 30, 2004 0.120 to 0.100 0.100 W i nyah 3 N ovem b er 30, 2005 -Novem b er 30, 2008 0.140 to 0.100 0.100 Beginning Decem ber 1, 2008 0.120 to 0.100 0.100 W i nyah 4 N ovem b er 30, 2005 - Novem b er 30, 2008 0.130 to 0.100 0.100 Beginning Decem ber 1, 2008 0.120 to 0.100 0.100

e. perm anent shutdown of any Santee Cooper System Unit; f. a fuel change at a Unit that results in an em ission reduction, provided that the

em ission reduction is m a de enforceable through m odification of this Consent -18-Decree; or g. other em ission reduction m easures that are agreed to by the Parties and m a de enforceable through m odification of this Consent Decree, so long as Santee Cooper tim ely reports the generation of such surplus NO x Allowances in accordance with Section XI (Periodic Re porting) of this Consent Decree. Santee Cooper shall be allowed to sell or transfer NO x Allowances equal to the NO x em issions reductions achieved for any given year by any of the actions specified in Subparagraphs 61.b through 61.f. only to the extent that the total NO x em issions f r om all Units within the Santee Cooper System are below the System -W ide 12-Month Rolling Tonnage lim itation f o r that year. 62. Santee Cooper m a y not purchase or otherwise obtain NO x Allowances from another source for purposes of com p lying with th e requirem e nts of this Consent Decree. However, nothing in this Consent Decree shall prevent Santee Cooper from purchasing or otherwise obtaining NO x Allowances from another source for purposes of com p lying with state or federal Clean Air Act requirem e nts to the extent otherwise allowed by law. D. General NO x Provisions 63. In determ ining Em ission Rates for NO x with those reference m e thods specified in 40 C.F.R. Part 75 (2003). , Santee Cooper shall use CEMS in accordance

-19-V. SO 2 EMISSION REDUCTIONS AND CONTROLS A. SO 2 Em ission Controls 1. New FGD Installations 64. Santee Cooper shall install and comm e nce continuous operation of an FGD (or equivalent SO 2 control technology approved pursuant to Paragraph 65) on the following Units within the Santee Cooper System so as to achieve, by the dates specified below, and thereafter m a intain, a 30-Day Rolling Average Rem oval Efficiency for SO 2 of at least ninety-f ive percent (95%): Unit Date by w h ich Santee Cooper Must Complete Installation and Continuously Operate FGD Date by w h ich Santee Cooper Must Comply w i th 30-Day Rolling Average Removal Efficiency for SO 2 Cross Unit 3 W ithin 180 Days of 1 st Start-Up W ithin 180 Days of 1 st Start-Up Cross Unit 4 W ithin 180 Days of 1 st Start-Up W ithin 180 Days of 1 st Start-Up W i nyah Unit 1 J une 30, 2008 Decem ber 31, 2008 W i nyah Unit 2 J une 30, 2008 Decem ber 31, 2008 65. W ith prior written notice to and written approval from EPA and DHEC, Santee Cooper

m a y, in lieu of installing and operating an FGD at any Unit specified in Paragraph 64, install and operate equivalent SO 2 control technology so long as such equivalent SO 2 control technology achieves and m a intains a 30-Day Rolling Average Rem oval Efficiency of at least ninety-five percent (95%). 2. FGD Upgrades 66. Santee Cooper shall upgrade the FGDs on the following Units within the Santee Cooper System and achieve, by the dates specified below, and thereafter m a intain, the 30-Day -20-Rolling Average Rem oval Efficiencies for SO 2 specified below:

Unit Date by Which Santee Cooper Must Complete FGD Upgrade

Cross Unit 1 D ecem ber 31, 2005

Cross Unit 2 D ecem ber 31, 2005

W i nyah Unit 3 J une 30, 2012 W i nyah Unit 4 J une 30, 2007 30-Day Rolling Average Removal Efficiency Requirement Date by Which Santee Cooper Must Comply w i th Removal Efficiency Requirement 95% Rem oval Efficiency Through Upgrades of Existing FGD Modules June 30, 2006 Design to 91%, but Achieve and Maintain at least

87%, Rem oval Efficiency Through Upgrades of Existing FGD Modules June 30, 2006

90% Rem oval

Efficiency Decem ber 31, 2012 90% Rem oval

Efficiency Decem ber 31, 2007

67. In the case of W i nyah Unit 3, Santee Cooper shall achieve and m a intain an interim 30-Day Rolling Average Em ission Rate for SO 2 of not greater than 1.20 lb/m m B TU during the construction phase of the FGD upgrade required for this Unit under Paragraph 66. The construction phase shall begin when the existing FGD on W i nyah Unit 3 m u st be bypassed in order to undertake the necessary upgrade, and shall end when the upgrade construction is com p leted, but no later than Decem ber 31, 2012. The interim 30-Day Rolling Average Em ission Rate for SO 2 for W i nyah Unit 3 shall apply during the construction phase in lieu of all other applicable SO 2 em issions lim itations required by the Adm i nistrator of EPA under the Act, or by DHEC under the South Carolina State -21-Im plem entation Plan. 3. FGD Continuous Operation 68. Santee Cooper shall continuously operate each FGD (or equivalent SO 2 control technology approved pursuant to Paragraph 65) in the Santee Cooper System at all tim es that the Unit it serves is in operation, consistent with the technological lim itations,

m a nufacturers’ specifications, and good engin eering and m a intenance practices for the FGD or equivalent technology. Santee Cooper need not operate an FGD system during periods of Malfunction of the FGD, provided Santee Cooper satisfies the notice requirem e nts for Malfunction Events as set forth in Paragraph 164 in Section XIV (Force Majeure) of this Consent Decree. B. System -W ide Annual Em ission Lim its for SO 2 69. Santee Cooper shall com p ly with the following System -W ide 12-Month Rolling Average Em ission Rates for SO 2 , which apply to all Units collectively within the Santee Cooper System : For the 12-Month Period Commencing on the Date Specified Below , and Each 12-Month Period Thereafter: System-Wide 12-Month Rolling Average Emission Rate for SO 2 January 1, 2005 0.92 lb/m m B TU January 1, 2007 0.75 lb/m m B TU January 1, 2009 0.53 lb/m m B TU January 1, 2011 0.50 lb/m m B TU 70. Santee Cooper shall com p ly with the following System -W ide 12-Month Rolling Tonnage lim itations f o r SO 2 , which apply to all Units collectively within the Santee Cooper -22-System : For the 12-Month Period Commencing on the Date Specified Below , and Each 12-Month Period Thereafter: System-Wide 12-Month Rolling Tonnage Limitation

for SO 2 January 1, 2005 95,000 tons January 1, 2007 85,000 tons January 1, 2009 70,000 tons January 1, 2011 65,000 tons 71. Each of the system -wide annual em ission lim its for SO 2 set forth in Paragraphs 69 and 70 shall apply prospectively from the specified date on which a 12-m onth period

comm e nces and shall end on the date that the subsequent system -wide lim it, if any, takes effect. Santee Cooper shall not use SO 2 allowances or credits to com p ly with these system -wide lim itations. 72. In the event that:

a. an Im proved Unit is unable to operate for an extended period of tim e due to unanticipated forced outage(s) caused by catastrophic events; b. the annual availability (as m easured by the Generating Availability Data System ) of

the Im proved Unit decreases by twenty-f ive percent (25%) below availability levels, as averaged over the previous two (2) years, due to the occurrence of the unanticipated forced outage(s);

c. Santee Cooper m u st com p ensate for the reduced utilization at the Im proved Unit by increasing the utilization of other Units within the Santee Cooper System that

em it SO 2 em issions at higher levels than those em itted by the Im proved Unit; -23-d. the SO 2 em issions increase resulting from the increased utilization under Subparagraph 72.c. causes Santee Cooper to exceed the applicable System -W ide 12-Month Rolling Average Em ission Rate for SO 2 and/or the applicable System -W ide 12-Month Rolling Tonnage lim itation for SO 2 ; and

e. Santee Cooper notifies the Plaintiffs in writing as soon as practicable, but no later than fifteen (15) business days following the start of the unanticipated forced outage, then Santee Cooper shall be deem ed not to be in violation of such system -wide lim its, and shall not be liable for stipulated penalties under this Consent Decree for exceeding such lim its, if Santee Cooper offsets the em issions in excess of either the System -W ide 12-Month Rolling Average Em ission Rate for SO 2 or the System -W ide 12-Month Rolling Tonnage lim itation for SO 2 (“Excess Tons”), whichever is greater: (i) within twenty-four (24) m onths of the return to service of the affected Unit where the outage is six (6)

m onths or less; or (b) within thirty-six (36) m onths of the return to service of the affected Unit where the outage exceeds six (6) m onths. Santee Cooper m u st achieve this offset by reducing its System -W ide 12-Month Rolling Tonnage for SO 2 below the lim itation specified in Paragraph 70 by an am ount equal to the Excess Tons. Santee Cooper shall dem onstrate in its subsequent periodic reports that it has achieved the required offset in its System -W ide 12-Month Rolling Tonnage for SO 2 in the following twenty-four (24) or thirty-six (36) m onth period, as applicable. C. Surrender of SO 2 Allowances 73. For purposes of this Subsection, the “surrender of allowances” m eans perm anently -24-surrendering allowances from the accounts adm i nistered by EPA for all Units in the Santee Cooper System , so that such allowances can never be used to m eet any

com p liance requirem e nt under the Clean Air Act, the South Carolina State Im plem entation Plan, or this Consent Decree. 74. Santee Cooper m a y use any SO 2 Allowances allocated by EPA to the Santee Cooper System only to m eet its own federal and/or State Clean Air Act regulatory requirem e nts. 75. For each calendar year beginning with calendar year 2007, Santee Cooper shall surrender to EPA, or transfer to a non-profit third party selected by Santee Cooper for surrender, SO 2 Allowances allocated to Santee Cooper that are surplus to its Clean Air Act SO 2 Allowance-holding requirem e nts for the Santee Cooper System Units, collectively, for that year. The num ber of SO 2 Allowances that are surplus to Santee Cooper’s Clean Air Act SO 2 Allowance-holding requirem e nts shall be equal to the am ount by which the SO 2 Allowances allocated to all Santee Cooper System Units for a particular year are greater than the total am ount of SO 2 em issions from those sam e Units for the sam e year. However, beginning with calendar year 2013, and for each subsequent calendar year, Santee Cooper need not surrender any SO 2 Allowances that are surplus to its SO 2 Allowance-holding requirem e nts for the Santee Cooper System Units, collectively, for that year, and m a y use such surplus SO 2 Allowances to m eet its SO 2 Allowance-holding requirem e nts for the Santee Cooper System Units for the next five (5) calendar years, on a rolling five-year basis. Beginning with calendar year 2018, and for each subsequent calendar year, Santee Cooper shall surrender, in accordance with the provisions of this Section, any such surplus SO 2 Allowances that have not been used for the Santee Cooper -25-System Units in the prior five-year rolling period. Santee Cooper shall m a ke such surrender annually, within forty-five (45) da ys of Santee Cooper’s receipt from EPA of the Annual Deduction Reports for SO 2 . Any surrender need not include the specific SO 2 Allowances that were allocated to Santee Cooper System Units, so long as Santee Cooper surrenders SO 2 Allowances that are from the sam e year or an earlier year and that are equal to the num ber required to be surrendered under this Paragraph. 76. If any allowances are transferred directly to a non-profit third party, Santee Cooper shall include a description of such transf er in the next report subm itted to EPA and DHEC pursuant to Section XI (Periodic Reporting) of this Consent Decree. Such report shall: (i) provide the identity of the non-profit third-party recipient(s) of the SO 2 Allowances and a listing of the serial num bers of the transferred SO 2 Allowances; and (ii) include a certif ication by the third-party recipient(s) stating that the recipient(s) will not sell, trade, or otherwise exchange any of the allowances and will not use any of the SO 2 Allowances to m eet any obligation im posed by any environm ental law. No later than the third periodic report due after the transfer of any SO 2 Allowances, Santee Cooper shall include a statem ent that the third-party recipient(s) surrendered the SO 2 Allowances for perm anent surrender to EPA in accordance with the provisions of Paragraph 77 within one (1) year after Santee Cooper transferred the SO 2 Allowances to them

. Santee Cooper shall not have com p lied with the SO 2 Allowance surrender requirem e nts of this Paragraph until all third-party recipient(s) shall have actually surrendered the transf erred SO 2 Allowances to EPA. 77. For all SO 2 Allowances surrendered to EPA, Santee Cooper or the third-party recipient(s) -26-(as the case m a y be) shall f i rst subm it an SO 2 Allowance transfer request form to EPA’s Office of Air and Radiation’s Clean Air Mark ets Division directing the transfer of such SO 2 Allowances to the EPA Enforcem ent Surrender Account or to any other EPA account that EPA m a y direct in writing. As part of subm itting these transfer requests, Santee Cooper or the third-party recipient(s) shall irrevocably authorize the transfer of these SO 2 Allowances and identify – by nam e of account and any applicable serial or other identification num bers or station nam e s – the source and location of the SO 2 Allowances being surrendered. 78. Provided that Santee Cooper is in com p liance with the system -wide SO 2 em ission lim itations of this Consent Decree, nothing inthis Consent Decree shall preclude Santee Cooper from banking, selling or transferring SO 2 Allowances allocated to the Santee Cooper System that becom e available for sale or trade as a result of:

a. activities that reduce SO 2 em issions at any Unit within the Santee Cooper System prior to the date of entry of this Consent Decree; b. the installation and operation of any SO 2 pollution control technology or technique that is not otherwise required under this Consent Decree;

c. achievem e nt and m a intenance of a 30-Day Rolling Average Rem oval Efficiency at an Im proved Unit for SO 2 that is below the applicable 30-Day Rolling Average Rem oval Efficiency lim it specified in Paragraphs 64 and 66; d. perm anent shutdown of any Santee Cooper System Unit;

e. a fuel change at a Unit that results in an em ission reduction, provided that the

em ission reduction is m a de enforceable through m odification of this Consent -27-Decree; or f. other em ission reduction m easures that are agreed to by the Parties and m a de enforceable through m odification of this Consent Decree, so long as Santee Cooper tim ely reports the generation of such surplus SO 2 Allowances in accordance with Section XI (Periodic Re porting) of this Consent Decree. Santee Cooper shall be allowed to bank, sell or transfer SO 2 Allowances equal to the SO 2 em issions reductions achieved for any given year by any of the actions specified in Subparagraphs 78.b. through 78.f. only to the extent that the total SO 2 em issions from all Units within the Santee Cooper System are below the System -W ide 12-Month Rolling Tonnage lim itation for that year. In addition, and notwithstanding any other requirem e nt in this Consent Decree regarding the surrender, or restricting the banking, sale or transfer, of SO 2 Allowances allocated to the Santee Cooper System , in any calendar year Santee Cooper need not surrender, and m a y bank, sell or transfer, SO 2 Allowances allocated to the Santee Cooper System in an am ount equal to the num ber of tons by which SO 2 em issions from the Santee Cooper System Units, collectively, are below 35,000 tons, provided that Santee Cooper shall not bank, sell, or transfer SO 2 Allowances based on em ission reductions below 35,000 tons if Santee Cooper has already banked, sold, or traded those SO 2 Allowances as a result of its activities under Subparagraphs 78.b. through 78.f. D. Fuel Lim itations 79. Santee Cooper shall not burn coal having a sulfur content greater than any am ount authorized by regulation or State perm it at any Santee Cooper System Unit. -28-80. Santee Cooper shall not burn petroleum coke at any Unit where Santee Cooper is not required to install or upgrade an FGD under this Consent Decree. Santee Cooper shall not burn petroleum coke at any Unit where Santee Cooper is required to install or upgrade an FGD under this Consent Decree prior to the date on which Santee Cooper achieves the 30-Day Rolling Average Rem oval Efficiency for SO 2 required by this Consent Decree, unless authorized by perm it as of the date of lodging of this Consent Decree. In the case of any Unit that is controlled by an FGD and achieves the 30-Day Rolling Average Rem oval Efficiency for SO 2 required by this Consent Decree, Santee Cooper m a y burn petroleum coke at that Unit beginning on the date that it achieves

com p liance with the required 30-Day Rolling Average Rem oval Efficiency for SO 2 , provided that Santee Cooper has first obtaine d from DHEC the necessary State operating perm it. 81. Notwithstanding Paragraph 80, nothing in this Consent Decree shall preclude Santee Cooper from burning petroleum coke at any Santee Cooper System Unit if it first obtains perm it authorization to do so pursuant to the PSD and Nonattainm e nt NSR rules that m a y apply to such Unit under the Clean Air Act and the South Carolina State Im plem entation Plan. E. General SO 2 Provisions 82. In determ ining Em ission Rates for SO 2 , Santee Cooper shall use CEMS in accordance with those reference m e thods specified in 40 C.F.R. Part 75 (2003) and 40 C.F.R. Part 60 (2003). 83. For Units that are required to be equipped with SO 2 control equipm ent and that are -29-subject to the percent rem oval efficiency requirem e nts of this Consent Decree, the outlet SO 2 Em ission Rate and the inlet SO 2 Em ission Rate shall be determ ined based on the data generated in accordance with 40 C.F.R. Part 75 (2002) (using SO 2 CEMS data from both the inlet and outlet of the control device). For the purpose of determ ining m a ss

em issions, Santee Cooper shall (a) m onitor the gas flow rate at both the inlet and outlet of the control device, or (b) with prior written notice to and written approval f r om EPA and DHEC, m onitor the gas flow rate at the outlet of the control device and determ ine the inlet flow rate based on an approved alternative m e thodology. VI. PM EMISSION REDUCTIONS AND CONTROLS A. New PM Em ission Controls 84. Santee Cooper shall install and com m e nce continuous operation of PM em ission control equipm ent on Cross Unit 3 and Cross Unit 4 within one hundred eighty (180) days after the date of first start-up of each Unit. Santee Cooper shall continuously operate the PM control equipm ent on each Unit so as to m a xim i ze PM em ission reductions, consistent with the Unit’s operational design and safety requirem e nts, and shall achieve and

m a intain a PM Em ission Rate of no greater than 0.015 lb/mm B TU at each Unit. B. Optim ization of PM Em ission Controls 85. W ithin ninety (90) days after entry of this Consent Decree and continuing thereafter, Santee Cooper shall continuously operate each PM control device on its existing Units to

m a xim i ze PM em ission reductions, consistent with the operational and m a intenance lim itations of the Units. Specifically, Santee Cooper shall, at a m i nim u m : (a) energize each section of the ESP for each Unit, regardless of whether that action is needed to -30-com p ly with opacity lim its; (b) m a intain the energy or power levels delivered to the ESPs for each Unit to achieve the greatest possible rem oval of PM; (c) m a ke best efforts to expeditiously repair and return to service transf orm e r-rectif ier sets when they f a il; and (d) inspect for, and schedule for repair, any openings in ESP casings and ductwork to

m i nim i ze air leakage. W ithin two hundred seventy (270) days after entry of this Consent Decree and continuing thereafter, Santee Cooper shall also optim ize the plate-cleaning and discharge-electrode-cleaning system s for the ESPs at each Santee Cooper System Unit by varying the cycle tim e, cycle frequency, rapper-vibrator intensity, and num ber of strikes per cleaning event, of these system s to m i nim i ze PM em issions. C. Upgrade of Existing PM Em ission Controls 86. Santee Cooper shall dem onstrate that each of the following Units can achieve and

m a intain a PM Em ission Rate of no greater than 0.030 lb/m m B TU by the dates specified in the table below and in accordance with Paragraph 91. In the alternative and in lieu of dem onstrating com p liance with a PM Em ission Rate applicable under this Paragraph, Santee Cooper m a y elect to undertake an upgrade of the existing PM em issions control equipm ent for any such Unit based on a Pollution Control Upgrade Analysis for that Unit. The preparation, subm ission, and im plem entation of such Pollution Control Upgrade Analysis shall be undertaken and com p leted in accordance with the com p liance schedules and procedures specified in Paragraph 88.

-31-Unit Date by Which Santee Cooper Must Demonstrate Compliance w i th PM Emission Rate of 0.030 lb/mmBTU Cross Unit 1 90 Days After Date of Entry of Consent Decree Cross Unit 2 90 Days After Date of Entry of Consent Decree W i nyah Unit 1 D ecem ber 31, 2008 W i nyah Unit 2 D ecem ber 31, 2008 W i nyah Unit 3 D ecem ber 31, 2012 W i nyah Unit 4 D ecem ber 31, 2007 Grainger Unit 1 D ecem ber 31, 2012 Grainger Unit 2 D ecem ber 31, 2012 Jefferies Unit 3 D ecem ber 31, 2012 Jefferies Unit 4 D ecem ber 31, 2012 87. Dem onstration and Com p liance with PM Em ission Lim i t
. If Santee Cooper dem onstrates by the applicable date set forth in Paragraph 86 that a Unit can achieve and m a intain a PM Em ission Rate of no greater than 0.030 lb/m m B TU, Santee shall thereafter operate that Unit to m a xim i ze PM em ission reductions, consistent with the Unit’s operational design and safety requirem e nts, and shall achieve and m a intain a PM Em ission Rate no greater than 0.030 lb/m m B TU. 88. PM Em ission Control Upgrade

. For each existing Unit in the Santee Cooper System for which Santee Cooper does not elect to m eet a PM Em ission Rate of 0.030 lb/m m B TU, Santee Cooper shall prepare, subm it, and im plem ent a Pollution Control Upgrade Analysis in accordance with this Paragraph. Such Pollution Control Upgrade Analysis shall include proposed upgrades to the PM pollution control device and a proposed alternate PM Em ission Rate that the Unit shall m eet upon com p letion of such upgrade. -32-For each Unit for which such a Pollution Control Upgrade Analysis is required, Santee Cooper shall deliver such Pollution Control Upgrade Analysis to EPA and DHEC for approval pursuant to Section XII (Review and Approval of Subm ittals) of this Consent Decree by the deadlines set forth in Paragraph 86 for each such Unit.

a. In conducting the Pollution Control Upgrade Analysis for any Unit, Santee Cooper need not consider any of the following PM control m easures: i

. the com p lete replacem ent of the existing ESP with a new ESP, FGD, or baghouse, or ii. the upgrade of the existing ESP controls through the installation of a supplem ental PM pollution control device, through the refurbishm ent of existing PM control equipm ent, or through other m easures, if ( a ) the costs of such upgrade are sim ilar to the costs of a replacem ent ESP, FGD, or baghouse, or ( b ) the costs, including but not lim ited to the increm ental costs, of such upgrade, m easured in term s of dollars per ton rem oved, are not consistent with EPA regulatory guidance on PSD. W ith each Pollution Control Upgrade Analysis delivered to EPA and DHEC, Santee Cooper shall sim u ltaneously deliver all docum ents that support or were considered in preparing such Pollution Control Upgrade Analysis. Santee Cooper shall retain a qualified contractor to assist in the perform a nce and com p letion of each Pollution Control Upgrade Analysis. b. Beginning one (1) year after EPA and DHEC approve the recomm e ndation(s)

m a de in a Pollution Control Upgrade Analysis for a Unit, Santee Cooper shall not -33-operate that Unit unless all equipm ent called for in the recomm e ndation(s) of the Pollution Control Upgrade Analysis has been installed. An installation period longer than one year m a y be allowed if Santee Cooper m a kes such a request in the Pollution Control Upgrade Analysis and EPA and DHEC determ ine such additional tim e is necessary due to factors such as the m a gnitude of the PM control project or the need to address reliability concerns that could result f r om

m

u ltiple Unit outages within the Santee Cooper System

. Upon installation of all equipm ent recomm e nded under an approved Pollution Control Upgrade Analysis, Santee Cooper shall operate such equipm ent in com p liance with the

recomm e ndation(s) of the approved Pollution Control Upgrade Analysis, including com p liance with the PM Em ission Rate specified by the

recomm e ndation(s). 89. Santee Cooper shall continuously operate each ESP in the Santee Cooper System at all tim es that the Unit it serves is com busting Fossil Fuel, except that Santee Cooper need not com m e nce operation of any ESP until the Unit that the ESP serves has continuously

com busted any am ount of coal or petroleum coke for a period of two hours (three hours for Units at the W i nyah Plant and at the Jefferies Plant). Santee Cooper shall use good engineering practices for PM control at all tim es that the Unit is com busting Fossil Fuel. D. PM and Mercury Monitoring 1. PM Stack Tests 90. Beginning in calendar year 2004, and continuing annually thereafter, Santee Cooper shall conduct a PM perform a nce test on each Santee Cooper System Unit. The annual stack -34-test requirem e nt im posed on each Santee Cooper System Unit by this Paragraph m a y be satisfied by stack tests conducted by Santee Cooper as required by its perm its from DHEC for any year that such stack tests are required under the perm its. Santee Cooper

m a y perform biennial rather than annual testing provided that (a) two of the m o st recently

com p leted test results from tests conducted in accordance with Method 5 or Method 17 dem onstrate that the particulate m a tter em issions are equal to or less than 0.015 lb/mm B TU, or (b) the Unit is equipped with a PM CEMS in accordance with Paragraphs 93 through 98. Santee Cooper shall perform annual rather than biennial testing the year im m e diately following any test result dem onstrating that the particulate

m a tter em issions are greater than 0.015 lb/mm B TU, unless the Unit is equipped with a PM CEMS in accordance with Paragraph 93 through 98. 91. The reference and m onitoring m e thods and procedures for determ ining com p liance with PM Em ission Rates shall be those specified in 40 C.F.R. Part 60, Appendix A, Method 5 or Method 17 (2003). Use of any particular m e thod shall conform to the EPA requirem e nts specified in 40 C.F.R. Part 60, Appendix A (2003) and 40 C.F.R. § 60.48a (b) and (e) (2003), or any federally approved m e thod contained in the South Carolina State Im plem entation Plan. Santee Cooper shall calculate the PM Em ission Rates from the stack test results in accordance with 40 C.F.R. § 60.8(f) (2003), and 40 C.F.R. § 60.46a(c) (2003). The results of each PM stack test shall be subm itted to EPA and DHEC within 30 days of com p letion of each test. 92. The PM Em ission Rates established under this Section shall not apply to em issions that occur at any Unit during the periods that the ESP serving that Unit is not required to be in -35-operation, pursuant to Paragraph 89, and shall not apply to em issions that occur during periods of Unit Malfunction so long as Santee Cooper provides notice of the Malfunction in accordance with Paragraph 164 in Section XIV (Force Majeure) of this Consent Decree. 2. PM CEMS 93. Santee Cooper shall install and operate PM CEMS in accordance with Paragraphs 94 through 99. Each PM CEMS shall com p rise a continuous particle m a ss m onitor

m easuring particulate m a tter concentration, directly or indirectly, on an hourly average basis and a diluent m onitor used to convert the concentration to units of lb/mm B TU. Santee Cooper shall m a intain, in an electronic database, the hourly average em ission values of all PM CEMS in lb/mm B TU. Santee Cooper shall use reasonable efforts to keep each PM CEMS running and producing data whenever any Unit served by the PM CEMS is operating. 94. No later than twelve (12) m onths after en try of this Consent Decree, Santee Cooper shall subm it to EPA and DHEC for review and approval pursuant to Section XII (Review and Approval of Subm ittals) of this Consent Decree a plan f o r the installation and certification of each PM CEMS. 95. Santee Cooper shall install, certify, and operate PM CEMS on two Units, stacks or

comm on stacks, in accordance with the following schedule:

-36-Unit Deadline to Commence Operation of PM CEMS Cross Unit 1 or 2 24 Months After Date of Entry of Consent Decree Grainger Unit 1 or 2, or Jefferies Unit 3 or 4 24 Months After Date of Entry of Consent Decree

96. No later than one hundred twenty (120) days prior to the deadline to comm e nce operation of each PM CEMS, Santee Cooper shall subm it to EPA and DHEC for review and approval pursuant to Section XII (Review and Approval of Subm ittals) of this Consent Decree a proposed Quality Assurance/Quality Control (“QA/QC”) protocol that shall be followed in calibrating such PM CEMS. Following EPA’s and DHEC’s approval of the protocol, Santee Cooper shall thereafter operate each PM CEMS in accordance with the approved protocol. 97. In developing both the plan for installation and certification of the PM CEMS and the QA/QC protocol, Santee Cooper shall use the criteria set forth in EPA’s Am endm ents to Standards of Perform a nce for New Stationary Sources: Monitoring Requirem e nts, 69 Fed. Reg. 1786 (January 12, 2004). 98. No later than ninety (90) days after Santee Cooper begins operation of the PM CEMS, Santee Cooper shall conduct tests of each PM CEMS to dem onstrate com p liance with the PM CEMS installation and certif ication plan subm itted to and approved by EPA and DHEC in accordance with Paragraph 94. 99. Santee Cooper shall operate the PM CEMS for at least two (2) years on each of the Units specified in Paragraph 95. After two (2) years of operation, Santee Cooper shall not be required to continue operating the PM CEMS on any such Units if EPA and DHEC agree that operation of the PM CEMS is no longer feasible. Operation of a PM CEMS shall be -37-considered no longer feasible if (a) the PM CEMS cannot be kept in proper condition for sufficient periods of tim e to produce reliable, adequate, or useful data consistent with the QA/QC protocol; or (b) Santee Cooper dem ons trates that recurring, chronic, or unusual equipm ent adjustm e nt or servicing needs in relation to other types of continuous em ission

m onitors cannot be resolved through reasonable expenditures of resources. If EPA and DHEC determ ine that Santee Cooper has dem onstrated pursuant to this Paragraph that operation is no longer feasible, Santee Cooper shall be entitled to discontinue operation of and rem ove the PM CEMS. 3. Mercury CEMS 100. Santee Cooper shall install and operate Mercury CEMS in accordance with Paragraphs 101 through 105. Each Mercury CEMS shall continuously m easure m e rcury em ission concentration, directly or indirectly, on an hourly average basis, in units of lb/TBTU. Santee Cooper shall m a intain, in an electronic database, the hourly average em ission values of all Mercury CEMS in lb/TBTU. Santee Cooper shall use reasonable efforts to keep each Mercury CEMS running and producing data whenever any Unit served by the Mercury CEMS is operating. 101. No later than twelve (12) m onths after en try of this Consent Decree, Santee Cooper shall subm it to EPA and DHEC for review and approval pursuant to Section XII (Review and Approval of Subm ittals) of this Consent Decree a plan f o r the installation and certification of each Mercury CEMS. 102. Santee Cooper shall install, certify, and operate Mercury CEMS on the following Units in accordance with the following schedule: -38-Unit Deadline to Commence Operation of Mercury CEMS Cross Unit 1 24 Months After Date of Entry of Consent Decree Cross Unit 2 24 Months After Date of Entry of Consent Decree No later than twelve (12) m onths after en try of this Consent Decree, Santee Cooper m a y subm it to EPA and DHEC for review and approval alternative Units on which to install the two (2) Mercury CEMS required by this Paragraph. 103. No later than one hundred twenty (120) days prior to the deadline to comm e nce operation of each Mercury CEMS, Santee Cooper shall subm it to EPA and DHEC for review and approval pursuant to Section XII (Review and Approval of Subm ittals) of this Consent Decree a proposed QA/QC protocol that shall be followed in calibrating such Mercury CEMS. Following EPA’s and DHEC’s approva l of the protocol, Santee Cooper shall thereafter operate each Mercury CEMS in accordance with the approved protocol. 104. No later than ninety (90) days after Santee Cooper begins operation of the Mercury CEMS, Santee Cooper shall conduct tests of each Mercury CEMS to dem onstrate

com p liance with the Mercury CEMS installation and certif ication plan subm itted to and approved by EPA and DHEC in accordance with Paragraph 101. 105. Santee Cooper shall operate the Mercury CEMS for at least two (2) years on each of the Units specified under Paragraph 102. After two (2) years of operation, Santee Cooper shall not be required to continue operating the Mercury CEMS on any such Units if EPA and DHEC agree that operation of the Mercury CEMS is no longer feasible. Operation of a Mercury CEMS shall be considered no longer feasible if (a) the Mercury CEMS cannot be kept in proper condition for sufficient periods of tim e to produce reliable, -39-adequate, or useful data consistent with the QA/QC protocol; or (b) Santee Cooper dem onstrates that recurring, chronic, or unusual equipm ent adjustm e nt or servicing needs in relation to other types of continuous em ission m onitors cannot be resolved through reasonable expenditures of resources. If EPA and DHEC determ ine that Santee Cooper has dem onstrated pursuant to this Paragraph that operation is no longer feasible, Santee Cooper shall be entitled to discontinue operation of and rem ove the Mercury CEMS. 4. PM and Mercury CEMS Reporting 106. Following the installation of each PM and Mercury CEMS, Santee Cooper shall report to EPA and DHEC, pursuant to Section XI (Peri odic Reporting) of this Consent Decree, the data recorded by the PM and Mercury CEMS, expressed in lb/mm B TU and lb/TBTU, respectively, on a 30-day and 365-day rolling average basis, in electronic form at, as required in Paragraphs 93 and 100. E. General PM Provisions 107. In determ ining the PM Em ission Rate for purposes of this Consent Decree, Santee Cooper shall use the reference m e thods specified in 40 C.F.R. Part 60, Appendix A, Method 5 or Method 17 (2003), using stack tests, or alternative m e thods that are either prom ulgated by EPA or requested by Santee Cooper and approved by EPA. Santee Cooper shall also calculate the PM Em ission Rates from annual (or biennial) stack tests in accordance with 40 C.F.R. § 60.8(f) (2003). VII. PROHIBITION ON NETTING CREDITS OR OFFSETS FROM REQUIRED CONTROLS 108. Em ission reductions generated by Santee Cooper to com p ly with the requirem e nts of this Consent Decree shall not be considered as a creditable contem poraneous em ission -40-decrease for the purpose of obtaining a netting credit under the Clean Air Act’s Nonattainm e nt NSR and PSD program s. Notwithstanding the preceding sentence, Santee Cooper m a y use any creditable contem poraneous em ission decreases of NO x and SO 2 generated under this Consent Decree at Cross Units 1 and 2 for the purpose of obtaining netting credit for these pollutants at Cross Units 3 and 4 under the Clean Air Act’s Nonattainm e nt NSR and PSD program s, provided that DHEC has:

a. Issued a perm it for Cross Units 3 and 4 with em issions lim its for NO PM that are at least as stringent as those specified in Paragraphs 49, 64, and 84; and x , SO 2 and

b. Determ ined through air quality m odeling that em issions from Cross Units 3 and 4 will not exceed a PSD increm ent or have adverse im pacts on a Class I area. 109. The lim itations on the generation and use of netting credits or offsets set forth in the previous Paragraph do not apply to em ission reductions achieved by Santee Cooper System Units that are surplus to those required under this Consent Decree. For purposes of this Paragraph, em ission reductions from a Santee Cooper System Unit are surplus to those required under this Consent Decree if they result from Santee Cooper com p liance with federally-enforceable em ission lim its that are m o re stringent than those lim its im posed on Santee Cooper System Units under this Consent Decree and under applicable provisions of the Clean Air Act or the South Carolina State Im plem entation Plan. 110. Nothing in this Consent Decree is intended to preclude the em ission reductions generated under this Consent Decree from being considered by DHEC or EPA as creditable contem poraneous em ission decreases for the purpose of attainm e nt dem onstrations -41-subm itted pursuant to § 110 of the Act, 42 U.S.C. § 7410, or in determ ining im pacts on NAAQS, PSD increm ent, or air quality related values, including visibility, in a Class I

area. VIII. ENVIRONMENTALLY BENEFICIAL PROJECTS 111. Santee Cooper shall im plem ent the Environm entally Beneficial Projects (“Projects”) described in this Section in com p liance with the approved plans and schedules for such Projects and other term s of this Consent Decree. Santee Cooper shall subm it plans for the Projects to Plaintiffs for review and approval pursuant to Section XII (Review and Approval of Subm ittals) of this Consent D ecree in accordance with the schedules set forth in this Section. In im plem enting the Projects, Santee Cooper shall spend no less than $4.5 m illion in Project Dollars. Santee Cooper shall spend no less than $1.25

m illion in Project Dollars within one (1) year af ter entry of this Consent Decree and the full am ount of the Project Dollars required by this Paragraph on or before Decem ber 31, 2006. Santee Cooper shall m a intain, and present to Plaintiffs, upon request, all docum ents required by GAAP to substantiate the Project Dollars expended and shall provide these docum ents to Plaintiffs within th irty (30) days of a request by Plaintiffs for the docum ents. 112. All plans and reports prepared by Santee Cooper pursuant to the requirem e nts of this Section of the Consent Decree shall be publicly available without charge. 113. Santee Cooper shall certify, as part of each plan subm itted to Plaintiffs for any Project, that it is not otherwise required by law, and is unaware of any other person that is required by law, to perform the Project described in the plan. -42-114. Santee Cooper shall use good faith efforts to secure as m u ch benefit as possible for the Project Dollars expended, consistent with the applicable requirem e nts and lim its of this Consent Decree. 115. If Santee Cooper elects (where such an election is allowed) to undertake a Project by contributing funds to another person or instrum e ntality that will carry out the Project, that person or instrum e ntality m u st in writing: (a) identif y its legal authority f o r accepting such funding; and (b) identify its legal authority to conduct the Project for which Santee Cooper contributes the funds. Regardless of whether Santee Cooper elected (where such election is allowed) to undertake a Project by itself or to do so by contributing funds to another person or instrum e ntality that will carry out the Project, Santee Cooper acknowledges that it will receive credit for the expenditure of such funds as Project Dollars only if Santee Cooper dem onstrates that the funds have been actually spent by either Santee Cooper or by the person or instrum e ntality receiving them (or, in the case of internal costs, have actually been incurred by Santee Cooper), and that such expenditures

m e t all requirem e nts of this Consent Decree. 116. W ithin sixty (60) days following the com p letion of each Project required under this Consent Decree, Santee Cooper shall subm it to Plaintiffs a report that docum ents the date that the Project was com p leted, Santee Cooper’s results of im plem enting the Project, including the em ission reductions or other environm ental benefits achieved, and the Project Dollars expended by Santee Cooper in im plem enting the Project. 117. Santee Cooper shall not financially benefit to a greater extent than any other m e m b er of the general public from the sale or transfer of technology obtained in the course of -43-im plem enting any Project. 118. Beginning one (1) year after entry of this Consent Decree, Santee Cooper shall provide Plaintiffs with sem i -annual updates concerning the progress of each Project. 119. South Carolina Land Conservation Project

. W ithin ninety (90) days after entry of this Consent Decree, and as part of the consideration provided to DHEC for its resolution of claim s under this Consent Decree, Santee Cooper shall spend no less than $1.25 m illion in Project Dollars for the purchase of conservation easem ents and restrictive covenants to prevent the future developm ent of environm entally-sensitive land along the Cooper River in Berkeley County, South Carolina. Santee Cooper shall m a ke such paym ent to the South Carolina Departm e nt of Natural Resources. The property subject to the conservation easem ents and restrictive covena nts m u st contain a biologically significant riverine ecology that functions as an im portant wetlands buffer from the surrounding environs, such that developm ent of the property would have significant and likely irreversible adverse im pacts on the Cooper River. 120. Energy-Efficient Technologies Project

. W ithin one (1) year after entry of this Consent Decree, Santee Cooper shall subm it to EPA and DHEC for review and approval a proposal for the purchase and installation of innovative and environm entally beneficial energy technologies designed to m i nim i ze the use of electric power and im prove energy self-sufficiency.

a. Santee Cooper shall spend at least $1.0 m illion in Project Dollars to purchase and install the technologies at State-funded universities. b. The technologies m a y include advanced renewable energy supply sources (such -44-as next-generation solar panels or fuel cells) and energy-efficient building system s such as highly-efficient HVAC and water heating system s, passive lighting system s, dynam i c window coatings, and innovative fram ing and insulation m a terials.

c. Santee Cooper shall receive dollar-for-dollar credit on any expenditures of Project Dollars for renewable energy technologies, but shall only receive credit for expenditures of Project Dollars for energy-efficient m a terials and technologies to the extent that the cost of such energy-efficient m a terials and technologies exceed the cost of less energy-efficient m a terials and technologies. 121. Dem a nd-Side Managem e nt Project

. W ithin one hundred eighty (180) days after entry of this Consent Decree, Santee Cooper shall subm it to EPA for review and approval pursuant to Section XII (Review and Approva l of Subm ittals) of this Consent Decree a plan for the im plem entation of a Dem a nd-Side Managem e nt Project. As part of this Project, Santee Cooper shall spend no less than $1.0 m illion in Project Dollars to install technologies to reduce the dem a nd for energy consum ption, to subsidize the installation of technologies that reduce the dem a nd for energy consum ption, and to im plem ent strategies that will reduce the dem a nd for energy consum ption. Santee Cooper shall

m a ke such expenditures only in those situations presenting a dem onstrated financial need for such assistance within the Santee Cooper System service area. The plan m a y include the distribution of energy efficient lighting and/or the use of therm a lly-efficient design

m easures. 122. Clean Diesel School Bus Retrofit Project

. W ithin one hundred eighty (180) days after -45-entry of this Consent Decree, Santee Cooper shall subm it to EPA for review and approval pursuant to Section XII (Review and Approva l of Subm ittals) of this Consent Decree a plan to retrofit new school bus diesel engines with em ission control equipm ent designed to reduce em issions of particulates and/or ozone precursors (the “Clean Diesel School Bus Retrofit Project”). This Project shall include, where necessary, techniques and infrastructure needed to support such retrofits. Santee Cooper shall spend no less than $1.0 m illion in Project Dollars in perform i ng this Clean Diesel School Bus Retrofit Project. The plan shall also satisfy the following criteria:

a. Involve school bus fleets located in areas that are either geographically diverse, in nonattainm e nt areas, or in areas at significant risk of nonattainm e nt status, within the State. b. Provide for the retrofit of school bus diesel engines with established technologies and em issions control equipm ent designed to reduce em issions of particulates and/or ozone precursors. The retrofit em issions control equipm ent m a y include oxidation catalysts and particulate m a tter f ilters that will reduce particulate m a tter and hydrocarbon em issions.

c. Provide for the use of technologies and re trofit procedures that have been verified or certified by EPA to achieve m easurable reductions in em issions of particulates and/or ozone precursors, and that are not being applied on a dem onstration basis. d. Provide for the retrofit of engines with the goal of m eeting EPA standards for diesel school bus engines in 2007.

e. Account for hardware and installation costs, and include the costs of operation -46-and m a intenance training for each of the recipient m unicipalities. f. Lim it recipients of retrofits to school districts that bind them selves to operate and

m a intain af ter the retrof it any equipm ent installed in connection with the Project. g. For any third-party with whom Santee Cooper m i ght contract to carry out this program , establish m i nim u m standards that include prior experience in arranging retrofits, and a record of prior ability to interest and organize fleets, school districts, and comm unity groups to join a clean diesel program

. h. Include a schedule for com p leting each portion of the project. i. Be consistent with EPA’s SEP Policy and any other applicable EPA guidance or provisions of law. 123. Environm ental Managem e nt System Project

. Santee Cooper shall spend no less than $250,000 on im plem entation of an Environm ental Managem e nt System (“EMS”) to facilitate its com p liance with all environm ental laws applicable to the Santee Cooper System

. Santee Cooper shall im plem ent the EMS in accordance with the requirem e nts and schedules set forth in the Appendix of this Consent Decree, including:

a. An initial review of the current environm ental m a nagem e nt system s within the Santee Cooper System ; b. Developm ent of an EMS Manual;

c. Im plem entation of a Com p rehensive EMS; d. An audit of the Com p rehensive EMS; and

e. A post-audit action plan for im plem enting any additional m easures as part of the Com p rehensive EMS. -47-IX. CIVIL PENALTY 124. W ithin thirty (30) calendar days after entry of this Consent Decree, Santee Cooper shall pay to the United States a civil penalty in the am ount of $1.3 m illion. The civil penalty shall be paid by Electronic Funds Transfer (“EFT”) to the United States Departm e nt of Justice, in accordance with current EFT procedures, referencing USAO File Num b er 2003v02237 and DOJ Case Num b er 90-5-2-1-07492 and the civil action case nam e and

case num ber of this action. The costs of such EFT shall be Santee Cooper’s responsibility. Paym ent shall be m a de in accordance with instructions provided to Santee Cooper by the Financial Litigation Unit of the U.S. Attorney’s Office for the District of South Carolina. Any funds received after 2:00 p.m . EDT shall be credited on the next business day. At the tim e of paym ent, Santee Cooper shall provide notice of paym ent, referencing the USAO File Num b er, the DOJ Case Num b er, and the civil action case

nam e and case num ber, to the Departm e nt of Justice and to EPA in accordance with Section XVIII (Notices) of this Consent Decree. 125. Failure to tim ely pay the civil penalty shall subject Santee Cooper to interest accruing f r om the date paym ent is due until the date paym ent is m a de at the rate prescribed by 28 U.S.C. § 1961, and shall render Santee Cooper liable for all charges, costs, fees, and penalties established by law f o r the benef it of a creditor or of the United States in securing paym ent. 126. W ithin thirty (30) calendar days after entry of this Consent Decree, Santee Cooper shall pay a civil penalty in the am ount of $700,000. Paym ent shall be m a de in the form of a certified check or cashier’s check, and be payable to “South Carolina Departm e nt of -48-Health and Environm ental Control.” Paym ent shall be sent to Director, Com p liance Managem e nt Division, Bureau of Air Quality, South Carolina Departm e nt of Health and Environm ental Control, 2600 Bull Street, Colum b ia, South Carolina 29201. To ensure proper credit, the check m u st reference United States et al. v. South Carolina Public Service Authority , and the civil action case num ber. 127. Santee Cooper shall pay interest if it fails to m a ke a com p lete or tim ely paym ent of the civil penalty that it is required to pay under Paragraph 126. Interest shall be determ ined pursuant to S.C. Code Ann. § 34-31-20(B). The interest shall be calculated on the full

am ount of the civil penalty due as principal, calculated from the due date specified in this Consent Decree until the date that the delinquent paym ent is finally paid in full. 128. Paym ents m a de pursuant to this Section are penalties within the m eaning 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. X. RESOLUTION OF CLAIMS A. RESOLUTION OF PLAINTIFFS’ CIVIL CLAIMS 129. Claim s Based on Modifications Occurring Before the Lodging of Consent Decree

. Entry of this Consent Decree shall resolve all civil claim s of the Plaintiffs under:

a. Parts C or D of Subchapter I of the Clean Air Act; b. Section 111 of the Clean Air Act;

c. Sections 502(a) and 504(a) of the Clean Air Act, but only to the extent that such claim s are based on Santee Cooper’s failure to obtain an operating perm it that reflects applicable requirem e nts im posed under Parts C or D of Subchapter I, or -49-Section 111, of the Clean Air Act; d. South Carolina Pollution Control Act, S.C. Code Ann. 48-1-10 et seq. (1987), as im plem ented by 24A S.C. Code Ann. Regulations 61-62.5, Standard 7 (Supp. 2003);

e. South Carolina Pollution Control Act, S.C. Code Ann. 48-1-10 et seq. (1987), as im plem ented by 24A S.C. Code Ann. Regulations 61-62.60 (Supp. 2003); and f. South Carolina Pollution Control Act, S.C. Code Ann. 48-1-10 et seq. (1987), as im plem ented by 24A S.C. Code Ann. Regulations 61-62.70 (Supp. 2003), but only to the extent that such claim s are based on Santee Cooper’s failure to obtain an operating perm it that reflects applicable requirem e nts im posed under South Carolina Pollution Control Act, S.C. Code Ann. 48-1-10 et seq., as im plem ented by 24A S.C. Code Ann. Regulations 61-62.5, Standard 7 (Supp. 2003) or 24A S.C. Code Ann. Regulations 61-62.60 (Supp. 2003); that arose from any construction activity at Cross Unit 3, or that arose from m odifications at any Santee Cooper System Unit other than Cross Units 3 and 4, where the construction activity or m odification was comm e nced prior to the date of lodging of this Consent Decree, including but not lim ited to those construction and m odif i cation activities alleged in the Com p laint filed by the Plaintiffs in this civil action. 130. Claim s Based on Modifications After the Lodging of Consent Decree

. Plaintiffs covenant not to sue or to bring adm i nistrative action against Santee Cooper for civil claim s arising under:

a. Parts C or D of Subchapter I of the Clean Air Act and under regulations -50-prom ulgated thereunder as of July 31, 2003; b. Sections 502(a) and 504(a) of the Clean Air Act, but only to the extent that such claim s are based on Santee Cooper’s failure to obtain an operating perm it that reflects applicable requirem e nts im posed under Parts C or D of Subchapter I of the Clean Air Act and under regulations prom ulgated thereunder as of July 31, 2003;

c. South Carolina Pollution Control Act, S.C. Code Ann. 48-1-10 et seq. (1987), as im plem ented by 24A S.C. Code Ann. Regulation 61-62.5, Standard 7 (Supp. 2003); or d. South Carolina Pollution Control Act, S.C. Code Ann. 48-1-10 et seq. (1987), as im plem ented by 24A S.C. Code Ann. Regulation 61-62.70 (Supp. 2003), but only to the extent that such claim s are based on Santee Cooper’s failure to obtain an operating perm it that reflects applicable requirem e nts im posed under the South Carolina Pollution Control Act, S.C. Code Ann. 48-1-10 et seq. (1987), as im plem ented by 24A S.C. Code Ann. Regulation 61-62.5, Standard 7 (Supp. 2003); for pollutants regulated under Parts C or D of S ubchapter I of the Clean Air Act as of the date of lodging of this Consent Decree, where such claim s are based on any physical change in, or change in the m e thod of operation of, any Santee Cooper System Unit: (i) that increases the am ount of any air pollutant em itted by such Unit, is com m e nced after lodging of this Consent Decree, and is com p leted before Decem ber 31, 2015; or (ii) that this Consent Decree expressly directs Santee Cooper to undertake. -51-131. Reopener

. The Plaintiffs’ covenant not to sue or to bring adm i nistrative action under this Subsection is subject to the provisions of Subsection B of this Section. B. PURSUIT OF PLAINTIFFS’ CIVIL CLAIMS OTHERW ISE RESOLVED 132. Bases for Pursuing Resolved Claim s Across Santee Cooper System

. If Santee Cooper violates Paragraph 55 (System

- W i de 12-M onth Rolling Average Em ission Rate for NO x ), Paragraph 56 (System

- W i de 12-Month Rolling Tonnage lim itations for NO x ), Paragraph 69 (System

- W i de 12-Month Rolling Average Em ission Rates for SO 2 ), Paragraph 70 (System

- W i de 12-Month Rolling Tonnage lim itations for SO 2 ), or Paragraphs 79 or 80 (Fuel Lim itation), or fails by m o re than ninety (90) days to com p lete installation or upgrade, and comm e nce operation, of any em ission control device required pursuant to Paragraphs 49, 64, 66 or 84 (as m a y be extended by written agreem ent of the Parties or pursuant to Force Majeure or Dispute Resolution provisions of this Consent Decree), then the Plaintiffs m a y pursue any claim at any Santee Cooper System Unit that is otherwise covered by the covenant not to sue or to bring adm i nistrative action under Subsection A of this Section, subject to Subparagraphs 132.a. and 132.b.

a. For any claim s based on m odifications undertaken at an Other Unit (any Unit of the Santee Cooper System that is not an Im proved Unit for the pollutant in question), claim s m a y be pursued only where the m odification(s) on which such claim is based was comm e nced within the five (5) years preceding the violation or failure specified in this Paragraph. b. For any claim s based on m odifications undertaken at an Im proved Unit, claim s

m a y be pursued only where the m odification(s) on which such claim is based was -52-comm e nced (i) after lodging of the Consent Decree and (ii) within the five years preceding the violation or failure specified in this Paragraph. 133. Additional Bases for Pursuing Resolved Claim s for Modifications at an Im proved Unit. Solely with respect to Im proved Units, the Plaintiffs m a y also pursue claim s arising from

a m odification (or collection of m odifications) at an Im proved Unit that are otherwise covered by the covenant not to sue or to bring adm i nistrative action under Subsection A of this Section, if the m odification (or collection of m odifications) at the Im proved Unit on which such claim s are based (i) was comm e nced after lodging of this Consent Decree, and (ii) individually (or collectively) increased the m a xim u m hourly em ission rate of that Unit for NO x or SO 2 (as m easured by 40 C.F.R. § 60.14 (b) and (h)(2003)) by m o re than ten percent (10%). 134. Additional Bases for Pursuing Resolved Claim s for Modifications at an Other Unit. Solely with respect to Other Units, the Plaintiffs m a y also pursue claim s arising from a

m odification (or collection of m odifications) at an Other Unit that are otherwise covered by the covenant not to sue or to bring adm i nistrative action under Subsection A of this Section, if the m odification (or collection of m odifications) at the Other Unit on which the claim is based was comm e nced within the five (5) years preceding any of the f o llowing events:

a. a m odification (or collection of m odifications) at such Other Unit comm e nced after lodging of this Consent Decree increases the m a xim u m hourly em ission rate for such Other Unit for the relevant pollutant (NO x or SO 2 ) (as m e asured by 40 C.F.R. § 60.14(b) and (h)(2003)); -53-b. the aggregate of all Capital Expenditures m a de at such Other Unit exceed $125/KW on the Unit’s Boiler Island (based on the generating capacities identified in Paragraphs 10, 18, 20 and 48) during any of the following five (5) year periods: January 1, 2006 through Decem ber 31, 2010; and January 1, 2011 through Decem ber 31, 2015. For the period from the date of lodging of this Consent Decree through Decem ber 31, 2005, the $125/KW lim it shall be pro-rated to include only that portion of the five (5) year period (January 1, 2000 through Decem ber 31, 2005) following the date of lodging of this Consent Decree. (Capital Expenditures shall be m easured in calendar year 2002 constant dollars, as adjusted by the McGraw-Hill Engineering News-Record Construction Cost Index); or

c. a m odification (or collection of m odifications) at such Other Unit comm e nced after lodging of this Consent Decree results in an em issions increase of NO and/or SO 2 at such Other Unit, and such increase: x

i. presents, by itself, or in com b ination with other em issions or sources, “an imm i nent and substantial endangerm ent” within the m eaning of Section 303 of the Act, 42 U.S.C. §7603; ii. causes or contributes to violation of an NAAQS in any Air Quality Control Area that is in attainm e nt with that NAAQS; iii. causes or contributes to violation of a PSD increm ent; or iv. causes or contributes to any adverse im pact on any form ally-recognized Air Quality and Related Values in any Class I area. -54-135. Solely for purposes of Subparagraph 134.c., the determ ination of whether there was an

em issions increase m u st take into account any em issions changes relevant to the m odeling dom ain that have occurred or will occur under this Consent Decree at other Santee Cooper System Units. In addition, an em issions increase shall not be deem ed to have occurred at an Other Unit unless the annual em issions of the relevant pollutant (NO x or SO 2 ) from the plant at which such m odification(s) occurred exceed the annual em issions from that plant for calendar year 2003. 136. The introduction of any new or changed NAAQS shall not, standing alone, provide the showing needed under Subparagraphs 134.c.ii. or 134.c.iii. to pursue any claim for a

m odification at an Other Unit resolved under Subsection A of this Section. XI. PERIODIC REPORTING 137. W ithin one hundred eighty (180) days after each date established by this Consent Decree for Santee Cooper to achieve and m a intain a certain PM Em ission Rate at any Santee Cooper System Unit, Santee Cooper shall conduct a perform a nce test that dem onstrates

com p liance with the lim it specif i ed in this Consent Decree or in any approved Pollution Control Upgrade Analysis subm itted under Paragraph 88. W ithin thirty (30) days of each such perform a nce test, Santee Cooper shall subm it the results of the perform a nce test to EPA and DHEC at the addresses specified in Section XVIII (Notices) of this Consent Decree. 138. Beginning thirty (30) days after the end of the first full calendar quarter following the entry of this Consent Decree, continuing on a sem i -annual basis until Decem b er 31, 2015, and in addition to any other express reporting requirem e nt in this Consent Decree, Santee -55-Cooper shall subm it to EPA and DHEC a progress report. 139. The progress report shall contain the following inform ation:

a. all inf o rm ation necessary to determ ine com p liance with this Consent Decree, including inform ation required to be included in periodic reports pursuant to Paragraphs 58, 72, 76 and 106; b. all inform ation relating to em ission allowances and credits that Santee Cooper claim s to have generated in accordance with Paragraphs 61 or 78 by com p liance beyond the requirem e nts of this Consent Decree; and

c. all inform ation indicating that the installation and comm e ncem ent of operation for a pollution control device m a y be delayed, including the nature and cause of the delay, and any steps taken by Santee Cooper to m itigate such delay. 140. In any periodic progress report subm itted pursuant to this Section, Santee Cooper m a y incorporate by reference inform ation previously subm itted under its Title V perm itting requirem e nts, provided that Santee Cooper attaches the Title V perm it report and provides a specific reference to the provisions of the Title V perm it report that are responsive to the inform ation required in the periodic progress report. 141. In addition to the progress reports required pursuant to this Section, Santee Cooper shall provide a written report to Plaintif f

s of any violation of the requirem e nts of this Consent Decree, including exceedances of the Unit-specific 30-Day Rolling Average Em ission Rates, Unit-specific 30-Day Rolling Average Rem oval Efficiencies, System -W ide 12-Month Rolling Average Em ission Rates, and System -W ide 12-Month Rolling Tonnage lim itations, within ten (10) business days of when Santee Cooper knew or should have -56-known of any such violation. In this report, Santee Cooper shall explain the cause or causes of the violation and all m easures taken or to be taken by Santee Cooper to prevent such violations in the future. 142. Each Santee Cooper report shall be signed by Santee Cooper’s Manager of Perform a nce and Environm ental Services or, in his or her absence, Santee Cooper’s Senior Vice President of Generation, or higher ranking official, and shall contain the following certif ication: This inform ation was prepared either by m e or under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the inform ation subm itted. Based on my evaluation, or the direction and my inquiry of the person(s) who m a nage the system , or the person(s) directly responsible for gathering the inform ation, I hereby certify under penalty of law that, to the best of my knowledge and belief, this inform ation is true, accurate, and com p lete. I understand that there are significant penalties for subm itting false, inaccurate, or incom p lete inform ation to the United States. 143. If any allowances are surrendered to any third party pursuant to Subsection V.C. (Surrender of SO 2 Allowances) of this Consent Decree, the third party’s certif ication pursuant to Paragraph 76 shall be signed by a m a naging officer of the third party and shall contain the following language: I certify under penalty of law that,_____________ [nam e of third party] will not sell, trade, or otherwise exchange any of the allowances and will not use any of the allowances to m eet any obligation im posed by any environm ental law. I understand that there are significant penalties for subm itting false, inaccurate, or incom p lete inform ation to the United States.

-57-XII. REVIEW AND APPROVAL OF SUBMITTALS 144. Santee Cooper shall subm it each plan, report, or other subm ission to EPA and DHEC whenever such a docum ent is required to be subm itted f o r review or approval pursuant to this Consent Decree. EPA, in consultation w ith the DHEC to the extent that this Consent Decree provides f o r joint approval with DHEC, m a y approve the subm ittal or decline to approve it and provide written comm e nts. W ithin sixty (60) days of receiving written

comm e nts from EPA, Santee Cooper shall either: (a) revise the subm ittal consistent with the written comm e nts and provide the revised subm ittal for final approval to EPA and, if applicable, to DHEC; or (b) subm it the m a tter for dispute resolution, including the period of inform al negotiations, under Section XV (D ispute Resolution) of this Consent Decree. 145. Upon receipt of EPA’s final approval of the subm ittal, and DHEC’s final approval, if applicable, or upon com p letion of the subm ittal pursuant to dispute resolution, Santee Cooper shall im plem ent the approved subm ittal in accordance with the schedule specified therein. XIII. STIPULATED PENALTIES 146. For any failure by Santee Cooper to com p ly w ith the term s of this Consent Decree, and subject to the provisions of Sections XI V (Force Majeure) and XV (Dispute Resolution) of this Consent Decree, Santee Cooper shall pay, within thirty (30) days after receipt of written dem a nd to Santee Cooper by the United States, the following stipulated penalties to the United States:

-58-Consent Decree Violation S tipulated Penalty (Per day per violation, unless otherw ise specified)
a. Failure to pay the civil penalty as specified in Section IX (Civil Penalty) of this Consent Decree $10,000 b. Failure to com p ly with any applicable 30-Day Rolling Average Em ission Rate for NO x or SO 2 , 30-Day Rolling Average Rem oval Efficiency for SO 2 , or Em ission Rate for PM, where the violation is less than 5% in excess of the lim its set f o rth in this Consent Decree $2,500

c. Failure to com p ly with any applicable 30-Day Rolling Average Em ission Rate for NO x or SO 2 , 30-Day Rolling Average Rem oval Efficiency for SO 2 , or Em ission Rate for PM, where the violation is equal to or greater than 5% but less than 10% in excess of the lim its set f o rth in this Consent Decree $5,000

d. Failure to com p ly with any applicable 30-Day Rolling Average Em ission Rate for NO x or SO 2 , 30-Day Rolling Average Rem oval Efficiency for SO 2 , or Em ission Rate for PM, where the violation is equal to or greater than 10% in excess of the lim its set f o rth in this Consent Decree $10,000

e. Failure to com p ly with any System -W ide 12-Month Rolling Average Em ission Rate, where the violation is less than 5% in excess of the lim its set f o rth in this Consent Decree $2,500 per m onth

f. Failure to com p ly with any System -W ide 12-Month Rolling Average Em ission Rate, where the violation is equal to or greater than 5% but less than 10% in excess of the lim its set f o rth in this Consent Decree $5,000 per m onth

g. Failure to com p ly with any System -W ide 12-Month Rolling Average Em ission Rate, where the violation is equal to or greater than 10% in excess of the lim its set forth in this Consent Decree $10,000 per m onth

h. Failure to com p ly with the System -W ide 12-Month Rolling Tonnage lim itations for SO 2 and NO x $5,000 per ton per m onth for the first 100 tons over the lim it, and $10,000 per ton per m onth for each additional ton over the lim it -59-i. Failure to install, comm e nce operation, or continue operation of the NO x , SO 2 , and PM pollution control devices on any Unit $10,000 during the first 30 days, $27,000 thereafter j. Failure to com p ly with the f u el lim itations at a Unit, as required by Paragraph 79 through 81 $10,000 k. Failure to install or operate CEMS as required in Paragraphs 93 through 105 $1,000 l. Failure to conduct annual or biennial perform a nce tests of PM em issions, as required in Paragraph 90 $1,000

m . Failure to apply for any perm it required by Section XVI $1,000
n. Failure to tim ely subm it, m odify, or im plem ent, as approved, the reports, plans, studies, analyses, protocols, or other subm ittals required by this Consent Decree $750 during the first ten days, $1,000 thereafter

o. Using, selling, or transferring SO 2 Allowances, except as perm itted by Paragraphs 74, 75 and 78 the surrender, pursuant to the procedures set forth in Paragraphs 76 and 77 of this Consent Decree, of SO 2 Allowances in an am ount equal to four tim es the num ber of SO 2 Allowances used, sold, or transferred in violation of this Consent Decree p. Using, selling or transferring NO x Allowances except as perm itted under Paragraphs 60 and 61 the surrender, pursuant to the procedures set forth in Paragraphs 76 and 77 of this Consent Decree, of NO x Allowances in an am ount equal to four tim es the num ber of NO x Allowances used, sold, or transferred in violation of this Consent Decree q. Failure to surrender an SO 2 Allowance as required by Paragraph 75 (a) $27,500 plus (b) $1,000 per SO 2 Allowance
r. Failure to dem onstrate the third-party surrender of an SO 2 Allowance in accordance with Paragraph 76 $2,500

-60-s. Failure to undertake and com p lete any of the Environm entally Beneficial Projects in com p liance with Section VIII (Environm entally Beneficial Projects) of this Consent Decree $1,000 during the first 30 days, $5,000 thereafter

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

147. Violation of an Em ission Rate or rem oval efficiency that is based on a 30-Day Rolling Average is a violation on every day on which the average is based. Violation of System -W ide 12-Month Rolling Average Em ission Rates or System -W ide 12-Month Rolling Tonnage lim itations is a violation each m onth on which the average is based. 148. W h ere a violation of a 30-Day Rolling Aver age Em ission Rate or 30-Day Rolling Average Rem oval Efficiency (for the sam e pollutant and from the sam e source) recurs within periods of less than thirty (30) days, Santee Cooper shall not pay a daily stipulated penalty for any day of the recurrence for which a stipulated penalty has already been paid. 149. All stipulated penalties shall begin to accrue on the day after the perform a nce is due or on the day a violation occurs, whichever is applicable, and shall continue to accrue until perform a nce is satisfactorily com p leted or until the violation ceases. Nothing in this Consent Decree shall prevent the sim u ltaneous accrual of separate stipulated penalties for separate violations of this Consent Decree. 150. Santee Cooper shall pay all stipulated penalties to the United States within thirty (30) days of receipt of written dem a nd to Santee Cooper from the United States, and shall continue to m a ke such paym ents every thirty (30) days thereafter until the violation(s) no longer continues, unless Santee Cooper elects within 20 days of receipt of written dem a nd to Santee Cooper from the United States to dispute the accrual of stipulated penalties in -61-accordance with the provisions in Section XV (Dispute Resolution) of this Consent Decree. 151. Stipulated penalties shall continue to accrue as provided in accordance with Paragraph 149 during any dispute, with interest on accrued stipulated penalties payable and calculated at the rate established by the Secretary of the Treasury, pursuant to 28 U.S.C. § 1961, but need not be paid until the following:

a. If the dispute is resolved by agreem ent, or by a decision of Plaintiffs pursuant to Section XV (Dispute Resolution) of this Consent Decree that is not appealed to the Court, accrued stipulated penalties agreed or determ ined to be owing, together with accrued interest, shall be paid within thirty (30) days of the effective date of the agreem ent or of the receipt of Plaintiffs’ decision; b. If the dispute is appealed to the Court and Plaintiffs prevail in whole or in part, Santee Cooper shall, within sixty (60) days of receipt of the Court’s decision or order, pay all accrued stipulated penalties determ ined by the Court to be owing, together with accrued interest, except as provided in Subparagraph 151.c.;

c. If the Court’s decision is appealed by any Party, Santee Cooper shall, within fifteen (15) days of receipt of the final appellate court decision, pay all accrued stipulated penalties determ ined to be owing, together with accrued interest. For purposes of this Paragraph, the accrued stipulated penalties agreed by the Parties, or determ ined by the Plaintiffs through Dispute Resolution, to be owing m a y be less than the stipulated penalty am ounts set forth in Paragraph 146. 152. All stipulated penalties shall be paid in the m a nner set forth in Section IX (Civil Penalty) -62-of this Consent Decree. 153. Should Santee Cooper fail to pay stipulated penalties in com p liance with the term s 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. 154. The stipulated penalties provided for in this Consent Decree shall be in addition to any other rights, rem e dies, or sanctions availabl e to any Plaintiff by reason of Santee Cooper’s failure to com p ly with any requirem e nt of th is Consent Decree or applicable law, except that for any violation of the Act for which this Consent Decree provides for paym ent of a stipulated penalty, Santee Cooper shall be allowed a credit for stipulated penalties paid against any statutory penalties also im posed for such violation. XIV. FORCE MAJEURE 155. For purposes of this Consent Decree, a “Force Majeure Event” shall m ean an event that has been or will be caused by circum stances beyond the control of Santee Cooper, its contractors, or any entity controlled by Santee Cooper that delays com p liance with any provision of this Consent Decree or otherwis e causes a violation of any provision of this Consent Decree despite Santee Cooper’s best efforts to fulfill the obligation. “Best efforts to f u lf ill the obligation” include using best ef f o rts to anticipate any potential Force Majeure Event and to address the effects of any such event (a) as it is occurring and (b) after it has occurred, such that the delay or violation is m i nim i zed to the greatest extent possible. 156. Notice of Force Majeure Events

. If any event occurs or has occurred that m a y delay

com p liance with or otherwise cause a violation of any obligation under this Consent -63-Decree, as to which Santee Cooper intends to assert a claim of Force Majeure, Santee Cooper shall notify the Plaintiffs in writing as soon as practicable, but in no event later than fourteen (14) business days following the date Santee Cooper first knew, or by the exercise of due diligence should have known, that the event caused or m a y cause such delay or violation. In this notice, Santee Cooper shall reference this Paragraph of this Consent Decree and describe the anticipated length of tim e that the delay or violation m a y persist, the cause or causes of the delay or violation, all m easures taken or to be taken by Santee Cooper to prevent or m i nim i ze the delay or violation, the schedule by which Santee Cooper proposes to im plem ent those m easures, and Santee Cooper’s rationale for attributing a delay or violation to a Force Majeure Event. Santee Cooper shall adopt all reasonable m easures to avoid or m i nim i ze such delays or violations. Santee Cooper shall be deem ed to know of any circum stance which Santee Cooper, its contractors, or any entity controlled by Santee Cooper knew or should have known. 157. Failure to Give Notice

. If Santee Cooper fails to com p ly with the notice requirem e nts in Paragraph 156, the Plaintiffs m a y void Santee Cooper’s claim for Force Majeure as to the specific event for which Santee Cooper has failed to com p ly with such notice requirem e nt. 158. Plaintiffs’ Response

. The United States shall notify Santee Cooper in writing regarding Santee Cooper’s claim of Force Majeure within tw enty (20) business days of receipt of the notice provided under Paragraph 156. If Plaintiffs agree that a delay in perform a nce has been or will be caused by a Force Majeure Event, the Parties shall stipulate to an extension of deadline(s) for perform a nce of the affected com p liance requirem e nt(s) by a period equal to the delay actually caused by the event. In such circum stances, an -64-appropriate m odification shall be m a de pursuant to Section XXII (Modification) of this Consent Decree. 159. Disagreem ent
. If Plaintiffs do not accept Santee Cooper’s claim of Force Majeure, or if the Parties cannot agree on the length of the delay actually caused by the Force Majeure Event, the m a tter shall be resolved in accordance with Section XV (Dispute Resolution) of this Consent Decree. 160. Burden of Proof

. In any dispute regarding Force Majeure, Santee Cooper shall bear the burden of proving that any delay in perform a n ce or any other violation of any requirem e nt of

this Consent Decree was caused by or will be caused by a Force Majeure Event. Santee Cooper shall also bear the burden of proving that Santee Cooper gave the notice required by Paragraph 156 and the burden of proving the anticipated duration and extent of any delay(s) attributable to a Force Majeure Event. An extension of one com p liance date based on a particular event m a y, but will not necessarily, result in an extension of a subsequent com p liance date. 161. Events Excluded

. Unanticipated or increased costs or expenses associated with the perform a nce of Santee Cooper’s obligations unde r this Consent Decree shall not constitute a Force Majeure Event. 162. Potential Force Majeure Events

. The Parties agree that, depending upon the circum stances related to an event and Santee Cooper’s response to such circum stances, the kinds of events listed below are am ong those that could qualify as Force Majeure Events within the m eaning of this Section: construction, labor, or equipm ent delays; Malfunction of a Unit or em ission control device; natural gas supply interruption; acts of God; acts of -65-war or terrorism ; orders by a governm e nt offi cial, governm e nt agency, or other regulatory body acting under and authorized by applicable law that directs Santee Cooper to supply electricity in response to a system -wide (state-wide or regional) em ergency; and a third-party appeal of a perm it that Santee Cooper needs in order to m eet its obligations under this Consent Decree. Depending upon the circum stances and Santee Cooper’s response to such circum stances, failure of a perm itting authority to issue a necessary perm it in a tim ely fashion, m a y constitute a Force Majeure Event where the failure of the perm itting authority to act is beyond the control of Santee Cooper and Santee Cooper has taken all steps available to it to obtain the necessary perm it, including, but not lim ited to: subm itting a com p lete perm it application; responding to requests for additional inform ation by the perm itting authority in a tim ely fashion; and accepting lawful perm it term s and conditions after expeditiously exhausting any legal rights to appeal term s and conditions im posed by the perm itting authority. 163. As part of the resolution of any m a tter subm itted to this Court under Section XV (Dispute Resolution) of this Consent Decree regarding a claim of Force Majeure, the Parties by agreem ent, or this Court by order, m a y in appropriate circum stances extend or m odify the schedule for com p letion of work under this Consent Decree to account for the delay in the work that occurred as a result of the Force Majeure Event. Santee Cooper shall be liable for stipulated penalties for its failure thereafter to com p lete the work in accordance with the extended or m odified schedule, provide d that Santee Cooper shall not be precluded from asserting that a new Force Majeure Event has caused or m a y cause a new or additional delay in com p lying with the extended or m odified schedule. -66-164. Malfunction Events

. If Santee Cooper intends to exclude a period of Malfunction, as defined in Paragraph 24, from the calcula tion of any 30-Day Rolling Average Em ission Rate, PM Em ission Rate or 30-Day Rolling Average Rem oval Efficiency, Santee Cooper shall notify EPA and DHEC in writing as soon as practicable, but in no event later than fourteen (14) business days following the date Santee Cooper first knew, or by the exercise of due diligence should have known, of the Malfunction. Santee Cooper shall be deem ed to know of any circum stance which Santee Cooper, its contractors, or any entity controlled by Santee Cooper knew or should have known.

a. In this notice, Santee Cooper shall describe the anticipated length of tim e that the Malfunction m a y persist, the cause or causes of the Malfunction, all m easures taken or to be taken by Santee Cooper to m i nim i ze the duration of the Malfunction, and the schedule by which Santee Cooper proposes to im plem ent those m easures. Santee Cooper shall adopt all reasonable m e asures to m i nim i ze the duration of such Malfunctions. b. A Malfunction, as defined in Paragraph 24 of this Consent Decree, does not constitute a Force Majeure Event unless the Malf unction also m eets the def i nition of a Force Majeure Event, as provided in this Section. Conversely, a period of Malfunction m a y be excluded by Santee Cooper from the calculations of em ission rates and rem oval efficiencies, as allowed under this Paragraph, regardless of whether the Malf unction constitutes a Force Majeure Event.

XV. DISPUTE RESOLUTION 165. The dispute resolution procedure provided by this Section shall be available to resolve all -67-disputes arising under this Consent Decree, provided that the Party invoking such procedure has first m a de a good faith attem p t to resolve the m a tter with the other Parties. 166. 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 m eeting to discuss the dispute inform ally not later than fourteen (14) days following receipt of such notice. 167. Disputes subm itted to dispute resolution under this Section shall, in the first instance, be the subject of inform al negotiations am ong the disputing Parties. Such period of inform al negotiations shall not extend beyond thirty (30) calendar days from the date of the first

m eeting am ong the disputing Parties’ representatives unless they agree in writing to shorten or extend this period. During the inform al negotiations period, the disputing Parties m a y also subm it their dispute to a m u tually-agreed-upon alternative dispute resolution (ADR) f o rum if the Parties agree that the ADR activities can be com p leted within the 30-day inform al negotiations period (or such longer period as the Parties m a y agree to in writing). 168. If the disputing Parties are unable to reach agreem ent during the inform al negotiation period, the Plaintiffs shall provide Santee Cooper with a written summ a ry of their position regarding the dispute. The written position provided by the Plaintif f

s shall be considered binding unless, within forty-five (45) calendar days thereafter, Santee Cooper seeks judicial resolution of the dispute by f iling a petition with this Court. The Plaintif f

s m a y -68-respond to the petition within forty-five (45) calendar days of filing. 169. Wh ere the nature of the dispute is such that a m o re tim ely resolution of the issue is required, the tim e periods set out in this Section m a y be shortened upon m o tion of one of the Parties to the dispute. 170. This Court shall not draw any inferences nor establish any presum ptions adverse to any disputing Party as a result of invocation of this Section or the disputing Parties’ inability to reach agreem ent. 171. As part of the resolution of any dispute under this Section, in appropriate circum stances the disputing Parties m a y agree, or this Court m a y order, an extension or m odification of the schedule for the com p letion of the activities required under this Consent Decree to account for the delay that occurred as a result of dispute resolution. Santee Cooper shall be liable f o r stipulated penalties f o r its f a ilure thereaf ter to com p lete the work in accordance with the extended or m odified schedule, provided that Santee Cooper shall not be precluded from asserting that a Force Majeure Event has caused or m a y cause a delay in com p lying with the extended or m odified schedule. 172. 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 168, the disputing Parties shall state their respective positions as to the applicable standard of law f o r resolving the particular dispute. XVI. PERMITS 173. Unless expressly stated otherwise in this Consent Decree, in any instance where otherwise applicable law or this Consent Decree requires Santee Cooper to secure a perm it to -69-authorize construction or operation of any device, including all preconstruction, construction, and operating perm its required under state law, Santee Cooper shall m a ke such application in a tim ely m a nner. EPA and DHEC will use their best ef f o rts to expeditiously review all perm it applications subm itted by Santee Cooper in order to m eet the requirem e nts of this Consent Decree. In addition, EPA and DHEC agree to use their best efforts to review tim ely any application by Santee Cooper to establish plant-wide applicability lim its (PAL) at any plant in the Santee Cooper System

. 174. Notwithstanding Paragraph 173, nothing in this Consent Decree shall be construed to require Santee Cooper to apply for or obtain a PSD or Nonattainm e nt NSR perm it for physical changes in, or changes in the m e thod of operation of, any Santee Cooper System Unit that would give rise to claim s resolved by, or covered by, the covenant not to sue or to bring adm i nistrative action in, Section X (Resolution of Claim s ) of this Consent Decree. 175. Wh en perm its are required as described in Paragraph 173, Santee Cooper shall com p lete and subm it applications f o r such perm its to the appropriate authorities to allow suf f i cient tim e for all legally required processing and review of the perm it request, including requests f o r additional inf o rm ation by the perm itting authorities. Any f a ilure by Santee Cooper to subm it a tim ely perm it application for any Unit in the Santee Cooper System shall bar any use by Santee Cooper of Section XIV (Force Majeure) of this Consent Decree, where a Force Majeure claim is based on perm itting delays. 176. Notwithstanding the reference to Title V perm its in this Consent Decree, the enforcem ent of such perm its shall be in accordance with their own term s and the Act. The Title V -70-perm its shall not be enforceable under this Consent Decree, although any term or lim it established by or under this Consent Decree shall be enforceable under this Consent Decree regardless of whether such term has or will becom e part of a Title V perm it, subject to the term s of Section XXVI (Conditional Term ination of Enforcem ent Under Consent Decree) of this Consent Decree. 177. W ithin one hundred eighty (180) days after entry of this Consent Decree, Santee Cooper shall am end any applicable Title V perm it application, or apply for am endm ents of its Title V perm its, to include a schedule f o r all Unit-specif i c perf orm a nce, operational,

m a intenance, and control technology requirem e nts established by this Consent Decree including, but not lim ited to, em ission rates, rem oval efficiencies, fuel lim itations, and the requirem e nt in Paragraph 75 pertaining to the surrender of SO 2 Allowances. 178. W ithin one (1) year from the com m e ncem ent of operation of each pollution control device to be installed or upgraded on an Im proved Unit under this Consent Decree, Santee Cooper shall apply to am end its Title V perm it for the generating plant where such device is installed to reflect all new requirem e nts applicable to that plant, including, but not lim ited to, any applicable 30-Day Rolling Average Em ission Rate or 30-Day Rolling Average Rem oval Efficiency. 179. Prior to January 1, 2015, Santee Cooper shall either: (a) apply to am end the Title V perm it for each plant in the Santee Cooper System to include a provision, which shall be identical for each Title V perm it, that contains the allowance surrender requirem e nts, and the System -W ide 12-Month Rolling Average Em ission Rates and System -W ide 12-Month Rolling Tonnage lim itations (including the provi sions of Paragraphs 58 and 72), set forth -71-in this Consent Decree; or (b) apply for am endm ents to the South Carolina State Im plem entation Plan to include such requirem e nts and lim itations. 180. Santee Cooper shall provide EPA and DHEC with a copy of each application to am end its Title V perm it, as well as a copy of any perm it proposed as a result of such application, to allow for tim ely participation in any public comm e nt opportunity. 181. If Santee Cooper sells or transfers to an entity unrelated to Santee Cooper (“Third Party Purchaser”) part or all of its ownership interest in a Unit in the Santee Cooper System (“Ownership Interest”), Santee Cooper shall com p ly with the requirem e nts of Paragraphs 177 through 179 with regard to that Unit prior to any such sale or transfer unless, following any such sale or transfer, Santee Cooper rem a ins the holder of the Title V perm it f o r such f acility. 182. Plaintiffs agree that this Consent Decree resolves Condition Num b er 62 of Construction Perm it Num b er 0420-0030-CI (“Perm it”) issued by DHEC on February 5, 2004, for the construction of Cross Units 3 and 4, and that no changes or revisions are required pursuant to that Condition. DHEC agrees that after entry of this Consent Decree and upon request by Santee Cooper, it shall within a reasonable period of tim e adm i nistratively am end the Perm it by deleting Condition Num b er 62 and reissue an am ended version of the Perm it that does not contain that Condition. XVII. INFORMATION COLLECTION AND RETENTION 183. Any authorized representative of the Plainti ffs, including their attorneys, contractors, and consultants, upon presentation of credentials, shall have a right of entry upon the prem ises of any facility in the Santee Cooper System at any reasonable tim e for the purpose of: -72-a. m onitoring the progress of activities required under this Consent Decree; b. verifying any data or inform ation subm itted to the Plaintiffs in accordance with the term s of this Consent Decree;

c. obtaining sam p les and, upon request, splits of any sam p les taken by Santee Cooper or its representatives, contractors, or consultants; and d. assessing Santee Cooper’s com p liance with this Consent Decree. 184. Santee Cooper shall retain, and instruct its contractors and agents to preserve, all non-identical copies of all records and docum ents (including records and docum ents in electronic form ) now in its or its contractors’ or agents’ possession or control, and that directly relate to Santee Cooper’s perform a nce of its obligations under this Consent Decree for the following periods: (a) until Decem ber 31, 2020, for records concerning physical or operational changes undertaken in accordance with Paragraph 130; and (b) until Decem ber 31, 2017, for all other records. This record retention requirem e nt shall apply regardless of any corporate docum ent retention policy to the contrary. 185. All inform ation and docum ents subm itted by Santee Cooper pursuant to this Consent Decree shall be subject to any requests under applicable law providing public disclosure of docum ents unless (a) the inform ation and docum ents are subject to legal privileges or protection or (b) Santee Cooper claim s and substantiates in accordance with 40 C.F.R. Part 2 that the inform ation and docum ents contain confidential business inform ation. 186. Nothing in this Consent Decree shall lim it the authority of the Plaintiffs to conduct tests and inspections at Santee Cooper’s facilities under Section 114 of the Act, 42 U.S.C. § 7414, or any other applicable federal or state laws, regulations or perm its. -73-XVIII. NOTICES 187. Unless otherwise provided herein, whenever notifications, subm issions, or

comm unications are required by this Consent Decree, they shall be m a de in writing and addressed as follows: As to the United States of Am erica: Chief , Environm ental Enf o rcem ent Section Environm ent and Natural Resources Division U.S. Departm e nt of Justice P.O. Box 7611, Ben Franklin Station W a shington, D.C. 20044-7611 DJ# 90-5-2-1-07492 and Director, Air Enforcem ent Division Office of Enforcem ent and Com p liance Assurance U.S. Environm ental Protection Agency Ariel Rios Building [2242A] 1200 Pennsylvania Avenue, N.W

. W a shington, DC 20460 and Regional Adm i nistrator U.S. EPA Region IV 61 Forsyth Street, S.W

. Atlanta, Georgia 30303-8960 As to the South Carolina Departm e nt of Health and Environm ental Control : Chief , Bureau of Air Quality South Carolina Departm e nt of Health and Environm ental Control 2600 Bull Street Colum b ia, South Carolina 29201

-74-As to Santee Cooper : President Santee Cooper One Riverwood Drive Moncks Corner, South Carolina 29461-2901 and General Counsel Santee Cooper One Riverwood Drive Moncks Corner, South Carolina 29461-2901 188. All notifications, comm unications or subm issions m a de pursuant to this Section shall be sent either by: (a) overnight m a il or delivery service; (b) certified or registered m a il, return receipt requested; or (c) electronic transm ission, unless the recipient is not able to review the transm ission in electronic form

. All notifications, com m unications and transm issions (a) sent by overnight, certif ied or registered m a il shall be deem ed subm itted on the date they are postm arked, or (b) sent by overnight delivery service shall be deem ed subm itted on the date they are delivered to the delivery service. All notif ications,

comm unications, and subm issions m a de by electronic m eans shall be electronically signed and certified, and shall be deem ed subm itted on the date that Santee Cooper receives written acknowledgm ent of receipt of such transm ission. 189. Any Party m a y 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. XIX. SALES OR TRANSFERS OF OW NERSHIP INTERESTS 190. If Santee Cooper proposes to sell or transfer an Ownership Interest to a Third Party -75-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 Sec tion XVIII (Notices) of this Consent Decree at least sixty (60) days before such proposed sale or transfer. 191. No later than sixty (60) days after the com p leti on of the sale or transfer of part or all of an Ownership Interest, Santee Cooper, the Third Party Purchaser and the Plaintiffs shall execute, and the Parties shall subm it to the Court for approval, a m odification pursuant to Section XXII (Modification) of this Consen t Decree in accordance with the following:

a. In the absence of any agreem ent by Plaintiffs to m a ke the Third Party Purchaser solely liable f o r the Unit-specif i c and allocated system -wide obligations in this Consent Decree, such m odification shall m a ke the Third Party Purchaser a party defendant to this Consent Decree and jointly and severally liable with Santee Cooper for all the requirem e nts of this Consent Decree that m a y be applicable to the purchased or transferred Ownership Interests, including (i) all requirem e nts specific to the purchased or transferred Santee Cooper System Unit, and (ii) all requirem e nts in this Consent Decree that are not specific to any particular Santee Cooper System Unit. b. Santee Cooper m a y request that the m odification relieve Santee Cooper of its liability under this Consent Decree, and m a ke the Third Party Purchaser solely liable, f o r all obligations and liabilities specif i cally applicable to the purchased or transferred Ownership Interests. Plaintiffs shall agree to such a m odification if they determ ine that the Third Party Purchaser has the technical capability, -76-f i nancial capability, and history of com p liance that would justif y such sole liability. If Santee Cooper m a kes this request later than ninety (90) days prior to the sale or transf er, Plaintif f

s ’ determ ination shall be m a de in their sole and unreviewable discretion.

c. Santee Cooper m a y also request that the m odification relieve Santee Cooper of its liability under this Consent Decree, and m a ke the Third Party Purchaser solely liable, for all system -wide em ission lim itations that have been allocated by Santee Cooper and the Third Party Purchaser to the purchased or transferred Ownership Interests. Plaintif f

s shall agree to such a m odif i cation if they determ ine that the Third Party Purchaser has the technical capability, f i nancial capability, and history of

com p liance that would justif y such allocation and sole liability. If Santee Cooper m a kes this request later than ninety (90) days prior to the sale or transfer, Plaintiffs determ ination shall be m a de in their sole and unreviewable discretion. d. Santee Cooper shall not assign, and shall not be released from , any obligation under this Consent Decree which is not specific to the purchased or transferred Ownership Interests, including the obligations set forth in Sections VIII (Environm entally Beneficial Projects) and IX (Civil Penalty) of this Consent Decree, and the system -wide em ission lim itations that have not been allocated pursuant to Subparagraph 191.c. to the purchased or transferred Ownership Interests. 192. This Consent Decree shall not be construed to im pede the sale or transfer of any Ownership Interests between Santee Cooper and any Third Party Purchaser as long as the -77-requirem e nts of this Consent Decree are m e t. This Consent Decree shall not be construed to prohibit a contractual allocation – as between Santee Cooper and any Third Party Purchaser – of the burdens of com p liance with this Consent Decree. XX. EFFECTIVE DATE 193. The effective date of this Consent Decr ee shall be the date upon which this Consent Decree is entered by the Court. XXI. RETENTION OF JURISDICTION 194. Continuing Jurisdiction

. The Court shall retain jurisdiction of this case af ter entry of this Consent Decree to enforce com p liance with the term s and conditions of this Consent Decree and to take any action necessary or appropriate for its interpretation, construction, execution, m odification, or adjudication of disputes. During the term of this Consent Decree, any Party to this Consent Decree m a y apply to the Court for any relief necessary to construe or effectuate this Consent Decree. XXII. MODIFICATION 195. The term s of this Consent Decree m a y be m odified only by a subsequent written agreem ent signed by all Parties. W h ere the m odif i cation constitutes a m a terial change to any term of this Consent Decree, it shall be effective only upon approval by the Court. 196. In the event that this Consent Decree is m odified, following approval by the Court, to require the installation of an additional NO x or SO 2 pollution control device on a Santee Cooper System Unit not scheduled for installation of such control device as part of the original Consent Decree, and to require the operation of the control device to com p ly with a 30-Day Rolling Average Em ission Rate for NO x of no greater than 0.100 lb/m m B TU, or -78-a 30-Day Rolling Average Rem oval Efficiency for SO 2 of no less than ninety-five percent (95%), then the m odification of the Consent Decree shall also provide that such Unit be treated as an Im proved Unit as to the pollutant that will be controlled. XXIII. GENERAL PROVISIONS 197. This Consent Decree is not a perm it. Com p liance with the term s of this Consent Decree does not guarantee com p liance with all applicable federal, state, or local laws or regulations. Except as provided in Section X (Resolution of Claim s ) of this Consent Decree, the em ission rates set forth herein do not relieve Santee Cooper from any obligation to com p ly with other state and federal requirem e nts under the Clean Air Act, including Santee Cooper’s obligation to satisfy any state m odeling requirem e nts set forth in the South Carolina State Im plem entation Plan. 198. This Consent Decree does not apply to any claim ( s) of alleged crim inal liability. 199. In any subsequent adm i nistrative or judicial action initiated by the United States or DHEC f o r injunctive relief or civil penalties relating to the f acilities covered by this Consent Decree, Santee Cooper 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 claim s 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 X (Resolu tion of Claim s ) of this Consent Decree. 200. Except as specifically provided by this Consent Decree, nothing in this Consent Decree shall relieve Santee Cooper of its obligation to com p ly with all applicable federal, state, -79-and local laws and regulations. Subject to the provisions in Section X (Resolution of Claim s ) of this Consent Decree, nothing contained in this Consent Decree shall be construed to prevent or lim it the rights of the Plaintif f

s to obtain penalties or injunctive relief under the Act or other federal, state, or local statutes, regulations, or perm its. 201. Every term expressly defined by this Consent Decree shall have the m eaning given to that term by this Consent Decree and, except as otherwise provided in this Consent Decree, every other term used in this Consent Decree that is also a term under the Act or the regulations im plem enting the Act shall m ean in this Consent Decree what such term

m eans under the Act or those im plem enting regulations. 202. Nothing in this Consent Decree is intended to, or shall, alter or waive any applicable law (including but not lim ited to any def e nses, entitlem e nts, challenges, or clarif ications 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 m e thods specified herein or otherwise. 203. Each lim it and/or other requirem e nt established by or under this Consent Decree is a separate, independent requirem e nt. 204. Perform a nce standards, em issions lim its, and other quantitative standards set by or under this Consent Decree m u st be m e t to the num ber of significant digits in which the standard or lim it is expressed. For exam ple, an Em ission Rate of 0.100 is not m e t if the actual Em ission Rate is 0.101. Santee Cooper 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 lim it is expressed to three or two significant digits. For -80-exam ple, if an actual Em ission Rate is 0.1004, that shall be reported as 0.100, and shall be in com p liance with an Em ission Rate of 0.100, and if an actual Em ission Rate is 0.1005, that shall be reported as 0.101, and shall not be in com p liance with an Em ission Rate of 0.100. Santee Cooper shall report data to the num ber of significant digits in which the standard or lim it is expressed. As otherwise applicable and unless this Consent Decree expressly directs otherwise, the calculation and m easurem ent procedures established under 40 C.F.R. Part 75 apply to the m easurem ent and calculation of NO x and SO 2 em issions under this Consent Decree. 205. This Consent Decree does not lim it, enlarge or affect the rights of any Party to this Consent Decree as against any third parties. 206. This Consent Decree constitutes the final, com p lete and exclusive agreem ent and understanding am ong the Parties with respect to the settlem e nt em bodied in this Consent Decree, and supercedes all prior agreem ents and understandings am ong the Parties related to the subject m a tter herein. No docum ent, representation, inducem ent, agreem ent, understanding, or prom ise constitutes any part of this Consent Decree or the settlem e nt it represents, nor shall they be used in construing the term s of this Consent Decree. 207. Each Party to this action shall bear its own costs and attorneys’ fees. XXIV. SIGNATORIES AND SERVICE 208. Each undersigned representative of the Parties certifies that he or she is fully authorized to enter into the term s and conditions of this Consent Decree and to execute and legally bind to this docum ent the Party he or she represents. 209. This Consent Decree m a y be signed in counterparts, and such counterpart signature pages -81-shall be given full force and effect. 210. Each Party hereby agrees to accept service of process by m a il with respect to all m a tters arising under or relating to this Consent Decree and to waive the form al service requirem e nts set forth in Rule 4 of the Federal Rules of Civil Procedure and any applicable Local Rules of this Court including, but not lim ited to, service of a sum m ons. XXV. PUBLIC COMMENT 211. 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 comm e nt, and the right of the United Stat es to withdraw or withhold consent if the

com m e nts disclose facts or considerations which indicate that the Consent Decree is inappropriate, im proper or inadequate. Santee Cooper 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 Santee Cooper, in writing, that the United States no longer supports entry of the Consent Decree. XXVI. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER CONSENT DECREE 212. Term ination as to Com p leted Tasks. As soon as Santee Cooper com p letes a construction project or any other requirem e nt of this Consent Decree that is not ongoing or recurring, Santee Cooper m a y, by m o tion to this Court, seek term ination of the provision or provisions of this Consent Decree that im posed the requirem e nt. 213. Conditional Term ination of Enforcem ent Through the Consent Decree. After Santee Cooper: -82-a. has successfully com p leted construction, and has m a intained operation, of all pollution controls as required by this Consent Decree; b. has obtained f i nal Title V perm its (i) as required by the term s of this Consent Decree; (ii) that cover all Units in this Consent Decree; and (iii) that include as enforceable perm it term s all of the Unit perform a nce and other requirem e nts specified in Section XVI (Perm its) of this Consent Decree; and

c. certifies that the date is later than Decem ber 31, 2015; then Santee Cooper m a y so certify these facts to the Plaintiffs and this Court. If the Plaintiffs do not object in writing with specifi c reasons within forty-five (45) days of receipt of Santee Cooper’s certification, then, fo r any violations that occur after the filing of

notice, the Plaintif f

s shall pursue enf o rcem ent of the requirem e nts contained in the Title V perm it through the applicable Title V perm it and not through this Consent Decree. 214. Resort to Enforcem ent under this Consent Decree. Notwithstanding Paragraph 213, if enforcem ent of a provision in this Consent Decree cannot be pursued by a Party under the applicable Title V perm it, or if a Consent Decree requirem e nt was intended to be part of a Title V Perm it and did not becom e or rem a in part of such perm it, then such requirem e nt

m a y be enforced under the term s of this Consent Decree at any tim e. XXVII. FINAL JUDGMENT 215. Upon approval and entry of this Consent D ecree by the Court, this Consent Decree shall constitute a final judgm ent in the above-captioned m a tter between the Plaintiffs and Santee Cooper. -83-SO ORDERED, THIS _____ DAY OF ________________, 2004.

_________________________________________ UNITED STATES DISTRICT COURT JUDGE

-84-Signature Page for Consent Decree in United States v. South Carolina Public Service Authority

FOR THE UNITED STATES OF AMERICA:

THOMAS L. SANSONETTI Assistant Attorney General Environm ental and Natural Resources Division United States Departm e nt of Justice

MATTHEW W

. MORRISON Senior Counsel Environm ental Enforcem ent Section Environm ental and Natural Resources Division United States Departm e nt of Justice

-85-Signature Page for Consent Decree in United States v. South Carolina Public Service Authority

PHYLLIS P. HARRIS Acting Assistant Adm i nistrator Office of Enforcem ent and Com p liance Assurance United States Environm ental Protection Agency

ADAM M. KUSHNER Acting Director, Air Enforcem ent Division Office of Enforcem ent and Com p liance Assurance United States Environm ental Protection Agency

EDW A RD J. MESSINA Attorney Advisor Air Enforcem ent Division Office of Enforcem ent and Com p liance Assurance United States Environm ental Protection Agency

-86-Signature Page for Consent Decree in United States v. South Carolina Public Service Authority

_______________________________ J. I. PALMER, JR. Regional Adm i nistrator U.S. Environm ental Protection Agency Region 4 61 Forsyth St., S.W

. Atlanta, GA 30303

_______________________________ PAUL SCHW ARTZ Associate Regional Counsel U.S. Environm ental Protection Agency Region 4 61 Forsyth Street, S.W

. Atlanta, GA 30303

-87-Signature Page for Consent Decree in United States v. South Carolina Public Service Authority

FOR THE SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL:

ROBERT W

. KING JR., P.E. Deputy Comm i ssioner f o r Environm ental Quality Control

-88-Signature Page for Consent Decree in United States v. South Carolina Public Service Authority

FOR SOUTH CAROLINA PUBLIC SERVICE AUTHORITY:

LONNIE N. CARTER President and Chief Executive Officer South Carolina Public Service Authority

-89-APPENDIX SANTEE COOPER ENVIRONMENTAL MANAGEMENT SYSTEMS Initial Review of Current Environm ental Managem e nt System s 1. W ithin one hundred twenty (120) days after entry of this Consent Decree, Santee Cooper shall subm it to EPA and DHEC for review and approval the following:

a. the nam e , af f iliation and address of an auditor to perf orm a review and evaluation of the existing system s and procedures utilized by Santee Cooper for ensuring

com p liance with all applicable environm ental laws (“Environm ental Managem e nt System s” or “EMS”) at each facility w ithin the Santee Cooper System ; each such auditor shall be ref e rred to as an “Initial Auditor” and the initial review and evaluation shall be ref e rred to as the “Initial EMS Review and Evaluation”; b. evidence that each Initial Auditor satisfi es the qualification requirem e nts of ISO 14012 (First edition, 1996-10-01), has a working knowledge of the Santee Cooper System facilities or sim ilar operations, and has a working knowledge of federal and state environm ental requirem e nts which apply to each facility within the Santee Cooper System ; and

c. a schedule, including m ilestones, for conducting the Initial EMS Review and Evaluation. 2. W ithin forty-five (45) days after receiptof approval from EPA and DHEC, Santee Cooper shall direct the Initial Auditor(s) identif ied pursuant to Paragraph 1 of this Appendix to conduct and com p lete an Initial EMS Review and Evaluation at each facility within the Santee Cooper System

. The designated Initial Auditor(s) shall review and evaluate the current EMS in place, if any, using the criteria set forth in Paragraph 5 of this Appendix. -90-3. W ithin one hundred eighty (180) days after receipt of approval from EPA and DHEC, the Initial Auditors shall subm it the results of the Initial EMS Review and Evaluation in a written report, which it shall provide to Santee Cooper. Santee Cooper shall provide a copy of this report to EPA and DHEC upon request. Developm ent of the Environm ental Managem e nt System s Manual 4. Based on the results of the Initial EMS Review and Evaluation and other inf o rm ation as appropriate, Santee Cooper shall develop a com p rehensive environm ental m a nagem e nt system (“Com p rehensive EMS”) for ensuring com p liance with all applicable environm ental laws at each facility within the Santee Cooper System

. 5. W ithin one hundred eighty (180) days after com p letion of the written report required by Paragraph 3 of this Appendix, Santee Cooper shall subm it to EPA and DHEC for review and approval an environm ental m a nagem e nt system s m a nual (“EMS Manual”) describing and docum enting the Com p rehensive EMS, including a schedule for im plem entation of the Com p rehensive EMS. For each of the following elem ents, the EMS Manual shall describe how the activity or program will be: (a) established as a f o rm al system or task, (b) integrated into ongoing departm e nt operations, and (c) continuously evaluated and im proved:

a. Environm ental Policy- The policy upon which the Com p rehensive EMS is based

m

u st clearly comm unicate m a nagem e nt’s comm itm ent to achieving com p liance with applicable federal, state, and local environm ental statutes, regulations, enforceable agreem ents, and perm its (“Environm ental Requirem e nts”) and continual im provem e nt in environm ental perform a nce. The policy should also state m a nagem e nt’s intent to provide adequate personnel and other resources for -91-the Com p rehensive EMS. b. Organization, Personnel, and Oversight of the Com p rehensive EMS - This section of

the EMS Manual shall: i. describe, organizationally, how the Com p rehensive EMS is im plem ented and m a intained; ii. include organization charts that identify units, line m a nagem e nt, and other individuals having environm ental perform a nce and regulatory com p liance responsibilities; iii. identify and define specific duties, responsibilities, and authorities of key environm ental program personnel to participate in im plem enting and sustaining the Com p rehensive EMS; and iv. e stablish m eans of com m unicating, receiving, and addressing feedback on environm ental issues, concerns, and inform ation, with all organization personnel, on-site service providers, and contractors.

c. Accountability and Responsibility- This section of the EMS Manual shall: i. specify accountability and environm ental responsibilities of the organization’s m a nagers, on-site service providers, and contractors for environm ental protection practices, assuring com p liance with the Com p rehensive EMS, required reporting to regulatory agencies, and corrective actions im plem ented in their area(s) of responsibility, as they relate to the Santee Cooper System ; ii. describe incentive program s, consistent with applicable State law, for

m a nagers and em ployees to im prove and enhance com p liance with -92-Environm ental Requirem e nts; and iii. describe potential consequences f o r departure f r om specif ied operating procedures, including liability f o r civil and adm i nistrative penalties im posed as a result of noncom pliance with Environm ental Requirem e nts. d. Environm ental Requirem e nts - This section of the EMS Manual shall: i. describe the process for identifying, interpreting, and effectively

comm unicating Environm ental Requirem e nts to affected organization personnel, on-site service providers, and contractors, and then ensuring that f acility activities conf orm to those requirem e nts ( i.e. , ongoing com p liance

m onitoring); ii. specify procedures for prospectively identifying and obtaining inform ation about changes and proposed changes in Environm ental Requirem e nts, and incorporating those changes into the Com p rehensive EMS; and iii. describe processes to ensure com m unication with regulatory agencies regarding com p liance with Environm ental Requirem e nts.

e. Assessm ent, Prevention, and Control - This section of the EMS Manual shall: i. identify an ongoing process for assessing operations for the purposes of preventing and controlling releases, enhancing environm ental protection, and m a intaining com p liance with Environm ental Requirem e nts; ii. describe m onitoring and m easurem ents, as appropriate, to ensure sustained

com p liance; iii. identif y operations and waste stream s where equipm ent m a lf unctions and deterioration, operator errors, and discharges or em issions m a y be causing, -93-or m a y lead to, releases of hazardous waste or other pollutants to the environm ent, a threat to hum an health or the environm ent, or violations of Environm ental Requirem e nts; iv. d escribe a process f o r identif ying operations and activities where docum ented standard operating practices are needed to prevent potential violations or pollutant releases, and define a uniform process for developing, approving and im plem enting the standard operating practices;

v. describe a system for conducting and docum enting routine, objective, self-inspections by departm e nt supervisors and trained staff to check for worker adherence to standard operating procedures, m a lfunctions, deterioration, and unauthorized releases; and vi. d escribe a process for ensuring consideration of Environm ental Requirem e nts and environm ental concerns in the planning, design, and operation of ongoing, new, and/or changing processes, equipm ent, and

m a intenance activities. f. Environm ental Incident and Noncom pliance Investigations - This section of the EMS Manual shall: i. describe standard procedures and requirem e nts for internal and external reporting of potential violations and release incidents; ii. establish procedures for investigation, and prom pt and appropriate correction, of potential violations; iii. specif y self -testing of such procedures, where practicable; and iv. d escribe a system for developing, tracking, and verifying the effectiveness -94-of corrective and preventative actions. g. Environm ental Training, Awareness, and Com p etence - This section of the EMS Manual shall: i. identify specific education and training required for organization personnel, as well as a process for docum enting the training provided; ii. describe program s to ensure that em ployees are aware of organizational environm ental policies and procedures, Environm ental Requirem e nts, and their roles and responsibilities under the Com p rehensive EMS; and iii. describe program s for ensuring that personnel responsible for m e eting and

m a intaining com p liance with Environm ental Requirem e nts are com p etent on the basis of appropriate education, training, and/or experience. h. Environm ental Planning and Organizational Decision-Making - This section of the EMS Manual shall: i. describe how environm ental planning will be integrated into organizational decision-m a king, including plans and decisions on capital im provem e nts, process design, training program s, and m a intenance activities; ii. require written environm ental targets, objectives, and action plans (including, at a m i nim u m , targets, objectives, and action plans to reduce the risk of noncom pliance with Environm ental Requirem e nts) for each individual organizational unit and contractor operation with environm ental responsibilities at a Santee Cooper System facility; and iii. specif y how the targets, objectives, and action plans will be tracked and progress reported. -95-i. Maintenance of Records and Docum e ntation - This section of the EMS Manual shall: i. identify the types of records developed and to be developed in support of the Com p rehensive EMS (including audits and reviews), the persons responsible for m a intaining such records, the location of such records, and the protocols for responding to inquiries and requests for inform ation; ii. specify the data m a nagem e nt system s for environm ental data and inform ation; and iii. specif y docum ent control procedures. j. Pollution Prevention Program - This section of the EMS Manual shall: i. describe an internal program for preventing, reducing, recycling, reusing, and m i nim i zing waste and em issions, including procedures to encourage

m a terial substitutions; and ii. include m echanism s for identifying candidate m a terials to be addressed by the program and for tracking progress. k. Continuing Program Evaluation and Im provem e nt - This section of the EMS Manual shall: i. describe a program for periodic (at least annual) evaluation of the Com p rehensive EMS; ii. provide that the results of the evaluation shall be incorporated into the Com p rehensive EMS and the EMS Manual, and shall be comm unicated to affected em ployees, on-site service providers, and contractors; and iii. describe a program for audits, by an independent auditor(s), of each -96-f acility’s com p liance with Environm ental Requirem e nts, at least once f o r each facility every four years, which also requires that the results of the audits be provided to upper m a nagem e nt and requires that potential violations be addressed through the process described in Subparagraph 5.f. of this Appendix. l. Public Involvem e nt/Com m unity Outreach- This section of the EMS Manual shall describe a program for ongoing com m unity education and involvem e nt in the environm ental aspects of Santee Cooper’s operations. 6. W ithin sixty (60) days after receipt of comm e nts from EPA and DHEC on the proposed EMS Manual, Santee Cooper shall subm it to EPA and DHEC a revised EMS Manual incorporating and reflecting those comm e nts. 7. W ithin sixty (60) days after receipt of approval from EPA and DHEC on the revised EMS Manual, Santee Cooper shall im m e diately com m e nce im plem entation of the Com p rehensive EMS in accordance with the schedule contained in the approved EMS Manual. EMS Status Reports 8. Santee Cooper shall subm it to EPA and DHEC status reports on the im plem entation of the Com p rehensive EMS on a periodic (at least annual) basis, beginning no later than one hundred eighty (180) days after comm e ncing im plem entation of the Com p rehensive EMS, and continuing until: (a) each facility has undergone at least one audit for com p liance with Environm ental Requirem e nts pursuant to Subparagraph 5.k.iii. of this Appendix, or (b) one year after the facility m a nager for each Santee Cooper System facility has certified, pursuant to Paragraph 18 of this Appendix, that all item s or activities in the Post-Audit -97-Action Plan f o r that f acility have been com p leted, whichever is later. Selection of a Consultant Auditor to Conduc t an Audit of Santee Cooper’s Com p rehensive EMS 9. W ithin one hundred eighty (180) days after com m e ncing im plem entation of the Com p rehensive EMS, Santee Cooper shall propose to EPA and DHEC for approval an independent “Consultant Auditor” who (a) was not involved in the Initial EMS Review and Evaluation, (b) m eets the qualification requirem e nts of ISO 14012 (First edition, 1996-10-01); and (c) has expertise and com p etence in applicable regulatory program s under federal and state environm ental laws. 10. The Consultant Auditor shall be paid by Santee Cooper, but m u st not directly own any stock in Santee Cooper or in any parent or subsidiary, and m u st have no other direct financial stake in the outcom e of the EMS Audit conducted pursuant to this Consent Decree. If Santee Cooper has any other contractual relationship with the Consultant Auditor, Santee Cooper shall disclose to EPA such past or existing contractual relationships. 11. EPA and DHEC will notify Santee Cooper in writing of their approval or disapproval of Santee Cooper’s proposed Consultant Auditor as expeditiously as possible. If EPA and DHEC determ ine that the proposed Consultant Auditor does not m eet the qualifications set forth above, or that past or existing relationships with the Consultant Auditor would affect the Consultant Auditor’s ability to exercise the independent judgm ent required to conduct the EMS Audit, such Consultant Auditor shall be disapproved and Santee Cooper shall propose for approval another Consultant Auditor within thirty (30) days of Santee Cooper’s receipt of such disapproval. -98-Audit of Santee Cooper’s Com p rehensive EMS 12. Santee Cooper shall require the Consultant Auditor to conduct an EMS Audit to evaluate Santee Cooper’s im plem entation of its Com p rehensive EMS, from top m a nagem e nt down through each m a jor organizational unit at the Facility, and to identify where further im provem e nts should be m a de to Santee Cooper’s Com p rehensive EMS. The EMS Audit shall be conducted in accordance with ISO 14011 (First edition, 1996-10-01), using ISO 14010 (First edition, 1996-10-01) as supplem ental guidance. The Consultant Auditor shall assess Santee Cooper’s conform a nce with the EMS Manual, and conform a nce of the EMS Manual with the elem ents specified in Paragraph 5 of this Appendix, and shall determ ine the f o llowing:

a. W h ether there is a defined system , program , or planned task for each elem ent of the Com p rehensive EMS; b. To what extent the system , program , or task has been im plem ented, and is being

m a intained;

c. The adequacy of each operational unit’s internal self-assessm ent procedures for program s and tasks com p rising the Com p rehensive EMS; d. W h ether Santee Cooper is effectively com m unicating Environm ental Requirem e nts to affected parts of the organization, contractors, and on-site service providers;

e. Wh ether there are observed deviations from Santee Cooper’s written requirem e nts or procedures; f. W h ether continuous im provem e nt in com p liance with Environm ental Requirem e nts is occurring; and -99-g. W h ether further im provem e nts should be m a de to the Com p rehensive EMS. 13. Designated representatives from EPA and DHEC m a y participate in the EMS Audit as observers. Santee Cooper shall m a ke tim ely notification to designated regulatory contacts regarding audit scheduling in order to m a ke arrangem e nts for observers to be present. Santee Cooper personnel m a y also participate in the on-site EMS Audits as observers, but

m a y not interfere with the independent judgem e nt of the Consultant Auditor. 14. W ithin one hundred twenty (120) days of approval of the Consultant Auditor, Santee Cooper shall require the Consultant Auditor to subm it an EMS Audit Report sim u ltaneously to Santee Cooper, EPA and DHEC. The EMS Audit Report shall, at a

m i nim u m , contain the following inform ation:

a. Audit scope, including the period of tim e covered by the audit; b. The dates the on-site portion of the audit was conducted;

c. Identification of audit team m e m b ers; d. Identification of Santee Cooper representatives and regulatory agency personnel observing the audit;

e. A summ a ry of the audit process, including any obstacles encountered; f. Detailed findings, including the basis for each finding and each area of concern identif ied; g. Identification of any findings corrected or areas of concern addressed during the audit, and a description of the corrective m easures and when they were im plem ented; and h. Certification by the Consultant Auditor that the EMS Audit was conducted in accordance with the provisions of this Appendix. -100-15. If the Consultant Auditor believes that a dditional tim e is needed to analyze available inform ation or to gather additional inform ation, Santee Cooper m a y request that EPA and DHEC grant the Consultant Auditor such additional tim e as needed to prepare and subm it the EMS Audit Report. EPA’s and DHEC’s decision whether to grant additional tim e shall be final and unreviewable. Post-Audit Action Plan for Corrective Measures 16. W ithin one hundred twenty (120) days of receiving the EMS Audit Report for each Santee Cooper facility, Santee Cooper shall develop and subm it to EPA and DHEC for review and comm e nt, a Post-Audit Action Plan for expeditiously bringing the EMS Manual into conform a nce with the elem ents specified in Paragraph 5 of this Appendix, for expeditiously bringing each Santee Cooper facility into conform a nce with the EMS Manual, and for fully addressing all areas of concern identified in the EMS Audit Report. The Post-Audit Action Plan shall include the results of any root cause analysis, specific deliverables, responsibility assignm ents, and an im plem entation schedule. 17. EPA and DHEC shall review the Post-Audit Action Plan and shall provide written

comm e nts to Santee Cooper. W ithin sixty (60) days of receipt of such comm e nts, Santee Cooper shall m a ke any m odifications to the Post-Audit Action Plan required to respond to EPA and DHEC comm e nts, and shall im plem ent the Post-Audit Action Plan in accordance with the schedules set forth therein. 18. W ithin thirty (30) days after all item s or activities in the Post-Audit Action Plan have been

com p leted at a Santee Cooper System facility, the facility m a nager for that facility shall certify such com p letion in writing to EPA and DHEC.

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