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, )

)

Plaintiffs, )

)

v. ) Civil Action No: 

)

SOUTH CAROLINA PUBLIC SERVICE )

AUTHORITY, )

)

Defendant. )

)

CONSENT DECREE 
TABLE OF CONTENTS

I. Jurisdiction and Venue ....................................................3

II. Applicability ...........................................................3

III. Definitions .............................................................4

IV. NOx Emission Reductions and Controls .....................................12

A. NOx Emission Controls ............................................12

B. System-Wide Annual Emission Limits for NOx .........................14

C. Use of NOx Allowances ............................................16

D. General NOx Provisions ............................................19

V. SO2 Emission Reductions And Controls .....................................19

A. SO2 Emission Controls ............................................ 19

B. System-Wide Annual Emission Limits for SO2. .........................22

C. Surrender of SO2 Allowances .......................................24

D. Fuel Limitations ..................................................28

E. General SO2 Provisions ............................................29

VI. PM Emission Reductions And Controls .....................................30

A. New PM Emission Controls ........................................ 30

B. Optimization of PM Emission Controls ............................... 30

C. Upgrade of Existing PM Emission Controls ........................... 31

D. PM and Mercury Monitoring ....................................... 35

E. General PM Provisions ........................................... 40

VII. Prohibition on Netting Credits or Offsets from Required Controls ................ 41

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VIII. Environmentally Beneficial Projects ....................................... 42

IX. Civil Penalty ......................................................... 48

X. Resolution of Claims ................................................... 49

A. Resolution of Plaintiffs’ Civil Claims .................................... 49

B. Pursuit of Plaintiffs’ Civil Claims Otherwise Resolved .......................52

XI. Periodic Reporting ......................................................55

XII. Review and Approval of Submittals ........................................58

XIII. Stipulated Penalties .....................................................58

XIV. Force Majeure .........................................................63

XV. Dispute Resolution ......................................................67

XVI. Permits ...............................................................69

XVII. Information Collection and Retention .......................................72

XVIII. Notices ...............................................................74

XIX. Sales or Transfers of Ownership Interests ....................................75

XX. Effective Date .........................................................78

XXI. Retention of Jurisdiction .................................................78

XXII. Modification ...........................................................78

XXIII. General Provisions ......................................................79

XXIV. Signatories and Service ................................................. 81

XXV. Public Comment ........................................................82

XXVI. Conditional Termination of Enforcement Under Consent Decree .................82

XXVII. Final Judgment ...................................................83

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Appendix Santee Cooper Environmental Management Systems ..................... 90 

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

the United States Environmental Protection Agency (“EPA”), and Plaintiff, the South Carolina 

Department of Health and Environmental Control (“DHEC”), filed a Complaint for injunctive 

relief and civil penalties pursuant to Sections 113(b)(2) and 167 of the Clean Air Act (the “Act”), 

42 U.S.C. §§ 7413(b)(2) and 7477, and 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 major emitting facilities in violation 

of the Prevention of Significant Deterioration provisions of Part C of Subchapter I of the Act, 42 

U.S.C. §§ 7470-7492, and in violation of the federally-enforceable State Implementation Plan 

developed by the State of South Carolina; 

WHEREAS, in its Complaint, the United States alleges, inter alia, that Santee Cooper 

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

its sulfur dioxide, nitrogen oxides, and/or particulate matter emissions; 

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

Santee Cooper under Sections 113 and 167 of the Act, 42 U.S.C. §§ 7413 and 7477; 

WHEREAS, 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 claims, as required 

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

WHEREAS, Santee Cooper has not answered or otherwise responded to the Complaint in 

light of the settlement memorialized in this Consent Decree; 

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

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the Complaint, maintains that it has been and remains in compliance with the Act and is not 

liable for civil penalties or injunctive relief, and states that it is agreeing to the obligations 

imposed by this Consent Decree solely to improve the air quality of the region (including the 

Cape Romain Class I area), to benefit the environment generally, and to avoid the costs and 

uncertainties of litigation; 

WHEREAS, Santee Cooper has voluntarily undertaken, and continues to undertake, 

certain environmentally beneficial measures, other than those required by this Consent Decree, 

including the use of renewable energy sources, the recycling of used oil, and other similar 

measures within the State of South Carolina; 

WHEREAS, Santee Cooper has previously sought and obtained from DHEC and EPA an 

interim Alternative Emission Limit (“AEL”) for NOx at Winyah Units 2, 3, and 4; 

WHEREAS, the United States, DHEC, and Santee Cooper (collectively, the “Parties”) 

have agreed that settlement 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 most appropriate 

means of resolving this matter; 

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

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

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

interest; 

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

any issue; 

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

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

DECREED as follows: 

I. JURISDICTION AND VENUE 

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

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

Sections 113 and 167 of the Act, 42 U.S.C. §§ 7413 and 7477. Venue is proper under 

Section 113(b) of the Act, 42 U.S.C. § 7413(b), and under 28 U.S.C. § 1391(b) and (c). 

Solely for the purposes of this Consent Decree and the underlying Complaint, Santee 

Cooper waives all objections and defenses that it may 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 terms of this Consent Decree or this 

Court’s jurisdiction to enter and enforce this Consent Decree. For purposes of the 

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

for purposes of entry and enforcement 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 Comment) of this Consent 

Decree, the Parties consent to entry of this Consent Decree without further notice. 

II. APPLICABILITY 

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

Plaintiffs and Santee Cooper and their successors and assigns, and upon Santee Cooper’s 

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

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

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

perform any of the work required by this Consent Decree. Notwithstanding any retention 

of contractors, subcontractors, or agents to perform any work required under this Consent 

Decree, Santee Cooper shall be responsible for ensuring that all work is performed in 

accordance with the requirements of this Consent Decree. In any action to enforce this 

Consent Decree, Santee Cooper shall not assert as a defense the failure of its officers, 

directors, employees, servants, agents, or contractors to take actions necessary to comply 

with this Consent Decree, unless 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 Emission Rate” for a Unit shall be expressed as lb/mmBTU 

and calculated in accordance with the following procedure: first, sum the total pounds of 

the pollutant in question emitted from the Unit during an Operating Day and the previous 

twenty-nine (29) Operating Days; second, sum the total heat input to the Unit in mmBTU 

during the Operating Day and the previous twenty-nine (29) Operating Days; and third, 

divide the total number of pounds of the pollutant emitted during the thirty (30) 

Operating Days by the total heat input during the thirty (30) Operating Days. A new 

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

Each 30-Day Rolling Average Emission Rate shall include emissions that occur during 

all periods of startup, shutdown and Malfunction within an Operating Day, except as 

follows: 

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a. Emissions of NOx 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 Emission Rate if inclusion of such emissions 

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

Rate and Santee Cooper has installed, operated and maintained the SCR in 

question in accordance with manufacturers’ specifications and good engineering 

practices. A “Cold Start Up Period” occurs whenever there has been no fire in the 

boiler of a Unit (no combustion of any Fossil Fuel) for a period of six (6) hours or 

more. The NOx emissions to be excluded during the fifth and subsequent Cold 

Start Up Period(s) shall be the lesser of (i) those NOx emissions emitted during 

the eight (8) hour period commencing when the Unit is synchronized with a 

utility electric distribution system and concluding eight (8) hours later, or (ii) 

those NOx emissions emitted prior to the time that the flue gas has achieved the 

minimum SCR operational temperature specified by the catalyst manufacturer; 

b. For a Unit that has ceased firing Fossil Fuel, emissions of SO2 that occur during 

any period, not to exceed two (2) hours (three (3) hours for Units at the Winyah 

Plant), from the restart of the Unit to the time that the Unit is fired with any coal, 

shall be excluded from the calculation of the 30-Day Rolling Average Emission 

Rate; and 

c. Emissions that occur during a period of Malfunction shall be excluded from the 

calculation of the 30-Day Rolling Average Emission Rate if Santee Cooper 

provides notice of the Malfunction to EPA and DHEC in accordance with 

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Paragraph 164 in Section XIV (Force Majeure) of this Consent Decree. 

5. “30-Day Rolling Average Removal Efficiency” for a given pollutant means the percent 

reduction in the mass 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 Emission Rate from the inlet 30-Day Rolling Average 

Emission Rate, dividing that difference by the inlet 30-Day Rolling Average Emission 

Rate, and then multiplying by 100. A new 30-Day Rolling Average Removal Efficiency 

shall be calculated for each new Operating Day. 

6. “Capital Expenditure” means 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 Emission Monitoring System,” means, for obligations involving 

NOx and SO2 under this Consent Decree, the devices defined in 40 C.F.R. § 72.2 (2003) 

and installed and maintained as required by 40 C.F.R. Part 75 (2003). 

8. “Clean Air Act” or “Act” means the federal Clean Air Act, 42 U.S.C. §§7401-7671q, and 

its implementing regulations. 

9. “Consent Decree” means this Consent Decree and the Appendix hereto, which is 

incorporated into this Consent Decree. 

10. “Cross Plant” means 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” means the South Carolina Department of Health and Environmental Control. 

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

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

accordance with this Consent Decree. 

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

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

PM. 

15. “Excess Tons” means the number of tons of a pollutant that were emitted as a result of a 

violation of this Consent Decree that would not have been emitted 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” means a pollution control device that 

employs flue gas desulfurization technology for the reduction of sulfur dioxide 

emissions. 

17. “Fossil Fuel” means any hydrocarbon fuel, including coal, petroleum coke, petroleum oil, 

or natural gas. 

18. “Grainger Plant” means 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. “Improved Unit” means, in the case of NOx, a Santee Cooper System Unit scheduled 

under this Consent Decree to be equipped with SCR (or equivalent NOx control 

technology approved pursuant to Paragraph 50), and, in the case of SO2, a Santee Cooper 

System Unit scheduled under this Consent Decree to be equipped with an FGD (or 

equivalent SO2 control technology approved pursuant to Paragraph 65) or to undergo an 

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FGD upgrade in accordance with this Consent Decree. A Unit may be an Improved Unit 

for one pollutant without being an Improved Unit for the other. 

20. “Jefferies Plant” means 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” means kilowatt or one thousand Watts. 

22. “lb/mmBTU” means one pound of a pollutant per million British thermal units of heat 

input. 

23. “lb/TBTU” means one pound of a pollutant per trillion British thermal units of heat input. 

24. “Malfunction” means malfunction as that term is defined under 40 C.F.R. § 60.2 (2003). 

25. “Mercury CEMS” or “Mercury Continuous Emission Monitoring System” means, as 

specified in Section VI.D. (PM and Mercury Monitoring) of this Consent Decree, the 

equipment that samples, analyzes, measures, and provides, by readings taken at frequent 

intervals, an electronic or paper record of mercury emissions. 

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

27. “National Ambient Air Quality Standards” or “NAAQS” means national ambient air 

quality standards that are promulgated pursuant to Section 109 of the Act, 42 U.S.C. § 

7409. 

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

Consent Decree. 

29. “NOx Allowance” means an authorization or credit to emit a specified amount of NO

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

x 

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

Plan. 

30. “Nonattainment NSR” means the nonattainment area New Source Review program under 

Part D of Subchapter I of the Act, 42 U.S.C. §§ 7501 - 7515, and 40 C.F.R. Part 51 

(2003). 

31. “Operating Day” means any calendar day on which a Unit fires Fossil Fuel. 

32. “Other Unit” means any Unit of the Santee Cooper System that is not an Improved Unit 

for the pollutant in question. A Unit may be an Improved Unit for NO

Unit for SO2 and vice versa. 

x and an Other 

33. “Parties” means the United States of America, DHEC, and Santee Cooper and “Party” 

means one of the three named “Parties.” 

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

Consent Decree. 

35. “PM CEMS” or “PM Continuous Emission Monitoring System” means, as specified in 

Section VI.D. (PM and Mercury Monitoring) of this Consent Decree, the equipment that 

samples, analyzes, measures, and provides, by readings taken at frequent intervals, an 

electronic or paper record of PM emissions. 

36. “PM Emission Rate” means the number of pounds of PM emitted per million BTU of 

heat input (lb/mmBTU), as measured in annual stack tests, in accordance with the 

reference methods set forth in 40 C.F.R. Part 60, Appendix A, Method 5 or Method 17 

(2003). 

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

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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” means Santee Cooper’s expenditures and payments incurred or made in 

carrying out the Environmentally Beneficial Projects identified in Section VIII 

(Environmentally Beneficial Projects) of this Consent Decree to the extent that such 

expenditures or payments both: (a) comply with the requirements set forth in Section 

VIII (Environmentally Beneficial Projects) of this Consent Decree, and (b) constitute 

Santee Cooper’s direct payments for such projects, Santee Cooper’s external costs for 

contractors, vendors, and equipment, or Santee Cooper’s internal costs consisting of 

employee time, travel, or out-of-pocket expenses specifically attributable to these 

particular projects and documented in accordance with GAAP. 

39. “Santee Cooper System” means, collectively, the Cross Plant, Grainger Plant, Jefferies 

Plant, and Winyah Plant. 

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

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

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

Decree. 

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

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

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

sulfur dioxide.” 

43. “State” means the State of South Carolina. 

44. A “System-Wide 12-Month Rolling Average Emission Rate” shall be expressed in 

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lb/mmBTU and calculated in accordance with the following procedure: first, sum the 

pounds of the pollutant in question emitted from the Santee Cooper System during the 

most recent complete month and the previous eleven (11) months; second, sum the heat 

input to the Santee Cooper System in mmBTU during the most recent complete month 

and the previous eleven (11) months; and third, divide the total number of pounds of the 

pollutant emitted during the twelve (12) months by the total heat input during the twelve 

(12) months. A new System-Wide 12-Month Rolling Average Emission Rate shall be 

calculated for each new complete month in accordance with the provisions of this 

Consent Decree. The calculation of each System-Wide 12-Month Rolling Average 

Emission Rate shall include the pollutants emitted during periods of startup, shutdown, 

and Malfunction within each calendar month. 

45. “System-Wide 12-Month Rolling Tonnage” means the sum of the tons of the pollutant in 

question emitted from the Santee Cooper System in the most recent complete month and 

the previous eleven (11) months. A new System-Wide 12-Month Rolling Tonnage shall 

be calculated for each new complete month in accordance with the provisions of this 

Consent Decree. The calculation of each System-Wide 12-Month Rolling Tonnage shall 

include the pollutants emitted during periods of startup, shutdown, and Malfunction 

within each calendar month. 

46. “Title V Permit” means the permit required of each of Santee Cooper’s major sources 

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

47. “Unit” means, for the purposes of this Consent Decree, collectively, the coal pulverizer, 

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

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

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

control equipment and systems necessary for the production of electricity. An electric 

utility steam generating station may comprise one or more Units. 

48. “Winyah Plant” means the Winyah 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. NOx EMISSION REDUCTIONS AND CONTROLS 

A. NOx Emission Controls 

49. Santee Cooper shall install and commence continuous operation of SCRs (or equivalent 

NOx 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 

maintain, a 30-Day Rolling Average Emission 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 with 

the 30-Day Rolling 

Average Emission Rate for 

NOx 

Maximum 30-Day 

Rolling Average 

Emission Rate for 

NOx 

(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 

Within 180 Days of 1st 

Start-Up 

Within 180 Days of 1st Start-Up 0.080 

Cross 

Unit 4 

Within 180 Days of 1st 

Start-Up 

Within 180 Days of 1st Start-Up 0.080 

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Winyah 

Unit 1 

May 31, 2004 November 30, 2004 0.110 

November 30, 2007 0.100 

Winyah 

Unit 2 

May 31, 2004 November 30, 2004 0.120 

Winyah 

Unit 3 

May 31, 2005 November 30, 2005 0.140 

November 30, 2008 0.120 

Winyah 

Unit 4 

May 31, 2005 November 30, 2005 0.130 

November 30, 2008 0.120 

50. With prior written notice to and written approval from EPA and DHEC, Santee Cooper 

may, in lieu of installing and operating an SCR at any Unit specified in Paragraph 49, 

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

control technology achieves and thereafter maintains a 30-Day Rolling Average Emission 

Rate not greater than the rate set forth for that Unit in Paragraph 49. 

51. At any time following entry of this Consent Decree, Santee Cooper may petition the 

Plaintiffs to revise the applicable 30-Day Rolling Average Emission Rate for NOx on any 

Santee Cooper System Unit equipped with an SCR and subject to a 30-Day Rolling 

Average Emission Rate. In its proposal, Santee Cooper must demonstrate that it cannot 

consistently achieve and maintain the Consent Decree-mandated 30-Day Rolling Average 

Emission Rate for NOx for the Unit in question under expected load variability, 

considering all relevant information. Santee Cooper shall include in such petition an 

alternative 30-Day Rolling Average Emission Rate for NOx. Santee Cooper shall also 

retain a qualified contractor to assist in the preparation and completion of the petition for 

an alternative 30-Day Rolling Average Emission Rate for NOx. Santee Cooper shall 

deliver with each petition all pertinent documents and data. If the Plaintiffs disapprove 

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the alternative 30-Day Rolling Average Emission Rate for NOx proposed by Santee 

Cooper, such disapproval shall be subject to the provisions of Section XV (Dispute 

Resolution) of this Consent Decree. Santee Cooper shall submit any petition for any Unit 

under this Paragraph no later than six (6) months prior to the final compliance date 

specified for that Unit in Paragraph 49. 

52. Santee Cooper shall continuously operate each SCR (or equivalent NOx control 

technology approved pursuant to Paragraph 50) at all times that the Unit it serves is in 

operation, consistent with the technological limitations, manufacturers’ specifications, 

and good engineering and maintenance practices 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 requirements 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 NOx burners 

(or more 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 NOx burners 

(or more stringent technology) on Grainger Unit 2. 

B. System-Wide Annual Emission Limits for NOx 

55. Santee Cooper shall comply with the following System-Wide 12-Month Rolling Average 

x

System: 

Emission Rates for NO , which apply to all Units collectively within the Santee Cooper 

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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 NOx 

January 1, 2005 0.300 lb/mmBTU 

January 1, 2007 0.180 lb/mmBTU 

January 1, 2010 0.150 lb/mmBTU 

56. Santee Cooper shall comply with the following System-Wide 12-Month Rolling Tonnage 

limitations 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 NOx 

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 emissions limits for NOx set forth in Paragraphs 55 and 

56 shall apply prospectively from the specified date on which a 12-month period 

commences and shall end on the date that the subsequent system-wide limit, if any, takes 

effect. Santee Cooper shall not use NOx Allowances to comply with these system-wide 

limitations. 

58. In the event that: 

a. an Improved Unit is unable to operate for an extended period of time due to 

unanticipated forced outage(s) caused by catastrophic events; 

b. the annual availability (as measured by the Generating Availability Data System) 

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of the Improved Unit decreases by twenty-five 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 must compensate for the reduced utilization at the Improved Unit 

by increasing the utilization of other Units within the Santee Cooper System that 

emit NOx emissions at higher levels than those emitted by the Improved Unit; 

d. the NOx emissions increase resulting from the increased utilization under 

Subparagraph 58.c. causes Santee Cooper to exceed the applicable System-Wide 

12-Month Rolling Average Emission Rate for NOx and/or the applicable 

System-Wide 12-Month Rolling Tonnage limitation for NOx; 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 deemed not to be in violation of such system-wide limits, 

and shall not be liable for stipulated penalties under this Consent Decree for exceeding 

such limits, if Santee Cooper offsets the emissions in excess of either the System-Wide 

12-Month Rolling Average Emission Rate for NOx or the System-Wide 12-Month 

Rolling Tonnage limitation for NOx (“Excess Tons”), whichever is greater: (i) within 

twenty-four (24) months of the return to service of the affected Unit where the outage is 

six (6) months or less; or (b) within thirty-six (36) months of the return to service of the 

affected Unit where the outage exceeds six (6) months. Santee Cooper must achieve this 

offset by reducing its System-Wide 12-Month Rolling Tonnage for NOx below the 

limitation specified in Paragraph 56 by an amount equal to the Excess Tons. Santee 

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Cooper shall demonstrate in its subsequent periodic reports that it has achieved the 

required offset in its System-Wide 12-Month Rolling Tonnage for NO

twenty-four (24) or thirty-six (36) month period, as applicable. 

x in the following 

C. Use of NOx Allowances 

59. Except as provided in this Consent Decree, Santee Cooper shall not sell or trade any NOx 

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 comply with the 

requirements of this Consent Decree. 

60. NOx Allowances allocated to the Santee Cooper System may be used by Santee Cooper 

to meet its own federal and/or State Clean Air Act regulatory requirements. 

61. Provided that Santee Cooper is in compliance with the system-wide NOx emission 

limitations of this Consent Decree, nothing in this Consent Decree shall preclude Santee 

Cooper from selling or transferring NOx Allowances allocated to the Santee Cooper 

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

a. activities that reduce NOx emissions 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 NOx

technique that is not otherwise required under this Consent Decree; 

pollution control technology or 

c. the installation and operation of any NOx pollution control technology or 

technique that achieves and maintains, prior to the date required under this 

Consent Decree, NOx emission rates below the 30-Day Rolling Average Emission 

Rates required by Paragraph 49; 

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d. achievement and maintenance of NOx emission rates below the 30-Day Rolling 

Average Emission Rates specified below, and in accordance with the following 

requirements, 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 

Allowances 

30-Day Rolling Average 

Emission Rate 

(lb/mmBTU) Below 

Which Santee Cooper 

May Sell or Trade 

100% of Allowances 

Cross 1 Beginning May 31, 2004 N/A 0.100 

Cross 2 May 31, 2004 - May 31, 2007 0.110 to 0.100 0.100 

Beginning June 1, 2007 N/A 0.100 

Cross 3 Beginning 180 Days After 1st 

Start-Up 

N/A 0.080 

Cross 4 Beginning 180 Days After 1st 

Start-Up 

N/A 0.080 

Winyah 1 November 30, 2004 -November 

30, 2007 

0.110 to 0.100 0.100 

Beginning December 1, 2007 N/A 0.100 

Winyah 2 Beginning November 30, 2004 0.120 to 0.100 0.100 

Winyah 3 November 30, 2005 -November 

30, 2008 

0.140 to 0.100 0.100 

Beginning December 1, 2008 0.120 to 0.100 0.100 

Winyah 4 November 30, 2005 -

November 30, 2008 

0.130 to 0.100 0.100 

Beginning December 1, 2008 0.120 to 0.100 0.100 

e. permanent shutdown of any Santee Cooper System Unit; 

f. a fuel change at a Unit that results in an emission reduction, provided that the 

emission reduction is made enforceable through modification of this Consent 

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Decree; or 

g. other emission reduction measures that are agreed to by the Parties and made 

enforceable through modification of this Consent Decree, 

so long as Santee Cooper timely reports the generation of such surplus NOx Allowances 

in accordance with Section XI (Periodic Reporting) of this Consent Decree. Santee 

Cooper shall be allowed to sell or transfer NOx Allowances equal to the NOx emissions 

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 NOx emissions from all Units within 

the Santee Cooper System are below the System-Wide 12-Month Rolling Tonnage 

limitation for that year. 

62. Santee Cooper may not purchase or otherwise obtain NOx Allowances from another 

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

However, nothing in this Consent Decree shall prevent Santee Cooper from purchasing or 

otherwise obtaining NOx Allowances from another source for purposes of complying 

with state or federal Clean Air Act requirements to the extent otherwise allowed by law. 

D. General NOx Provisions 

63. In determining Emission Rates for NOx

with those reference methods specified in 40 C.F.R. Part 75 (2003). 

, Santee Cooper shall use CEMS in accordance 

-19-
V. SO2 EMISSION REDUCTIONS AND CONTROLS 

A. SO2 Emission Controls 

1. New FGD Installations 

64. Santee Cooper shall install and commence continuous operation of an FGD (or 

equivalent SO2 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 maintain, a 30-Day Rolling Average Removal Efficiency for SO2 of at 

least ninety-five percent (95%): 

Unit Date by which Santee Cooper 

Must Complete Installation 

and Continuously Operate 

FGD 

Date by which Santee Cooper 

Must Comply with 

30-Day Rolling Average 

Removal Efficiency for SO2 

Cross Unit 3 Within 180 Days of 1st Start-Up Within 180 Days of 1st Start-Up 

Cross Unit 4 Within 180 Days of 1st Start-Up Within 180 Days of 1st Start-Up 

Winyah Unit 1 June 30, 2008 December 31, 2008 

Winyah Unit 2 June 30, 2008 December 31, 2008 

65. With prior written notice to and written approval from EPA and DHEC, Santee Cooper 

may, in lieu of installing and operating an FGD at any Unit specified in Paragraph 64, 

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

control technology achieves and maintains a 30-Day Rolling Average Removal 

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 maintain, the 30-Day 

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Rolling Average Removal Efficiencies for SO2 specified below: 

Unit 

Date by Which 

Santee Cooper Must 

Complete FGD 

Upgrade 

Cross Unit 1 December 31, 2005 

Cross Unit 2 December 31, 2005 

Winyah Unit 3 June 30, 2012 

Winyah Unit 4 June 30, 2007 

30-Day Rolling 

Average Removal 

Efficiency 

Requirement 

Date by Which 

Santee Cooper Must 

Comply with 

Removal Efficiency 

Requirement 

95% Removal 

Efficiency Through 

Upgrades of Existing 

FGD Modules 

June 30, 2006 

Design to 91%, but 

Achieve and 

Maintain at least 

87%, Removal 

Efficiency Through 

Upgrades of Existing 

FGD Modules 

June 30, 2006 

90% Removal 

Efficiency December 31, 2012 

90% Removal 

Efficiency December 31, 2007 

67. In the case of Winyah Unit 3, Santee Cooper shall achieve and maintain an interim 

30-Day Rolling Average Emission Rate for SO2 of not greater than 1.20 lb/mmBTU 

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 Winyah Unit 3 must 

be bypassed in order to undertake the necessary upgrade, and shall end when the upgrade 

construction is completed, but no later than December 31, 2012. The interim 30-Day 

Rolling Average Emission Rate for SO2 for Winyah Unit 3 shall apply during the 

construction phase in lieu of all other applicable SO2 emissions limitations required by 

the Administrator of EPA under the Act, or by DHEC under the South Carolina State 

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Implementation Plan. 

3. FGD Continuous Operation 

68. Santee Cooper shall continuously operate each FGD (or equivalent SO2 control 

technology approved pursuant to Paragraph 65) in the Santee Cooper System at all times 

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

manufacturers’ specifications, and good engineering and maintenance 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 

requirements for Malfunction Events as set forth in Paragraph 164 in Section XIV (Force 

Majeure) of this Consent Decree. 

B. System-Wide Annual Emission Limits for SO2 

69. Santee Cooper shall comply with the following System-Wide 12-Month Rolling Average 

Emission Rates for SO2, 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 SO2 

January 1, 2005 0.92 lb/mmBTU 

January 1, 2007 0.75 lb/mmBTU 

January 1, 2009 0.53 lb/mmBTU 

January 1, 2011 0.50 lb/mmBTU 

70. Santee Cooper shall comply with the following System-Wide 12-Month Rolling Tonnage 

limitations for SO2, which apply to all Units collectively within the Santee Cooper 

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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 SO2 

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 emission limits for SO2 set forth in Paragraphs 69 and 70 

shall apply prospectively from the specified date on which a 12-month period 

commences and shall end on the date that the subsequent system-wide limit, if any, takes 

effect. Santee Cooper shall not use SO2 allowances or credits to comply with these 

system-wide limitations. 

72. In the event that: 

a. an Improved Unit is unable to operate for an extended period of time due to 

unanticipated forced outage(s) caused by catastrophic events; 

b. the annual availability (as measured by the Generating Availability Data System) 

of the Improved Unit decreases by twenty-five 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 must compensate for the reduced utilization at the Improved Unit 

by increasing the utilization of other Units within the Santee Cooper System that 

emit SO2 emissions at higher levels than those emitted by the Improved Unit; 

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d. the SO2 emissions increase resulting from the increased utilization under 

Subparagraph 72.c. causes Santee Cooper to exceed the applicable System-Wide 

12-Month Rolling Average Emission Rate for SO2 and/or the applicable 

System-Wide 12-Month Rolling Tonnage limitation for SO2; 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 deemed not to be in violation of such system-wide limits, 

and shall not be liable for stipulated penalties under this Consent Decree for exceeding 

such limits, if Santee Cooper offsets the emissions in excess of either the System-Wide 

12-Month Rolling Average Emission Rate for SO2 or the System-Wide 12-Month Rolling 

Tonnage limitation for SO2 (“Excess Tons”), whichever is greater: (i) within twenty-four 

(24) months of the return to service of the affected Unit where the outage is six (6) 

months or less; or (b) within thirty-six (36) months of the return to service of the affected 

Unit where the outage exceeds six (6) months. Santee Cooper must achieve this offset by 

reducing its System-Wide 12-Month Rolling Tonnage for SO2 below the limitation 

specified in Paragraph 70 by an amount equal to the Excess Tons. Santee Cooper shall 

demonstrate in its subsequent periodic reports that it has achieved the required offset in 

its System-Wide 12-Month Rolling Tonnage for SO2 in the following twenty-four (24) or 

thirty-six (36) month period, as applicable. 

C. Surrender of SO2 Allowances 

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

-24-
surrendering allowances from the accounts administered by EPA for all Units in the 

Santee Cooper System, so that such allowances can never be used to meet any 

compliance requirement under the Clean Air Act, the South Carolina State 

Implementation Plan, or this Consent Decree. 

74. Santee Cooper may use any SO2 Allowances allocated by EPA to the Santee Cooper 

System only to meet its own federal and/or State Clean Air Act regulatory requirements. 

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, 

SO2 Allowances allocated to Santee Cooper that are surplus to its Clean Air Act SO2 

Allowance-holding requirements for the Santee Cooper System Units, collectively, for 

that year. The number of SO2 Allowances that are surplus to Santee Cooper’s Clean Air 

Act SO2 Allowance-holding requirements shall be equal to the amount by which the SO2 

Allowances allocated to all Santee Cooper System Units for a particular year are greater 

than the total amount of SO2 emissions from those same Units for the same year. 

However, beginning with calendar year 2013, and for each subsequent calendar year, 

Santee Cooper need not surrender any SO2 Allowances that are surplus to its SO2 

Allowance-holding requirements for the Santee Cooper System Units, collectively, for 

that year, and may use such surplus SO2 Allowances to meet its SO2 Allowance-holding 

requirements 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 SO2 Allowances that have not been used for the Santee Cooper 

-25-
System Units in the prior five-year rolling period. Santee Cooper shall make such 

surrender annually, within forty-five (45) days of Santee Cooper’s receipt from EPA of 

the Annual Deduction Reports for SO2. Any surrender need not include the specific SO2 

Allowances that were allocated to Santee Cooper System Units, so long as Santee Cooper 

surrenders SO2 Allowances that are from the same year or an earlier year and that are 

equal to the number 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 transfer in the next report submitted 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 SO2 Allowances 

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

certification by the third-party recipient(s) stating that the recipient(s) will not sell, trade, 

or otherwise exchange any of the allowances and will not use any of the SO2 Allowances 

to meet any obligation imposed by any environmental law. No later than the third 

periodic report due after the transfer of any SO2 Allowances, Santee Cooper shall include 

a statement that the third-party recipient(s) surrendered the SO2 Allowances for 

permanent surrender to EPA in accordance with the provisions of Paragraph 77 within 

one (1) year after Santee Cooper transferred the SO2 Allowances to them. Santee Cooper 

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

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

SO2 Allowances to EPA. 

77. For all SO2 Allowances surrendered to EPA, Santee Cooper or the third-party recipient(s) 

-26-
(as the case may be) shall first submit an SO2 Allowance transfer request form to EPA’s 

Office of Air and Radiation’s Clean Air Markets Division directing the transfer of such 

SO2 Allowances to the EPA Enforcement Surrender Account or to any other EPA 

account that EPA may direct in writing. As part of submitting these transfer requests, 

Santee Cooper or the third-party recipient(s) shall irrevocably authorize the transfer of 

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

other identification numbers or station names – the source and location of the SO2 

Allowances being surrendered. 

78. Provided that Santee Cooper is in compliance with the system-wide SO2 emission 

limitations of this Consent Decree, nothing in this Consent Decree shall preclude Santee 

Cooper from banking, selling or transferring SO2 Allowances allocated to the Santee 

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

a. activities that reduce SO2 emissions 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 SO2 pollution control technology or 

technique that is not otherwise required under this Consent Decree; 

c. achievement and maintenance of a 30-Day Rolling Average Removal Efficiency 

at an Improved Unit for SO2 that is below the applicable 30-Day Rolling Average 

Removal Efficiency limit specified in Paragraphs 64 and 66; 

d. permanent shutdown of any Santee Cooper System Unit; 

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

emission reduction is made enforceable through modification of this Consent 

-27-
Decree; or 

f. other emission reduction measures that are agreed to by the Parties and made 

enforceable through modification of this Consent Decree, 

so long as Santee Cooper timely reports the generation of such surplus SO2 Allowances 

in accordance with Section XI (Periodic Reporting) of this Consent Decree. Santee 

Cooper shall be allowed to bank, sell or transfer SO2 Allowances equal to the SO2 

emissions 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 SO2 emissions from all 

Units within the Santee Cooper System are below the System-Wide 12-Month Rolling 

Tonnage limitation for that year. In addition, and notwithstanding any other requirement 

in this Consent Decree regarding the surrender, or restricting the banking, sale or 

transfer, of SO2 Allowances allocated to the Santee Cooper System, in any calendar year 

Santee Cooper need not surrender, and may bank, sell or transfer, SO2 Allowances 

allocated to the Santee Cooper System in an amount equal to the number of tons by 

which SO2 emissions from the Santee Cooper System Units, collectively, are below 

35,000 tons, provided that Santee Cooper shall not bank, sell, or transfer SO2 Allowances 

based on emission reductions below 35,000 tons if Santee Cooper has already banked, 

sold, or traded those SO2 Allowances as a result of its activities under Subparagraphs 

78.b. through 78.f. 

D. Fuel Limitations 

79. Santee Cooper shall not burn coal having a sulfur content greater than any amount 

authorized by regulation or State permit 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 Removal Efficiency for SO2 required by this 

Consent Decree, unless authorized by permit 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 Removal Efficiency for SO2 required by this Consent Decree, Santee 

Cooper may burn petroleum coke at that Unit beginning on the date that it achieves 

compliance with the required 30-Day Rolling Average Removal Efficiency for SO2, 

provided that Santee Cooper has first obtained from DHEC the necessary State operating 

permit. 

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 

permit authorization to do so pursuant to the PSD and Nonattainment NSR rules that may 

apply to such Unit under the Clean Air Act and the South Carolina State Implementation 

Plan. 

E. General SO2 Provisions 

82. In determining Emission Rates for SO2, Santee Cooper shall use CEMS in accordance 

with those reference methods 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 SO2 control equipment and that are 

-29-
subject to the percent removal efficiency requirements of this Consent Decree, the outlet 

SO2 Emission Rate and the inlet SO2 Emission Rate shall be determined based on the data 

generated in accordance with 40 C.F.R. Part 75 (2002) (using SO2 CEMS data from both 

the inlet and outlet of the control device). For the purpose of determining mass 

emissions, Santee Cooper shall (a) monitor the gas flow rate at both the inlet and outlet of 

the control device, or (b) with prior written notice to and written approval from EPA and 

DHEC, monitor the gas flow rate at the outlet of the control device and determine the 

inlet flow rate based on an approved alternative methodology. 

VI. PM EMISSION REDUCTIONS AND CONTROLS 

A. New PM Emission Controls 

84. Santee Cooper shall install and commence continuous operation of PM emission control 

equipment 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 equipment on each Unit so as to maximize PM emission reductions, consistent 

with the Unit’s operational design and safety requirements, and shall achieve and 

maintain a PM Emission Rate of no greater than 0.015 lb/mmBTU at each Unit. 

B. Optimization of PM Emission Controls 

85. Within 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 

maximize PM emission reductions, consistent with the operational and maintenance 

limitations of the Units. Specifically, Santee Cooper shall, at a minimum: (a) energize 

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

-30-
comply with opacity limits; (b) maintain the energy or power levels delivered to the ESPs 

for each Unit to achieve the greatest possible removal of PM; (c) make best efforts to 

expeditiously repair and return to service transformer-rectifier sets when they fail; and (d) 

inspect for, and schedule for repair, any openings in ESP casings and ductwork to 

minimize air leakage. Within two hundred seventy (270) days after entry of this Consent 

Decree and continuing thereafter, Santee Cooper shall also optimize the plate-cleaning 

and discharge-electrode-cleaning systems for the ESPs at each Santee Cooper System 

Unit by varying the cycle time, cycle frequency, rapper-vibrator intensity, and number of 

strikes per cleaning event, of these systems to minimize PM emissions. 

C. Upgrade of Existing PM Emission Controls 

86. Santee Cooper shall demonstrate that each of the following Units can achieve and 

maintain a PM Emission Rate of no greater than 0.030 lb/mmBTU by the dates specified 

in the table below and in accordance with Paragraph 91. In the alternative and in lieu of 

demonstrating compliance with a PM Emission Rate applicable under this Paragraph, 

Santee Cooper may elect to undertake an upgrade of the existing PM emissions control 

equipment for any such Unit based on a Pollution Control Upgrade Analysis for that 

Unit. The preparation, submission, and implementation of such Pollution Control 

Upgrade Analysis shall be undertaken and completed in accordance with the compliance 

schedules and procedures specified in Paragraph 88. 

-31-
Unit Date by Which Santee Cooper Must 

Demonstrate Compliance with 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 

Winyah Unit 1 December 31, 2008 

Winyah Unit 2 December 31, 2008 

Winyah Unit 3 December 31, 2012 

Winyah Unit 4 December 31, 2007 

Grainger Unit 1 December 31, 2012 

Grainger Unit 2 December 31, 2012 

Jefferies Unit 3 December 31, 2012 

Jefferies Unit 4 December 31, 2012 

87. Demonstration and Compliance with PM Emission Limit. If Santee Cooper demonstrates 

by the applicable date set forth in Paragraph 86 that a Unit can achieve and maintain a 

PM Emission Rate of no greater than 0.030 lb/mmBTU, Santee shall thereafter operate 

that Unit to maximize PM emission reductions, consistent with the Unit’s operational 

design and safety requirements, and shall achieve and maintain a PM Emission Rate no 

greater than 0.030 lb/mmBTU. 

88. PM Emission Control Upgrade. For each existing Unit in the Santee Cooper System for 

which Santee Cooper does not elect to meet a PM Emission Rate of 0.030 lb/mmBTU, 

Santee Cooper shall prepare, submit, and implement 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 Emission Rate that the Unit shall meet upon completion 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 Submittals) 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 measures: 

i. the complete replacement 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 

supplemental PM pollution control device, through the refurbishment of 

existing PM control equipment, or through other measures, if (a) the costs 

of such upgrade are similar to the costs of a replacement ESP, FGD, or 

baghouse, or (b) the costs, including but not limited to the incremental 

costs, of such upgrade, measured in terms of dollars per ton removed, are 

not consistent with EPA regulatory guidance on PSD. 

With each Pollution Control Upgrade Analysis delivered to EPA and DHEC, 

Santee Cooper shall simultaneously deliver all documents that support or were 

considered in preparing such Pollution Control Upgrade Analysis. Santee Cooper 

shall retain a qualified contractor to assist in the performance and completion of 

each Pollution Control Upgrade Analysis. 

b. Beginning one (1) year after EPA and DHEC approve the recommendation(s) 

made in a Pollution Control Upgrade Analysis for a Unit, Santee Cooper shall not 

-33-
operate that Unit unless all equipment called for in the recommendation(s) of the 

Pollution Control Upgrade Analysis has been installed. An installation period 

longer than one year may be allowed if Santee Cooper makes such a request in the 

Pollution Control Upgrade Analysis and EPA and DHEC determine such 

additional time is necessary due to factors such as the magnitude of the PM 

control project or the need to address reliability concerns that could result from 

multiple Unit outages within the Santee Cooper System. Upon installation of all 

equipment recommended under an approved Pollution Control Upgrade Analysis, 

Santee Cooper shall operate such equipment in compliance with the 

recommendation(s) of the approved Pollution Control Upgrade Analysis, 

including compliance with the PM Emission Rate specified by the 

recommendation(s). 

89. Santee Cooper shall continuously operate each ESP in the Santee Cooper System at all 

times that the Unit it serves is combusting Fossil Fuel, except that Santee Cooper need 

not commence operation of any ESP until the Unit that the ESP serves has continuously 

combusted any amount of coal or petroleum coke for a period of two hours (three hours 

for Units at the Winyah Plant and at the Jefferies Plant). Santee Cooper shall use good 

engineering practices for PM control at all times that the Unit is combusting 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 performance test on each Santee Cooper System Unit. The annual stack 

-34-
test requirement imposed on each Santee Cooper System Unit by this Paragraph may be 

satisfied by stack tests conducted by Santee Cooper as required by its permits from 

DHEC for any year that such stack tests are required under the permits. Santee Cooper 

may perform biennial rather than annual testing provided that (a) two of the most recently 

completed test results from tests conducted in accordance with Method 5 or Method 17 

demonstrate that the particulate matter emissions are equal to or less than 0.015 

lb/mmBTU, 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 immediately following any test result demonstrating that the particulate 

matter emissions are greater than 0.015 lb/mmBTU, unless the Unit is equipped with a 

PM CEMS in accordance with Paragraph 93 through 98. 

91. The reference and monitoring methods and procedures for determining compliance with 

PM Emission Rates shall be those specified in 40 C.F.R. Part 60, Appendix A, Method 5 

or Method 17 (2003). Use of any particular method shall conform to the EPA 

requirements 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 method contained in the South Carolina 

State Implementation Plan. Santee Cooper shall calculate the PM Emission 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 submitted to EPA and 

DHEC within 30 days of completion of each test. 

92. The PM Emission Rates established under this Section shall not apply to emissions 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 emissions 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 comprise a continuous particle mass monitor 

measuring particulate matter concentration, directly or indirectly, on an hourly average 

basis and a diluent monitor used to convert the concentration to units of lb/mmBTU. 

Santee Cooper shall maintain, in an electronic database, the hourly average emission 

values of all PM CEMS in lb/mmBTU. 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) months after entry of this Consent Decree, Santee Cooper shall 

submit to EPA and DHEC for review and approval pursuant to Section XII (Review and 

Approval of Submittals) of this Consent Decree a plan for the installation and 

certification of each PM CEMS. 

95. Santee Cooper shall install, certify, and operate PM CEMS on two Units, stacks or 

common 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 commence operation 

of each PM CEMS, Santee Cooper shall submit to EPA and DHEC for review and 

approval pursuant to Section XII (Review and Approval of Submittals) of this Consent 

Decree a proposed Quality Assurance/Quality Control (“QA/QC”) protocol that shall be 

followed in 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 Amendments to 

Standards of Performance for New Stationary Sources: Monitoring Requirements, 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 demonstrate compliance with the 

PM CEMS installation and certification plan submitted 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 time to produce reliable, adequate, or useful data consistent with the 

QA/QC protocol; or (b) Santee Cooper demonstrates that recurring, chronic, or unusual 

equipment adjustment or servicing needs in relation to other types of continuous emission 

monitors cannot be resolved through reasonable expenditures of resources. If EPA and 

DHEC determine that Santee Cooper has demonstrated pursuant to this Paragraph that 

operation is no longer feasible, Santee Cooper shall be entitled to discontinue operation 

of and remove 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 measure mercury emission 

concentration, directly or indirectly, on an hourly average basis, in units of lb/TBTU. 

Santee Cooper shall maintain, in an electronic database, the hourly average emission 

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) months after entry of this Consent Decree, Santee Cooper shall 

submit to EPA and DHEC for review and approval pursuant to Section XII (Review and 

Approval of Submittals) of this Consent Decree a plan for 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: 

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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) months after entry of this Consent Decree, Santee Cooper may 

submit 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 commence operation 

of each Mercury CEMS, Santee Cooper shall submit to EPA and DHEC for review and 

approval pursuant to Section XII (Review and Approval of Submittals) of this Consent 

Decree a proposed QA/QC protocol that shall be followed in calibrating such Mercury 

CEMS. Following EPA’s and DHEC’s approval 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 demonstrate 

compliance with the Mercury CEMS installation and certification plan submitted 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 time to produce reliable, 

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adequate, or useful data consistent with the QA/QC protocol; or (b) Santee Cooper 

demonstrates that recurring, chronic, or unusual equipment adjustment or servicing needs 

in relation to other types of continuous emission monitors cannot be resolved through 

reasonable expenditures of resources. If EPA and DHEC determine that Santee Cooper 

has demonstrated pursuant to this Paragraph that operation is no longer feasible, Santee 

Cooper shall be entitled to discontinue operation of and remove 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 (Periodic Reporting) of this Consent Decree, the 

data recorded by the PM and Mercury CEMS, expressed in lb/mmBTU and lb/TBTU, 

respectively, on a 30-day and 365-day rolling average basis, in electronic format, as 

required in Paragraphs 93 and 100. 

E. General PM Provisions 

107. In determining the PM Emission Rate for purposes of this Consent Decree, Santee 

Cooper shall use the reference methods specified in 40 C.F.R. Part 60, Appendix A, 

Method 5 or Method 17 (2003), using stack tests, or alternative methods that are either 

promulgated by EPA or requested by Santee Cooper and approved by EPA. Santee 

Cooper shall also calculate the PM Emission 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. Emission reductions generated by Santee Cooper to comply with the requirements of this 

Consent Decree shall not be considered as a creditable contemporaneous emission 

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decrease for the purpose of obtaining a netting credit under the Clean Air Act’s 

Nonattainment NSR and PSD programs. Notwithstanding the preceding sentence, Santee 

Cooper may use any creditable contemporaneous emission decreases of NOx and SO2 

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 

Nonattainment NSR and PSD programs, provided that DHEC has: 

a. Issued a permit for Cross Units 3 and 4 with emissions limits for NO

PM that are at least as stringent as those specified in Paragraphs 49, 64, and 84; 

and 

x, SO2 and 

b. Determined through air quality modeling that emissions from Cross Units 3 and 4 

will not exceed a PSD increment or have adverse impacts on a Class I area. 

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

previous Paragraph do not apply to emission reductions achieved by Santee Cooper 

System Units that are surplus to those required under this Consent Decree. For purposes 

of this Paragraph, emission reductions from a Santee Cooper System Unit are surplus to 

those required under this Consent Decree if they result from Santee Cooper compliance 

with federally-enforceable emission limits that are more stringent than those limits 

imposed on Santee Cooper System Units under this Consent Decree and under applicable 

provisions of the Clean Air Act or the South Carolina State Implementation Plan. 

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

under this Consent Decree from being considered by DHEC or EPA as creditable 

contemporaneous emission decreases for the purpose of attainment demonstrations 

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submitted pursuant to § 110 of the Act, 42 U.S.C. § 7410, or in determining impacts on 

NAAQS, PSD increment, or air quality related values, including visibility, in a Class I 

area. 

VIII. ENVIRONMENTALLY BENEFICIAL PROJECTS 

111. Santee Cooper shall implement the Environmentally Beneficial Projects (“Projects”) 

described in this Section in compliance with the approved plans and schedules for such 

Projects and other terms of this Consent Decree. Santee Cooper shall submit plans for 

the Projects to Plaintiffs for review and approval pursuant to Section XII (Review and 

Approval of Submittals) of this Consent Decree in accordance with the schedules set 

forth in this Section. In implementing the Projects, Santee Cooper shall spend no less 

than $4.5 million in Project Dollars. Santee Cooper shall spend no less than $1.25 

million in Project Dollars within one (1) year after entry of this Consent Decree and the 

full amount of the Project Dollars required by this Paragraph on or before December 31, 

2006. Santee Cooper shall maintain, and present to Plaintiffs, upon request, all 

documents required by GAAP to substantiate the Project Dollars expended and shall 

provide these documents to Plaintiffs within thirty (30) days of a request by Plaintiffs for 

the documents. 

112. All plans and reports prepared by Santee Cooper pursuant to the requirements of this 

Section of the Consent Decree shall be publicly available without charge. 

113. Santee Cooper shall certify, as part of each plan submitted 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. 

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114. Santee Cooper shall use good faith efforts to secure as much benefit as possible for the 

Project Dollars expended, consistent with the applicable requirements and limits 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 instrumentality that will carry out the Project, that 

person or instrumentality must in writing: (a) identify its legal authority for accepting 

such funding; and (b) identify its legal 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 instrumentality 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 demonstrates that the funds have been actually spent by 

either Santee Cooper or by the person or instrumentality receiving them (or, in the case of 

internal costs, have actually been incurred by Santee Cooper), and that such expenditures 

met all requirements of this Consent Decree. 

116. Within sixty (60) days following the completion of each Project required under this 

Consent Decree, Santee Cooper shall submit to Plaintiffs a report that documents the date 

that the Project was completed, Santee Cooper’s results of implementing the Project, 

including the emission reductions or other environmental benefits achieved, and the 

Project Dollars expended by Santee Cooper in implementing the Project. 

117. Santee Cooper shall not financially benefit to a greater extent than any other member of 

the general public from the sale or transfer of technology obtained in the course of 

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implementing any Project. 

118. Beginning one (1) year after entry of this Consent Decree, Santee Cooper shall provide 

Plaintiffs with semi-annual updates concerning the progress of each Project. 

119. South Carolina Land Conservation Project. Within ninety (90) days after entry of this 

Consent Decree, and as part of the consideration provided to DHEC for its resolution of 

claims under this Consent Decree, Santee Cooper shall spend no less than $1.25 million 

in Project Dollars for the purchase of conservation easements and restrictive covenants to 

prevent the future development of environmentally-sensitive land along the Cooper River 

in Berkeley County, South Carolina. Santee Cooper shall make such payment to the 

South Carolina Department of Natural Resources. The property subject to the 

conservation easements and restrictive covenants must contain a biologically significant 

riverine ecology that functions as an important wetlands buffer from the surrounding 

environs, such that development of the property would have significant and likely 

irreversible adverse impacts on the Cooper River. 

120. Energy-Efficient Technologies Project. Within one (1) year after entry of this Consent 

Decree, Santee Cooper shall submit to EPA and DHEC for review and approval a 

proposal for the purchase and installation of innovative and environmentally beneficial 

energy technologies designed to minimize the use of electric power and improve energy 

self-sufficiency. 

a. Santee Cooper shall spend at least $1.0 million in Project Dollars to purchase and 

install the technologies at State-funded universities. 

b. The technologies may include advanced renewable energy supply sources (such 

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as next-generation solar panels or fuel cells) and energy-efficient building 

systems such as highly-efficient HVAC and water heating systems, passive 

lighting systems, dynamic window coatings, and innovative framing and 

insulation materials. 

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 materials and technologies to 

the extent that the cost of such energy-efficient materials and technologies exceed 

the cost of less energy-efficient materials and technologies. 

121. Demand-Side Management Project. Within one hundred eighty (180) days after entry of 

this Consent Decree, Santee Cooper shall submit to EPA for review and approval 

pursuant to Section XII (Review and Approval of Submittals) of this Consent Decree a 

plan for the implementation of a Demand-Side Management Project. As part of this 

Project, Santee Cooper shall spend no less than $1.0 million in Project Dollars to install 

technologies to reduce the demand for energy consumption, to subsidize the installation 

of technologies that reduce the demand for energy consumption, and to implement 

strategies that will reduce the demand for energy consumption. Santee Cooper shall 

make such expenditures only in those situations presenting a demonstrated financial need 

for such assistance within the Santee Cooper System service area. The plan may include 

the distribution of energy efficient lighting and/or the use of thermally-efficient design 

measures. 

122. Clean Diesel School Bus Retrofit Project. Within one hundred eighty (180) days after 

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entry of this Consent Decree, Santee Cooper shall submit to EPA for review and approval 

pursuant to Section XII (Review and Approval of Submittals) of this Consent Decree a 

plan to retrofit new school bus diesel engines with emission control equipment designed 

to reduce emissions 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 million in Project Dollars in performing 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 

nonattainment areas, or in areas at significant risk of nonattainment status, within 

the State. 

b. Provide for the retrofit of school bus diesel engines with established technologies 

and emissions control equipment designed to reduce emissions of particulates 

and/or ozone precursors. The retrofit emissions control equipment may include 

oxidation catalysts and particulate matter filters that will reduce particulate matter 

and hydrocarbon emissions. 

c. Provide for the use of technologies and retrofit procedures that have been verified 

or certified by EPA to achieve measurable reductions in emissions of particulates 

and/or ozone precursors, and that are not being applied on a demonstration basis. 

d. Provide for the retrofit of engines with the goal of meeting EPA standards for 

diesel school bus engines in 2007. 

e. Account for hardware and installation costs, and include the costs of operation 

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and maintenance training for each of the recipient municipalities. 

f. Limit recipients of retrofits to school districts that bind themselves to operate and 

maintain after the retrofit any equipment installed in connection with the Project. 

g. For any third-party with whom Santee Cooper might contract to carry out this 

program, establish minimum standards that include prior experience in arranging 

retrofits, and a record of prior ability to interest and organize fleets, school 

districts, and community groups to join a clean diesel program. 

h. Include a schedule for completing each portion of the project. 

i. Be consistent with EPA’s SEP Policy and any other applicable EPA guidance or 

provisions of law. 

123. Environmental Management System Project. Santee Cooper shall spend no less than 

$250,000 on implementation of an Environmental Management System (“EMS”) to 

facilitate its compliance with all environmental laws applicable to the Santee Cooper 

System. Santee Cooper shall implement the EMS in accordance with the requirements 

and schedules set forth in the Appendix of this Consent Decree, including: 

a. An initial review of the current environmental management systems within the 

Santee Cooper System; 

b. Development of an EMS Manual; 

c. Implementation of a Comprehensive EMS; 

d. An audit of the Comprehensive EMS; and 

e. A post-audit action plan for implementing any additional measures as part of the 

Comprehensive EMS. 

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IX. CIVIL PENALTY 

124. Within thirty (30) calendar days after entry of this Consent Decree, Santee Cooper shall 

pay to the United States a civil penalty in the amount of $1.3 million. The civil penalty 

shall be paid by Electronic Funds Transfer (“EFT”) to the United States Department of 

Justice, in accordance with current EFT procedures, referencing USAO File Number 

2003v02237 and DOJ Case Number 90-5-2-1-07492 and the civil action case name and 

case number of this action. The costs of such EFT shall be Santee Cooper’s 

responsibility. Payment shall be made 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 time of payment, Santee Cooper shall provide notice of payment, 

referencing the USAO File Number, the DOJ Case Number, and the civil action case 

name and case number, to the Department of Justice and to EPA in accordance with 

Section XVIII (Notices) of this Consent Decree. 

125. Failure to timely pay the civil penalty shall subject Santee Cooper to interest accruing 

from the date payment is due until the date payment is made at the rate prescribed by 28 

U.S.C. § 1961, and shall render Santee Cooper liable for all charges, costs, fees, and 

penalties established by law for the benefit of a creditor or of the United States in 

securing payment. 

126. Within thirty (30) calendar days after entry of this Consent Decree, Santee Cooper shall 

pay a civil penalty in the amount of $700,000. Payment shall be made in the form of a 

certified check or cashier’s check, and be payable to “South Carolina Department of 

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Health and Environmental Control.” Payment shall be sent to Director, Compliance 

Management Division, Bureau of Air Quality, South Carolina Department of Health and 

Environmental Control, 2600 Bull Street, Columbia, South Carolina 29201. To ensure 

proper credit, the check must reference United States et al. v. South Carolina Public 

Service Authority, and the civil action case number. 

127. Santee Cooper shall pay interest if it fails to make a complete or timely payment of the 

civil penalty that it is required to pay under Paragraph 126. Interest shall be determined 

pursuant to S.C. Code Ann. § 34-31-20(B). The interest shall be calculated on the full 

amount of the civil penalty due as principal, calculated from the due date specified in this 

Consent Decree until the date that the delinquent payment is finally paid in full. 

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

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

expenditures for purposes of federal law. 

X. RESOLUTION OF CLAIMS 

A. RESOLUTION OF PLAINTIFFS’ CIVIL CLAIMS 

129. Claims Based on Modifications Occurring Before the Lodging of Consent Decree. Entry 

of this Consent Decree shall resolve all civil claims 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 

claims are based on Santee Cooper’s failure to obtain an operating permit that 

reflects applicable requirements imposed 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 

implemented 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 

implemented 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 

implemented by 24A S.C. Code Ann. Regulations 61-62.70 (Supp. 2003), but 

only to the extent that such claims are based on Santee Cooper’s failure to obtain 

an operating permit that reflects applicable requirements imposed under South 

Carolina Pollution Control Act, S.C. Code Ann. 48-1-10 et seq., as implemented 

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 modifications 

at any Santee Cooper System Unit other than Cross Units 3 and 4, where the construction 

activity or modification was commenced prior to the date of lodging of this Consent 

Decree, including but not limited to those construction and modification activities alleged 

in the Complaint filed by the Plaintiffs in this civil action. 

130. Claims Based on Modifications After the Lodging of Consent Decree. Plaintiffs 

covenant not to sue or to bring administrative action against Santee Cooper for civil 

claims arising under: 

a. Parts C or D of Subchapter I of the Clean Air Act and under regulations 

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promulgated 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 

claims are based on Santee Cooper’s failure to obtain an operating permit that 

reflects applicable requirements imposed under Parts C or D of Subchapter I of 

the Clean Air Act and under regulations promulgated thereunder as of July 31, 

2003; 

c. South Carolina Pollution Control Act, S.C. Code Ann. 48-1-10 et seq. (1987), as 

implemented 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 

implemented by 24A S.C. Code Ann. Regulation 61-62.70 (Supp. 2003), but only 

to the extent that such claims are based on Santee Cooper’s failure to obtain an 

operating permit that reflects applicable requirements imposed under the South 

Carolina Pollution Control Act, S.C. Code Ann. 48-1-10 et seq. (1987), as 

implemented by 24A S.C. Code Ann. Regulation 61-62.5, Standard 7 (Supp. 

2003); 

for pollutants regulated under Parts C or D of Subchapter I of the Clean Air Act as of the 

date of lodging of this Consent Decree, where such claims are based on any physical 

change in, or change in the method of operation of, any Santee Cooper System Unit: 

(i) that increases the amount of any air pollutant emitted by such Unit, is commenced 

after lodging of this Consent Decree, and is completed before December 31, 2015; or 

(ii) that this Consent Decree expressly directs Santee Cooper to undertake. 

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131. Reopener. The Plaintiffs’ covenant not to sue or to bring administrative action under this 

Subsection is subject to the provisions of Subsection B of this Section. 

B. PURSUIT OF PLAINTIFFS’ CIVIL CLAIMS OTHERWISE RESOLVED 

132. Bases for Pursuing Resolved Claims Across Santee Cooper System. If Santee Cooper 

violates Paragraph 55 (System-Wide 12-Month Rolling Average Emission Rate for NOx), 

Paragraph 56 (System-Wide 12-Month Rolling Tonnage limitations for NOx), Paragraph 

69 (System-Wide 12-Month Rolling Average Emission Rates for SO2), Paragraph 70 

(System-Wide 12-Month Rolling Tonnage limitations for SO2), or Paragraphs 79 or 80 

(Fuel Limitation), or fails by more than ninety (90) days to complete installation or 

upgrade, and commence operation, of any emission control device required pursuant to 

Paragraphs 49, 64, 66 or 84 (as may be extended by written agreement of the Parties or 

pursuant to Force Majeure or Dispute Resolution provisions of this Consent Decree), 

then the Plaintiffs may pursue any claim at any Santee Cooper System Unit that is 

otherwise covered by the covenant not to sue or to bring administrative action under 

Subsection A of this Section, subject to Subparagraphs 132.a. and 132.b. 

a. For any claims based on modifications undertaken at an Other Unit (any Unit of 

the Santee Cooper System that is not an Improved Unit for the pollutant in 

question), claims may be pursued only where the modification(s) on which such 

claim is based was commenced within the five (5) years preceding the violation or 

failure specified in this Paragraph. 

b. For any claims based on modifications undertaken at an Improved Unit, claims 

may be pursued only where the modification(s) on which such claim is based was 

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commenced (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 Claims for Modifications at an Improved Unit. 

Solely with respect to Improved Units, the Plaintiffs may also pursue claims arising from 

a modification (or collection of modifications) at an Improved Unit that are otherwise 

covered by the covenant not to sue or to bring administrative action under Subsection A 

of this Section, if the modification (or collection of modifications) at the Improved Unit 

on which such claims are based (i) was commenced after lodging of this Consent Decree, 

and (ii) individually (or collectively) increased the maximum hourly emission rate of that 

Unit for NOx or SO2 (as measured by 40 C.F.R. § 60.14 (b) and (h)(2003)) by more than 

ten percent (10%). 

134. Additional Bases for Pursuing Resolved Claims for Modifications at an Other Unit. 

Solely with respect to Other Units, the Plaintiffs may also pursue claims arising from a 

modification (or collection of modifications) at an Other Unit that are otherwise covered 

by the covenant not to sue or to bring administrative action under Subsection A of this 

Section, if the modification (or collection of modifications) at the Other Unit on which 

the claim is based was commenced within the five (5) years preceding any of the 

following events: 

a. a modification (or collection of modifications) at such Other Unit commenced 

after lodging of this Consent Decree increases the maximum hourly emission rate 

for such Other Unit for the relevant pollutant (NOx or SO2) (as measured by 40 

C.F.R. § 60.14(b) and (h)(2003)); 

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b. the aggregate of all Capital Expenditures made 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 December 31, 2010; and January 1, 2011 

through December 31, 2015. For the period from the date of lodging of this 

Consent Decree through December 31, 2005, the $125/KW limit shall be 

pro-rated to include only that portion of the five (5) year period (January 1, 2000 

through December 31, 2005) following the date of lodging of this Consent 

Decree. (Capital Expenditures shall be measured in calendar year 2002 constant 

dollars, as adjusted by the McGraw-Hill Engineering News-Record Construction 

Cost Index); or 

c. a modification (or collection of modifications) at such Other Unit commenced 

after lodging of this Consent Decree results in an emissions increase of NO

and/or SO2 at such Other Unit, and such increase: 

x 

i. presents, by itself, or in combination with other emissions or sources, “an 

imminent and substantial endangerment” within the meaning 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 attainment with that NAAQS; 

iii. causes or contributes to violation of a PSD increment; or 

iv. causes or contributes to any adverse impact on any formally-recognized Air 

Quality and Related Values in any Class I area. 

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135. Solely for purposes of Subparagraph 134.c., the determination of whether there was an 

emissions increase must take into account any emissions changes relevant to the modeling 

domain that have occurred or will occur under this Consent Decree at other Santee Cooper 

System Units. In addition, an emissions increase shall not be deemed to have occurred at 

an Other Unit unless the annual emissions of the relevant pollutant (NOx or SO2) from the 

plant at which such modification(s) occurred exceed the annual emissions 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 

modification at an Other Unit resolved under Subsection A of this Section. 

XI. PERIODIC REPORTING 

137. Within one hundred eighty (180) days after each date established by this Consent Decree 

for Santee Cooper to achieve and maintain a certain PM Emission Rate at any Santee 

Cooper System Unit, Santee Cooper shall conduct a performance test that demonstrates 

compliance with the limit specified in this Consent Decree or in any approved Pollution 

Control Upgrade Analysis submitted under Paragraph 88. Within thirty (30) days of each 

such performance test, Santee Cooper shall submit the results of the performance 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 semi-annual basis until December 31, 2015, 

and in addition to any other express reporting requirement in this Consent Decree, Santee 

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Cooper shall submit to EPA and DHEC a progress report. 

139. The progress report shall contain the following information: 

a. all information necessary to determine compliance with this Consent Decree, 

including information required to be included in periodic reports pursuant to 

Paragraphs 58, 72, 76 and 106; 

b. all information relating to emission allowances and credits that Santee Cooper 

claims to have generated in accordance with Paragraphs 61 or 78 by compliance 

beyond the requirements of this Consent Decree; and 

c. all information indicating that the installation and commencement of operation for 

a pollution control device may be delayed, including the nature and cause of the 

delay, and any steps taken by Santee Cooper to mitigate such delay. 

140. In any periodic progress report submitted pursuant to this Section, Santee Cooper may 

incorporate by reference information previously submitted under its Title V permitting 

requirements, provided that Santee Cooper attaches the Title V permit report and provides 

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

information 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 Plaintiffs of any violation of the requirements of this Consent 

Decree, including exceedances of the Unit-specific 30-Day Rolling Average Emission 

Rates, Unit-specific 30-Day Rolling Average Removal Efficiencies, System-Wide 

12-Month Rolling Average Emission Rates, and System-Wide 12-Month Rolling Tonnage 

limitations, 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 measures 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 Performance 

and Environmental Services or, in his or her absence, Santee Cooper’s Senior Vice 

President of Generation, or higher ranking official, and shall contain the following 

certification: 

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

supervision in accordance with a system designed to assure that qualified 

personnel properly gather and evaluate the information submitted. Based 

on my evaluation, or the direction and my inquiry of the person(s) who 

manage the system, or the person(s) directly responsible for gathering the 

information, I hereby certify under penalty of law that, to the best of my 

knowledge and belief, this information is true, accurate, and complete. I 

understand that there are significant penalties for submitting false, 

inaccurate, or incomplete information to the United States. 

143. If any allowances are surrendered to any third party pursuant to Subsection V.C. 

(Surrender of SO2 Allowances) of this Consent Decree, the third party’s certification 

pursuant to Paragraph 76 shall be signed by a managing officer of the third party and shall 

contain the following language: 

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

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

will not use any of the allowances to meet any obligation imposed by any 

environmental law. I understand that there are significant penalties for 

submitting false, inaccurate, or incomplete information to the United 

States. 

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XII. REVIEW AND APPROVAL OF SUBMITTALS 

144. Santee Cooper shall submit each plan, report, or other submission to EPA and DHEC 

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

this Consent Decree. EPA, in consultation with the DHEC to the extent that this Consent 

Decree provides for joint approval with DHEC, may approve the submittal or decline to 

approve it and provide written comments. Within sixty (60) days of receiving written 

comments from EPA, Santee Cooper shall either: (a) revise the submittal consistent with 

the written comments and provide the revised submittal for final approval to EPA and, if 

applicable, to DHEC; or (b) submit the matter for dispute resolution, including the period 

of informal negotiations, under Section XV (Dispute Resolution) of this Consent Decree. 

145. Upon receipt of EPA’s final approval of the submittal, and DHEC’s final approval, if 

applicable, or upon completion of the submittal pursuant to dispute resolution, Santee 

Cooper shall implement the approved submittal in accordance with the schedule specified 

therein. 

XIII. STIPULATED PENALTIES 

146. For any failure by Santee Cooper to comply with the terms of this Consent Decree, and 

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

of this Consent Decree, Santee Cooper shall pay, within thirty (30) days after receipt of 

written demand to Santee Cooper by the United States, the following stipulated penalties 

to the United States: 

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Consent Decree Violation Stipulated Penalty 

(Per day per violation, unless 

otherwise specified) 

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

(Civil Penalty) of this Consent Decree 

$10,000 

b. Failure to comply with any applicable 30-Day Rolling 

Average Emission Rate for NOx or SO2, 30-Day Rolling 

Average Removal Efficiency for SO2, or Emission Rate for 

PM, where the violation is less than 5% in excess of the 

limits set forth in this Consent Decree 

$2,500 

c. Failure to comply with any applicable 30-Day Rolling 

Average Emission Rate for NOx or SO2, 30-Day Rolling 

Average Removal Efficiency for SO2, or Emission Rate for 

PM, where the violation is equal to or greater than 5% but 

less than 10% in excess of the limits set forth in this 

Consent Decree 

$5,000 

d. Failure to comply with any applicable 30-Day Rolling 

Average Emission Rate for NOx or SO2, 30-Day Rolling 

Average Removal Efficiency for SO2, or Emission Rate for 

PM, where the violation is equal to or greater than 10% in 

excess of the limits set forth in this Consent Decree 

$10,000 

e. Failure to comply with any System-Wide 12-Month 

Rolling Average Emission Rate, where the violation is less 

than 5% in excess of the limits set forth in this Consent 

Decree 

$2,500 per month 

f. Failure to comply with any System-Wide 12-Month 

Rolling Average Emission Rate, where the violation is 

equal to or greater than 5% but less than 10% in excess of 

the limits set forth in this Consent Decree 

$5,000 per month 

g. Failure to comply with any System-Wide 12-Month 

Rolling Average Emission Rate, where the violation is 

equal to or greater than 10% in excess of the limits set forth 

in this Consent Decree 

$10,000 per month 

h. Failure to comply with the System-Wide 12-Month 

Rolling Tonnage limitations for SO2 and NOx 

$5,000 per ton per month for 

the first 100 tons over the limit, 

and $10,000 per ton per month 

for each additional ton over the 

limit 

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i. Failure to install, commence operation, or continue 

operation of the NOx, SO2, and PM pollution control 

devices on any Unit 

$10,000 during the first 30 

days, $27,000 thereafter 

j. Failure to comply with the fuel limitations 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 performance tests 

of PM emissions, as required in Paragraph 90 

$1,000 

m. Failure to apply for any permit required by Section XVI $1,000 

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

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

other submittals required by this Consent Decree 

$750 during the first ten days, 

$1,000 thereafter 

o. Using, selling, or transferring SO2 Allowances, except as 

permitted by Paragraphs 74, 75 and 78 

the surrender, pursuant to the 

procedures set forth in 

Paragraphs 76 and 77 of this 

Consent Decree, of SO2 

Allowances in an amount equal 

to four times the number of SO2 

Allowances used, sold, or 

transferred in violation of this 

Consent Decree 

p. Using, selling or transferring NOx Allowances except as 

permitted under Paragraphs 60 and 61 

the surrender, pursuant to the 

procedures set forth in 

Paragraphs 76 and 77 of this 

Consent Decree, of NOx 

Allowances in an amount equal 

to four times the number of 

NOx Allowances used, sold, or 

transferred in violation of this 

Consent Decree 

q. Failure to surrender an SO2 Allowance as required by 

Paragraph 75 

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

SO2 Allowance 

r. Failure to demonstrate the third-party surrender of an 

SO2 Allowance in accordance with Paragraph 76 

$2,500 

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s. Failure to undertake and complete any of the 

Environmentally Beneficial Projects in compliance with 

Section VIII (Environmentally 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 Emission Rate or removal efficiency that is based on a 30-Day Rolling 

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

System-Wide 12-Month Rolling Average Emission Rates or System-Wide 12-Month 

Rolling Tonnage limitations is a violation each month on which the average is based. 

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

Removal Efficiency (for the same pollutant and from the same 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 performance is due or on 

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

performance is satisfactorily completed or until the violation ceases. Nothing in this 

Consent Decree shall prevent the simultaneous accrual of separate stipulated penalties for 

separate violations of this Consent Decree. 

150. Santee Cooper shall pay all stipulated penalties to the United States within thirty (30) days 

of receipt of written demand to Santee Cooper from the United States, and shall continue 

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

continues, unless Santee Cooper elects within 20 days of receipt of written demand to 

Santee Cooper from the United States to dispute the accrual of stipulated penalties in 

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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 agreement, 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 determined to be owing, together 

with accrued interest, shall be paid within thirty (30) days of the effective date of 

the agreement or of the receipt of Plaintiffs’ decision; 

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 determined 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 determined to be owing, together with accrued interest. 

For purposes of this Paragraph, the accrued stipulated penalties agreed by the Parties, or 

determined by the Plaintiffs through Dispute Resolution, to be owing may be less than the 

stipulated penalty amounts set forth in Paragraph 146. 

152. All stipulated penalties shall be paid in the manner set forth in Section IX (Civil Penalty) 

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of this Consent Decree. 

153. Should Santee Cooper fail to pay stipulated penalties in compliance with the terms of this 

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

provided for in 28 U.S.C. § 1961. 

154. The stipulated penalties provided for in this Consent Decree shall be in addition to any 

other rights, remedies, or sanctions available to any Plaintiff by reason of Santee Cooper’s 

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

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

stipulated penalty, Santee Cooper shall be allowed a credit for stipulated penalties paid 

against any statutory penalties also imposed for such violation. 

XIV. FORCE MAJEURE 

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

has been or will be caused by circumstances beyond the control of Santee Cooper, its 

contractors, or any entity controlled by Santee Cooper that delays compliance with any 

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

Consent Decree despite Santee Cooper’s best efforts to fulfill the obligation. “Best efforts 

to fulfill the obligation” include using best efforts to anticipate any potential Force 

Majeure Event and to address the effects of any such event (a) as it is occurring and 

(b) after it has occurred, such that the delay or violation is minimized to the greatest extent 

possible. 

156. Notice of Force Majeure Events. If any event occurs or has occurred that may delay 

compliance with or otherwise cause a violation of any obligation under this Consent 

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Decree, as to which 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 may cause such 

delay or violation. In this notice, Santee Cooper shall reference this Paragraph of this 

Consent Decree and describe the anticipated length of time that the delay or violation may 

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

Santee Cooper to prevent or minimize the delay or violation, the schedule by which 

Santee Cooper proposes to implement those measures, and Santee Cooper’s rationale for 

attributing a delay or violation to a Force Majeure Event. Santee Cooper shall adopt all 

reasonable measures to avoid or minimize such delays or violations. Santee Cooper shall 

be deemed to know of any circumstance 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 comply with the notice requirements in 

Paragraph 156, the Plaintiffs may void Santee Cooper’s claim for Force Majeure as to the 

specific event for which Santee Cooper has failed to comply with such notice requirement. 

158. Plaintiffs’ Response. The United States shall notify Santee Cooper in writing regarding 

Santee Cooper’s claim of Force Majeure within twenty (20) business days of receipt of the 

notice provided under Paragraph 156. If Plaintiffs agree that a delay in performance has 

been or will be caused by a Force Majeure Event, the Parties shall stipulate to an 

extension of deadline(s) for performance of the affected compliance requirement(s) by a 

period equal to the delay actually caused by the event. In such circumstances, an 

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appropriate modification shall be made pursuant to Section XXII (Modification) of this 

Consent Decree. 

159. Disagreement. 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 matter 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 performance or any other violation of any requirement 

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 compliance date 

based on a particular event may, but will not necessarily, result in an extension of a 

subsequent compliance date. 

161. Events Excluded. Unanticipated or increased costs or expenses associated with the 

performance of Santee Cooper’s obligations under this Consent Decree shall not constitute 

a Force Majeure Event. 

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

circumstances related to an event and Santee Cooper’s response to such circumstances, the 

kinds of events listed below are among those that could qualify as Force Majeure Events 

within the meaning of this Section: construction, labor, or equipment delays; Malfunction 

of a Unit or emission control device; natural gas supply interruption; acts of God; acts of 

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war or terrorism; orders by a government official, government 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) emergency; and a 

third-party appeal of a permit that Santee Cooper needs in order to meet its obligations 

under this Consent Decree. Depending upon the circumstances and Santee Cooper’s 

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

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

permitting authority to act is beyond the control of Santee Cooper and Santee Cooper has 

taken all steps available to it to obtain the necessary permit, including, but not limited to: 

submitting a complete permit application; responding to requests for additional 

information by the permitting authority in a timely fashion; and accepting lawful permit 

terms and conditions after expeditiously exhausting any legal rights to appeal terms and 

conditions imposed by the permitting authority. 

163. As part of the resolution of any matter submitted to this Court under Section XV (Dispute 

Resolution) of this Consent Decree regarding a claim of Force Majeure, the Parties by 

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

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

work that occurred as a result of the Force Majeure Event. Santee Cooper shall be liable 

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

the extended or modified schedule, provided that Santee Cooper shall not be precluded 

from asserting that a new Force Majeure Event has caused or may cause a new or 

additional delay in complying with the extended or modified schedule. 

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164. Malfunction Events. If Santee Cooper intends to exclude a period of Malfunction, as 

defined in Paragraph 24, from the calculation of any 30-Day Rolling Average Emission 

Rate, PM Emission Rate or 30-Day Rolling Average Removal 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 

deemed to know of any circumstance 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 time that the 

Malfunction may persist, the cause or causes of the Malfunction, all measures 

taken or to be taken by Santee Cooper to minimize the duration of the 

Malfunction, and the schedule by which Santee Cooper proposes to implement 

those measures. Santee Cooper shall adopt all reasonable measures to minimize 

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 Malfunction also meets the definition 

of a Force Majeure Event, as provided in this Section. Conversely, a period of 

Malfunction may be excluded by Santee Cooper from the calculations of emission 

rates and removal efficiencies, as allowed under this Paragraph, regardless of 

whether the Malfunction constitutes a Force Majeure Event. 

XV. DISPUTE RESOLUTION 

165. The dispute resolution procedure provided by this Section shall be available to resolve all 

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disputes arising under this Consent Decree, provided that the Party invoking such 

procedure has first made a good faith attempt to resolve the matter with the other Parties. 

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 meeting to discuss 

the dispute informally not later than fourteen (14) days following receipt of such notice. 

167. Disputes submitted to dispute resolution under this Section shall, in the first instance, be 

the subject of informal negotiations among the disputing Parties. Such period of informal 

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

meeting among the disputing Parties’ representatives unless they agree in writing to 

shorten or extend this period. During the informal negotiations period, the disputing 

Parties may also submit their dispute to a mutually-agreed-upon alternative dispute 

resolution (ADR) forum if the Parties agree that the ADR activities can be completed 

within the 30-day informal negotiations period (or such longer period as the Parties may 

agree to in writing). 

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

period, the Plaintiffs shall provide Santee Cooper with a written summary of their position 

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

binding unless, within forty-five (45) calendar days thereafter, Santee Cooper seeks 

judicial resolution of the dispute by filing a petition with this Court. The Plaintiffs may 

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respond to the petition within forty-five (45) calendar days of filing. 

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

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

the Parties to the dispute. 

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

disputing Party as a result of invocation of this Section or the disputing Parties’ inability 

to reach agreement. 

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

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

the schedule for the completion of the activities required under this Consent Decree to 

account for the delay that occurred as a result of dispute resolution. Santee Cooper shall 

be liable for stipulated penalties for its failure thereafter to complete the work in 

accordance with the extended or modified schedule, provided that Santee Cooper shall not 

be precluded from asserting that a Force Majeure Event has caused or may cause a delay 

in complying with the extended or modified schedule. 

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 for 

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 permit to 

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authorize construction or operation of any device, including all preconstruction, 

construction, and operating permits required under state law, Santee Cooper shall make 

such application in a timely manner. EPA and DHEC will use their best efforts to 

expeditiously review all permit applications submitted by Santee Cooper in order to meet 

the requirements of this Consent Decree. In addition, EPA and DHEC agree to use their 

best efforts to review timely any application by Santee Cooper to establish plant-wide 

applicability limits (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 Nonattainment NSR permit for 

physical changes in, or changes in the method of operation of, any Santee Cooper System 

Unit that would give rise to claims resolved by, or covered by, the covenant not to sue or 

to bring administrative action in, Section X (Resolution of Claims) of this Consent 

Decree. 

175. When permits are required as described in Paragraph 173, Santee Cooper shall complete 

and submit applications for such permits to the appropriate authorities to allow sufficient 

time for all legally required processing and review of the permit request, including 

requests for additional information by the permitting authorities. Any failure by Santee 

Cooper to submit a timely permit 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 permitting delays. 

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

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

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

established by or under this Consent Decree shall be enforceable under this Consent 

Decree regardless of whether such term has or will become part of a Title V permit, 

subject to the terms of Section XXVI (Conditional Termination of Enforcement Under 

Consent Decree) of this Consent Decree. 

177. Within one hundred eighty (180) days after entry of this Consent Decree, Santee Cooper 

shall amend any applicable Title V permit application, or apply for amendments of its 

Title V permits, to include a schedule for all Unit-specific performance, operational, 

maintenance, and control technology requirements established by this Consent Decree 

including, but not limited to, emission rates, removal efficiencies, fuel limitations, and the 

requirement in Paragraph 75 pertaining to the surrender of SO2 Allowances. 

178. Within one (1) year from the commencement of operation of each pollution control device 

to be installed or upgraded on an Improved Unit under this Consent Decree, Santee 

Cooper shall apply to amend its Title V permit for the generating plant where such device 

is installed to reflect all new requirements applicable to that plant, including, but not 

limited to, any applicable 30-Day Rolling Average Emission Rate or 30-Day Rolling 

Average Removal Efficiency. 

179. Prior to January 1, 2015, Santee Cooper shall either: (a) apply to amend the Title V permit 

for each plant in the Santee Cooper System to include a provision, which shall be identical 

for each Title V permit, that contains the allowance surrender requirements, and the 

System-Wide 12-Month Rolling Average Emission Rates and System-Wide 12-Month 

Rolling Tonnage limitations (including the provisions of Paragraphs 58 and 72), set forth 

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in this Consent Decree; or (b) apply for amendments to the South Carolina State 

Implementation Plan to include such requirements and limitations. 

180. Santee Cooper shall provide EPA and DHEC with a copy of each application to amend its 

Title V permit, as well as a copy of any permit proposed as a result of such application, to 

allow for timely participation in any public comment opportunity. 

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 comply with the requirements 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 remains the holder of the Title V 

permit for such facility. 

182. Plaintiffs agree that this Consent Decree resolves Condition Number 62 of Construction 

Permit Number 0420-0030-CI (“Permit”) 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 time administratively amend the 

Permit by deleting Condition Number 62 and reissue an amended version of the Permit 

that does not contain that Condition. 

XVII. INFORMATION COLLECTION AND RETENTION 

183. Any authorized representative of the Plaintiffs, including their attorneys, contractors, and 

consultants, upon presentation of credentials, shall have a right of entry upon the premises 

of any facility in the Santee Cooper System at any reasonable time for the purpose of: 

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

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

terms of this Consent Decree; 

c. obtaining samples and, upon request, splits of any samples taken by Santee Cooper 

or its representatives, contractors, or consultants; and 

d. assessing Santee Cooper’s compliance 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 documents (including records and documents in 

electronic form) now in its or its contractors’ or agents’ possession or control, and that 

directly relate to Santee Cooper’s performance of its obligations under this Consent 

Decree for the following periods: (a) until December 31, 2020, for records concerning 

physical or operational changes undertaken in accordance with Paragraph 130; and (b) 

until December 31, 2017, for all other records. This record retention requirement shall 

apply regardless of any corporate document retention policy to the contrary. 

185. All information and documents submitted by Santee Cooper pursuant to this Consent 

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

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

protection or (b) Santee Cooper claims and substantiates in accordance with 40 C.F.R. 

Part 2 that the information and documents contain confidential business information. 

186. Nothing in this Consent Decree shall limit 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 permits. 

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XVIII. NOTICES 

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

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

addressed as follows: 

As to the United States of America: 

Chief, Environmental Enforcement Section 

Environment and Natural Resources Division 

U.S. Department of Justice 

P.O. Box 7611, Ben Franklin Station 

Washington, D.C. 20044-7611

DJ# 90-5-2-1-07492

and 

Director, Air Enforcement Division

Office of Enforcement and Compliance Assurance

U.S. Environmental Protection Agency

Ariel Rios Building [2242A]

1200 Pennsylvania Avenue, N.W.

Washington, DC 20460 

and

Regional Administrator 

U.S. EPA Region IV

61 Forsyth Street, S.W.

Atlanta, Georgia 30303-8960

As to the South Carolina Department of Health and Environmental Control:

Chief, Bureau of Air Quality

South Carolina Department of Health and Environmental Control

2600 Bull Street

Columbia, South Carolina 29201

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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, communications or submissions made pursuant to this Section shall be 

sent either by: (a) overnight mail or delivery service; (b) certified or registered mail, 

return receipt requested; or (c) electronic transmission, unless the recipient is not able to 

review the transmission in electronic form. All notifications, communications and 

transmissions (a) sent by overnight, certified or registered mail shall be deemed submitted 

on the date they are postmarked, or (b) sent by overnight delivery service shall be deemed 

submitted on the date they are delivered to the delivery service. All notifications, 

communications, and submissions made by electronic means shall be electronically signed 

and certified, and shall be deemed submitted on the date that Santee Cooper receives 

written acknowledgment of receipt of such transmission. 

189. Any Party may change either the notice recipient or the address for providing notices to it 

by serving the other Parties with a notice setting forth such new notice recipient or 

address. 

XIX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS 

190. If Santee Cooper proposes to sell or transfer an Ownership Interest to a Third Party 

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

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

notification to the Plaintiffs pursuant to Section 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 completion 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 submit to the Court for approval, a modification pursuant to 

Section XXII (Modification) of this Consent Decree in accordance with the following: 

a. In the absence of any agreement by Plaintiffs to make the Third Party Purchaser 

solely liable for the Unit-specific and allocated system-wide obligations in this 

Consent Decree, such modification shall make the Third Party Purchaser a party 

defendant to this Consent Decree and jointly and severally liable with Santee 

Cooper for all the requirements of this Consent Decree that may be applicable to 

the purchased or transferred Ownership Interests, including (i) all requirements 

specific to the purchased or transferred Santee Cooper System Unit, and (ii) all 

requirements in this Consent Decree that are not specific to any particular Santee 

Cooper System Unit. 

b. Santee Cooper may request that the modification relieve Santee Cooper of its 

liability under this Consent Decree, and make the Third Party Purchaser solely 

liable, for all obligations and liabilities specifically applicable to the purchased or 

transferred Ownership Interests. Plaintiffs shall agree to such a modification if 

they determine that the Third Party Purchaser has the technical capability, 

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financial capability, and history of compliance that would justify such sole 

liability. If Santee Cooper makes this request later than ninety (90) days prior to 

the sale or transfer, Plaintiffs’ determination shall be made in their sole and 

unreviewable discretion. 

c. Santee Cooper may also request that the modification relieve Santee Cooper of its 

liability under this Consent Decree, and make the Third Party Purchaser solely 

liable, for all system-wide emission limitations that have been allocated by Santee 

Cooper and the Third Party Purchaser to the purchased or transferred Ownership 

Interests. Plaintiffs shall agree to such a modification if they determine that the 

Third Party Purchaser has the technical capability, financial capability, and history 

of compliance that would justify such allocation and sole liability. If Santee 

Cooper makes this request later than ninety (90) days prior to the sale or transfer, 

Plaintiffs determination shall be made 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 

(Environmentally Beneficial Projects) and IX (Civil Penalty) of this Consent 

Decree, and the system-wide emission limitations 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 impede the sale or transfer of any 

Ownership Interests between Santee Cooper and any Third Party Purchaser as long as the 

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requirements of this Consent Decree are met. 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 compliance with this Consent Decree. 

XX. EFFECTIVE DATE 

193. The effective date of this Consent Decree 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 after entry of this 

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

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

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

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

to construe or effectuate this Consent Decree. 

XXII. MODIFICATION 

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

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

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

196. In the event that this Consent Decree is modified, following approval by the Court, to 

require the installation of an additional NOx or SO2 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 comply with 

a 30-Day Rolling Average Emission Rate for NOx of no greater than 0.100 lb/mmBTU, or 

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a 30-Day Rolling Average Removal Efficiency for SO2 of no less than ninety-five percent 

(95%), then the modification of the Consent Decree shall also provide that such Unit be 

treated as an Improved Unit as to the pollutant that will be controlled. 

XXIII. GENERAL PROVISIONS 

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

does not guarantee compliance with all applicable federal, state, or local laws or 

regulations. Except as provided in Section X (Resolution of Claims) of this Consent 

Decree, the emission rates set forth herein do not relieve Santee Cooper from any 

obligation to comply with other state and federal requirements under the Clean Air Act, 

including Santee Cooper’s obligation to satisfy any state modeling requirements set forth 

in the South Carolina State Implementation Plan. 

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

199. In any subsequent administrative or judicial action initiated by the United States or DHEC 

for injunctive relief or civil penalties relating to the facilities 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 claims raised by the 

Plaintiffs in the subsequent proceeding were brought, or should have been brought, in the 

instant case; provided, however, that nothing in this Paragraph is intended to, or shall, 

affect the validity of Section X (Resolution of Claims) 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 comply with all applicable federal, state, 

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and local laws and regulations. Subject to the provisions in Section X (Resolution of 

Claims) of this Consent Decree, nothing contained in this Consent Decree shall be 

construed to prevent or limit the rights of the Plaintiffs to obtain penalties or injunctive 

relief under the Act or other federal, state, or local statutes, regulations, or permits. 

201. Every term expressly defined by this Consent Decree shall have the meaning given to that 

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

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

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

means under the Act or those implementing regulations. 

202. Nothing in this Consent Decree is intended to, or shall, alter or waive any applicable law 

(including but not limited to any defenses, entitlements, challenges, or clarifications 

related to the Credible Evidence Rule, 62 Fed. Reg. 8315 (Feb. 27, 1997)) concerning the 

use of data for any purpose under the Act, generated either by the reference methods 

specified herein or otherwise. 

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

separate, independent requirement. 

204. Performance standards, emissions limits, and other quantitative standards set by or under 

this Consent Decree must be met to the number of significant digits in which the standard 

or limit is expressed. For example, an Emission Rate of 0.100 is not met if the actual 

Emission Rate is 0.101. 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 limit is expressed to three or two significant digits. For 

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example, if an actual Emission Rate is 0.1004, that shall be reported as 0.100, and shall be 

in compliance with an Emission Rate of 0.100, and if an actual Emission Rate is 0.1005, 

that shall be reported as 0.101, and shall not be in compliance with an Emission Rate of 

0.100. Santee Cooper shall report data to the number of significant digits in which the 

standard or limit is expressed. As otherwise applicable and unless this Consent Decree 

expressly directs otherwise, the calculation and measurement procedures established 

under 40 C.F.R. Part 75 apply to the measurement and calculation of NOx and SO2 

emissions under this Consent Decree. 

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

Consent Decree as against any third parties. 

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

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

Decree, and supercedes all prior agreements and understandings among the Parties related 

to the subject matter herein. No document, representation, inducement, agreement, 

understanding, or promise constitutes any part of this Consent Decree or the settlement it 

represents, nor shall they be used in construing the terms of this Consent Decree. 

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 terms and conditions of this Consent Decree and to execute and legally bind 

to this document the Party he or she represents. 

209. This Consent Decree may be signed in counterparts, and such counterpart signature pages 

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shall be given full force and effect. 

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

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

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

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

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

comments disclose facts or considerations which indicate that the Consent Decree is 

inappropriate, improper or inadequate. 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. Termination as to Completed Tasks. As soon as Santee Cooper completes a construction 

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

Santee Cooper may, by motion to this Court, seek termination of the provision or 

provisions of this Consent Decree that imposed the requirement. 

213. Conditional Termination of Enforcement Through the Consent Decree. After Santee 

Cooper: 

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a. has successfully completed construction, and has maintained operation, of 

all pollution controls as required by this Consent Decree; 

b. has obtained final Title V permits (i) as required by the terms of this 

Consent Decree; (ii) that cover all Units in this Consent Decree; and (iii) 

that include as enforceable permit terms all of the Unit performance and 

other requirements specified in Section XVI (Permits) of this Consent 

Decree; and 

c. certifies that the date is later than December 31, 2015; 

then Santee Cooper may so certify these facts to the Plaintiffs and this Court. If the 

Plaintiffs do not object in writing with specific reasons within forty-five (45) days of 

receipt of Santee Cooper’s certification, then, for any violations that occur after the filing 

of notice, the Plaintiffs shall pursue enforcement of the requirements contained in the Title 

V permit through the applicable Title V permit and not through this Consent Decree. 

214. Resort to Enforcement under this Consent Decree. Notwithstanding Paragraph 213, if 

enforcement of a provision in this Consent Decree cannot be pursued by a Party under the 

applicable Title V permit, or if a Consent Decree requirement was intended to be part of a 

Title V Permit and did not become or remain part of such permit, then such requirement 

may be enforced under the terms of this Consent Decree at any time. 

XXVII. FINAL JUDGMENT 

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

constitute a final judgment in the above-captioned matter between the Plaintiffs and 

Santee Cooper. 

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SO ORDERED, THIS _____ DAY OF ________________, 2004.

_________________________________________

UNITED STATES DISTRICT COURT JUDGE

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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

Environmental and Natural Resources Division

United States Department of Justice

MATTHEW W. MORRISON

Senior Counsel

Environmental Enforcement Section

Environmental and Natural Resources Division

United States Department of Justice

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

PHYLLIS P. HARRIS

Acting Assistant Administrator

Office of Enforcement and Compliance Assurance

United States Environmental Protection Agency

ADAM M. KUSHNER

Acting Director, Air Enforcement Division

Office of Enforcement and Compliance Assurance

United States Environmental Protection Agency

EDWARD J. MESSINA

Attorney Advisor

Air Enforcement Division

Office of Enforcement and Compliance Assurance

United States Environmental Protection Agency

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

_______________________________

J. I. PALMER, JR.

Regional Administrator

U.S. Environmental Protection Agency

Region 4

61 Forsyth St., S.W.

Atlanta, GA 30303 

_______________________________

PAUL SCHWARTZ

Associate Regional Counsel

U.S. Environmental Protection Agency

Region 4

61 Forsyth Street, S.W.

Atlanta, GA 30303

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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 Commissioner for Environmental Quality 

Control 

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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

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APPENDIX 

SANTEE COOPER ENVIRONMENTAL MANAGEMENT SYSTEMS 

Initial Review of Current Environmental Management Systems 

1. Within one hundred twenty (120) days after entry of this Consent Decree, Santee Cooper 

shall submit to EPA and DHEC for review and approval the following: 

a. the name, affiliation and address of an auditor to perform a review and evaluation 

of the existing systems and procedures utilized by Santee Cooper for ensuring 

compliance with all applicable environmental laws (“Environmental Management 

Systems” or “EMS”) at each facility within the Santee Cooper System; each such 

auditor shall be referred to as an “Initial Auditor” and the initial review and 

evaluation shall be referred to as the “Initial EMS Review and Evaluation”; 

b. evidence that each Initial Auditor satisfies the qualification requirements of ISO 

14012 (First edition, 1996-10-01), has a working knowledge of the Santee Cooper 

System facilities or similar operations, and has a working knowledge of federal 

and state environmental requirements which apply to each facility within the 

Santee Cooper System; and 

c. a schedule, including milestones, for conducting the Initial EMS Review and 

Evaluation. 

2. Within forty-five (45) days after receipt of approval from EPA and DHEC, Santee Cooper 

shall direct the Initial Auditor(s) identified pursuant to Paragraph 1 of this Appendix to 

conduct and complete 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. 

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3. Within one hundred eighty (180) days after receipt of approval from EPA and DHEC, the 

Initial Auditors shall submit 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. 

Development of the Environmental Management Systems Manual 

4. Based on the results of the Initial EMS Review and Evaluation and other information as 

appropriate, Santee Cooper shall develop a comprehensive environmental management 

system (“Comprehensive EMS”) for ensuring compliance with all applicable 

environmental laws at each facility within the Santee Cooper System. 

5. Within one hundred eighty (180) days after completion of the written report required by 

Paragraph 3 of this Appendix, Santee Cooper shall submit to EPA and DHEC for review 

and approval an environmental management systems manual (“EMS Manual”) describing 

and documenting the Comprehensive EMS, including a schedule for implementation of 

the Comprehensive EMS. For each of the following elements, the EMS Manual shall 

describe how the activity or program will be: (a) established as a formal system or task, 

(b) integrated into ongoing department operations, and (c) continuously evaluated and 

improved: 

a. Environmental Policy - The policy upon which the Comprehensive EMS is based 

must clearly communicate management’s commitment to achieving compliance 

with applicable federal, state, and local environmental statutes, regulations, 

enforceable agreements, and permits (“Environmental Requirements”) and 

continual improvement in environmental performance. The policy should also 

state management’s intent to provide adequate personnel and other resources for 

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the Comprehensive EMS. 

b. Organization, Personnel, and Oversight of the Comprehensive EMS - This section 

of the EMS Manual shall: 

i. describe, organizationally, how the Comprehensive EMS is implemented 

and maintained; 

ii. include organization charts that identify units, line management, and other 

individuals having environmental performance and regulatory compliance 

responsibilities; 

iii. identify and define specific duties, responsibilities, and authorities of key 

environmental program personnel to participate in implementing and 

sustaining the Comprehensive EMS; and 

iv. establish means of communicating, receiving, and addressing feedback on 

environmental issues, concerns, and information, 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 environmental responsibilities of the 

organization’s managers, on-site service providers, and contractors for 

environmental protection practices, assuring compliance with the 

Comprehensive EMS, required reporting to regulatory agencies, and 

corrective actions implemented in their area(s) of responsibility, as they 

relate to the Santee Cooper System; 

ii. describe incentive programs, consistent with applicable State law, for 

managers and employees to improve and enhance compliance with 

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Environmental Requirements; and 

iii. describe potential consequences for departure from specified operating 

procedures, including liability for civil and administrative penalties 

imposed as a result of noncompliance with Environmental Requirements. 

d. Environmental Requirements - This section of the EMS Manual shall: 

i. describe the process for identifying, interpreting, and effectively 

communicating Environmental Requirements to affected organization 

personnel, on-site service providers, and contractors, and then ensuring that 

facility activities conform to those requirements (i.e., ongoing compliance 

monitoring); 

ii. specify procedures for prospectively identifying and obtaining information 

about changes and proposed changes in Environmental Requirements, and 

incorporating those changes into the Comprehensive EMS; and 

iii. describe processes to ensure communication with regulatory agencies 

regarding compliance with Environmental Requirements. 

e. Assessment, 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 environmental protection, 

and maintaining compliance with Environmental Requirements; 

ii. describe monitoring and measurements, as appropriate, to ensure sustained 

compliance; 

iii. identify operations and waste streams where equipment malfunctions and 

deterioration, operator errors, and discharges or emissions may be causing, 

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or may lead to, releases of hazardous waste or other pollutants to the 

environment, a threat to human health or the environment, or violations of 

Environmental Requirements; 

iv. describe a process for identifying operations and activities where 

documented standard operating practices are needed to prevent potential 

violations or pollutant releases, and define a uniform process for 

developing, approving and implementing the standard operating practices; 

v. describe a system for conducting and documenting routine, objective, 

self-inspections by department supervisors and trained staff to check for 

worker adherence to standard operating procedures, malfunctions, 

deterioration, and unauthorized releases; and 

vi. describe a process for ensuring consideration of Environmental 

Requirements and environmental concerns in the planning, design, and 

operation of ongoing, new, and/or changing processes, equipment, and 

maintenance activities. 

f. Environmental Incident and Noncompliance Investigations - This section of the 

EMS Manual shall: 

i. describe standard procedures and requirements for internal and external 

reporting of potential violations and release incidents; 

ii. establish procedures for investigation, and prompt and appropriate 

correction, of potential violations; 

iii. specify self-testing of such procedures, where practicable; and 

iv. describe a system for developing, tracking, and verifying the effectiveness 

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of corrective and preventative actions. 

g. Environmental Training, Awareness, and Competence - This section of the EMS 

Manual shall: 

i. identify specific education and training required for organization personnel, 

as well as a process for documenting the training provided; 

ii. describe programs to ensure that employees are aware of organizational 

environmental policies and procedures, Environmental Requirements, and 

their roles and responsibilities under the Comprehensive EMS; and 

iii. describe programs for ensuring that personnel responsible for meeting and 

maintaining compliance with Environmental Requirements are competent 

on the basis of appropriate education, training, and/or experience. 

h. Environmental Planning and Organizational Decision-Making - This section of the 

EMS Manual shall: 

i. describe how environmental planning will be integrated into organizational 

decision-making, including plans and decisions on capital improvements, 

process design, training programs, and maintenance activities; 

ii. require written environmental targets, objectives, and action plans 

(including, at a minimum, targets, objectives, and action plans to reduce the 

risk of noncompliance with Environmental Requirements) for each 

individual organizational unit and contractor operation with environmental 

responsibilities at a Santee Cooper System facility; and 

iii. specify how the targets, objectives, and action plans will be tracked and 

progress reported. 

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i. Maintenance of Records and Documentation - This section of the EMS Manual 

shall: 

i. identify the types of records developed and to be developed in support of 

the Comprehensive EMS (including audits and reviews), the persons 

responsible for maintaining such records, the location of such records, and 

the protocols for responding to inquiries and requests for information; 

ii. specify the data management systems for environmental data and 

information; and 

iii. specify document control procedures. 

j. Pollution Prevention Program - This section of the EMS Manual shall: 

i. describe an internal program for preventing, reducing, recycling, reusing, 

and minimizing waste and emissions, including procedures to encourage 

material substitutions; and 

ii. include mechanisms for identifying candidate materials to be addressed by 

the program and for tracking progress. 

k. Continuing Program Evaluation and Improvement - This section of the EMS 

Manual shall: 

i. describe a program for periodic (at least annual) evaluation of the 

Comprehensive EMS; 

ii. provide that the results of the evaluation shall be incorporated into the 

Comprehensive EMS and the EMS Manual, and shall be communicated to 

affected employees, on-site service providers, and contractors; and 

iii. describe a program for audits, by an independent auditor(s), of each 

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facility’s compliance with Environmental Requirements, at least once for 

each facility every four years, which also requires that the results of the 

audits be provided to upper management and requires that potential 

violations be addressed through the process described in Subparagraph 5.f. 

of this Appendix. 

l. Public Involvement/Community Outreach - This section of the EMS Manual shall 

describe a program for ongoing community education and involvement in the 

environmental aspects of Santee Cooper’s operations. 

6. Within sixty (60) days after receipt of comments from EPA and DHEC on the proposed 

EMS Manual, Santee Cooper shall submit to EPA and DHEC a revised EMS Manual 

incorporating and reflecting those comments. 

7. Within sixty (60) days after receipt of approval from EPA and DHEC on the revised EMS 

Manual, Santee Cooper shall immediately commence implementation of the 

Comprehensive EMS in accordance with the schedule contained in the approved EMS 

Manual. 

EMS Status Reports 

8. Santee Cooper shall submit to EPA and DHEC status reports on the implementation of the 

Comprehensive EMS on a periodic (at least annual) basis, beginning no later than one 

hundred eighty (180) days after commencing implementation of the Comprehensive EMS, 

and continuing until: (a) each facility has undergone at least one audit for compliance with 

Environmental Requirements pursuant to Subparagraph 5.k.iii. of this Appendix, or (b) 

one year after the facility manager for each Santee Cooper System facility has certified, 

pursuant to Paragraph 18 of this Appendix, that all items or activities in the Post-Audit 

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Action Plan for that facility have been completed, whichever is later. 

Selection of a Consultant Auditor to Conduct an Audit of Santee Cooper’s Comprehensive 

EMS 

9. Within one hundred eighty (180) days after commencing implementation of the 

Comprehensive 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) meets the qualification requirements of ISO 14012 (First edition, 

1996-10-01); and (c) has expertise and competence in applicable regulatory programs 

under federal and state environmental laws. 

10. The Consultant Auditor shall be paid by Santee Cooper, but must not directly own any 

stock in Santee Cooper or in any parent or subsidiary, and must have no other direct 

financial stake in the outcome 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 determine that the proposed Consultant Auditor does not meet 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 judgment 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. 

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Audit of Santee Cooper’s Comprehensive EMS 

12. Santee Cooper shall require the Consultant Auditor to conduct an EMS Audit to evaluate 

Santee Cooper’s implementation of its Comprehensive EMS, from top management down 

through each major organizational unit at the Facility, and to identify where further 

improvements should be made to Santee Cooper’s Comprehensive 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 supplemental guidance. The Consultant Auditor shall 

assess Santee Cooper’s conformance with the EMS Manual, and conformance of the EMS 

Manual with the elements specified in Paragraph 5 of this Appendix, and shall determine 

the following: 

a. Whether there is a defined system, program, or planned task for each element of 

the Comprehensive EMS; 

b. To what extent the system, program, or task has been implemented, and is being 

maintained; 

c. The adequacy of each operational unit’s internal self-assessment procedures for 

programs and tasks comprising the Comprehensive EMS; 

d. Whether Santee Cooper is effectively communicating Environmental 

Requirements to affected parts of the organization, contractors, and on-site service 

providers; 

e. Whether there are observed deviations from Santee Cooper’s written requirements 

or procedures; 

f. Whether continuous improvement in compliance with Environmental 

Requirements is occurring; and 

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g. Whether further improvements should be made to the Comprehensive EMS. 

13. Designated representatives from EPA and DHEC may participate in the EMS Audit as 

observers. Santee Cooper shall make timely notification to designated regulatory contacts 

regarding audit scheduling in order to make arrangements for observers to be present. 

Santee Cooper personnel may also participate in the on-site EMS Audits as observers, but 

may not interfere with the independent judgement of the Consultant Auditor. 

14. Within one hundred twenty (120) days of approval of the Consultant Auditor, Santee 

Cooper shall require the Consultant Auditor to submit an EMS Audit Report 

simultaneously to Santee Cooper, EPA and DHEC. The EMS Audit Report shall, at a 

minimum, contain the following information: 

a. Audit scope, including the period of time covered by the audit; 

b. The dates the on-site portion of the audit was conducted; 

c. Identification of audit team members; 

d. Identification of Santee Cooper representatives and regulatory agency personnel 

observing the audit; 

e. A summary of the audit process, including any obstacles encountered; 

f. Detailed findings, including the basis for each finding and each area of concern 

identified; 

g. Identification of any findings corrected or areas of concern addressed during the 

audit, and a description of the corrective measures and when they were 

implemented; and 

h. Certification by the Consultant Auditor that the EMS Audit was conducted in 

accordance with the provisions of this Appendix. 

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15. If the Consultant Auditor believes that additional time is needed to analyze available 

information or to gather additional information, Santee Cooper may request that EPA and 

DHEC grant the Consultant Auditor such additional time as needed to prepare and submit 

the EMS Audit Report. EPA’s and DHEC’s decision whether to grant additional time 

shall be final and unreviewable. 

Post-Audit Action Plan for Corrective Measures 

16. Within one hundred twenty (120) days of receiving the EMS Audit Report for each Santee 

Cooper facility, Santee Cooper shall develop and submit to EPA and DHEC for review 

and comment, a Post-Audit Action Plan for expeditiously bringing the EMS Manual into 

conformance with the elements specified in Paragraph 5 of this Appendix, for 

expeditiously bringing each Santee Cooper facility into conformance 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 assignments, and an implementation schedule. 

17. EPA and DHEC shall review the Post-Audit Action Plan and shall provide written 

comments to Santee Cooper. Within sixty (60) days of receipt of such comments, Santee 

Cooper shall make any modifications to the Post-Audit Action Plan required to respond to 

EPA and DHEC comments, and shall implement the Post-Audit Action Plan in accordance 

with the schedules set forth therein. 

18. Within thirty (30) days after all items or activities in the Post-Audit Action Plan have been 

completed at a Santee Cooper System facility, the facility manager for that facility shall 

certify such completion in writing to EPA and DHEC. 

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