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IN THE UNITED STATES DISTRICT COURT 


FOR THE SOUTHERN DISTRICT OF INDIANA 


UNITED STATES OF AMERICA, ) 


) 


 AND )


 )
 

THE STATE OF INDIANA, ) 


) 


 PLAINTIFFS, ) 


 )


 v. ) Civil Action No.: ________________ 

)
 

HOOSIER ENERGY RURAL ) 


ELECTRIC COOPERATIVE, INC. ) 


)


 Defendant. ) 


)
 

__________________________________________)
 

CONSENT DECREE 
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TABLE OF CONTENTS
 

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


II. APPLICABILITY........................................................................... 4 


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


IV. NOx EMISSION REDUCTIONS AND CONTROLS................................ 16
 

V. SO2 EMISSION REDUCTIONS AND CONTROLS................................... 21
 

VI. H2SO4 EMISSION REDUCTIONS AND CONTROLS.............................. 29
 

VII. PM EMISSION REDUCTIONS AND CONTROLS.................................. 33
 

VIII. PROHIBITION ON NETTING CREDITS OR OFFSETS........................... 37
 

IX. ENVIRONMENTAL MITIGATION PROJECTS.................................... 38
 

X. CIVIL PENALTY.......................................................................... 40
 

XI. RESOLUTION OF CIVIL CLAIMS AGAINST HOOSIER....................... 41
 

XII. PERIODIC REPORTING................................................................. 47
 

XIII. REVIEW AND APPROVAL OF SUBMITTALS..................................... 49
 

XIV. STIPULATED PENALTIES............................................................. 50
 

XV. FORCE MAJEURE........................................................................ 61
 

XVI. DISPUTE RESOLUTION................................................................ 65
 

XVII. PERMITS.................................................................................... 67
 

XVIII. INFORMATION COLLECTION AND RETENTION.............................. 69
 

XIX. NOTICES.................................................................................... 71
 

XX. SALES OR TRANSFERS OF OPERATIONAL OR OWNERSHIP INTERESTS....... 73
 

XXI. EFFECTIVE DATE........................................................................ 74
 

XXII. RETENTION OF JURISDICTION...................................................... 75
 

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XXIII. MODIFICATION.......................................................................... 75
 

XXIV. GENERAL PROVISIONS................................................................ 75
 

XXV. SIGNATORIES AND SERVICE........................................................ 78
 

XXVI. PUBLIC COMMENT...................................................................... 78
 

XXVII. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER CONSENT 


DECREE..................................................................................... 79
 

XXVIII. FINAL JUDGMENT....................................................................... 80
 

APPENDIX A -- ENVIRONMENTAL MITIGATION PROJECTS 


APPENDIX B – MEROM FGD OPERATION 


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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 State of Indiana, 

are concurrently filing a Complaint and Consent Decree 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 326 Indiana Administrative Code sections 2-2 and 2-7, alleging that 

Defendant, Hoosier Energy Rural Electric Cooperative, Inc. (“Hoosier”) has undertaken 

construction projects at a major emitting facility in violation of the Prevention of Significant 

Deterioration (“PSD”) provisions of Part C of Subchapter I of the Act, 42 U.S.C. §§ 7470-7492, 

and in violation of the federally approved and enforceable Indiana State Implementation Plan 

(“Indiana SIP”); 

WHEREAS, EPA issued a Notice of Violation and Finding of Violation (“NOV/FOV”) 

to Hoosier with respect to such allegations on August 26, 2009; 

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

to Hoosier’s alleged violations, in accordance with Section 113(a)(1) and (b) of the Act, 42 

U.S.C. § 7413(a)(1) and (b); 

WHEREAS, in the Complaint, the United States and the State of Indiana (collectively 

“Plaintiffs”) allege, inter alia, that Hoosier failed to obtain the necessary permits and install the 

controls necessary under the Act to reduce sulfur dioxide (“SO2”), oxides of nitrogen (“NOx”), 

and particulate matter (“PM”), and that Hoosier failed to obtain an operating permit under Title 

V of the Act that reflects applicable requirements imposed under Part C of Subchapter I of the 

Act for its Merom Generating Station (“Merom”), located in Sullivan County, Indiana; 

WHEREAS, in the Complaint, the Plaintiffs allege claims upon which relief can be 

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

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WHEREAS, the Plaintiffs and Hoosier (collectively, the “Parties”) have agreed that 

settlement of this action is in the best interests 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, this Consent Decree requires Hoosier to, inter alia, upgrade Flue Gas 

Desulfurization Systems (“FGDs”) that were installed at Merom in 1982 and 1983 and upgrade 

Selective Catalytic Reduction devices (“SCRs”) that were installed at Merom in 2004; 

WHEREAS, this Consent Decree provides Hoosier with an affirmative defense to 

stipulated penalties pursuant to Section XIV (Stipulated Penalties) based upon EPA’s Excess 

Emissions Policies, including the policy titled “State Implementation Plans: Policy Regarding 

Excess Emissions During Malfunctions, Startup, and Shutdown,” issued on September 20, 1999, 

which describes the conditions under which an owner or operator of a source, bearing the burden 

of proof, may avail itself of an affirmative defense in a civil or administrative action, other than a 

judicial action for injunctive relief, if the owner or operator of the source has emissions in excess 

of an applicable emission limitation due to malfunction, startup, or shutdown; and EPA will 

interpret the affirmative defense contained herein consistent with its Excess Emissions Policies; 

WHEREAS, the Parties have agreed, and this 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, in the public interest, and consistent with the goals of the Act; 

WHEREAS, Hoosier has cooperated in the resolution of this matter; 

WHEREAS, Hoosier denies the violations alleged in the Complaint, and nothing herein 

shall constitute an admission of liability; 

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WHEREAS, Hoosier maintains that its agreement in this Consent Decree to install, 

correlate, maintain, and operate Particulate Matter Continuous Emissions Monitoring Systems 

(“PM CEMS”) shall not prevent Hoosier in any future proceedings from challenging the 

relationship between the data generated from such PM CEMS, including the averaging period for 

which such data is reported pursuant to Paragraph 129, and the results of performance tests for 

PM (e.g., Method 5); and 

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

any issues; 

NOW, THEREFORE, without any admission of fact or law, 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, and for no 

other purpose, Hoosier waives all objections and defenses that it may have to the Court’s 

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

district. Hoosier consents to and shall not challenge entry of this Consent Decree or this 

Court’s jurisdiction to enter and enforce this Consent Decree. Except as expressly 

provided for herein, this Consent Decree shall not create any rights in or obligations of 

any party other than the Parties to this Consent Decree. Except as provided in Section 

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XXVI (Public Comment) of this Consent Decree, the Parties consent to entry of this 

Consent Decree without further notice. 

II. APPLICABILITY 

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

Parties, their successors and assigns, and upon Hoosier’s directors, officers, employees, 

servants, and agents solely in their capacities as such. 

3.	 Hoosier 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, Hoosier 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, Hoosier 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 it is determined to be a Force Majeure Event as defined in 

Paragraph 178 of this Consent Decree. 

III. DEFINITIONS 

4.	 Every term expressly defined by this Section shall have the meaning given that term 

herein. Every other term used in this Consent Decree that is also a term used under the 

Act or in a federal regulation implementing the Act shall mean in this Consent Decree 

what such term means under the Act or those regulations. 

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5.	 A “1-Hour Average NOx Emission Rate” for a gas-fired, electric generating unit shall be 

expressed as the average concentration in parts per million (ppm) by dry volume, 

corrected to 15% O2, as averaged over one (1) hour. In determining the 1-Hour Average 

NOx Emission Rate, Hoosier shall use CEMS in accordance with the procedures 

specified in 40 C.F.R. Part 60 to calculate emissions for each 15 minute interval within 

each clock hour, except as provided in this Paragraph. Compliance with the 1-Hour 

Average NOx Emission Rate shall be demonstrated by averaging all 15-minute CEMS 

interval readings within a clock hour, except that any 15-minute CEMS interval that 

contains any part of a startup or shutdown shall not be included in the calculation of that 

1-hour average. A minimum of two 15-minute CEMS interval readings within a clock 

hour, not including startup or shutdown intervals, is required to determine compliance 

with the 1-Hour Average NOx Emission Rate. All emissions recorded by CEMS shall be 

reported in 1-hour averages. 

6.	 A “30-Day Rolling Average NOx Emission Rate” for a Unit shall be expressed in 

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

total pounds of NOx emitted from the Unit during the current Unit Operating Day and the 

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

Unit in mmBTU during the current Unit Operating Day and the previous twenty-nine 

(29) Unit Operating Days; and third, divide the total number of pounds of NOx emitted 

during the thirty (30) Unit Operating Days by the total heat input during the thirty (30) 

Unit Operating Days. A new 30-Day Rolling Average NOx Emission Rate shall be 

calculated for each new Unit Operating Day. Each 30-Day Rolling Average NOx 

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Emission Rate shall include all emissions that occur during all periods within any Unit 

Operating Day, including emissions from startup, shutdown, and malfunction. 

7.	 “Available” means, with regard to the coal necessary to achieve and maintain a 30-Day 

Rolling Average SO2 Emission Rate of no greater than 2.00 lb/mmBTU as specified in 

Paragraph 85, such coal that: (1) is available for sale to Hoosier in a sufficient quantity to 

enable Hoosier to meet the emissions limitation in Paragraph 85; (2) is located at mines 

within 100 miles of Ratts; (3) has a low enough sulfur content to enable Hoosier to meet 

the emissions limitation in Paragraph 85; (4) meets the Ratts coal quality specifications 

for ash fusion, BTU content, moisture, ash content, grindability, percent fines, volatile 

matter, fixed carbon, and other environmental requirements; (5) is able to be transported 

to Ratts; and (6) is available at a cost which is no more than 20 percent higher than the 

delivered price per ton for the calendar year for 11,500 BTU/lb, 2.5 lb/ SO2 coal 

transported out of the Illinois Basin by rail, as published in Platts Coal Outlook under the 

Weekly Price Survey for the relevant week. 

8.	 A “30-Day Rolling Average SO2 Removal Efficiency” means the percent reduction in the 

mass of SO2 achieved by a Unit’s FGD system over a thirty (30) Unit Operating Day 

period and shall be calculated as follows: step one, sum the total pounds of SO2 emitted 

as measured at the outlet of the FGD system for the Unit during the current Unit 

Operating Day and the previous twenty-nine (29) Unit Operating Days as measured at the 

outlet of the FGD system for that Unit; step two, sum the total pounds of SO2 delivered to 

the inlet of the FGD system for the Unit during the current Unit Operating Day and the 

previous twenty-nine (29) Unit Operating Days as measured at the inlet to the FGD 

system for that Unit (this shall be calculated by measuring the ratio of the lb/mmBTU 

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SO2 inlet to the lb/mmBTU SO2 outlet and multiplying the outlet pounds of SO2 by that 

ratio); step three, subtract the outlet SO2 emissions calculated in step one from the inlet 

SO2 emissions calculated in step two; step four, divide the difference calculated in step 

three by the inlet SO2 emissions calculated in step two; and step five, multiply the 

quotient calculated in step four by 100 to express the emission limit as a removal 

efficiency percentage. A new 30-Day Rolling Average SO2 Removal Efficiency shall be 

calculated for each new Unit Operating Day. Each 30-Day Rolling Average SO2 

Removal Efficiency shall include all emissions that occur during all periods within any 

Unit Operating Day, including emissions from startup, shutdown, and malfunction. 

9.	 A “30-Day Rolling Average SO2 Emission Rate” for a Unit shall be expressed in 

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

total pounds of SO2 emitted from the Unit during the current Unit Operating Day and the 

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

Unit in mmBTU during the current Unit Operating Day and the previous twenty-nine 

(29) Unit Operating Days; and third, divide the total number of pounds of SO2 emitted 

during the thirty (30) Unit Operating Days by the total heat input during the thirty (30) 

Unit Operating Days. A new 30-Day Rolling Average SO2 Emission Rate shall be 

calculated for each new Unit Operating Day. Each 30-Day Rolling Average SO2 

Emission Rate shall include all emissions that occur during all periods within any Unit 

Operating Day, including emissions from startup, shutdown, and malfunction. 

10.	 “Baghouse” means a full stream (fabric filter) particulate emissions control device. 

11.	 “Biomass” means any organic matter that is available on a renewable basis from nonfederal land, including: renewable plant material; waste material, including crop residue; 

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other vegetative waste material, including wood waste and wood residues; animal waste 

and byproducts; construction, food, and yard waste; and residues and byproducts from 

wood pulp or paper products facilities. Biomass is “available on a renewable basis” if it 

originates from forests that remain forests, or from croplands and/or grasslands that 

remain croplands and/or grasslands or revert to forests. Biomass “residues and 

byproducts from wood pulp or paper products facilities” includes byproducts, residues, 

and waste streams from agriculture, forestry, and related industries. 

12.	 “Boiler Island” means a Unit’s (a) fuel combustion system (including bunker, coal 

pulverizers, crusher, stoker, and fuel burners); (b) combustion air system; (c) steam 

generating system (firebox, boiler tubes, and walls); and (d) draft system (excluding the 

stack), all as further described in “Interpretation of Reconstruction,” by John B. Rasnic, 

U.S. EPA (November 25, 1986) and attachments thereto. 

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

involving the monitoring of NOx and SO2 emissions under this Consent Decree, the 

devices defined in 40 C.F.R. § 72.2, the inlet SO2 lb/mmBTU monitors, and the computer 

system for recording, calculating, and storing data and equations required by this Consent 

Decree. 

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

and its implementing regulations. 

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

incorporated into the Consent Decree. 

16.	 “Continuously Operate” or “Continuous Operation” means that when an SCR, SNCR, 

FGD, RI, ESP, Baghouse (if applicable), or Low NOx Burner Combustion System is 

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used at a Unit, except as otherwise provided by Section XV (Force Majeure), it shall be 

operated at all times such Unit is in operation, consistent with the technological 

limitations, manufacturers’ specifications, and good engineering and maintenance 

practices for such equipment and the Unit so as to minimize emissions to the greatest 

extent practicable. 

17.	 “Date of Entry” means the date this Consent Decree is approved or signed by the United 

States District Court Judge. 

18.	 “Date of Lodging” means the date this Consent Decree is filed for lodging with the Clerk 

of the Court for the United States District Court for the Southern District of Indiana. 

19.	 “Day” means calendar day unless otherwise specified in this Consent Decree. 

20.	 “Electrostatic Precipitator” or “ESP” means a device for removing particulate matter 

from combustion gases by imparting an electric charge to the particles and then attracting 

them to a metal plate or screen of opposite charge before the combustion gases are 

exhausted to the atmosphere. 

21.	 “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. 

22.	 “Environmental Mitigation Projects” or “Projects” means the projects set forth in 

Appendix A to this Consent Decree. 

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

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

employs flue gas desulfurization technology, including an absorber utilizing lime, fly ash, 

or limestone slurry, for the reduction of SO2 emissions. 

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

or natural gas. 

26.	 “H2SO4” means sulfuric acid, measured in accordance with the provisions of this Consent 

Decree. 

27.	 “H2SO4 Emission Rate” means the number of pounds of H2SO4 emitted per million BTU 

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

Paragraph 116. 

28.	 “Hoosier” or “Defendant” means Hoosier Energy Rural Electric Cooperative, Inc. 

29.	 “Hoosier System” means the Merom and Ratts facilities as defined herein. 

30.	 “IDEM” means the Indiana Department of Environmental Management. 

31.	 “Indiana SIP” means the Indiana State Implementation Plan, and any amendments 

thereto, as approved by EPA pursuant to Section 110 of the Act, 42 U.S.C. § 7410. 

32.	 “Low NOx Combustion System” means burners and associated combustion air control 

equipment, including overfire air, for combusting pulverized coal, which control mixing 

characteristics of the pulverized coal and oxygen, lower the combustion rate, lower 

oxygen concentration and heat temperature during the initial phase of combustion, and 

thereby restrain the formation of NOx created by both the nitrogen content of the 

pulverized coal and by heat. 

33.	 “Merom” means Hoosier’s Merom Generating Station consisting of two dry-bottom 

turbo-fired boilers designated as Unit 1 (547 Gross MW) and Unit 2 (547 Gross MW) 

and related equipment, which is located in Sullivan County, Indiana. 

34.	 “Netting” shall mean the process of determining whether a particular physical change or 

change in the method of operation of a major stationary source results in a net emissions 

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increase, as that term is defined at 40 C.F.R. § 52.21(b)(3)(i) and at 326 IAC 2-2-1(jj) of 

the Indiana SIP. 

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

Consent Decree. 

36.	 “NOx Allowance” means an authorization to emit a specified amount of NOx that is 

allocated or issued under an emissions trading or marketable permit program of any kind 

that has been established under the Clean Air Act or a state implementation plan. 

37.	 “Nonattainment NSR” means the new source review program within the meaning of Part 

D of Subchapter I of the Act, 42 U.S.C. §§ 7501-7515, and the federal regulations 

codified at 40 C.F.R. Part 51, and the federally approved provisions of the Indiana SIP, 

326 IAC 2-3. 

38.	 “Operational or Ownership Interest” means part or all of Hoosier’s legal or equitable 

operational or ownership interest in any Unit at Merom or Ratts. 

39.	 “Parties” means the United States of America on behalf of EPA, the State of Indiana, 

including the Indiana Attorney General and the Indiana Department of Environmental 

Management, and Hoosier. “Party” means one of the named “Parties.” 

40.	 “PM” means total filterable particulate matter, measured in accordance with the 

provisions of this Consent Decree. 

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

involving the monitoring of PM emissions under this Consent Decree, the equipment that 

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

electronic and/or paper record of PM emissions. 

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42.	 “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 Paragraph 

123. 

43.	 “Plant-Wide 12-Month Rolling SO2 Tonnage Limitation” at Ratts means the sum of the 

tons of SO2 emitted from Ratts Unit 1 and Unit 2 in the most recent complete month and 

the previous eleven (11) months. A new Plant-Wide 12-Month Rolling SO2 Tonnage 

Limitation shall be calculated for each new complete month in accordance with the 

provisions of this Consent Decree. Each Plant-Wide 12-Month Rolling SO2 Tonnage 

Limitation shall include all emissions that occur during all periods of operation, including 

startup, shutdown, and malfunction. 

44.	 “Prevention of Significant Deterioration” or “PSD” means the new source review 

program within the meaning of Part C of Subchapter I of the Clean Air Act, 42 U.S.C. §§ 

7470-7492, the federal regulations codified at 40 C.F.R. Part 52, and the federally 

approved provisions of the Indiana SIP, 326 IAC 2-2. 

45.	 “Project Dollars” means Hoosier’s expenditures and payments incurred or made in 

carrying out the Environmental Mitigation Projects identified in Section IX 

(Environmental Mitigation Projects) of this Consent Decree to the extent that such 

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

and Appendix A of this Consent Decree, and (b) constitute Hoosier’s direct payments for 

such projects, or Hoosier’s external costs for contractors, vendors, and equipment. 

46.	 “Ratts” means Hoosier’s Ratts Generating Station consisting of two dry-bottom wallfired boilers designated as Unit 1 (132 MW) and Unit 2 (132 MW) and related 

equipment, which is located in Pike County, Indiana. 

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47.	 “Reagent Injection” or “RI” means an H2SO4 control system consisting of the injection of 

a reagent in the flue gas stream to react with the acid gases and reduce the outlet H2SO4 

Emission Rate. 

48.	 “Removal Efficiency” for a given pollutant means the percentage of that pollutant 

removed by the applicable emission control device, measured in accordance with the 

provisions of this Consent Decree. 

49.	 “Repower” or “Repowered” means that a Unit is either Repowered to Biomass or 

Repowered to Natural Gas within the meaning of this Consent Decree. 

50.	 “Repowered to Biomass” means, for purposes of this Consent Decree, a Unit at Ratts that 

is repowered to exclusively combust Biomass and that shall achieve and maintain the 

following emissions limitations: A 30-Day Rolling Average NOx Emission Rate of no 

greater than 0.100 lb/mmBTU; a 30-Day Rolling Average SO2 Emission Rate of no 

greater than 0.100 lb/mmBTU; and a PM Emission Rate of no greater than 0.015 

lb/mmBTU. 

51.	 “Repowered to Natural Gas” means the modification of a Unit, or removal and 

replacement of Unit components, such that the modified or replaced Unit generates 

electricity solely through the combustion of natural gas rather than coal and without the 

use of combustion turbine technology, where such natural gas contains no more than 0.5 

grains of sulfur per 100 standard cubic feet of natural gas, and the Unit at a minimum 

achieves and maintains a 1-Hour Average NOx Emission Rate of no greater than 4.5 ppm. 

52.	 “Retire” means that Hoosier shall permanently shutdown and cease to operate the Unit 

such that the Unit cannot legally burn any fuel nor produce any steam for electricity 

production and that Hoosier shall comply with applicable state and federal requirements 

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for permanently retiring a coal-fired electric generating unit, including removing the Unit 

from Indiana’s air emissions inventory, and amending all applicable permits so as to 

reflect the permanent shutdown status of such Unit. 

53.	 “SCR” or “Selective Catalytic Reduction” means a pollution control device for reducing 

NOx emissions through the use of selective catalytic reduction technology. 

54.	 “SNCR” or “Selective Non-Catalytic Reduction” means a pollution control device for the 

reduction of NOx emissions through the use of selective non-catalytic reduction 

technology that utilizes ammonia or urea injection into the boiler. 

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

Decree. 

56.	 “SO2 Allowance” means an authorization or credit to emit a specified amount of SO2 that 

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

kind that has been established under the Clean Air Act or the Indiana SIP. 

57.	 “State” means the State of Indiana. 

58.	 “Super-Compliant NOx Allowance” means a NOx Allowance attributable to reductions 

beyond the requirements of this Consent Decree, as described in Paragraph 79. 

59.	 “Surrender” or “Surrender of Allowances” means, for purposes of SO2 or NOx 

Allowances, permanently surrendering allowances from the accounts administered by 

EPA and Indiana for all Units in the Hoosier System, so that such allowances can never 

be used thereafter to meet any compliance requirements under the Clean Air Act, a state 

implementation plan, or this Consent Decree. 

60.	 “System-Wide Annual NOx Tonnage Limitation” means the limitations, as specified in 

this Consent Decree, on the number of tons of NOx that may be emitted from Merom 

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Unit 1 and Unit 2 and Ratts Unit 1 and Unit 2, collectively, during the relevant calendar 

year (i.e., January 1 through December 31), and shall include all emissions of NOx during 

all periods of operations, including startup, shutdown, and malfunction. 

61.	 “System-Wide Annual SO2 Tonnage Limitation” means the limitations, as specified in 

this Consent Decree, on the number of tons of SO2 that may be emitted from Merom Unit 

1 and Unit 2 and Ratts Unit 1 and Unit 2, collectively, during the relevant calendar year 

(i.e., January 1 through December 31), and shall include all emissions of SO2 during all 

periods of operations, including startup, shutdown, and malfunction. 

62.	 “Title V Permit” means the permit required of Merom and Ratts under Subchapter V of 

the Act, 42 U.S.C. §§ 7661-7661e. 

63.	 “Unit” means 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 generator, steam turbine, and boiler, 

and all ancillary equipment, including pollution control equipment and systems necessary 

for production of electricity. An electric steam generating station may comprise one or 

more Units. 

64.	 “Unit Operating Day” means, for Merom Unit 1, any Day on which Merom Unit 1 fires 

Fossil Fuel, and, for Merom Unit 2, any Day on which Merom Unit 2 fires Fossil Fuel, 

and for Ratts Unit 1, any Day on which Ratts Unit 1 fires Fossil Fuel, and, for Ratts Unit 

2, any Day on which Ratts Unit 2 fires Fossil Fuel. 

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IV. NOx EMISSION REDUCTIONS AND CONTROLS 

A. 	NOx Emission Limitations and Control Requirements 

1. 	Selective Non-Catalytic Reduction Installation, Operation, and

 Performance Requirements at Ratts Unit 1 and Unit 2 

65.	 By no later than December 31, 2011, and continuing thereafter, Hoosier shall install and 

commence Continuous Operation of SNCRs at Ratts Unit 1 and Unit 2. 

66.	 By no later than June 1, 2012, and continuing through December 30, 2014, Hoosier shall 

Continuously Operate the SNCRs at Ratts Unit 1 and Unit 2 so that each Unit achieves 

and maintains a 30-Day Rolling Average NOx Emission Rate of no greater than 0.250 

lb/mmBTU. 

67.	 By no later than December 31, 2014, and continuing thereafter, Hoosier shall 

Continuously Operate the SNCRs at Ratts Unit 1 and Unit 2 so that each Unit achieves 

and maintains a 30-Day Rolling Average NOx Emission Rate of no greater than 0.230 

lb/mmBTU. 

2. SCR Operation and Performance Requirements at Merom Unit 1 and 

Unit 2 

68.	 By no later than the Date of Entry of this Consent Decree, Hoosier shall commence 

Continuous Operation of the SCRs at Merom Unit 1 and Unit 2. 

69.	 By no later than December 31, 2010, and continuing thereafter, Hoosier shall 

Continuously Operate the SCRs at Merom Unit 1 and Unit 2 so that each Unit achieves 

and maintains a 30-Day Rolling Average NOx Emission Rate of no greater than 0.120 

lb/mmBTU. 

70.	 By no later than December 31, 2012 for one Merom Unit and December 31, 2013 for the 

other Merom Unit, and continuing thereafter, Hoosier shall Continuously Operate the 

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SCRs at each Merom Unit so that each Unit achieves and maintains a 30-Day Rolling 

Average NOx Emission Rate of no greater than 0.080 lb/mmBTU. During any 30-Day 

period used to calculate a 30-Day Rolling Average NOx Emission Rate for Merom Unit 1 

or Unit 2, if the dispatch of either Unit requires operation of such Unit(s) at a load level 

that results in flue gas temperature so low that it becomes technically infeasible to 

Continuously Operate the SCR despite Hoosier’s best efforts to do so (including, but not 

limited to, maintaining minimum load operation which provides for achieving sufficient 

inlet temperatures for injection of ammonia to the SCR), Hoosier shall not be subject to 

stipulated penalties pursuant to Section XIV (Stipulated Penalties) for violating the 

Emission Rate required by this Paragraph provided that Hoosier’s emissions do not 

exceed a 30-Day Rolling Average NOx Emission Rate of 0.090 lb/mmBTU and Hoosier 

provides EPA with data and calculations to demonstrate that but for such low load 

operation, Hoosier would have achieved and maintained a 30-Day Rolling Average NOx 

Emission Rate of no greater than 0.080 lb/mmBTU at such Unit(s). 

3. System-Wide Annual NOx Tonnage Limitation. 

71.	 Beginning in calendar year 2011, and continuing through calendar year 2012, the Hoosier 

System, collectively, shall not exceed a System-Wide Annual NOx Tonnage Limitation of 

5,869 tons. 

72.	 Beginning in calendar year 2013, and continuing through calendar year 2014, the Hoosier 

System, collectively, shall not exceed a System-Wide Annual NOx Tonnage Limitation of 

5,395 tons. 

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73.	 Beginning in calendar year 2015, and continuing each calendar year thereafter, the 

Hoosier System, collectively, shall not exceed a System-Wide Annual NOx Tonnage 

Limitation of 4,800 tons. 

B. Monitoring of NOx Emissions 

74.	 In determining a 30-Day Rolling Average NOx Emission Rate, Hoosier shall use CEMS 

in accordance with the procedures of 40 C.F.R. Part 75, except that: (1) NOx emissions 

data need not be bias adjusted; (2) for any CEMS with a span less than 100 parts per 

million (“ppm”), the calibration drift and out-of-control criteria in Procedure 1, section 

4.3 of 40 C.F.R. Part 60, Appendix F shall apply in lieu of the specifications in 40 C.F.R. 

Part 75, Appendix B; (3) for any CEMS with a span less than or equal to 30 ppm the 

exemption from the 40 C.F.R. Part 75 linearity check will not apply and either the 40 

C.F.R. Part 75 linearity check or the cylinder gas audit described in Procedure 1, section 

5.1.2 of 40 C.F.R. Part 60, Appendix F shall be performed on a quarterly basis; and (4) 

for any Unit controlled by SCR, an annual relative accuracy test audit shall meet, at a 

minimum, a relative accuracy of less than 20% or an accuracy of less than 0.015 

lb/mmBTU (expressed as the difference between the monitor mean and the reference 

value mean). 

75.	 For purposes of calculating the System-Wide Annual NOx Tonnage Limitation, Hoosier 

shall use CEMS in accordance with the procedures specified in 40 C.F.R. Part 75 

C. Use and Surrender of NOx Allowances 

76.	 Except as may be necessary to comply with Section XIV (Stipulated Penalties), Hoosier 

shall not use NOx Allowances to comply with any requirement of this Consent Decree, 

including by claiming compliance with any emission limitation required by this Consent 

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Decree by using, tendering, or otherwise applying NOx Allowances to offset any excess 

emissions. 

77.	 Beginning in calendar year 2011, and continuing each calendar year thereafter, Hoosier 

shall Surrender all NOx Allowances allocated to the Hoosier System for that calendar 

year that Hoosier does not need in order to meet its own federal and/or state Clean Air 

Act regulatory requirements for the Hoosier System Units. However, NOx Allowances 

allocated to the Hoosier System may be used by Hoosier to meets its own federal and/or 

state Clean Air Act regulatory requirements for such Units. Nothing in this Consent 

Decree shall prevent Hoosier from purchasing or otherwise obtaining NOx Allowances 

from another source for purposes of complying with federal and/or state Clean Air Act 

regulatory requirements to the extent otherwise allowed by law. 

78.	 The requirements of this Consent Decree pertaining to Hoosier’s use and Surrender of 

NOx Allowances are permanent injunctions not subject to any termination provision of 

this Consent Decree. 

D. Super-Compliant NOx Allowances 

79.	 Provided that Hoosier is in compliance with the applicable System-Wide Annual NOx 

Tonnage Limitation specified for that year, nothing in this Consent Decree shall preclude 

Hoosier from selling, banking, or transferring NOx Allowances allocated to Merom Unit 

1 and Unit 2 and Ratts Unit 1 and Unit 2 that become available for sale or trade solely as 

a result of: 

a. the installation and operation of any NOx pollution control that is not 

otherwise required by, or necessary to maintain compliance with, any provision of 

this Consent Decree, and is not otherwise required by law; 

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b. 	 the use of SNCR prior to the date established by this Consent Decree; or 

c. achievement and maintenance below the applicable 30-Day Rolling 

Average NOx Emission Rate. 

 Hoosier shall timely report the generation of such Super-Compliant NOx Allowances in 

accordance with Section XII (Periodic Reporting) of this Consent Decree. 

E. Method for Surrender of NOx Allowances 

80.	 Hoosier shall Surrender, or transfer to a non-profit third-party selected by Hoosier for 

Surrender, all NOx Allowances required to be Surrendered pursuant to Paragraph 77 by 

March 1 of the immediately following calendar year. 

81.	 If any NOx Allowances required to be Surrendered under this Consent Decree are 

transferred directly to a non-profit third-party, Hoosier shall include a description of such 

transfer in the next report submitted to EPA pursuant to Section XII (Periodic Reporting) 

of this Consent Decree. Such report shall: (a) identify the non-profit third-party 

recipient(s) of the NOx Allowances and list the serial numbers of the transferred NOx 

Allowances; and (b) include a certification by the third-party recipient(s) stating that the 

recipient(s) will not sell, trade, or otherwise exchange any of the NOx Allowances and 

will not use any of the NOx Allowances to meet any obligation imposed by any 

environmental law. No later than the third periodic report due after the transfer of any 

NOx Allowances, Hoosier shall include a statement that the third-party recipient(s) 

Surrendered the NOx Allowances for permanent Surrender to EPA in accordance with the 

provisions of Paragraph 82 within one (1) year after Hoosier transferred the NOx 

Allowances to them. Hoosier shall not have complied with the NOx Allowance Surrender 

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

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the transferred NOx Allowances to EPA. 

82.	 For all NOx Allowances required to be Surrendered, Hoosier or the third-party 

recipient(s) (as the case may be) shall first submit a NOx Allowance transfer request form 

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

of such NOx 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, Hoosier or the third-party recipient(s) shall irrevocably authorize the transfer of 

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

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

Allowances being Surrendered. 

V. SO2 EMISSION REDUCTIONS AND CONTROLS 

A. SO2 Emission Limitations and Control Requirements 

1. Limitations on SO2 Emissions at Ratts 

83.	 For the 12-month period commencing on January 1, 2011, and continuing through 

December 31, 2013, SO2 emissions from Ratts Unit 1 and Unit 2, collectively, shall not 

exceed a Plant-Wide 12-Month Rolling SO2 Tonnage Limitation of 14,000 tons. 

84.	 For the period commencing on July 1, 2011 and continuing through September 30, 2011, 

each Unit at Ratts shall achieve and maintain a 30-Day Rolling Average SO2 Emission 

Rate of no greater than 2.50 lb/mmBTU. 

85.	 For the period commencing on July 1, 2012 and continuing through September 30, 2012, 

and each July 1 through September 30 thereafter, provided that coal is Available, each 

Unit at Ratts shall achieve and maintain a 30-Day Rolling Average SO2 Emission Rate of 

no greater than 2.00 lb/mmBTU. If coal is not Available, then during such time periods, 

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Hoosier shall achieve and maintain a 30-Day Rolling Average SO2 Emission Rate of no 

greater than 2.50 lb/mmBTU. 

86.	 For the 12-month period commencing on January 1, 2014, and continuing through either 

December 31, 2015 or December 31, 2016, pursuant to Paragraphs 88 and 89 below, SO2 

emissions from Ratts Unit 1 and Unit 2, collectively, shall not exceed a Plant-Wide 12­

Month Rolling SO2 Tonnage Limitation of 10,000 tons. 

87.	 For Ratts Units 1 and 2, on or before January 1, 2015, Hoosier shall elect to (a) Retire, (b) 

Repower, or (c) continue to operate Ratts Unit 1 and/or Unit 2 as coal-fired Units. 

Hoosier shall provide Notice of such election pursuant to Section XIX (Notices). 

88.	 If Hoosier elects to Retire or Repower Ratts Unit 1 and/or Unit 2, Hoosier shall Retire or 

Repower such Unit(s) by no later than January 1, 2017. If Hoosier Retires or Repowers 

only one of the Ratts Units and continues operation of the other Unit as a coal-fired Unit, 

then for the 12-month period commencing on January 1, 2017, and continuing thereafter, 

SO2 emissions from Ratts shall not exceed a Plant-Wide 12-Month Rolling SO2 Tonnage 

Limitation of 4,000 tons. 

89.	 If Hoosier elects to continue to operate Ratts Unit 1 and Unit 2 as coal-fired Units, then 

for the 12-month period commencing on January 1, 2016, and continuing thereafter, SO2 

emissions from Ratts Unit 1 and Unit 2, collectively, shall not exceed a Plant-Wide 12­

Month Rolling SO2 Tonnage Limitation of 6,750 tons. 

2. 	 FGD Operation and Performance Requirements at Merom Unit 1 and

 Unit 2 

90.	 By no later than thirty (30) Days from the Date of Entry of this Consent Decree, and 

continuing thereafter, Hoosier shall Continuously Operate the existing FGD on Merom 

Unit 1, which was installed in 1983, and the existing FGD on Merom Unit 2, which was 

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installed in 1982, so as to achieve and maintain a 30-Day Rolling Average SO2 Removal 

Efficiency of at least 90.0% with a goal of at least 94.0%. In addition, for the period 

from the Date of Entry of this Consent Decree until the FGDs are upgraded as required 

by Paragraphs 91 and 92, Hoosier shall operate the FGDs on Merom Unit 1 and Unit 2 

consistent with Appendix B. 

91.	 By no later than June 1, 2012 for one of the Merom Units, Hoosier shall upgrade the 

FGD such that the upgraded FGD is designed to meet a 30-Day Rolling Average SO2 

Removal Efficiency of at least 98.0%. Commencing on December 1, 2012, and 

continuing through December 30, 2014, Hoosier shall Continuously Operate the FGD at 

such Merom Unit to achieve and maintain a 30-Day Rolling Average SO2 Emission Rate 

of no greater than 0.150 lb/mmBTU or a 30-Day Rolling Average SO2 Removal 

Efficiency of at least 95.0%. Commencing on December 31, 2014, and continuing 

thereafter, Hoosier shall Continuously Operate the FGD at such Merom Unit to achieve 

and maintain a 30-Day Rolling Average SO2 Emission Rate of no greater than 0.150 

lb/mmBTU or a 30-Day Rolling Average SO2 Removal Efficiency of at least 96.0%. 

92.	 By no later than June 1, 2013 for the other Merom Unit (i.e., the Unit not upgraded 

pursuant to Paragraph 91, above), Hoosier shall upgrade the FGD such that the upgraded 

FGD is designed to meet a 30-Day Rolling Average SO2 Removal Efficiency of at least 

98.0%. Commencing on September 1, 2013, and continuing through December 30, 2015, 

Hoosier shall Continuously Operate the FGD at such Merom Unit to achieve and 

maintain a 30-Day Rolling Average SO2 Emission Rate of no greater than 0.150 

lb/mmBTU or a 30-Day Rolling Average SO2 Removal Efficiency of at least 95.0%. 

Commencing on December 31, 2015, and continuing thereafter, Hoosier shall 

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Continuously Operate the FGD at such Merom Unit to achieve and maintain a 30-Day 

Rolling Average SO2 Emission Rate of no greater than 0.150 lb/mmBTU or a 30-Day 

Rolling Average SO2 Removal Efficiency of at least 96.0%. 

93.	 At any time after December 31, 2015 but before June 30, 2016, Hoosier may submit to 

EPA a proposed revision to the 30-Day Rolling Average SO2 Removal Efficiency of at 

least 96.0% for either of the Merom Units. The petition must demonstrate, based upon all 

relevant information, that a 30-Day Rolling Average SO2 Removal Efficiency of at least 

96.0% cannot be achieved and maintained for the Unit in question even after taking all 

reasonable measures to achieve the designed level of performance of the FGD including, 

but not limited to, retention of qualified outside technical support to assist it in operating 

and optimizing the FGD in order to achieve the 96.0% 30-Day Rolling Average SO2 

Removal Efficiency for the Merom Units. Hoosier shall include in such proposal an 

alternate 30-Day Rolling Average SO2 Removal Efficiency, but in no event may Hoosier 

propose a 30-Day Rolling Average SO2 Removal Efficiency of less than 95.0%. Hoosier 

shall also submit all studies, reports, and/or recommendations from the contractor 

required by this Paragraph, evaluating each measure undertaken in an effort to meet the 

96.0% 30-Day Rolling Average SO2 Removal Efficiency requirement. Hoosier shall also 

deliver with each submission all pertinent documents and data that support or were 

considered in preparing such submission, as well as all data pertaining to the performance 

of the FGD in question since the Date of Entry of the Consent Decree and the operational 

history of the Unit, including the sulfur content of the coal burned at the Unit, since the 

Date of Entry of the Consent Decree. If EPA disapproves the proposed revision to the 

30-Day Rolling Average SO2 Removal Efficiency, such disagreement is subject to 

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Section XVI (Dispute Resolution). Provided that Hoosier is in compliance with a 95.0% 

30-Day Rolling Average SO2 Removal Efficiency, Hoosier shall not be subject to 

stipulated penalties pursuant to Section XIV (Stipulated Penalties) for violating the 

96.0% 30-Day Rolling Average SO2 Removal Efficiency required by this Paragraph until 

EPA issues its formal written summary of its position regarding any dispute pursuant to 

Paragraph 190. If EPA’s formal written response pursuant to Paragraph 190 disapproves 

Hoosier’s proposed revision of the 30-Day Rolling Average SO2 Removal Efficiency, 

then Hoosier shall be subject to stipulated penalties pursuant to Section XIV (Stipulated 

Penalties) for any violation of the 96.0% 30-Day Rolling Average SO2 Removal 

Efficiency from the date of disapproval forward. 

3. System-Wide Annual SO2 Tonnage Limitation. 

94.	 Beginning in calendar year 2011, and continuing through calendar year 2012, the Hoosier 

System, collectively, shall not exceed a System-Wide Annual SO2 Tonnage Limitation of 

28,500 tons. 

95.	 In calendar year 2013, the Hoosier System, collectively, shall not exceed a System-Wide 

Annual SO2 Tonnage Limitation of 27,000 tons. 

96.	 In calendar year 2014, the Hoosier System, collectively, shall not exceed a System-Wide 

Annual SO2 Tonnage Limitation of 26,000 tons. 

97.	 In calendar year 2015, and continuing through 2016 if Hoosier elects to Retire or 

Repower one of the Ratts Units, the Hoosier System, collectively, shall not exceed a 

System-Wide Annual SO2 Tonnage Limitation of 19,889 tons. 

98.	 If Hoosier does not elect to Retire or Repower one of the Ratts Units (i.e., Hoosier elects 

to operate both Ratts Units as coal-fired units pursuant to Paragraph 87, in calendar year 

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2016 and continuing each year thereafter, the Hoosier System, collectively, shall not 

exceed a System-Wide Annual SO2 Tonnage Limitation of 18,750 tons. 

99.	 If Hoosier elects to Retire or Repower one of the Ratts Units, then beginning in calendar 

year 2017, and continuing each year thereafter, the Hoosier System and the Repowered 

Ratts Unit, collectively, shall not exceed a System-Wide Annual SO2 Tonnage Limitation 

of 15,500 tons. 

B. Monitoring of SO2 Emissions 

100.	 In determining a 30-Day Rolling Average SO2 Emission Rate or a 30-Day Rolling 

Average SO2 Removal Efficiency, Hoosier shall use CEMS in accordance with the 

procedures of 40 C.F.R. Part 75, except that: (1) SO2 emissions data need not be bias 

adjusted; (2) for any CEMS with a span less than 100 ppm, the calibration drift and outof-control criteria in Procedure 1, section 4.3 of 40 C.F.R. Part 60, Appendix F shall 

apply in lieu of the specifications in 40 C.F.R. Part 75, Appendix B; (3) for any CEMS 

with a span less than or equal to 30 ppm the exemption from the 40 C.F.R. Part 75 

linearity check will not apply and either the 40 C.F.R. Part 75 linearity check or the 

cylinder gas audit described in Procedure 1, section 5.1.2 of 40 C.F.R. Part 60, Appendix 

F shall be performed on a quarterly basis; and (4) for any Unit controlled by FGD, an 

annual relative accuracy test audit shall meet, at a minimum, a relative accuracy of less 

than 20% or an accuracy of less than 0.015 lb/mmBTU (expressed as the difference 

between the monitor mean and the reference value mean). 

101.	 For purposes of calculating the System-Wide Annual SO2 Tonnage Limitation and the 

Plant-Wide 12-Month Rolling SO2 Tonnage Limitation at Ratts, Hoosier shall use CEMS 

in accordance with the procedures specified in 40 C.F.R. Part 75. 

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C. Use and Surrender of SO2 Allowances 

102.	 Except as may be necessary to comply with Section XIV (Stipulated Penalties), Hoosier 

shall not use SO2 Allowances to comply with any requirement of this Consent Decree, 

including by claiming compliance with any emission limitation required by this Consent 

Decree by using, tendering, or otherwise applying SO2 Allowances to offset any excess 

emissions. 

103.	 Beginning in calendar year 2011, and continuing each calendar year thereafter, Hoosier 

shall Surrender all SO2 Allowances allocated to Merom Unit 1 and Unit 2 and Ratts Unit 

1 and Unit 2 for that calendar year that Hoosier does not need in order to meet its own 

federal and/or state Clean Air Act regulatory requirements for the Units. However, SO2 

Allowances allocated to Merom Unit 1 and Unit 2 and Ratts Unit 1 and Unit 2 may be 

used by Hoosier to meets its own federal and/or state Clean Air Act regulatory 

requirements for such Units. 

104.	 Nothing in this Consent Decree shall prevent Hoosier from purchasing or otherwise 

obtaining SO2 Allowances from another source for purposes of complying with federal 

and/or state Clean Air Act regulatory requirements to the extent otherwise allowed by 

law. 

105.	 The requirements of this Consent Decree pertaining to Hoosier’s use and Surrender of 

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

this Consent Decree. 

E. Method for Surrender of SO2 Allowances. 

106.	 Hoosier shall Surrender, or transfer to a non-profit third party selected by Hoosier for 

Surrender, all SO2 Allowances required to be Surrendered pursuant to Paragraph 103 

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within forty-five (45) Days from Hoosier’s receipt of the annual deduction report for 

Merom or Ratts, whichever is later. Hoosier shall provide a copy of the annual deduction 

reports for Merom and Ratts to EPA in the next Periodic Report submitted pursuant to 

Section XII (Periodic Reporting) to demonstrate the date upon which Hoosier received 

such reports from EPA. 

107.	 If any SO2 Allowances required to be Surrendered under this Consent Decree are 

transferred directly to a non-profit third party, Hoosier shall include a description of such 

transfer in the next report submitted to EPA pursuant to Section XII (Periodic Reporting) 

of this Consent Decree. Such report shall: (i) identify the non-profit third party 

recipient(s) of the SO2 Allowances and list the serial numbers of the transferred SO2 

Allowances; and (ii) include a certification by the non-profit 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, Hoosier shall include a statement that the non-profit third party 

recipient(s) Surrendered the SO2 Allowances for permanent Surrender to EPA in 

accordance with the provisions of Paragraph 108 within one (1) year after Hoosier 

transferred the SO2 Allowances to them. Hoosier shall not have complied with the SO2 

Allowance Surrender requirements of this Paragraph until all third party recipient(s) have 

actually Surrendered the transferred SO2 Allowances to EPA. 

108.	 For all SO2 Allowances required to be Surrendered, Hoosier or the third party recipient(s) 

(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 

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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, 

Hoosier 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. 

VI. H2SO4 EMISSION REDUCTIONS AND CONTROLS 

A. 	Reagent Injection Installation, Operation, and Performance

 Requirements 

109.	 Commencing on June 1, 2011, and continuing thereafter, Hoosier shall Continuously 

Operate RI at Merom Unit 1 and Unit 2. 

110.	 Commencing on June 1, 2012 for one Merom Unit and June 1, 2013 for the other Merom 

Unit, and continuing thereafter, Hoosier shall Continuously Operate RI at such Merom 

Unit so that the Unit achieves and maintains an H2SO4 Emission Rate of no greater than 

0.007 lb/mmBTU. 

111.	 The period from June 1, 2012 through May 30, 2013, shall comprise a demonstration 

period. During the demonstration period, Hoosier's failure to achieve and maintain the 

H2SO4 Emission Rate in Paragraph 110 shall not be deemed a violation of this Consent 

Decree, nor shall Hoosier be responsible for stipulated penalties pursuant to Section XIV 

(Stipulated Penalties). However, it shall be deemed a violation, and Hoosier shall be 

responsible for stipulated penalties, if either Merom Unit 1 or Unit 2 fails to 

Continuously Operate the RI system as required by Paragraph 109. 

112.	 At any time before December 31, 2012, Hoosier may submit a petition to EPA for 

review and approval pursuant to Section XIII (Review and Approval of Submittals), for a 

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proposed revision to the H2SO4 Emission Rate for Merom Unit 1 and/or Unit 2. In such 

petition to revise the H2SO4 Emission Rate, Hoosier must demonstrate that it cannot 

maintain compliance with the applicable Emission Rate for the Unit(s) in question, 

considering all relevant information including, but not limited to: evaluation of different 

injection zones, different reagents, different reagent injection rates, and different SCR 

catalyst beds. Hoosier shall propose in such petition the lowest H2SO4 Emission Rate 

that the Unit(s) can achieve and maintain (which in no event shall be higher than 0.009 

lb/mmBTU), and all pertinent information, documents, and data that support, or were 

considered in preparing, such alternative Emission Rate. If Hoosier avails itself of the 

petition process described in this Paragraph, Hoosier shall retain a qualified contractor to 

assist it in operating and optimizing the RI system in order to achieve the lowest H2SO4 

Emission Rate for Merom Unit 1 and Unit 2, and identifying the lowest achievable 

H2SO4 Emission Rate based upon the relevant information described above in this 

Paragraph. 

113.	 Following receipt of Hoosier's petition, EPA may either (a) determine that Hoosier failed 

to successfully demonstrate that Merom Unit 1 and/or Unit 2 could not achieve and 

maintain an H2SO4 Emission Rate of no greater than 0.007 lb/mmBTU, (b) approve the 

proposed alternative H2SO4 Emission Rate, or (c) establish a different H2SO4 Emission 

Rate than the one specified in either Paragraph 110, above, or proposed by Hoosier in its 

petition, based upon EPA's review of the information submitted in the petition as well as 

other available and relevant information. No later than thirty (30) Days following 

Hoosier's receipt of EPA's response to its petition, Hoosier shall achieve and maintain the 

H2SO4 Emission Rate either specified in Paragraph 110, above (if EPA determines that 

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Hoosier failed to demonstrate that it could not maintain compliance with the Emission 

Rate), or an alternative H2SO4 Emission Rate as approved by EPA in its response to 

Hoosier's petition, provided, however, that if EPA determines that Hoosier failed to 

demonstrate that it could not maintain compliance with the Emission Rate specified in 

Paragraph 110, Hoosier will not have to comply with such Emission Rate, but instead 

will have to comply with its proposed alternative H2SO4 Emission Rate which in no event 

will be higher than 0.009 lb/mmBTU, during the pendency of any dispute of EPA’s 

determination by Hoosier. EPA reserves the right to require Hoosier to perform 

additional source testing before responding to Hoosier's petition. 

114.	 If Hoosier does not submit a petition for a proposed revision to the H2SO4 Emission Rate 

on or before December 31, 2012, as specified in Paragraph 112, then the demonstration 

period shall end and it shall be deemed a violation, and Hoosier shall be responsible for 

stipulated penalties pursuant to Section XIV (Stipulated Penalties), if either Merom Unit 

1 or Unit 2 exceed an H2SO4 Emission Rate of 0.007 lb/mmBTU commencing on 

January 1, 2014. 

B. Monitoring of H2SO4 Emissions 

115.	 Commencing in the calendar year this Consent Decree is entered, and continuing 

annually thereafter, Hoosier shall conduct a stack test for H2SO4 for Merom Units 1 and 

2. 

116.	 To determine compliance with the H2SO4 Emission Rate established in Paragraph 110 or 

an alternative H2SO4 Emission Rate as described in Paragraphs 112-113, Hoosier shall 

use the reference methods and procedures specified in 40 C.F.R. Part 60, Appendix A-4, 

Method 8 or an alternative reference method or procedure for H2SO4 (such as CTM-13) 

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requested by Hoosier and approved by EPA (in consultation with IDEM). The results of 

each test shall be reported in lb/mmBTU and consist of three separate runs each 

performed under representative operating conditions at high, mid and low load points, not 

including periods of startup, shutdown, or malfunction. At least 180 Days prior to 

conducting such H2SO4 testing, Hoosier shall submit a test protocol to EPA pursuant to 

Section XIII (Review and Approval of Submittals) identifying the unit operating loads 

proposed for the high, mid, and low load ranges and anticipated reagent injection rates 

and the basis for such rates. Hoosier shall calculate the H2SO4 Emission Rate from the 

stack test results in accordance with 40 C.F.R. § 60.8(f). The results of each H2SO4 stack 

test shall be submitted to EPA and IDEM within sixty (60) Days of completion of each 

test. 

117.	 At all times that either Merom Unit 1 or Unit 2 is in operation, Hoosier shall maintain the 

reagent injection rate utilized during the last successfully demonstrated compliant stack 

test at the corresponding high, mid, or low load point. Hoosier shall maintain a daily log 

of the reagent injection rates maintained at each Merom Unit, including the following 

information: date, average daily unit load (MWg) operating hours for each Day, reagent 

injection flow rate (gallons per minute and tons per hour), and reagent injection density 

(if injecting liquid reagent). 

118.	 When Hoosier submits the application for amendment to its Title V Permit pursuant to 

Paragraph 198, that application shall include a Compliance Assurance Monitoring 

(“CAM”) plan, under 40 C.F.R. Part 64, for the H2SO4 Emission Rate in Paragraph 110. 

The reagent injection rate described in Paragraph 117 may be used in that CAM plan. 

VII. PM EMISSION REDUCTIONS AND CONTROLS 

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A. Optimization of Existing ESPs 

119.	 By no later than thirty (30) Days from the Date of Entry of this Consent Decree, and 

continuing thereafter, Hoosier shall Continuously Operate the ESPs on Merom Unit 1 and 

Unit 2 and Ratts Unit 1 and Unit 2. Except as required during correlation testing under 

40 C.F.R. Part 60, Appendix B, Performance Specification 11, and Quality Assurance 

Requirements under Appendix F, Procedure 2, as required by this Consent Decree, 

Hoosier shall, at a minimum, to the extent reasonably practicable: (a) fully energize each 

section of the ESP for each unit, and repair any failed ESP section at the next planned or 

unplanned Unit outage of sufficient length; (b) operate automatic control systems on each 

ESP to maximize PM collection efficiency; (c) maintain power levels delivered to the 

ESPs, consistent with manufacturers’ specifications, the operational design of the Unit, 

and good engineering practices; (d) inspect for and repair during the next planned or 

unplanned Unit outage of sufficient length any openings in ESP casings, ductwork and 

expansion joints to minimize air leakage; and (e) optimize the plate-cleaning and 

discharge-electrode-cleaning systems for the ESPs at each Unit by varying the cycle time, 

cycle frequency, rapper-vibrator intensity, and number of strikes per cleaning event. 

B. PM Emission Rate and Monitoring Requirements 

120.	 Beginning June 1, 2012 for one Merom Unit and June 1, 2013 for the other Merom Unit, 

and continuing thereafter, Hoosier shall Continuously Operate the ESPs at the Merom 

Unit(s) so that each Unit achieves and maintains a PM Emission Rate of no greater than 

0.030 lb/mmBTU; provided that, if Hoosier installs a Baghouse at Merom Unit 1 and/or 

Unit 2, then by no later than June 1, 2012 or June 1, 2013, as applicable, Hoosier shall 

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Continuously Operate such Baghouse so that such Unit achieves and maintains a PM 

Emission Rate of no greater than 0.015 lb/mmBTU. 

121.	 By no later than December 31, 2014, and continuing thereafter, Hoosier shall 

Continuously Operate the ESPs at one Ratts Unit so that the Unit achieves and maintains 

a PM Emission Rate of no greater than 0.030 lb/mmBTU; provided that, if Hoosier 

installs a Baghouse at such Ratts Unit, then by no later than December 31, 2014, Hoosier 

shall Continuously Operate such Baghouse so that such Unit achieves and maintains a 

PM Emission Rate of no greater than 0.015 lb/mmBTU. If Hoosier does not elect to 

Retire or Repower one Ratts Unit pursuant to Paragraph 87, then by no later than 

December 31, 2015, and continuing thereafter, Hoosier shall Continuously Operate the 

ESPs at such other Ratts Unit so that the Unit achieves and maintains a PM Emission 

Rate of no greater than 0.030 lb/mmBTU; provided that, if Hoosier installs a Baghouse at 

such Ratts Unit, then by no later than December 31, 2015, Hoosier shall Continuously 

Operate such Baghouse so that such Unit achieves and maintains a PM Emission Rate of 

no greater than 0.015 lb/mmBTU. 

122.	 Commencing in the calendar year this Consent Decree is entered, and continuing 

annually thereafter, Hoosier shall conduct a stack test for PM pursuant to Paragraph 123 

for each Unit at Merom and Ratts. 

123.	 To determine compliance with the PM Emission Rate established in Paragraphs 120 and 

121, Hoosier shall use the applicable reference methods and procedures (filterable portion 

only) specified in its Clean Air Act permits and in the Indiana SIP. Each test shall consist 

of three separate runs performed under representative operating conditions not including 

periods of startup, shutdown, or malfunction. The sampling time for each run shall be at 

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least 120 minutes and the volume of each run shall be 1.70 dry standard cubic meters (60 

dry standard cubic feet). Hoosier shall calculate the PM Emission Rate from the stack 

test results in accordance with 40 C.F.R. § 60.8(f). The results of each PM stack test 

shall be submitted to EPA and IDEM within sixty (60) Days of completion of each test. 

124.	 When Hoosier submits the application for amendment to its Title V Permit pursuant to 

Paragraph 198, that application shall include a Compliance Assurance Monitoring 

(“CAM”) plan, under 40 C.F.R. Part 64, for the PM Emission Rate in Paragraphs 120 and 

121. The PM CEMS required under Paragraph 125 may be used in that CAM plan. 

C. PM CEMS 

125.	 Hoosier shall install, correlate, maintain, and operate PM CEMS on Merom Unit 1 and 

Unit 2 as specified below. The 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 expressed 

in lb/mmBTU. The PM CEMS installed at each Unit must be appropriate for the 

anticipated stack conditions and capable of measuring PM concentrations on an hourly 

average basis. Hoosier shall maintain, in an electronic database, the hourly average 

emission values of all PM CEMS in lb/mmBTU. Except for periods of monitor 

malfunction, maintenance, or repair, Hoosier shall continuously operate the PM CEMS at 

all times when the Unit it serves is operating. 

126.	 By no later than December 31, 2010, Hoosier shall submit to EPA for review and 

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

Decree a plan for the installation and correlation of the PM CEMS for Merom Unit 1 and 

Unit 2. 

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127.	 By no later than August 31, 2011, Hoosier shall submit to EPA for review and approval 

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

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

for such PM CEMS. 

128.	 In developing both the plan for installation and correlation of the PM CEMS and the 

QA/QC protocol, Hoosier shall use the criteria set forth in 40 C.F.R. Part 60, Appendix 

B, Performance Specification 11, and Appendix F, Procedure 2. Following EPA’s 

approval (in consultation with IDEM) of the plan described in Paragraph 126 and the 

QA/QC protocol described in Paragraph 127, Hoosier shall thereafter operate the PM 

CEMS in accordance with the approved plan and QA/QC protocol. 

129.	 By no later than December 31, 2011, Hoosier shall install, correlate, maintain, and 

operate the PM CEMS at Merom Unit 1 and Unit 2, conduct performance specification 

tests on the PM CEMS, and demonstrate compliance with the PM CEMS installation and 

correlation plans submitted to and approved by EPA in accordance with Paragraphs 126 

and 127. Hoosier shall report, pursuant to Section XII (Periodic Reporting), the data 

recorded by the PM CEMS, expressed in lb/mmBTU on a rolling average 3-hour basis in 

electronic format to EPA and identify in the report any PM concentrations measured by 

the PM CEMS that are greater than 125% of the highest PM concentration level used in 

the most recent correlation testing performed pursuant to Performance Specification 11 in 

40 C.F.R. Part 60, Appendix B. 

D. General PM Provisions 

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130.	 Although stack testing shall be used to determine compliance with the PM Emission Rate 

established by this Consent Decree, data from PM CEMS shall be used, at a minimum, to 

monitor progress in reducing PM emissions. 

131.	 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. 8314 (Feb. 24, 1997)) concerning the 

use of data for any purpose under the Act. 

VIII. PROHIBITION ON NETTING CREDITS OR OFFSETS 

132.	 Emission reductions at Merom Unit 1 and Unit 2 and Ratts Unit 1 and Unit 2 that result 

from actions to be taken by Hoosier after the Date of Entry of this Consent Decree to 

comply with the requirements of this Consent Decree shall not be considered as a 

creditable contemporaneous emission decrease for the purpose of obtaining a Netting 

credit or offset under the Clean Air Act’s Nonattainment NSR and PSD programs. 

133.	 The limitations on the generation and use of Netting credits and offsets set forth in the 

previous Paragraph do not apply to emission reductions achieved at Merom Unit 1 and 

Unit 2 and Ratts Unit 1 and Unit 2 that are greater than those required under this Consent 

Decree. For purposes of this Paragraph, emission reductions at Merom Unit 1 and Unit 2 

and Ratts Unit 1 and Unit 2 are greater than those required under this Consent Decree if 

they result from such Unit’s compliance with federally-enforceable emission limits that 

are more stringent than those limits imposed on Merom Unit 1 and Unit 2 and Ratts Unit 

1 and Unit 2 under this Consent Decree and under applicable provisions of the Clean Air 

Act or the Indiana SIP. 

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

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

contemporaneous emission decreases for the purpose of attainment demonstrations 

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

National Ambient Air Quality Standards, PSD increment, or air quality related values, 

including visibility, in a Class I area. 

IX. ENVIRONMENTAL MITIGATION PROJECTS 

135.	 Hoosier shall implement the Environmental Mitigation Projects (“Projects”) described in 

Appendix A to this Consent Decree in compliance with the approved plans and schedules 

for such Projects and other terms of this Consent Decree. In implementing the Projects, 

Hoosier shall spend no less than $5,000,000 in Project Dollars. Hoosier shall not include 

its own personnel costs in overseeing the implementation of the Projects as Project 

Dollars. 

136.	 Hoosier shall maintain, and present to EPA upon request, all documents to substantiate 

the Project Dollars expended to implement the Projects described in Appendix A, and 

shall provide these documents to EPA within thirty (30) Days of a request for the 

documents. 

137.	 All plans and reports prepared by Hoosier pursuant to the requirements of this Section IX 

of the Consent Decree and required to be submitted to EPA shall be publicly available 

from Hoosier without charge. 

138.	 Hoosier shall certify, as part of each plan submitted to EPA for any Project, that Hoosier 

is not otherwise required by law to perform the Project described in the plan, that Hoosier 

is unaware of any other person who is required by law to perform the Project, and that 

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Hoosier will not use any Project, or portion thereof, to satisfy any obligations that it may 

have under other applicable requirements of law, including any applicable renewable or 

energy efficiency portfolio standards. 

139.	 Hoosier 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. 

140.	 If Hoosier elects (where such an election is allowed) to undertake a Project by 

contributing funds to another person or entity that will carry out the Project in lieu of 

Hoosier, but not including Hoosier’s agents or contractors, 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 Hoosier contributes the funds. 

Regardless of whether Hoosier elects (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, Hoosier acknowledges that it will receive credit for the 

expenditure of such funds as Project Dollars only if Hoosier demonstrates that the funds 

have been actually spent by either Hoosier or by the person or instrumentality receiving 

them, and that such expenditures met all requirements of this Consent Decree. 

141.	 Hoosier shall comply with the reporting requirements described in Appendix A. 

142.	 Within sixty (60) Days following the completion of each Project required under this 

Consent Decree (including any applicable periods of demonstration or testing), Hoosier 

shall submit to the United States a report that documents the date that the Project was 

completed, Hoosier’s results of implementing the Project, including the emission 

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reductions or other environmental benefits achieved, and the Project Dollars expended by 

Hoosier in implementing the Project. 

X. CIVIL PENALTY 

143.	 Within thirty (30) Days after the Date of Entry of this Consent Decree, Hoosier shall pay 

to the United States and the State of Indiana a civil penalty in the amount of $950,000. 

a. 	 The United States’ portion of the civil penalty shall be paid as follows: Within 

thirty (30) Days after the Date of Entry of this Consent Decree, Hoosier shall pay 

a civil penalty to the United States in the amount of $850,000 paid by Electronic 

Funds Transfer (“EFT”) to the United States Department of Justice, in accordance 

with current EFT procedures, referencing USAO File Number 2010V00713 and 

DOJ Case Number 90-5-2-1-09864 and the civil action case name and case 

number of this action. The costs of such EFT shall be Hoosier’s responsibility. 

Payment shall be made in accordance with instructions provided to Hoosier by the 

Financial Litigation Unit of the U.S. Attorney’s Office for the Southern District of 

Indiana. Any funds received after 2:00 p.m. EDT shall be credited on the next 

business day. At the time of payment, Hoosier shall provide notice of payment, 

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

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

accordance with Section XIX (Notices) of this Consent Decree. 

b. 	 The State of Indiana’s portion of the civil penalty shall be paid as follows: Within 

thirty (30) Days after the Date of Entry of this Consent Decree, Hoosier shall pay 

a civil penalty to the State of Indiana in the amount of $100,000. Payment shall 

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be made by check made out to the “Environmental Management Special Fund” 


and shall be mailed to: 


Indiana Department of Environmental Management 


Cashier – Mail Code 50-10C 


100 North Senate Avenue 


Indianapolis, IN 46204-2251 


At the time of payment, Hoosier shall also provide notice of payment, referencing 

the civil action case name and case number, to the State of Indiana in accordance 

with Section XIX (Notices) of this Consent Decree. 

144.	 Failure to timely pay the civil penalty shall subject Hoosier 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 Hoosier 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. 

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

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

expenditures for purposes of federal law. 

XI. RESOLUTION OF CIVIL CLAIMS AGAINST HOOSIER 

A. Resolution of Plaintiffs’ Civil Claims 

146.	 Claims of the United States Based on Modifications Occurring Before the Date of 

Lodging of this Consent Decree. Entry of this Consent Decree shall resolve all civil 

claims of the United States against Hoosier that arose from any modifications 

commenced at Merom Unit 1 and Unit 2 and Ratts Unit 1 and Unit 2, prior to the Date of 

Lodging of this Consent Decree, including but not limited to those modifications alleged 

in the NOV/FOV issued by EPA to Hoosier on August 26, 2009 and the Complaint filed 

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in this civil action, under any or all of: (a) Parts C or D of Subchapter I of the Clean Air 

Act, 42 U.S.C. §§ 7470-7492, 7501-7515, and the implementing Indiana SIP that EPA 

has approved and/or promulgated under Section 110 of the Act; (b) Standards of 

Performance for New Stationary Sources program, 42 U.S.C. § 7411 and 40 C.F.R. § 

60.14; and (c) Title V of the Clean Air Act, 42 U.S.C. § 7661-7661f, but only to the 

extent that such claims are based on Hoosier’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. The claims resolved for purposes of this Paragraph under Parts C or D of 

Subchapter I of the Act shall not include claims based on carbon dioxide (“CO2”) even if 

CO2 becomes regulated under Parts C or D of Subchapter I of the Act after the Date of 

Entry of this Consent Decree. 

147.	 Claims of the State of Indiana Based on Modifications Occurring Before the Lodging of 

this Consent Decree. Entry of this Consent Decree shall resolve all civil claims of the 

State of Indiana under (a) Indiana regulations at 326 IAC 2-2 et seq. (PSD Requirements) 

and 326 IAC 2-3 et seq. (Emission Offset) including all versions of the Indiana major 

New Source Review program that existed at the time of the modifications alleged in the 

Complaint; and (b) Indiana statutes as they specifically apply to the programs 

implemented pursuant to Subchapter V of the Act and Indiana regulations at 326 IAC 2-7 

et seq. (Part 70 Permit Program), that arose from any modification that commenced at 

Merom Unit 1 and Unit 2 and Ratts Unit 1 and Unit 2 prior to the Date of Lodging of this 

Consent Decree, including but not limited to those claims and modifications alleged in 

the Complaints filed in this civil action and those claims and modifications as asserted in 

the NOV/FOV issued by EPA to Hoosier on August 26, 2009. 

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148.	 Claims Based on Modifications after the Date of Lodging of this Consent Decree. Entry 

of this Consent Decree also shall resolve all civil claims of the United States and the State 

of Indiana for pollutants (except H2SO4 at Ratts Units 1 and 2) regulated under Parts C 

and D of Subchapter I of the Clean Air Act and under regulations promulgated thereunder 

as of the Date of Lodging of this Consent Decree, where such claims are based on any 

modification commenced before December 31, 2015, or before December 31, 2016 solely 

for a Unit at Ratts provided that Hoosier timely elects to Repower such Unit, and: 

a. where such modification is commenced at any Hoosier System 

Unit after the Date of Lodging of this Consent Decree, or 

b. 	 where such modification is one this Consent Decree expressly 

directs Hoosier to undertake. 

The term “modification” as used in this Paragraph shall have the meaning that term is 

given under the Clean Air Act and under the regulations in effect as of the Date of 

Lodging of this Consent Decree. The claims resolved for purposes of this Paragraph 

under Parts C or D of Subchapter I of the Act shall not include claims based upon CO2 

even if CO2 becomes regulated under Parts C or D of Subchapter I of the Act after the 

Date of Entry of this Consent Decree. 

149.	 Reopener. The resolution of the United States’ civil claims against Hoosier, as provided 

by this Subsection A, is subject to the provisions of Subsection B of this Section. 

B. 	Pursuit of Plaintiffs’ Civil Claims Otherwise Resolved by

 Subsection A 

150.	 Bases for Pursuing Resolved Claims for Merom Unit 1 and Unit 2 and Ratts Unit 1 and 

Unit 2. If Hoosier violates (a) the System-Wide Annual NOx Tonnage Limitations 

required pursuant to Paragraphs 71-73, or (b) the System-Wide Annual SO2Tonnage 

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Limitations required pursuant to Paragraphs 94-99; or if Hoosier operates a Unit more 

than ninety (90) Days past a date established in this Consent Decree without completing 

the required installation, upgrade, Retirement, Repower, or commencing Continuous 

Operation of any emission control device or achieving any Emission Rate or limitation 

required pursuant to Paragraphs 65-67, 68-70, 84-85, 90-92, 109-111, 113-114, and 119­

121, then Plaintiffs may pursue any claim at Merom Unit 1 and Unit 2 and Ratts Unit 1 

and Unit 2 that is otherwise resolved under Subsection A (Resolution of Plaintiffs’ Civil 

Claims), subject to (a) and (b) below. 

a. 	 For any claims based on modifications undertaken at Ratts Unit 1 or Unit 

2 (unless Hoosier has elected to Repower such Unit(s) pursuant to 

Paragraph 87), 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 Merom Unit 1 and 

Unit 2 (and at a Ratts Unit that Hoosier has elected to Repower) for the 

pollutant in question, claims may be pursued only where the 

modification(s) on which such claim is based was commenced: (1) after 

the Date of Lodging of this Consent Decree and (2) within the five (5) 

years preceding the violation or failure specified in this Paragraph. 

151.	 Additional Bases for Pursuing Resolved Claims for Modifications at Merom Unit 1 and 

Unit 2 (and at a Ratts Unit that Hoosier has elected to Repower). Solely with respect to 

Merom Unit 1 and Unit 2 (and at a Ratts Unit that Hoosier has elected to Repower), 

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Plaintiffs may also pursue claims arising from a modification (or collection of 

modifications) at such Units that has otherwise been resolved under Subsection A 

(Resolution of Plaintiffs’ Civil Claims) if the modification (or collection of 

modifications) at such Unit(s) on which such claim is based (a) was commenced after the 

Date of Lodging of this Consent Decree and (b) 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)) by more than ten percent (10%). 

152.	 Additional Bases for Pursuing Resolved Claims for Modifications at Ratts. 

a. Solely with respect to Ratts Unit 1 and/or Unit 2 (unless Hoosier has elected to 

Repower such Unit(s)), the United States may also pursue claims arising from a modification (or 

collection of modifications) that has otherwise been resolved under Subsection A (Resolution of 

Plaintiffs’ Civil Claims), if the modification (or collection of modifications) at Ratts Unit 1 or 

Unit 2 on which the claim is based was commenced within the five (5) years preceding any of 

the following events: 

1. 	 a modification (or collection of modifications) at Ratts Unit 1 or 

Unit 2 commenced after the Date of Lodging of this Consent 

Decree increases the maximum hourly Emission Rate for such 

Ratts Unit 1 or Unit 2 for the relevant pollutant (NOx or SO2) (as 

measured by 40 C.F.R. § 60.14(b) and (h)); 

2. 	 the aggregate of all Capital Expenditures made at Ratts Unit 1 or 

Unit 2 exceeds $125/KW on the Unit’s Boiler Island (based on the 

generating capacities identified in Paragraph 46) during the period 

from the Date of Entry of this Consent Decree through December 

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31, 2015. (Capital Expenditures shall be measured in calendar year 

2010 constant dollars, as adjusted by the McGraw-Hill 

Engineering News-Record Construction Cost Index); or 

3. 	 a modification (or collection of modifications) at Ratts Unit 1 or 

Unit 2 commenced after the Date of Lodging of this Consent 

Decree results in an emissions increase of NOx and/or SO2 at Ratts 

Unit 1 or Unit 2, and such increase: (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 

a 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. The introduction of any new or changed NAAQS shall not, 

standing alone, provide the showing needed under Subparagraphs 

(3)(ii) or (3)(iii) of this Paragraph to pursue any claim for a 

modification at Ratts Unit 1 or Unit 2 resolved under Subsection A 

of this Section. 

b. Solely with respect to Ratts Unit 1 and/or Unit 2 (unless Hoosier elects to Retire 

and/or Repower both Ratts Units), Plaintiffs may also pursue claims arising from a modification 

(or collection of modifications) that has otherwise been resolved under Subsection A (Resolution 

of Plaintiffs’ Civil Claims) of this Consent Decree if such modification (or collection of 

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modifications) results in an emissions increase of SO2 at such Unit, and such increase causes the 

emissions at Ratts to exceed the tonnage limitations of Paragraphs 83 or 89. 

XII. PERIODIC REPORTING 

153.	 After entry of this Consent Decree, Hoosier shall submit to Plaintiffs a periodic report, 

within sixty (60) Days after the end of each half of the calendar year (January through 

June and July through December). The report shall include the following information: 

a.	 all information necessary to determine compliance with the requirements of the 

following Paragraphs of this Consent Decree: Paragraphs 65 through 82 

concerning NOx emissions and monitoring, including all information necessary to 

determine whether it is technically infeasible to Continuously Operate the SCR as 

provided in Paragraph 70, and the surrender of NOx Allowances; Paragraphs 83 

through 108 concerning SO2 emissions and monitoring, and the surrender of SO2 

Allowances; Paragraphs 109 through 118 concerning H2SO4 emissions and 

monitoring; and Paragraphs 119 through 131 concerning PM emissions and 

monitoring; 

b.	 daily removal efficiencies for SO2 emissions from Merom Unit 1 and Unit 2 and 

30-Day Rolling Average SO2 Removal Efficiencies for Merom Unit 1 and Unit 2, 

to demonstrate compliance with Paragraph 90; 

c. 	 3-hour rolling average PM CEMS data as required by Paragraph 129, identifying 

all periods in excess of 0.030 lb/mmBTU or 0.015 lb/mmBTU, as appropriate, 

and all periods of monitor malfunction, maintenance, and/or repair as provided in 

Paragraph 125; 

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d. 	 all information relating to Super-Compliant NOx Allowances that Hoosier claims 

to have generated in accordance with Paragraphs 79 through compliance beyond 

the requirements of this Consent Decree; and 

e. 	 all information indicating that the installation or upgrade and commencement of 

operation of a new or upgraded pollution control device may be delayed, 

including the nature and cause of the delay, and any steps taken by Hoosier to 

mitigate such delay. 

154.	 In any periodic report submitted pursuant to this Section, Hoosier may incorporate by 

reference information previously submitted under its Title V permitting requirements, 

provided that Hoosier attaches the Title V Permit report (or the pertinent portions of such 

report) and provides a specific reference to the provisions of the Title V Permit report 

that are responsive to the information required in the periodic report. 

155.	 In addition to the reports required by Paragraph 153, if Hoosier violates or deviates from 

any provision of this Consent Decree, Hoosier shall submit to Plaintiffs a report on the 

violation or deviation within ten (10) business days after Hoosier knew or should have 

known of the event. In the report, Hoosier shall explain the cause or causes of the 

violation or deviation and any measures taken or to be taken by Hoosier to cure the 

reported violation or deviation or to prevent such violation or deviations in the future. If 

at any time, the provisions of this Consent Decree are included in Title V Permits, 

consistent with the requirements for such inclusion in this Consent Decree, then the 

deviation reports required under applicable Title V regulations shall be deemed to satisfy 

all the requirements of this Paragraph. 

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156. Each Hoosier report shall be signed by the Responsible Official as defined in Title V of 

the Clean Air Act for Merom and/or Ratts, as appropriate, 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. 

157. If any NOx or SO2 Allowances are surrendered to any non-profit third party pursuant to 

Paragraphs 81 and/or 107, the non-profit third party’s certification shall be signed by a 

managing officer of the non-profit third party and shall contain the following language: 

I certify under penalty of law that _____________ [name of non-profit third 

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

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

environmental law. I understand that there are significant penalties for making 

misrepresentations to or misleading the United States. 

XIII. REVIEW AND APPROVAL OF SUBMITTALS 

158.	 Hoosier shall submit each plan, report, or other submission required by this Consent 

Decree to Plaintiffs whenever such a document is required to be submitted for review or 

approval pursuant to this Consent Decree. EPA may approve the submittal or decline to 

approve it and provide written comments explaining the bases for declining such 

approval as soon as reasonably practicable. Within sixty (60) Days of receiving written 

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

written comments and provide the revised submittal to EPA; or (b) submit the matter for 

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dispute resolution, including the period of informal negotiations, under Section XVI 

(Dispute Resolution) of this Consent Decree. 

159.	 Upon receipt of EPA’s final approval of the submittal, or upon completion of the 

submittal pursuant to dispute resolution, Hoosier shall implement the approved submittal 

in accordance with the schedule specified therein or another EPA-approved schedule. 

XIV. STIPULATED PENALTIES 

160.	 For any failure by Hoosier to comply with the terms of this Consent Decree, and subject 

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

shall pay, within thirty (30) Days after receipt of written demand to Hoosier by the 

United States, the following stipulated penalties to the United States: 

Consent Decree Violation Stipulated Penalty 

a. Failure to pay the civil penalty as specified in Section X $10,000 per Day 

(Civil Penalty) of this Consent Decree 

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

Average NOx Emission Rate, 30-Day Rolling Average SO2 

Emission Rate, 30-Day Rolling Average SO2 Removal 

Efficiency, H2SO4 Emission Rate, or PM Emission Rate 

$2,500 per Day per violation 

where the violation is less than 

5% in excess of the lb/mmBTU 

limits, or less than 0.25% below 

the removal efficiency 

requirement 

$5,000 per Day per violation 

where the violation is equal to 

or greater than 5% but less than 

10% in excess of the 

lb/mmBTU limits, or equal to or 

greater than 0.25% but less than 

0.50% below the removal 

efficiency requirement 

$10,000 per Day per violation 

where the violation is equal to 

or greater than 10% in excess of 

the lb/mmBTU limits, or greater 

than 0.50% below the removal 

efficiency requirement 

c. Failure to comply with the applicable System-Wide 

Annual NOx Tonnage Limitation established by this 

Consent Decree 

$5,000 per ton for first 100 tons, 

$10,000 per ton for each 

additional ton above 100 tons, 

plus the surrender of NOx 

Allowances in an amount equal 

to two times the number of tons 

of NOx emitted that exceeded 

the System-Wide Annual NOx 

Tonnage Limitation 

d. Failure to comply with the applicable System-Wide 

Annual SO2 Tonnage Limitation established by this Consent 

Decree 

$5,000 per ton for first 100 tons, 

$10,000 per ton for each 

additional ton above 100 tons, 

plus the Surrender of SO2 

Allowances in an amount equal 

to two times the number of tons 

of SO2 emitted that exceeded 

the System-Wide Annual SO2 

Tonnage Limitation 

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e. Failure to comply with the applicable Plant-Wide 12­

Month Rolling SO2 Tonnage Limitation required by 

Paragraphs 83, 88, and 89. 

$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, plus the Surrender of SO2 

Allowances in an amount equal 

to two times the number of tons 

of SO2 emitted that exceeded 

the Plant-Wide 12-Month 

Rolling SO2 Tonnage Limitation 

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f. Failure to comply with the applicable Plant-Wide 12­

Month Rolling SO2 Tonnage Limitation required by 

Paragraph 86. 

The Surrender of SO2 

Allowances in an amount equal 

to two times the number of tons 

of SO2 emitted that exceeded 

the Plant-Wide 12-Month 

Rolling Tonnage SO2 

Limitation up to 1,000 tons in 

excess of the limit. 

The Surrender of SO2 

Allowances in an amount equal 

to three times the number of 

tons of SO2 emitted that 

exceeded the Plant-Wide 12­

Month Rolling SO2 Tonnage 

Limitation greater than 1,000 

tons and less than 3,000 tons in 

excess of the limit. 

The Surrender of SO2 

Allowances in an amount equal 

to four times the number of tons 

of SO2 emitted that exceeded 

the Plant-Wide 12-Month 

Rolling SO2 Tonnage Limitation 

greater than 3,000 tons and less 

than 4,000 tons in excess of the 

limit. 

$10,000 per ton per month for 

each ton that is greater than 

4,000 tons in excess of the limit, 

plus the Surrender of SO2 

Allowances in an amount equal 

to two times the number of tons 

of SO2 emitted that exceeded 

the Plant-Wide 12-Month 

Rolling SO2 Tonnage Limitation 

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g. Failure to install, commence Continuous Operation, or 

Continuously Operate a NOx, SO2, H2SO4, or PM control 

device, included in Paragraphs 65-70, 90-93, 109-110, 120­

121 on either Merom Unit 1 or Unit 2 or Ratts Unit 1 or 

Unit 2, as required under this Consent Decree 

$10,000 per Day per violation 

during the first 30 Days; 

$37,500 per Day per violation 

thereafter 

h. Failure to make a timely election pursuant to Paragraph 

87 

$1,000 per Day for the first 15 

Days; $15,000 per Day for each 

Day thereafter 

i. Failure to Retire or Repower a Unit, if elected, as 

required by Paragraph 88 

$10,000 per Day per violation 

for the first 30 Days; $37,500 

per Day per violation for each 

Day thereafter 

j. Failure to conduct a stack test for PM and H2SO4 as 

required by Paragraphs 115 and 122 of this Consent Decree 

$5,000 per Day per violation 

k. Failure to install or operate NOx, SO2, and/or PM CEMS 

as required in this Consent Decree 

$1,000 per Day per violation 

l. Failure to apply for any permit required by Section XVII 

(Permits) 

$1,000 per Day per violation 

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

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

other submittals required by this Consent Decree 

$750 per Day per violation 

during the first 10 Days; $1,000 

per Day per violation thereafter 

n. Failure to surrender SO2 Allowances as required under 

this Consent Decree $37,500 per Day, plus $1,000 

per SO2 Allowance not 

surrendered 

o. Failure to surrender NOx Allowances as required under 

this Consent Decree $37,500 per Day, plus $1,000 

per NOx Allowance not 

surrendered 

p. Failure to demonstrate the third-party surrender of a NOx 

or SO2 Allowance in accordance with Paragraphs 81 and 

107 

$2,500 per Day per violation 

q. Failure to optimize the existing ESPs as required by 

Paragraph 119 

$1,000 per Day per violation 

r. Failure to undertake and complete any of the 

Environmental Mitigation Projects in compliance with 

Section IX (Environmental Mitigation Projects) of this 

Consent Decree 

$1,000 per Day per violation 

during the first 30 Days; $5,000 

per Day per violation thereafter 

s. Any other violation of this Consent Decree $1,000 per Day per violation 

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161.	 Violations of any limit based on a 30-Day rolling average constitutes thirty (30) Days of 

violation but where such a violation (for the same pollutant and from the same Unit) 

recurs within periods less than thirty (30) Days, Hoosier shall not be obligated to pay a 

daily stipulated penalty for any Day of the recurrence for which a stipulated penalty has 

already been paid. 

162.	 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, whichever is 

applicable. Nothing in this Consent Decree shall prevent the simultaneous accrual of 

separate stipulated penalties for separate violations of this Consent Decree. 

163.	 For purposes of the stipulated penalty Allowance Surrender required pursuant to 

Subparagraphs 160(e)-(f), Hoosier shall make the Surrender of any Allowances required 

for failure to meet an applicable Plant-Wide 12-Month Rolling SO2 Tonnage Limitation 

on a calendar year basis within forty-five (45) Days from Hoosier’s receipt of the next 

annual deduction report for Ratts. 

164.	 Hoosier shall pay all stipulated penalties to the United States within thirty (30) Days of 

receipt of written demand to Hoosier from the United States, and shall continue to make 

such payments every thirty (30) Days thereafter until the violation(s) no longer continues, 

unless Hoosier elects within twenty (20) Days of receipt of written demand to Hoosier 

from the United States to dispute the accrual of stipulated penalties in accordance with 

the provisions in Section XVI (Dispute Resolution) of this Consent Decree. 

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165.	 Stipulated penalties shall continue to accrue as provided in accordance with Paragraph 

162 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 the United States 

pursuant to Section XVI (Dispute Resolution) of this Consent Decree that is not 

appealed to the Court, accrued stipulated penalties agreed or determined to be 

owing, together with accrued interest, shall be paid within thirty (30) Days of the 

effective date of the agreement or of the receipt of the United States’ decision; 

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

in part, Hoosier shall, within thirty (30) Days of receipt of the Court’s decision or 

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

together with interest accrued on such penalties determined by the Court to be 

owing, except as provided in Subparagraph c, below; 

c. 	 If the Court’s decision is appealed by either Party, Hoosier shall, within fifteen 

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

stipulated penalties determined to be owing, together with interest accrued on 

such stipulated penalties determined to be owing by the appellate court. 

Notwithstanding any other provision of this Consent Decree, the accrued stipulated 

penalties agreed by the United States and Hoosier, or determined by the United States 

through Dispute Resolution, to be owing may be less than the stipulated penalty amounts 

set forth in Paragraph 160. 

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166.	 All monetary stipulated penalties shall be paid in the manner set forth in Section X (Civil 

Penalty) of this Consent Decree and all Allowance Surrender stipulated penalties shall 

comply with the Allowance Surrender procedures of Paragraphs 80-82 and 106-108. 

167.	 Should Hoosier 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. 

168.	 The stipulated penalties provided for in this Consent Decree shall be in addition to any 

other rights, remedies, or sanctions available to the United States by reason of Hoosier’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, Hoosier shall be allowed a credit for stipulated penalties paid against 

any statutory penalties also imposed for such violation. 

169.	 If any of the Units at Merom or Ratts exceed an applicable 30-Day Rolling Average 

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

forth in this Consent Decree due to malfunction, Hoosier, bearing the burden of proof, 

has an affirmative defense to stipulated penalties under this Consent Decree, if Hoosier 

has complied with the reporting requirements of Paragraphs 174 and 175 and has 

demonstrated all of the following: 

a. 	 the excess emissions were caused by a sudden, unavoidable breakdown of 

technology, beyond Hoosier’s control; 

b. 	 the excess emissions (1) did not stem from any activity or event that could have 

been foreseen and avoided, or planned for, and (2) could not have been avoided 

by better operation and maintenance practices; 

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c. 	 to the maximum extent practicable, the air pollution control equipment and 

processes were maintained and operated in a manner consistent with good 

practice for minimizing emissions; 

d. 	 repairs were made in an expeditious fashion when Hoosier knew or should have 

known that an applicable 30-Day Rolling Average Emission Rate or 30-Day 

Rolling Average Removal Efficiency was being or would be exceeded. Off-shift 

labor and overtime must have been utilized, to the extent practicable, to ensure 

that such repairs were made as expeditiously as practicable; 

e. 	 the amount and duration of the excess emissions (including any bypass) were 

minimized to the maximum extent practicable during periods of such emissions; 

f. 	 all possible steps were taken to minimize the impact of the excess emissions on 

ambient air quality; 

g. 	 all emission monitoring systems were kept in operation if at all possible; 

h. 	 Hoosier’s actions in response to the excess emissions were documented by 

properly signed, contemporaneous operating logs, or other relevant evidence; 

i. 	 the excess emissions were not part of a recurring pattern indicative of inadequate 

design, operation, or maintenance; and 

j. 	 Hoosier properly and promptly notified EPA as required by this Consent Decree. 

170.	 To assert an affirmative defense for malfunction under Paragraph 169, Hoosier shall 

submit all data demonstrating the actual emissions for the Day the Malfunction occurs 

and the 29-Day period following the Day the Malfunction occurs. Hoosier may, if it 

elects, submit emissions data for the same 30-Day period but that excludes the excess 

emissions. 

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171.	 If any of the Units at Merom or Ratts exceed an applicable 30-Day Rolling Average 

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

forth in this Consent Decree due to startup or shutdown, Hoosier, bearing the burden of 

proof, has an affirmative defense to stipulated penalties under this Consent Decree, if 

Hoosier has complied with the reporting requirements of Paragraphs 174 and 175 and has 

demonstrated all of the following: 

a. 	 the periods of excess emissions that occurred during startup and shutdown were 

short and infrequent and could not have been prevented through careful planning 

and design; 

b. 	 the excess emissions were not part of a recurring pattern indicative of inadequate 

design, operation, or maintenance; 

c. 	 if the excess emissions were caused by a bypass (an intentional diversion of 

control equipment), then the bypass was unavoidable to prevent loss of life, 

personal injury, or severe property damage; 

d. 	 at all time, the facility was operated in a manner consistent with good practice for 

minimizing emissions; 

e. 	 the frequency and duration of operation in startup or shutdown mode was 

minimized to the maximum extent practicable; 

f. 	 all possible steps were taken to minimize the impact of the excess emissions on 

ambient air quality; 

g. 	 All emissions monitoring systems were kept in operation if at all possible; 

h. 	 Hoosier’s actions during the period of excess emissions were documented by 

properly signed, contemporaneous operating logs, or other relevant evidence; and 

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i. 	 Hoosier properly and promptly notified EPA as required by this Consent Decree. 

172.	 To assert an affirmative defense for startup or shutdown under Paragraph 171, Hoosier 

shall submit all data demonstrating the actual emissions for the Day the excess emissions 

from startup or shutdown occurs and the 29-Day period following the Day the excess 

emissions from startup or shutdown occurs. Hoosier may, if it elects, submit emissions 

data for the same 30-Day period but that excludes the excess emissions. 

173.	 If excess emissions occur due to a malfunction during routine startup and shutdown, then 

those instances shall be treated as other malfunctions subject to Paragraph 169. 

174.	 For an affirmative defense under Paragraphs 169 and 171, Hoosier, bearing the burden of 

proof, shall demonstrate, through submission of the data and information under the 

reporting provisions of this Section, that all reasonable and practicable measures within 

Hoosier’s control were implemented to prevent the occurrence of the excess emissions. 

175.	 Hoosier shall provide notice to Plaintiffs in writing of Hoosier’s intent to assert an 

affirmative defense for malfunction, startup, or shutdown under Paragraphs 169 and 171, 

as soon as practicable, but in no event later than twenty-one (21) Days following the date 

of the malfunction, startup or shutdown. This notice shall be submitted to EPA and the 

State pursuant to the provisions of Section XIX (Notices). The notice shall contain: 

a. 	 The identity of each stack or other emission point where the excess emissions 

occurred; 

b. 	 The magnitude of the excess emissions expressed in lb/mmBTU or % Removal 

Efficiency and the operating data and calculations used in determining the 

magnitude of the excess emissions; 

c. 	 The time and duration or expected duration of the excess emissions; 

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d. 	 The identity of the equipment from which the excess emissions emanated; 

e. 	 The nature and cause of the excess emissions; 

f. 	 The steps taken, if the excess emissions were the result of a malfunction, to 

remedy the malfunction and the steps taken or planned to prevent the recurrence 

of the malfunction; 

g. 	 The steps that were or are being taken to limit the excess emissions; and 

h. 	 If applicable, a list of the steps taken to comply with permit conditions governing 

Unit operation during periods of startup, shutdown, and/or malfunction. 

176.	 A malfunction, startup, or shutdown shall not constitute a Force Majeure Event unless the 

malfunction, startup, or shutdown also meets the definition of a Force Majeure Event, as 

provided in Section XV (Force Majeure). 

177.	 The affirmative defense provided herein is only an affirmative defense to stipulated 

penalties for violations of this Consent Decree, and not a defense to any civil or 

administrative action for injunctive relief. 

XV. FORCE MAJEURE 

178.	 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 Hoosier, its 

contractors, or any entity controlled by Hoosier that delays compliance with any 

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

Consent Decree despite Hoosier’s best efforts to fulfill the obligation. “Best efforts to 

fulfill the obligation” include using the best efforts to anticipate any potential Force 

Majeure Event and to address the effects of any such event (a) as it is occurring and (b) 

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after it has occurred, such that the delay and any adverse environmental effect of the 

delay or violation is minimized to the greatest extent possible. 

179.	 Notice of Force Majeure Events. If any event occurs or has occurred that may delay 

compliance with or otherwise cause a violation of any obligation under this Consent 

Decree, as to which Hoosier intends to assert a claim of Force Majeure, Hoosier shall 

notify Plaintiffs in writing as soon as practicable, but in no event later than twenty-one 

(21) Days following the date Hoosier 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, Hoosier 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 Hoosier to prevent or 

minimize the delay and any adverse environmental effect of the delay or violation, the 

schedule by which Hoosier proposes to implement those measures, and Hoosier’s 

rationale for attributing a delay or violation to a Force Majeure Event. Hoosier shall 

adopt all reasonable measures to avoid or minimize such delays or violations. Hoosier 

shall be deemed to know of any circumstance which Hoosier, its contractors, or any 

entity controlled by Hoosier knew or should have known. 

180.	 Failure to Give Notice. If Hoosier fails to comply with the notice requirements of this 

Section, the United States (after consultation with Indiana) may void Hoosier’s claim for 

Force Majeure as to the specific event for which Hoosier has failed to comply with such 

notice requirement. 

181.	 United States’ Response. The United States shall notify Hoosier in writing regarding 

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

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notice provided under Paragraph 179. If the United States (after consultation with 

Indiana) agrees that a delay in performance has been or will be caused by a Force 

Majeure Event, the United States and Hoosier shall stipulate to an extension of 

deadline(s) for performance of the affected compliance requirement(s) by a period equal 

to the delay actually caused by the event. In such circumstances, an appropriate 

modification shall be made pursuant to Section XXIII (Modification) of this Consent 

Decree. 

182.	 Disagreement. If the United States (after consultation with Indiana) does not accept 

Hoosier’s claim of Force Majeure, or if the United States and Hoosier cannot agree on the 

length of the delay actually caused by the Force Majeure Event, the matter shall be 

resolved in accordance with Section XVI (Dispute Resolution) of this Consent Decree. 

183.	 Burden of Proof. In any dispute regarding Force Majeure, Hoosier 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. Hoosier 

shall also bear the burden of proving that Hoosier gave the notice required by this Section 

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. 

184.	 Events Excluded. Unanticipated or increased costs or expenses associated with the 

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

Force Majeure Event. 

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

circumstances related to an event and Hoosier’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; unanticipated coal supply or pollution control 

reagent delivery interruptions; acts of God; acts of war or terrorism; and orders by a 

government official, government agency, other regulatory authority, or a regional 

transmission organization, acting under and authorized by applicable law, that directs 

Hoosier to supply electricity in response to a system-wide (state-wide or regional) 

emergency. Depending upon the circumstances and Hoosier’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 Hoosier and Hoosier 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. 

186.	 As part of the resolution of any matter submitted to this Court under Section XVI 

(Dispute Resolution) regarding a claim of Force Majeure, the United States and Hoosier 

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

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

in the work that occurred as a result of any delay agreed to by the United States or 

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approved by the Court. Hoosier shall be liable for stipulated penalties pursuant to 

Section XIV (Stipulated Penalties) for its failure thereafter to complete the work in 

accordance with the extended or modified schedule (provided that Hoosier shall not be 

precluded from making a further claim of Force Majeure with regard to meeting any such 

extended or modified schedule). 

XVI. DISPUTE RESOLUTION 

187.	 The dispute resolution procedure provided by this Section shall be available to resolve all 

disputes arising under this Consent Decree, provided that the Party invoking such 

procedure has first made a good faith attempt to resolve the matter with the other Party. 

188.	 The dispute resolution procedure required herein shall be invoked by one Party giving 

written notice to the other Party advising of a dispute pursuant to this Section. The notice 

shall describe the nature of the dispute and shall state the noticing Party’s position with 

regard to such dispute. The Party receiving such a notice shall acknowledge receipt of 

the notice, and the Parties in dispute shall expeditiously schedule a meeting to discuss the 

dispute informally not later than fourteen (14) Days following receipt of such notice. 

189.	 Disputes submitted to dispute resolution under this Section shall, in the first instance, be 

the subject of informal negotiations between the Parties. Such period of informal 

negotiations shall not extend beyond thirty (30) Days from the date of the first meeting 

between the Parties’ representatives unless they agree in writing to shorten or extend this 

period. 

190.	 If the Parties are unable to reach agreement during the informal negotiation period, the 

Plaintiffs shall provide Hoosier with a written summary of its position regarding the 

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

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unless, within forty-five (45) Days thereafter, Hoosier seeks judicial resolution of the 

dispute by filing a petition with this Court. If Hoosier seeks judicial resolution, the 

Plaintiffs’ written summary shall be deemed its initial filing with this Court regarding the 

dispute. The Plaintiffs may submit a response to the petition within forty-five (45) Days 

of filing. 

191.	 The time periods set out in this Section may be shortened or lengthened upon motion to 

the Court of one of the Parties to the dispute, explaining the Party’s basis for seeking 

such a scheduling modification. 

192.	 This Court shall not draw any inferences nor establish any presumptions adverse to either 

Party as a result of invocation of this Section or the Parties’ inability to reach agreement. 

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

the Parties may agree, or this Court may order, an extension or modification of the 

schedule for the completion of the activities required under this Consent Decree to 

account for the delay that occurred as a result of dispute resolution. Hoosier shall be 

liable for stipulated penalties pursuant to Section XIV (Stipulated Penalties) for its failure 

thereafter to complete the work in accordance with the extended or modified schedule, 

provided that Hoosier 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. 

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

such disputes. In their filings with the Court under Paragraph 190, the Parties shall state 

their respective positions as to the applicable standard of law for resolving the particular 

dispute. 

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XVII. PERMITS
 

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

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

authorize construction or operation of any device, including all preconstruction, 

construction, and operating permits required under State law, Hoosier shall make such 

application in a timely manner. Plaintiffs will use their best efforts to expeditiously 

fulfill their role in reviewing all permit applications submitted by Hoosier in order to 

meet the requirements of this Consent Decree. 

196.	 When permits are required, Hoosier shall complete and submit applications for such 

permits to IDEM to allow sufficient time for all legally required processing and review of 

the permit request, including requests for additional information by IDEM. Any failure 

by Hoosier to submit a timely permit application for Merom Unit 1 and Unit 2 and/or 

Ratts Unit 1 and Unit 2 shall bar any use by Hoosier of Section XV (Force Majeure) of 

this Consent Decree, where a Force Majeure claim is based on permitting delays. 

197.	 Notwithstanding the reference to Hoosier’s Title V Permits for Merom Unit 1 and Unit 2 

and Ratts Unit 1 and Unit 2 in this Consent Decree, the enforcement of such permit shall 

be in accordance with their own terms and the Act. Hoosier’s Title V Permits for Merom 

and Ratts 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 XXVII (Conditional Termination of Enforcement Under 

Decree) of this Consent Decree. 

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198.	 Within one hundred eighty (180) Days after the Date of Entry of this Consent Decree, 

Hoosier shall amend any applicable Title V Permit application(s), or apply for 

amendments of its Title V Permits, to include a schedule for all Unit-specific, plantspecific, and system-specific performance, operational, maintenance, and control 

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

(a) Emission Rates and Removal Efficiencies, (b) the applicable System-Wide Annual 

NOx Tonnage Limitations and System-Wide Annual SO2 Tonnage Limitations, (c) the 

Plant-Wide 12-Month Rolling SO2 Tonnage Limitations at Ratts, and (d) the 

requirements pertaining to the Surrender of SO2 and NOx Allowances. 

199.	 By no later than December 31, 2015, Hoosier shall either apply to permanently include 

the requirements and limitations enumerated in this Consent Decree into a federally 

enforceable non-Title V permit or request a site-specific amendment to the Indiana SIP to 

include the requirements and limitations enumerated in this Consent Decree. The permit 

or Indiana SIP amendment shall require compliance with the following: (a) any 

applicable Emission Rate or Removal Efficiency, (b) the applicable System-Wide Annual 

NOx Tonnage Limitations and System-Wide Annual SO2 Tonnage Limitations, (c) the 

applicable Plant-Wide 12-Month Rolling SO2 Tonnage Limitations at Ratts, and (d) the 

NOx and SO2 Allowance Surrender requirements set forth in this Consent Decree. 

200.	 Hoosier shall provide the United States with a copy of each application for a federally 

enforceable permit or Indiana SIP amendment, 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. 

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201.	 Prior to termination of this Consent Decree, Hoosier shall obtain enforceable provisions 

in its Title V permits for Merom and Ratts that incorporate all Unit-specific, plantspecific, and system-specific performance, operational, maintenance, and control 

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

(a) Emission Rates and Removal Efficiencies, (b) the applicable System-Wide Annual 

NOx Tonnage Limitations and System-Wide Annual SO2 Tonnage Limitations, (c) the 

Plant-Wide 12-Month Rolling SO2 Tonnage Limitations at Ratts, and (d) the 

requirements pertaining to the Surrender of SO2 and NOx Allowances. 

202.	 If Hoosier sells or transfers to an entity unrelated to Hoosier (“Third Party Purchaser”) 

part or all of its Operational or Ownership Interest covered under this Consent Decree, 

Hoosier shall comply with the requirements of Section XX (Sales or Transfers of 

Operational or Ownership Interests) of this Consent Decree with regard to that 

Operational or Ownership Interest prior to any such sale or transfer unless, following any 

such sale or transfer, Hoosier remains the holder of the permit for such facility. 

XVIII. INFORMATION COLLECTION AND RETENTION 

203.	 Any authorized representative of the United States, including its attorneys, contractors, 

and consultants, upon presentation of credentials, shall have a right of entry upon the 

premises of Merom Unit 1 and Unit 2 and Ratts Unit 1 and Unit 2 at any reasonable time 

for the purpose of: 

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

b. 	 verifying any data or information submitted to the United States in accordance 

with the terms of this Consent Decree; 

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

representatives, contractors, or consultants; and 

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

204.	 Hoosier 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 

Hoosier’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 Section IV (NOx Emission Reductions and 

Controls), Section V (SO2 Emission Reductions and Controls), Section VI (H2SO4 

Emission Reductions and Controls), and Section VII (PM Emission Reductions and 

Controls); 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. 

205.	 All information and documents submitted by Hoosier 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) Hoosier claims and substantiates in accordance with 40 C.F.R. Part 2 

that the information and documents contain confidential business information. 

206.	 Nothing in this Consent Decree shall limit the authority of EPA to conduct tests and 

inspections at Hoosier’s facilities under Section 114 of the Act, 42 U.S.C. § 7414, or any 

other applicable federal laws, regulations, or permits. 

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XIX. NOTICES 

207.	 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, DC 20044-7611 

DJ# 90-5-2-1-09864 

(if by commercial delivery service) 

Chief, Environmental Enforcement Section 

Environment and Natural Resources Division 

U.S. Department of Justice 


ENRD Mailroom, Room 2121 


601 D Street, NW 


Washington, DC 20004 


DJ# 90-5-2-1-09864 


and 

(if by commercial delivery service) 

Director, Air Enforcement Division 

Office of Enforcement and Compliance Assurance 

U.S. Environmental Protection Agency 

Ariel Rios South Building, Room 1119 

1200 Pennsylvania Avenue, NW 

Washington, DC 20004 

(if by mail service) 

Director, Air Enforcement Division 

Office of Enforcement and Compliance Assurance 

U.S. Environmental Protection Agency 

Mail Code 2242A 

1200 Pennsylvania Avenue, NW 

Washington, DC 20460 

and 

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Director, Air Division 

U.S. EPA Region 5 

77 W. Jackson Blvd. (AE-17J) 

Chicago, IL 60604 

As to the State of Indiana: 

Phil Perry 

Chief, Compliance and Enforcement Branch 

Office of Air Quality 

Indiana Department of Environmental Management 

100 North Senate Avenue 

MC 61-53, IGCN 1003 

Indianapolis, IN 46204-2251 

and 

Justin D. Barrett 

Deputy Attorney General 

Indiana Office of the Attorney General 

302 West Washington Street 

IGCS Fifth Floor 

Indianapolis, IN 46204 

As to HOOSIER: 

Robert Richhart 

Vice President, Management Services 

Hoosier Energy REC, Inc. 

7398 N State Road 37 

Bloomington, IN 47404 

Christopher M. Goffinet, Esq. 

General Counsel 

Hoosier Energy REC, Inc. 

7398 N State Road 37 

Bloomington, IN 47404 

and 

John M. Holloway, III, Esq. 

Elizabeth C. Williamson, Esq. 

Winston & Strawn LLP 

1700 K Street, N.W. 

Washington, DC 20006-3817 

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208.	 All notifications, communications, or submissions made pursuant to this Section shall be 

sent either by: (a) overnight mail or overnight delivery service with signature required 

for delivery, or (b) certified or registered mail, return receipt requested. All notifications, 

communications, and transmissions (a) sent by overnight, certified, or registered mail 

shall be deemed submitted on the 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. 

209.	 Either Party may change either the notice recipient or the address for providing notices to 

it by serving the other Party with a notice setting forth such new notice recipient or 

address. 

XX. SALES OR TRANSFERS OF OPERATIONAL OR OWNERSHIP INTERESTS 

210.	 If Hoosier proposes to sell or transfer an Operational or Ownership Interest to another 

entity (a “Third Party Purchaser”), Hoosier shall advise the Third Party Purchaser in 

writing of the existence of this Consent Decree prior to such sale or transfer, and shall 

send a copy of such written notification to the Plaintiffs pursuant to Section XIX 

(Notices) of this Consent Decree at least sixty (60) Days before such proposed sale or 

transfer. 

211.	 No sale or transfer of an Operational or Ownership Interest shall take place before the 

Third Party Purchaser and the Plaintiffs have executed, and the Court has approved, a 

modification pursuant to Section XXIII (Modification) of this Consent Decree making 

the Third Party Purchaser a party to this Consent Decree and jointly and severally liable 

with Hoosier for all the requirements of this Consent Decree that may be applicable to the 

transferred or purchased Operational or Ownership Interests. 

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212.	 This Consent Decree shall not be construed to impede the transfer of any Operational or 

Ownership Interests between Hoosier and any Third Party Purchaser so long as the 

requirements of this Consent Decree are met. This Consent Decree shall not be construed 

to prohibit a contractual allocation – as between Hoosier and any Third Party Purchaser 

of Operational or Ownership Interests – of the burdens of compliance with this Consent 

Decree, provided that both Hoosier and such Third Party Purchaser shall remain jointly 

and severally liable to the United States for the obligations of this Consent Decree 

applicable to the transferred or purchased Operational or Ownership Interests. 

213.	 If the Plaintiffs agree, the Plaintiffs, Hoosier, and the Third Party Purchaser that has 

become a party to this Consent Decree pursuant to Paragraph 211 may execute a 

modification that relieves Hoosier of its liability under this Consent Decree for, and 

makes the Third Party Purchaser liable for, all obligations and liabilities applicable to the 

purchased or transferred Operational or Ownership Interests. Notwithstanding the 

foregoing, however, Hoosier may not assign, and may not be released from, any 

obligation under this Consent Decree that is not specific to the purchased or transferred 

Operational or Ownership Interests, including the obligations set forth in Sections IX 

(Environmental Mitigation Projects) and X (Civil Penalty). Hoosier may propose and the 

Plaintiffs may agree to restrict the scope of the joint and several liability of any purchaser 

or transferee for any obligations of this Consent Decree that are not specific to the 

transferred or purchased Operational or Ownership Interests, to the extent such 

obligations may be adequately separated in an enforceable manner. 

XXI. EFFECTIVE DATE 

214.	 The effective date of this Consent Decree shall be the Date of Entry. 

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XXII. RETENTION OF JURISDICTION
 

215.	 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 the interpretation, construction, execution, or 

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

this Consent Decree, either Party to this Consent Decree may apply to the Court for any 

relief necessary to construe or effectuate this Consent Decree. 

XXIII. MODIFICATION 

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

agreement signed by Plaintiffs and Hoosier. Where the modification constitutes a 

material change to any term of this Consent Decree, it shall be effective only upon 

approval by the Court. 

XXIV. GENERAL PROVISIONS 

217.	 When this Consent Decree specifies that Hoosier shall achieve and maintain a 30-Day 

Rolling Average Emission Rate or a 30-Day Rolling Average Removal Efficiency, the 

Parties expressly recognize that compliance with such 30-Day Rolling Average Emission 

Rate or a 30-Day Rolling Average Removal Efficiency shall commence immediately 

upon the date specified, and that compliance as of such specified date (e.g., December 

30) shall be determined based on data from the 29 prior Unit Operating Days (e.g., 

December 1-29). 

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

does not guarantee compliance with all applicable federal, state, or local laws or 

regulations. The emission rates and removal efficiencies set forth herein do not relieve 

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Hoosier from any obligation to comply with other state and federal requirements under 

the Clean Air Act, including Hoosier’s obligation to satisfy any State modeling 

requirements set forth in the Indiana SIP. 

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

220.	 In any subsequent administrative or judicial action initiated by the United States for 

injunctive relief or civil penalties relating to Merom Unit 1 or Unit 2 or Ratts Unit 1 or 

Unit 2 as covered by this Consent Decree, Hoosier 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 United States 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 affect the validity of Paragraphs 146-148 subject to Paragraphs 149-152. 

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

shall relieve Hoosier of its obligation to comply with all applicable federal, state, and 

local laws and regulations, including, but not limited to, Hoosier’s obligation to apply for 

a Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit(s) 

or permit renewal for the discharge of wastewater from the operation of the FGDs at 

Merom, and in connection with any such application or application for permit renewal, to 

provide the NPDES permitting authority with all information necessary to appropriately 

characterize effluent from its operations and develop, if applicable, appropriate effluent 

limitations, including but not limited to all information necessary for the NPDES 

permitting authority to appropriately evaluate discharges of total dissolved solids (TDS) 

for its operations. Subject to the provisions in Section XI (Resolution of Civil Claims 

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Against Hoosier), nothing contained in this Consent Decree shall be construed to prevent 

or limit the rights of the United States to obtain penalties or injunctive relief under the 

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

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

separate, independent requirement. 

223.	 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. Hoosier shall round the fourth significant digit to the nearest 

third significant digit, or the third significant digit to the nearest second significant digit, 

depending upon whether the limit is expressed to three or two significant digits. For 

example, if an actual Emission Rate is 0.1004, that shall be reported as 0.100, and shall 

be in compliance with an Emission Rate of 0.100, and if an actual Emission Rate is 

0.1005, that shall be reported as 0.101, and shall not be in compliance with an Emission 

Rate of 0.100. Hoosier shall report data to the number of significant digits in which the 

standard or limit is expressed. 

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

Consent Decree as against any third parties. 

225.	 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 

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settlement it represents, nor shall they be used in construing the terms of this Consent 

Decree. 

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

XXV. SIGNATORIES AND SERVICE 

227.	 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. 

228.	 This Consent Decree may be signed in counterparts, and such counterpart signature pages 

shall be given full force and effect. 

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

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

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

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

XXVI. PUBLIC COMMENT 

230.	 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 this Consent Decree is 

inappropriate, improper, or inadequate. Hoosier 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 Hoosier, in writing, that the United States no longer supports entry of 

this Consent Decree. 

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XXVII. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER 


CONSENT DECREE
 

231.	 Termination as to completed tasks. As soon as Hoosier completes a construction project 

or any other requirement of this Consent Decree that is not ongoing or recurring, Hoosier 

may, by motion to this Court, seek termination of the provision or provisions of this 

Consent Decree that imposed the requirement. 

232.	 Conditional termination of enforcement through this Consent Decree. Subject to the 

provisions of Paragraph 233, after Hoosier: 

a. 	 has successfully completed construction, and has maintained operation, of all 

pollution controls as required by this Consent Decree for a period of two years; 

and 

b. 	 has obtained all the final permits required by Section XVII (Permits) of this 

Consent Decree covering Merom Unit 1 and Unit 2 and Ratts Unit 1 and Unit 2 

that include as federally enforceable permit terms, all Unit-specific, plant-specific, 

and system-specific performance, operational, maintenance, and control 

technology requirements established by this Consent Decree; 

then Hoosier 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 

Hoosier’s certification, then, for any violations of this Consent Decree that occur after the 

filing of notice, the Plaintiffs shall pursue enforcement of the requirements through the 

applicable permits and/or other enforcement authorities and not through this Consent 

Decree. 

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233.	 Resort to enforcement under this Consent Decree. Notwithstanding Paragraph 232, if 

enforcement of a provision in this Consent Decree cannot be pursued by the United States 

under the applicable permit(s) issued pursuant to the Clean Air Act or its implementing 

regulations (“CAA Permit”), or if a Consent Decree requirement was intended to be part 

of a CAA 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. 

XXVIII. FINAL JUDGMENT 

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

constitute a final judgment between the Plaintiffs and Hoosier. 

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APPENDIX A 

ENVIRONMENTAL MITIGATION PROJECTS 

In compliance with and in addition to the requirements in Section IX of this Consent 

Decree (Environmental Mitigation Projects), Hoosier shall comply with the requirements of this 

Appendix to ensure that the benefits of the $5,000,000 in federally directed Environmental 

Mitigation Projects (“Projects”) are achieved. 

I.	 Forest Service Mitigation 

A.	 Within forty-five (45) days from the Date of Entry, Hoosier shall pay to the 

United States Forest Service the sum of $200,000 to be used in accordance with 

16 U.S.C. § 579c, for the improvement, protection, or rehabilitation of lands 

under the administration of the Forest Service. The Forest Service Project(s) will 

focus on the Hoosier National Forest. If the Hoosier National Forest is not 

possible as a Project focus, the Project(s) shall focus on one or more of the 

following areas alleged by Plaintiffs to have been injured by emissions from the 

Ratts and Merom Plants: Shawnee National Forest, Wayne National Forest, 

Daniel Boone National Forest, Cherokee National Forest, Nantahala National 

Forest, Pisgah National Forest, Chattahoochee National Forest, and Jefferson 

National Forest. 

B.	 Payment of the amount specified in the preceding paragraph shall be made to the 

Forest Service pursuant to payment instructions provided to Hoosier before or 

after the Date of Lodging. Notwithstanding Section I.A of this Appendix, 

payment of funds by Hoosier is not due until ten (10) days after receipt of 

payment instructions, or forty-five (45) days after the Date of Entry, whichever is 

later. 

C.	 Upon payment of the amount specified in Section I.A of this Appendix, Hoosier 

shall have no further responsibilities regarding the implementation of any Projects 

selected by the Forest Service in connection with this provision of the Consent 

Decree. 

II.	 Overall Schedule and Budget for Additional Environmental Mitigation Projects 

A.	 Within one hundred and twenty (120) days of the Date of Entry, as further 

described below, Hoosier shall choose Environmental Mitigation Projects from 

the projects outlined in Sections III through VI of this Appendix and shall submit 

proposed plans to EPA for review and approval pursuant to Section XIII of the 

Consent Decree (Review and Approval of Submittals) for spending the remaining 

$4.8 million in Project Dollars specified in this Appendix in accordance with the 

deadlines established in this Appendix. EPA reserves the right to disapprove any 

1 
APPENDIX A 

ENVIRONMENTAL MITIGATION PROJECTS 

of the projects should the Agency determine based on an analysis of the plans 

submitted by Hoosier and all the potential environmental impacts that the project 

is not environmentally beneficial. 

B.	 Hoosier may, at its election, consolidate the plans required by this Appendix into 

a single plan. 

C.	 The Parties agree that Hoosier is entitled to spread its payments for 

Environmental Mitigation Projects over the five-year period commencing upon 

the Date of Entry. Hoosier is not, however, precluded from accelerating payments 

to better effectuate a proposed mitigation plan, provided that Hoosier shall not be 

entitled to any reduction in the nominal amount of the required payments by 

virtue of the early expenditures. 

D.	 All proposed Project plans shall include the following: 

1. A plan for implementing the Project; 

2. A summary-level budget for the Project; 

3. A time-line for implementation of the Project; and 

4. A description of the anticipated environmental benefits of the 

Project including an estimate of emission reductions (e.g., SO2, 

NOx, PM, mercury, CO2) expected to be realized. 

E.	 Upon approval of the plan(s) required by this Appendix by the United States, 

Hoosier shall complete the approved Projects according to the approved plan(s). 

Nothing in this Consent Decree shall be interpreted to prohibit Hoosier from 

completing the Projects ahead of schedule. 

F.	 Commencing with the first progress report due pursuant to Section XII (Periodic 

Reporting) of the Consent Decree, and continuing annually thereafter until 

completion of the Project(s), Hoosier will include in the progress report 

information describing the progress of the Project and the Project Dollars 

expended on the Project. 

G.	 In accordance with the requirements of Paragraph 158, within sixty (60) days 

following the completion of each Project, Hoosier shall submit to the United 

States for approval (with a courtesy copy to the State of Indiana), a report that 

documents: 

1. The date the Project was completed; 

2 
APPENDIX A 

ENVIRONMENTAL MITIGATION PROJECTS 

2. The results of implementation of the Project, including the 

estimated emission reductions or other environmental benefits 

achieved; and 

3. The Project Dollars incurred by Hoosier in implementing the 

Project. 

III.	 Coal Bed Methane Project 

A.	 Consistent with the requirements of Section II of this Appendix, Hoosier may 

propose a plan to capture and combust methane from coal beds to generate at least 

ten (10) megawatts of electricity. Hoosier will ensure that the carbon dioxide 

emissions resulting from the combustion of the methane will be supplied to a 

greenhouse for use as fertilizer. Hoosier shall spend no more than $1 million in 

Project Dollars in performing this Coal Bed Methane Project. 

B.	 In addition to the requirements of Section II, the plan shall also satisfy the 

following criteria: 

1. Describe in detail the process Hoosier will use to extract 

sequestered methane from the coal beds; 

2. Describe in detail the process Hoosier will use to combust the 

methane to produce electricity; 

3. Describe in detail the process Hoosier will use to supply the CO2 

emissions resulting from the combustion of the methane to 

greenhouses; 

4. Describe how Hoosier will monitor the amount of CO2 removed 

from the combustion gas and supplied to the greenhouse(s) (e.g., 

type(s) of monitoring equipment, analytical methodologies, 

frequency of monitoring and measurement, calibration techniques); 

5. Identify the coal beds from which Hoosier will extract the 

methane; 

6. Identify the greenhouse(s) which will utilize the CO2 emissions 

resulting from the combustion of the methane; 

7. Identify the federal, state, and local environmental requirements 

3 
APPENDIX A 

ENVIRONMENTAL MITIGATION PROJECTS 

that the Coal Bed Methane Project will need to comply with and 

provide a detailed description of how Hoosier will meet such 

requirements; 

8. Provide complete copies of applications for any permits required 

for the Coal Bed Methane Project; 

9. Identify in cubic feet or meters the amount of methane that will be 

extracted and combusted annually for the Coal Bed Methane 

Project; 

10. Describe the monitoring methods Hoosier will use to determine 

how much methane is being produced from the coal seams and 

used in the engines (e.g., (e.g., type(s) of monitoring equipment, 

analytical methodologies, frequency of monitoring and 

measurement, calibration techniques); 

11. Provide an estimate of how much methane may leak as a result 

from the installation and operation of the wells and methane 

extraction system; 

12. As part of the environmental benefit analysis required under 

Section II.D.4 of this Appendix, identify the annual generation of 

electricity (MWs) from the combustion of coal that will be 

annually offset by the Coal Bed Methane Project, and the resulting 

annual net emission reduction, if any, of SO2, NOx, PM, mercury, 

and CO2 from such offset. 

13. Hoosier shall perform an in-depth environmental analysis to 

identify and describe any potential adverse environmental impacts 

from the Coal Bed Methane Project. Such analysis shall be of 

sufficient scope and breadth so as to enable EPA to thoroughly 

evaluate the potential adverse environmental impacts of this 

project prior to approving or disapproving the project. As part of 

such analysis, Hoosier shall identify and describe the following: 

a. Impacts on water quality, including an evaluation of any 

changes in salinity, pH, concentrations of dissolved metals 

and radium, and the type and amounts of dissolved organic 

constituents in the water produced from the methane 

4 
APPENDIX A 

ENVIRONMENTAL MITIGATION PROJECTS 

extraction process and the water remaining in the 

geological structure after the methane is extracted; 

b. If the water produced from the methane extraction process 

will meet the applicable requirements under federal and 

state regulations, including the Clean Water Act, the Safe 

Drinking Water Act, and the Resource Conservation and 

Recovery Act; 

c. Impacts on water quantity, including but not limited to, the 

water levels in aquifers, wetlands, and drinking water 

wells; 

e. Impact on wetlands; 

f. Impact on public health and welfare, including potential for 

fires, levels of gas leakage into surrounding residential and 

commercial buildings, property values, odors, and noise; 

g. Compaction or subsidence of geological formations; 

h. Impact on vegetation, including any crop yields and plant 

growth rates; 

i. Impact on air quality; 

j. Impact on ecosystems/habitat; and

 k. Impact on historic sites. 

14. If, based upon the information provided by Hoosier as well as other 

available information, EPA, in its sole discretion, believes that the 

proposed Coal Bed Methane Project may adversely impact human health 

or the environment, EPA shall not approve the proposed project and 

Hoosier shall submit another project described in this Appendix for EPA’s 

review and approval. EPA’s disapproval of the Coal Bed Methane Project 

shall not be subject to Paragraph 158 or Section XVI (Dispute Resolution) 

of the Consent Decree. 

IV.	 Wood Stove Changeout Project 

A. Consistent with the requirements of Section II of this Appendix, Hoosier may 

propose a plan to sponsor a Wood-burning Appliance Changeout and Retrofit 

Project (“Wood Appliance Changeout and Retrofit Project”) that a state, local, or 

tribal air pollution control agency (“air pollution control agency) or third-party 

non-profit will agree to implement in an area that would benefit from reductions 

of fine particle pollution and/or hazardous air pollutants by replacing, or 

retrofitting or upgrading inefficient, higher polluting wood-burning appliances 

(e.g., non-EPA certified wood stoves, fireplaces, old technology outdoor wood5 
APPENDIX A 

ENVIRONMENTAL MITIGATION PROJECTS 

fire hydronic heaters) or inefficient resistance electric heating (e.g., baseboard or 

electric furnaces) with Energy Star qualified Heat Pumps, EPA Phase 2 hydronic 

heaters, or EPA-certified wood-stoves and/or cleaner burning, more energyefficient hearth appliances (e.g., wood pellet, gas, or propane stove). 

B. The Wood Appliance Changeout and Retrofit Project that Hoosier sponsors shall 

provide educational information (including, energy efficiency, health and safety 

benefits, and outreach regarding cleaner-burning alternatives and proper 

operation of the new technology appliances) and incentives through rebates, 

discounts, and in some instances, actual replacement of the old technology woodburning appliances or inefficient resistance electric heating for income-qualified 

residential homeowners, to encourage residential homeowners to replace their old, 

higher polluting and less energy efficient appliance with more energy efficient 

appliances such as geothermal heat pumps, Energy Star qualified heat pumps, and 

cleaner burning, more energy efficient heating appliances like wood pellet stoves, 

EPA-certified wood stoves, gas stoves, or propane stoves. 

C. Hoosier shall sponsor the implementation of the Wood Appliance Changeout and 

Retrofit Project in Hoosier’s service area(s) in central and southern Indiana, 

bordered by the cities of Evansville, Terre Haute, Indianapolis, Richmond, 

Cincinnati and Louisville that promise significant environmental benefit from the 

Wood Appliance Changeout and Retrofit Project. In determining the specific 

areas to implement this Project within the aforementioned geographic area, 

Hoosier shall give priority to areas with high amounts of air pollution, especially 

particle pollution and/or hazardous air pollutants, areas located within a 

geography and topography that makes it susceptible to high levels of particle 

pollution, or areas that have a significant number of old and/or, higher polluting 

wood-burning or inefficient resistance electric heating appliances. 

D. The air pollution control agency(ies) and/or non-profit(s) that Hoosier selects 

shall consult with EPA’s wood smoke team and implement the Wood Appliance 

Changeout and Retrofit Project consistent with the materials available on EPA’s 

Burn Wise website at http://www.epa.gov/burnwise. 

E. In addition to the requirements of Section II , the plan shall also satisfy the 

following criteria:

 1. Identify the air pollution control agency(ies) and/or non-profit(s) selected 

to implement the Wood Appliance Changeout and Retrofit Project. 

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APPENDIX A 

ENVIRONMENTAL MITIGATION PROJECTS 

2. Describe the schedule and budgetary increments in which Hoosier shall 

provide the necessary funding to the air pollution control agency(ies) 

and/or non-profits(s) to implement the Wood Appliance Changeout and 

Retrofit Project. 

3. Ensure that the air pollution control agency(ies) and/or non-profit(s) will 

implement the Wood Appliance Changeout and Retrofit Project in 

accordance with the requirements of this Appendix, and that the Project 

Dollars will be used to support the actual replacement, upgrade or retrofit 

of appliances currently used as the primary or secondary source of 

residential heat with a cleaner, more energy efficient appliance (i.e., 

geothermal heat pump, wood pellet stove, EPA-certified wood stove, gas 

stove, EPA Phase 2 qualified hydronic heater, or propane stove). To 

enable the project to carry on in the future funds may be used to support 

changeout/upgrades through revolving loan programs or other low-interest 

loan programs. Hoosier shall limit the use of Project Dollars for 

administrative costs associated with implementation of the program to no 

greater than 10% of the Project Dollars Hoosier provides to a specific air 

pollution control agency and/or non-profit. Up to 7% can be used for 

personnel cost and the remaining 3 % for other (e.g., outreach materials, 

training, studies/surveys, travel) project support costs. 

4. Describe all of the elements of the Wood Appliance Changeout and 

Retrofit Project that the air pollution control agency(ies) and/or nonprofit(s) will implement. Hoosier shall describe and estimate the number 

of energy efficient appliances it intends to make available, the cost per 

unit, and the criteria the air pollution control agency(ies) and/or nonprofit(s) will use to determine which residential homeowners should be 

eligible for actual stove replacement. 

5. If applicable, identify any organizations with which the air pollution 

control agency(ies) and/or non-profit(s) will partner to implement the 

Project, including such organizations as: the Hearth, Patio, and Barbecue 

Association of America, the Chimney Safety Institute of America, a local 

chapter of the American Lung Association, individual stove retailers, 

propane dealers, facilities that will dispose of old stoves so that they 

cannot be resold or reused, housing assistance agencies, local fire 

departments, local health organizations, and local green energy 

organizations. 

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ENVIRONMENTAL MITIGATION PROJECTS 

6. Describe how the air pollution control agency(ies) and/or non-profit(s) 

will ensure that the old and/or, higher polluting wood-burning appliances 

or inefficient resistance electric heating will be properly recycled or 

disposed. 

V.	 Clean Diesel Retrofit Project 

A.	 Consistent with the requirements of Section II of this Appendix, Hoosier may 

propose a plan to EPA for review and approval to retrofit in-service diesel engines 

with emission control equipment further described in this Section, designed to 

reduce emissions of particulates and/or ozone precursors (the “Clean Diesel 

Retrofit Project”) and fund the operation and maintenance of the retrofit 

equipment for the time-period described below. This Project shall include, where 

necessary, techniques and infrastructure needed to support such retrofits. Hoosier 

shall ensure that the recipients operate and maintain the retrofit equipment for five 

years from the date of installation, by providing funding for operation and 

maintenance as described in Section V.B.7, below. 

B.	 In addition to the requirements of Section II, the plan shall also satisfy the 

following criteria: 

1.	 Involve vehicles based in and equipment located in Hoosier’s service 

territory in central and southern Indiana, bordered by the cities of 

Evansville, Terre Haute, Indianapolis, Richmond, Cincinnati and 

Louisville. 

2.	 Provide for the retrofit of public diesel engines with EPA or California Air 

Resources Board (“CARB”) verified emissions control technologies to 

achieve the greatest measurable mass reductions of particulates and/or 

ozone precursors for the fleet of school buses in the public school 

district(s) that participate(s) in the Clean Diesel Retrofit Project. 

Depending upon the particular EPA or CARB verified emissions control 

technology selected, the retrofit diesel engines must achieve emission 

reductions of particulates and/or ozone precursors by 30%-90%, as 

measured from the pre-retrofit emissions for the particular diesel engine. 

3.	 Describe the process Hoosier will use to determine the most appropriate 

emissions control technology for each particular diesel engine that will 

achieve the greatest mass reduction of particulates and/or ozone 

precursors. In making this determination, Hoosier must take into account 

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APPENDIX A 

ENVIRONMENTAL MITIGATION PROJECTS 

the particular operating criteria required for the EPA or CARB verified 

emissions control technology to achieve the verified emissions reductions. 

4.	 Provide for the retrofit of diesel engines with either: (a) diesel particulate 

filters (DPF); (b) diesel oxidation catalysts (DOC); or (c) closed crankcase 

ventilation systems with either DPF or DOC. 

5.	 Describe the process Hoosier will use to notify fleet operators and owners 

within the geographic area specified in Section V.B.1 that their fleet of 

vehicles may be eligible to participate in the Clean Diesel Retrofit Project 

and to solicit their interest in participating in the Project. 

6.	 Describe the process and criteria Hoosier will use to select the particular 

fleet operator and owner to participate in this Project, consistent with the 

requirements of this Section. 

7.	 For each of the recipient fleet owners and operators, describe the amount 

of Project Dollars that will cover the costs associated with: (a) purchasing 

the verified emissions control technology, (b) installation of the verified 

emissions control technology (including datalogging), (c) training costs 

associated with repair and maintenance of the verified emissions control 

technology (including technology cleaning and proper disposal of waste 

generated from cleaning), and (d) the incremental costs for repair and 

maintenance of the retrofit equipment (i.e., DPF, DOC, closed crankcase 

ventilation system) for five years from the date of installation, including 

the costs associated with the proper disposal of the waste generated from 

cleaning the verified emissions control technology. This Project shall not 

include costs for normal repair or operation of the retrofit diesel fleet. 

8.	 Include a mechanism to ensure that recipients of the retrofit equipment 

will bind themselves to follow the operating criteria required for the 

verified emissions control technology to achieve the verified emissions 

reductions and properly maintain the retrofit equipment installed in 

connection with the Project for the period beginning on the date the 

installation is complete through December 31, 2015. 

9.	 Describe the process Hoosier will use for determining which diesel 

engines in a particular fleet will be retrofitted with the verified emissions 

control technology, consistent with the criteria specified in Section V.B.2. 

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APPENDIX A 

ENVIRONMENTAL MITIGATION PROJECTS 

10.	 Ensure that recipient fleet owners and/or operators, or their funders, do not 

otherwise have a legal obligation to reduce emissions through the retrofit 

of diesel engines. 

11.	 For any third party with whom Hoosier might contract to carry out this 

Project, 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. 

12.	 Ensure that the recipient fleet(s) comply with local, state, and federal 

requirements for the disposal of the waste generated from the verified 

emissions control technology and follow CARB’s guidance for the proper 

disposal of such waste. 

13.	 Include a schedule and budget for completing each portion of the Project, 

including funding for operation and maintenance of the retrofit equipment 

through December 31, 2015. 

C.	 In addition to the information required to be included in the report pursuant to 

Section II.D, above, Hoosier shall also describe the fleet owner/operator; where it 

implemented this Project; the particular types of verified emissions control 

technology (and the number of each type) that it installed pursuant to this Project; 

 the type, year, and horsepower of each vehicle; an estimate of the number of 

citizens affected (if applicable) by this Project, and the basis for this estimate; and 

an estimate of the emission reductions for Project or engine, as appropriate (using 

the manufacturer’s estimated reductions for the particular verified emissions 

control technology), including particulates, hydrocarbons, carbon monoxide, and 

nitrogen oxides. 

VI.	 Solar Technologies Project 

A.	 Consistent with the requirements of Section II of this Appendix, within one 

hundred twenty (120) days from entry of this Consent Decree, Hoosier shall 

submit to EPA for review and approval pursuant to Section XIII (Review and 

Approval of Submittals) of this Consent Decree a plan to install conventional flat 

panel or thin film solar photovoltaics (“PV Project”) and/or solar thermal 

water/space heating systems (“Thermal Project”) (collectively referred to herein 

as “the Project” when referring to both the PV Project and the Thermal Project) 

on public school buildings, state or local government-owned buildings, and 

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APPENDIX A 

ENVIRONMENTAL MITIGATION PROJECTS 

buildings owned by nonprofit groups in Indiana, specifically in Hoosier’s service 

territory in central and southern Indiana, bordered by the cities of Evansville, 

Terre Haute, Indianapolis, Richmond, Cincinnati and Louisville. Such plan shall 

also include the requirement for (1) a manufacturer parts warranty for the solar 

panels and invertors installed pursuant to this Project for the life of such 

equipment and (2) a service contract (“Project Service Contract”) for maintenance 

of the Project for twenty-five (25) years from the date of installation, including 

but not limited to, annual system checkups and solar module cleaning, and normal 

Project component replacements, including installation of new system 

components as needed to extend the life of the Project through the termination of 

the contract term. Hoosier may propose to purchase the Project Service Contract 

for the benefit of the entity that owns the building where the Project is installed 

(Service Contract Beneficiary) and to have the option of funding the cost of the 

Project Service Contract by depositing funds in an escrow account for use by such 

Service Contract Beneficiary solely for purposes of maintaining the system for the 

life of the Project. Hoosier and/or its non-profit member cooperatives will 

implement this project within their service territories. 

B.	 A PV Project shall, at a minimum, consist of: (1) the installation of solar panels 

at a single location with unobstructed solar access, producing at least 10 kilowatts 

direct current, but not to exceed the total annual electricity baseload of the 

building the project serves; (2) a grid-tied inverter, appropriately sized for the 

capacity of the solar panels installed at the location; (3) the appropriate solar 

panel mounting equipment for the particular school, government-owned building, 

or building owned by nonprofit groups selected, i.e., roof mount or ground mount; 

(4) wiring, conduit, and associated switchgear and metering equipment required 

for interconnecting the solar generator to the utility grid; and (5) appropriate 

monitoring equipment supported by kiosk-delivered educational software to 

enable the school students and/or staff to monitor the total and hourly energy 

output of the system (kilowatt hours), environmental benefits delivered (pounds 

CO2 avoided), hourly ambient temperature and cell temperature (Co), irradiance 

(W/M2), as well as time sensitive voltage, power and current metrics. The PV 

Project shall be installed on the customer side of the meter and ownership of the 

system shall be conveyed to the building owner at the site. All related 

environmental benefits shall be retained by the system owner, including 

associated renewable energy certificates. Hoosier shall include in its bid proposals 

the requirement that each PV System include a manufacturer parts warranty and a 

Project Service Contract, as described in subsection A, above. The service and 

maintenance contract/warranty will be delivered by Hoosier’s member 

cooperatives or through a third-party provider (system integrator or service 

11 
APPENDIX A 

ENVIRONMENTAL MITIGATION PROJECTS 

provider). To the extent possible, Hoosier shall use North American Board of 

Certified Energy Practitioners (NACEP) certified energy professionals to perform 

the installation of the PV Projects to ensure the highest quality installation and 

performance of the system. 

C.	 A Thermal Project shall, at a minimum, consist of: (1) the proper installation of 

solar thermal technologies at a single location with unobstructed solar access, 

using active direct or indirect systems with OG-300 certification from the Solar 

Rating and Certification Corporation, (2) use of industry best practices in sizing 

the solar thermal collectors’ surface area to match the intended storage tank and 

end use application; (3) appropriate monitoring equipment supported by kioskdelivered educational software to enable the school students and/or staff to 

monitor the total and hourly thermal energy output of the system, operating 

parameters, and environmental benefits delivered, and (4) installed systems 

should provide adequate freeze protection appropriate for the system’s climate 

region. The Thermal Project shall be installed on the customer side of the meter 

and ownership of the system shall be conveyed to the building owner at the site. 

All related environmental benefits shall be retained by the system owner, 

including associated renewable energy certificates or carbon offsets. Hoosier shall 

include in its bid proposals the requirement that each Thermal System include a 

manufacturer parts warranty and a Project Service Contract, as described in 

subsection A, above. The service and maintenance contract/warranty will be 

delivered by Hoosier’s member cooperatives or through a third-party provider 

(system integrator or service provider). To the extent possible, Hoosier shall use 

NABCEP-certified energy professionals to perform the installation of the Thermal 

Projects to ensure the highest quality installation and performance of the system. 

D. In addition to the requirements of Section II, the plan shall also satisfy the 

following criteria: 

1. Include a schedule and budget for completing each portion of the PV or 

Thermal Project. 

2. Provide a detailed accounting supporting the costs and activities 

associated with the Project Service Contract, and, if using an escrow 

account to fund the Project Service Contract, the schedule and monetary 

installments for deposits to such account to support the operation and 

maintenance activities over the life of the system and a demonstration that 

such escrow account includes appropriate restrictions on the Service 

Contract Beneficiary’s use of such funds, solely for purposes of 

12 
APPENDIX A 

ENVIRONMENTAL MITIGATION PROJECTS 

maintaining the Project. 

2. Describe the process Hoosier will use to notify the potential recipients 

described in subsection A, above, that they are eligible to participate in the 

PV or Thermal Project and to solicit their interest in participating. 

3. Describe the process and criteria Hoosier will use to select potential 

recipients described in subsection A, above, where Hoosier will install the 

PV or Thermal Projects, including baseload electricity usage, thermal 

load, solar access availability, low income neighborhood schools and other 

relevant criteria. 

4. Identify any person or entity other than Hoosier that will be involved in 

the PV or Thermal Project. Hoosier shall describe the third-party’s role in 

the PV or Thermal Project, the basis for asserting that such entity is able 

and suited to perform the intended role, and the competitive bidding 

process used to solicit third-party interest. Any proposed third-party must 

be legally authorized to perform the proposed role and to receive Project 

Dollars. 

E. In addition to the information required to be included in the report pursuant to 

Section II.D, above, Hoosier shall also identify the school and/or 

government/nonprofit owned buildings where the PV or Thermal Projects were 

installed, describing the size of the system, components installed, total cost and 

expected energy output and environmental benefits, and any lessons learned. 

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Case 1:10-cv-00935-LJM-TAB Document 5-1 Filed 07/26/10 Page 102 of 103 

Appendix B 

I.	 This Appendix specifies procedures to: 

o	 Enhance SO2 removal to a goal of 94% 

o	 Improve performance of existing scrubber 

II.	 Procedure. 

o	 Hoosier Energy will add sodium formate or, alternately, an equivalent 

additive, to Unit 1 and Unit 2 by pumps that supply the additive to the fresh 

limestone slurry. 

o	 Sodium Formate Flow rate at Steady State Conditions: A minimum 

operating concentration of 1500 ppm sodium formate with a target range 

of 2000 – 3000 ppm at steady state. The flow rate is adjusted to best 

achieve optimal performance of the scrubber based on the Buffering 

Capacity Analysis. Normal steady state is considered to be 4 modules in 

service and at 90% and greater load with scrubber chemistry at target 

levels. 

o	 Sodium Formate Flow Rate at Non-Steady State Conditions: During unit 

start-up, shutdown, malfunction, reduced load of less than 90% rated load, 

and scrubber maintenance periods to address mist eliminator element 

cleaning, cooling spray pipe cleaning, pump and module repairs and other 

maintenance items, sodium formate will be added to the extent it will 

minimize emissions. Operators will make flow adjustments to 

expeditiously reach the Steady State minimums and the sodium formate 

goal range by stabilizing and optimizing scrubber chemistry. 

o	 Establishing Alternate Additive Flow Rate: 

�	 Should Hoosier Energy opt to inject an equivalent additive instead 

of sodium formate, such as Dibasic Acid (DBA), it will establish the 

appropriate flow rate and target concentration which may differ from 

the sodium formate flow rate and target concentration minimum and 

goal. 

�	 Hoosier Energy shall provide written notification to the 

Environmental Protection Agency (EPA) of its intent to use an 

alternate additive, and shall submit a plan to EPA, for review and 

approval pursuant to Section XIII of the Consent Decree (Review 

and Approval of Submittals), to establish the appropriate target 

concentration to achieve the goal of 94% SO2 removal efficiency for 

such alternate additive. Such plan shall identify the new minimum 

target concentration and shall include technical support to 

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Case 1:10-cv-00935-LJM-TAB Document 5-1 Filed 07/26/10 Page 103 of 103 

Appendix B 

demonstrate the correlation between the new concentration and 

SO2 removal Upon EPA approval, Hoosier may discontinue use of 

sodium formate and begin injecting the alternate additive pursuant 

to the approved plan. EPA shall make best efforts to act on 

Hoosier’s request for approval of an alternate additive within 30 

days after Hoosier submits its plan to EPA 

III. Monitoring and Recordkeeping. 

o	 The sodium formate or alternate additive flow rate for each Unit is 

measured and recorded in daily FGD operations logs. 

o	 Unit grab samples of scrubber bleed slurry are taken by the Chemical Lab 

Technician. The grab samples are analyzed by the Merom chemical lab 

to determine the sodium formate or alternate additive concentration 

measured in parts per million (ppm). The lab results are reviewed by the 

FGD operations department and adjustments to flow rates are made as 

required. 

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