UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA, ) 

Plaintiff, ) 

) 

ALABAMA ENVIRONMENTAL ) 

COUNCIL, INC. ) 

Plaintiff-Intervenor, ) 

) CASE NO. 2:01-cv-00152-VEH 

v. ) 

) 

ALABAMA POWER COMPANY, ) 

Defendant. ) 

______________________________ ) 

PARTIAL CONSENT DECREE 
TABLE OF CONTENTS

I. JURISDICTION AND VENUE .............................................................................................. 4

II. APPLICABILITY.................................................................................................................. 5

III. DEFINITIONS ..................................................................................................................... 5

IV. NOX EMISSIONS CONTROL ........................................................................................... 11

V. SO2 EMISSIONS CONTROL.............................................................................................. 14

VI. PM EMISSIONS CONTROL............................................................................................. 18

VII. MERCURY EMISSIONS MONITORING........................................................................ 19

VIII. NETTING CREDITS OR OFFSETS .............................................................................. 20

IX. RETIREMENT OF EMISSION ALLOWANCES AND RESTRICTION 

ON USE OF SO2 ALLOWANCES AFTER 2020 .................................................................... 21

X. CIVIL PENALTY ............................................................................................................... 23

XI. RESOLUTION OF CLAIMS ............................................................................................ 24

XII. PERIODIC REPORTING ................................................................................................. 25

XIII. STIPULATED PENALTIES............................................................................................ 27

XIV. FORCE MAJEURE ........................................................................................................ 31

XV. DISPUTE RESOLUTION ................................................................................................ 35

XVI. PERMITS........................................................................................................................ 37

XVII. INFORMATION COLLECTION AND RETENTION................................................... 39

XVIII. NOTICES ..................................................................................................................... 41

XIX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS............................................. 43

XX. EFFECTIVE DATE.......................................................................................................... 46

XXI. RETENTION OF JURISDICTION.................................................................................. 46
XXII. MODIFICATION .......................................................................................................... 46

XXIII. GENERAL PROVISIONS ........................................................................................... 46

XXIV. SIGNATORIES AND SERVICE.................................................................................. 50

XXV. PUBLIC COMMENT .................................................................................................... 50

XXVI. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER 

DECREE.................................................................................................................................. 51

XXVII. FINAL JUDGMENT .................................................................................................. 52
PARTIAL CONSENT DECREE 

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

of the United States Environmental Protection Agency (“EPA”), filed on January 

12, 2001, a Complaint (“Initial Complaint”) and on March 4, 2005, filed an 

Amended Complaint against Alabama Power Company (“APC”) pursuant to, inter 

alia, Sections 113(b) and 167 of the Clean Air Act (“the Act”), 42 U.S.C. 

§§ 7413(b) and 7477, seeking injunctive relief and civil penalties for alleged 

violations of the Prevention of Significant Deterioration (“PSD”) provisions in Part 

C of Subchapter I of the Act, 42 U.S.C. §§ 7470-92; 

WHEREAS, the United States’ Amended Complaint added an alternative 

claim that APC violated the New Source Performance Standards (“NSPS”), 

Section 111, 42 U.S.C. § 7411, and Subpart Da regulations with respect to Units 3 

and 4 at APC’s Plant Miller; 

WHEREAS, Alabama Environmental Council, Inc. (“AEC”) filed on April 

26, 2001, a Complaint in Intervention against APC asserting the same claims 

against APC as were asserted in the United States’ Initial Complaint, and the Court 

permitted AEC to intervene and participate on a limited basis by order dated May 

29, 2001; 

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WHEREAS, in the Fifth Claim for Relief in the United States’ Amended 

Complaint, the United States alleges that APC violated the Act by constructing 

Units 3 and 4 at APC’s Plant Miller without obtaining required permits and 

undergoing required review under the PSD provisions of the Act, EPA regulations 

promulgated thereunder, and the Alabama State Implementation Plan (“Alabama 

SIP”) because the United States alleges, inter alia, that APC did not undertake a 

continuous program to construct Units 3 and 4 at Plant Miller and to complete 

construction within a reasonable time; and, alternatively, the United States alleges 

that APC violated the NSPS provisions of the Act by failing to comply at Plant 

Miller Units 3 and 4 with the provisions of the NSPS Subpart Da regulations 

promulgated by EPA; 

WHEREAS, in the Ninth and Tenth Claims for Relief in AEC’s Complaint, 

AEC alleges, inter alia, that APC did not undertake a continuous program to 

construct Units 3 and 4 at Plant Miller and/or failed to complete construction 

within a reasonable time, thereby subjecting the construction of both units to the 

PSD provisions of the Act and applicable regulations promulgated thereunder, and 

applicable provisions of the Alabama SIP, without complying with such 

provisions; 

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WHEREAS, the United States’ Amended Complaint (Fifth Claim for Relief) 

and AEC’s Complaint (Ninth and Tenth Claims for Relief) allege claims against 

APC under Sections 113 and 167 of the Act, 42 U.S.C. §§ 7413 and 7477, and 28 

U.S.C. § 1355; 

WHEREAS, APC answered the Initial and Amended Complaints, denying 

any liability for any of the claims alleged therein, and continues to deny any such 

liability, and APC was not required to respond to AEC’s Complaint under the 

Court’s May 29, 2001 Order and denies any liability thereunder; 

WHEREAS, EPA provided APC and the State of Alabama with actual 

notice of violations pertaining to the alleged violations, in accordance with Section 

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

WHEREAS, the Parties anticipate that the installation and operation of the 

pollution control equipment and implementation of other relief referenced in this 

Consent Decree will achieve reductions in emissions of sulfur dioxide (SO2), 

oxides of nitrogen (NOx) and particulate matter (PM); 

WHEREAS, the United States, AEC and APC have agreed, and the Court by 

entering this Consent Decree finds, that: this Consent Decree has been negotiated 

in good faith and at arms length; this settlement is fair, reasonable, in the best 

interest of the Parties and in the public interest; this settlement is consistent with 

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the air quality improvement goals of the Act; and, entry of this Consent Decree 

without further litigation is the most appropriate means of resolving this matter; 

and 

WHEREAS, the United States, AEC and APC have consented to entry of 

this Consent Decree without trial of any issue. 

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

admission by APC that any of the violations alleged by the United States in its 

Initial and Amended Complaint or by AEC in its Complaint ever occurred, 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, and 1355, 

and 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 Amended Complaint filed by the United States and Complaint filed by 

AEC, APC waives all objections and defenses that it may have to the Court’s 

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

this District. APC shall not challenge the terms of this Consent Decree or this 

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Court’s jurisdiction to enter and enforce this Consent Decree; however, APC 

reserves all arguments it may have regarding the construction of terms of this 

Consent Decree in any proceeding in which the Court is asked to construe or 

enforce this Decree. For purposes of those portions of the Amended Complaint 

filed by the United States and Complaint filed by AEC which are resolved by the 

Consent Decree, and for purposes of entry and enforcement of this Consent 

Decree, APC waives any defense or objection based on standing. Except as 

expressly provided for herein, this Consent Decree shall not create any rights in 

any party other than the United States and APC. Except as provided in Section 

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

Consent Decree without further notice. 

II. APPLICABILITY 

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

be binding upon the United States, AEC, and APC, APC’s successors and assigns, 

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

III. DEFINITIONS 

3. A “30-Day Rolling Average Emission Rate” for a Unit means and is 

calculated by (A) summing the total pounds of the pollutant in question emitted 

from the Unit during an Operating Day and the previous twenty-nine (29) 

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Operating Days; (B) summing the total heat input to the Unit in mmBTU during 

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

(C) dividing the total number of pounds of pollutants emitted during the thirty (30) 

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

converting the resulting value to lbs/mmBTU. A new 30-Day Rolling Average 

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

Rolling Average Emission Rate shall exclude all emissions that occur during all 

periods of startup, shutdown and malfunction as defined in 40 C.F.R. § 60.2. 

4. A “365-Day Rolling Average Emission Rate” for a Unit means and is 

calculated by (A) summing the total pounds of the pollutant in question emitted 

from the Unit during an Operating Day and the previous three hundred sixty-four 

(364) Operating Days; (B) summing the total heat input to the Unit in mmBTU 

during the Operating Day and during the previous three hundred sixty-four (364) 

Operating Days; and (C) dividing the total number of pounds of pollutants emitted 

during the three hundred sixty-five (365) Operating Days by the total heat input 

during the three hundred sixty-five (365) Operating Days, and converting the 

resulting value to lbs/mmBTU. A new 365-Day Rolling Average Emission Rate 

shall be calculated for each new Operating Day. Each 365-Day Rolling Average 

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Emission Rate shall include all emissions, including those that occur during all 

periods of startup, shutdown, and malfunction as defined in 40 C.F.R. § 60.2. 

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

reduction of the pollutant in question achieved by a Unit’s pollution control device 

over a 30-day period as determined by 40 C.F.R. Part 60, Appendix A, Method 19, 

Section 12.5.3. A new 30-Day Rolling Average Removal Efficiency shall be 

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

Efficiency shall exclude all emissions that occur during any period of malfunction 

(as defined in 40 C.F.R. § 60.2) of the FGD. 

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

obligations involving NOx and SO2 under this Consent Decree, the devices defined 

in 40 C.F.R. § 72.2 and installed and maintained as required by 40 C.F.R. Part 75. 

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

§§ 7401-7671q, and its implementing regulations. 

8. “Consent Decree” or “Decree” means this Partial Consent Decree. 

9. “Plant Miller” means Unit 3 and Unit 4 (and shall exclude Units 1 and 

2 unless expressly stated otherwise herein) of the James H. Miller Jr. Power 

Station, located near West Jefferson, Alabama. 

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10. “Alabama SIP” means the State Implementation Plan promulgated by 

the State of Alabama and approved by EPA pursuant to Section 110 of the Act, 42 

U.S.C. § 7410. 

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

million BTU of heat input (“lb/mmBTU”) measured in accordance with this 

Consent Decree. 

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

13. “Flue Gas Desulfurization System” or “FGD” means a pollution 

control device that employs flue gas desulfurization technology for the reduction of 

sulfur dioxide. 

14. “Fossil Fuel” means natural gas, petroleum, coal, and any form of 

solid, liquid, or gaseous fuel derived from such material for the purpose of creating 

useful heat. 

15. “lb/mmBTU” means one pound of a pollutant per million British 

thermal units of heat input. 

16. “Mercury Continuous Emission Monitoring System” and “Mercury 

CEMS” mean a continuous emission monitoring system as defined in 40 C.F.R. 

§ 72.2. 

17. “MW” means a megawatt or one million watts. 

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18. “National Ambient Air Quality Standards” or “NAAQS” means 

national ambient air quality standards that are promulgated pursuant to Section 109 

of the Act, 42 U.S.C. § 7409. 

19. “NOx” means oxides of nitrogen, measured in accordance with the 

provisions of this Consent Decree. 

20. “Nonattainment NSR” means the nonattainment area New Source 

Review program under Part D of Subchapter I of the Act, 42 U.S.C. §§ 7501-7515, 

and 40 C.F.R. Part 51. 

21. “NSPS” means New Source Performance Standards within the 

meaning of Part A of Subchapter I, of the Clean Air Act, 42 U.S.C. § 7411, and 40 

C.F.R. Part 60. 

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

Fuel. 

23. “Parties” means APC, AEC, and the United States of America, and 

“Party” means any one of the three named “Parties.” 

24. “Permitting Authority” means the state or local authority from which 

APC is required to obtain permits, licenses, or approvals in order to install or 

operate a source of air pollution. 

25. “Plaintiffs” means the United States of America and includes 

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Intervenor Plaintiff AEC. 

26. “PM” means particulate matter, measured in accordance with the 

provisions of this Consent Decree. 

27. “PM Emission Rate” means the number of pounds of PM emitted per 

million BTU of heat input (lb/mmBTU), as measured in stack tests in accordance 

with the provisions of this Consent Decree. 

28. “PSD” means Prevention of Significant Deterioration within the 

meaning of Part C of Subchapter I of the Clean Air Act, 42 U.S.C. §§ 7470 - 7492 

and 40 C.F.R. Part 52. 

29. “Selective Catalytic Reduction System” or “SCR” means a pollution 

control device that employs selective catalytic reduction technology for the 

reduction of NOx emissions. 

30. “SO2” means sulfur dioxide, measured in accordance with the 

provisions of this Consent Decree. 

31. “SO2 Allowance” means “allowance” as defined at 42 U.S.C. § 

7651a(3): “an authorization, allocated to an affected unit by the Administrator [of 

EPA] under [Subchapter IV of the Act], to emit, during or after a specified 

calendar year, one ton of sulfur dioxide.” 

32. “Title V Permit” means the permit required of APC’s major sources 

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

33. “Unit” means, for the purposes of this Consent Decree, collectively, 

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

that produces steam for the steam turbine, the steam turbine, the generator, the 

equipment necessary to operate the generator, steam turbine and boiler, and all 

ancillary equipment, including pollution control equipment and systems necessary 

for the production of electricity. An electric utility steam generating station may 

comprise one or more Units. 

IV. NOx EMISSIONS CONTROL 

34. Commencing no later than May 1, 2008, APC shall operate SCR 

technology on a year-round basis at Plant Miller Units 3 and 4 consistent with the 

technological limitations, manufacturers’ specifications and good engineering and 

maintenance practices for the SCRs and so as to minimize NOx emissions to the 

extent reasonably practicable, whenever those units are in operation and 

combusting fossil fuel, except as is provided in Paragraph 36 below. 

35. Beginning May 1, 2008, APC shall comply with both of the following 

NOx emission limitations at each of Miller Units 3 and 4: (1) a 30-Day Rolling 

Average Emission Rate of 0.100 lb/mmBTU, and (2) a 365-Day Rolling Average 

Emission Rate of 0.100 lb/mmBTU, both of which are subject to the provisions 

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concerning SCR maintenance provided in Paragraphs 36 and 37 below. The first 

averaging period for each of the above emission limits shall begin with the first 

Operating Day on or after May 1, 2008. 

36. If the SCRs at either or both of Miller Units 3 and 4 are offline for 

SCR maintenance, APC may continue to operate said Unit(s) without operating the 

SCR(s) associated with the Unit(s), so long as at all times at least two of the Plant 

Miller Units 1, 2, 3 and 4 are subject to the emission limits established in 

Paragraph 35 above. APC may comply with these average emission rate 

requirements by substituting the emissions data from either Miller Units 1 or 2 for 

the emissions data from whichever of Miller Units 3 or 4 is not operating the SCR 

(due to SCR maintenance) for the period that unit’s SCR is offline. If the SCRs at 

both Miller Units 3 and 4 are offline for maintenance simultaneously, APC may 

substitute the emissions data from both Miller Units 1 and 2 for the emissions data 

from Miller Units 3 and 4 for the period the Miller Units 3 and 4 SCRs are offline. 

Any period during which APC substitutes emissions data from Miller Units 1 or 2 

for emissions data from Miller Units 3 or 4 pursuant to this Paragraph shall be 

termed a “substitution period” for purposes of this Section. APC, however, will 

not schedule SCR maintenance during the period from May 1 through September 

30 of each year. 

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37. Within eight (8) months of the end of any substitution period, APC 

will offset 50% of the NOx emissions (calculated in tons) from the affected unit 

(i.e., the unit at which the SCR is offline due to SCR maintenance) in excess of the 

NOx emissions that would have been emitted from the affected unit at an emission 

rate of 0.100 lb/mmBTU with tons of NOx emissions avoided by operating either 

Plant Miller Units 3 or 4 or both at NOx emission rates below 0.100 lb/mmBTU. 

Beginning May 1, 2008, APC may “bank” all tons of NOx emissions avoided by 

operating Plant Miller Units 3 or 4 or both at NOx emission rates below 0.100 

lb/mmBTU at any time and may use those “banked” tons to satisfy the offset 

obligation above for any substitution period that occurs within thirty-six (36) 

months. 

38. In determining the emission limits established in Paragraph 35 above, 

APC shall use data from CEMS operated in accordance with 40 C.F.R. Part 75; 

however, the missing data substitution procedures of 40 C.F.R. Part 75 shall not 

apply to such determinations. 

39. Within one-hundred-eighty (180) days of May 1, 2008, APC shall 

demonstrate through CEMS data compliance with the 30-Day Rolling Average 

Emission Rate of 0.100 lb/mmBTU for NOx for each of Plant Miller Units 3 and 4. 

APC shall also maintain records to verify utilization and compliance with 

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Paragraphs 36 and 37 above. 

V. SO2 EMISSIONS CONTROL 

40. APC shall have installed and commenced operation of an FGD on 

each of Plant Miller Units 3 and 4 by December 31, 2011. 

41. APC shall operate each FGD on Plant Miller Units 3 and 4 on a yearround basis consistent with the technological limitations, manufacturers’ 

specifications, and good engineering and maintenance practices for the FGD and 

so as to minimize SO2 emissions to the extent reasonably practicable. 

42. In determining 30-Day Average Removal Efficiencies for SO2 under 

this Decree, APC shall use 40 C.F.R. Part 60, Appendix A, Method 19, Section 

12.5.3 and data from CEMS operated in accordance with 40 C.F.R. Part 75 using 

SO2 CEMS data from both the inlet and outlet of the control device; however, the 

missing data substitution procedures in 40 C.F.R. Part 75 shall not apply to such 

determinations. 

43. For each 30-day period which begins on or after December 31, 2011, 

APC shall comply with a 30-Day Rolling Average Removal Efficiency of 95% for 

SO2 for each of Plant Miller Units 3 and 4. However, in the event APC chooses to 

combust coal with a sulfur content greater than 1% sulfur by weight, a 30-Day 

Rolling Average Removal Efficiency of not less than 90% shall be established 

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pursuant to this Section. In the event APC chooses to revert to combusting coal 

with a sulfur content less than 1% sulfur by weight, APC shall revert to complying 

with the 30-Day Rolling Average Removal Efficiency of 95% beginning with the 

first 30-day period available after the change in coal. 

44. Only in the event APC chooses to combust coal with a sulfur content 

greater than 1% sulfur by weight, APC shall evaluate the 30-Day Rolling Average 

Removal Efficiency that it can consistently achieve at Plant Miller Units 3 and 4 

over a 12-month period (the “SO2 Trial Period”) that shall begin when APC first 

begins combusting such coal. During the SO2 Trial Period, and until a new 30-Day 

Rolling Average Removal Efficiency is established under this Section, APC shall 

comply with a 30-Day Rolling Average Removal Efficiency of at least 90%. 

45. Within seventy-five (75) days after the end of any such SO2 Trial 

Period, APC shall submit a SO2 Emissions Report to EPA that includes: (a) all SO2 

30-Day Rolling Average Removal Efficiency calculations; (b) a complete analysis 

of the ability of Plant Miller Units 3 and 4 to each consistently achieve a SO2 30­

Day Rolling Average Removal Efficiency consistent with manufacturers’ 

specifications and industry experience for similar units combusting similar coal 

(including, if applicable, a thorough analysis of any barriers to achieving such a 

30-Day Rolling Average Removal Efficiency and measures taken by APC during 

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the SO2 Trial Period to overcome any such barriers); and (c) APC’s 

recommendation for the SO2 30-Day Rolling Average Removal Efficiency for 

Plant Miller Units 3 and 4 that shall be required under this Decree for the future 

operation of Plant Miller Units 3 and 4 when combusting the type of coal 

combusted during the SO2 Trial Period. 

46. EPA shall review the SO2 Emissions Report and, after consultation 

with AEC, notify APC within forty-five (45) days of receipt whether or not EPA 

agrees with APC’s recommendation for the SO2 30-Day Rolling Average Removal 

Efficiency for Plant Miller Units 3 and 4 that shall be required under this Decree 

for the future operation of Plant Miller Units 3 and 4. If EPA agrees with APC’s 

recommendation, APC shall comply with that SO2 30-Day Rolling Average 

Removal Efficiency for Plant Miller Units 3 and 4 commencing at the beginning of 

the first full month which begins at least seven (7) days following EPA’s 

notification to APC of such agreement. If EPA does not agree with APC’s 

recommendation, EPA shall set forth in its notice its recommended alternative and 

the reasons therefor. 

47. If, based on the SO2 Emissions Report, APC and EPA have made 

different recommendations for the future SO2 30-Day Rolling Average Removal 

Efficiency for Plant Miller Units 3 and 4, APC and EPA shall meet and confer in a 

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good faith effort to reach agreement (after consultation with or participation by 

AEC) within forty-five (45) days after EPA’s notification to APC of EPA’s 

recommendation. Should APC and EPA reach agreement, APC shall comply with 

the agreed SO2 30-Day Rolling Average Removal Efficiency for Plant Miller Units 

3 and 4 commencing at the beginning of the first full month which begins at least 

seven (7) days following such agreement. 

48. If, following good faith efforts under Paragraph 47 above to reach 

agreement, APC and EPA are unable to reach agreement, the matter shall be 

submitted to the Court for resolution. Either APC or EPA may initiate the process 

for judicial resolution of this dispute, after undertaking the meet and confer process 

described in Paragraph 47 above, by notifying the other Parties of its intention to 

submit the matter to the Court. Within thirty (30) days after such notification, 

APC and EPA shall submit a joint petition with this Court to determine the SO2 30­

Day Rolling Average Removal Efficiency for each of Plant Miller Units 3 and 4 

that shall apply under this Decree. Simultaneously with the filing of the joint 

petition, APC and EPA shall submit their initial position statements and all data or 

other information in support thereof. Any Party wishing to respond to any other 

Party’s initial position statement shall do so by filing a response within twenty-one 

(21) days of the initial position statement filing date. In deciding any such dispute 

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under this Paragraph, the Court shall determine the SO2 30-Day Rolling Average 

Removal Efficiency for each of Plant Miller Units 3 and 4 that is consistently and 

reasonably attainable and sustainable at those units based on operations consistent 

with the standards set forth in Paragraph 41 above, and based on any relevant 

information or data presented by any of the Parties, including but not limited to 

data set forth in APC’s SO2 Emissions Report. 

49. Promptly after it has been finally determined pursuant to this Section, 

the SO2 30-Day Rolling Average Removal Efficiency for Plant Miller Units 3 and 

4 that shall apply under this Decree for the future operation of Plant Miller Units 3 

and 4 (when combusting the type of coal combusted during the SO2 Trial Period) 

shall be jointly submitted by the Parties as a Modification to the Decree pursuant to 

Section XXII (Modification). 

VI. PM EMISSIONS CONTROL 

50. Beginning December 31, 2006, APC shall achieve and maintain a PM 

Emission Rate of no greater than 0.030 lb/mmBTU at the boiler exit stack of each 

of Plant Miller Units 3 and 4. Compliance with this emission rate shall be 

determined by a performance test conducted within one-hundred-eighty (180) days 

and every year thereafter; however, if the performance test shows that the PM 

Emission Rate is equal to or less than 0.015 lb/mmBTU, the test may be conducted 

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every other year so long as a PM Emission Rate of 0.015 lb/mmBTU is 

maintained. Within thirty (30) days of completing this performance test obligation, 

APC shall demonstrate compliance with the PM Emission Rate of 0.030 

lb/mmBTU at the boiler exit stack of Plant Miller Units 3 and 4. 

51. The reference methods and procedures for determining compliance 

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

Method 5 or Method 17 (as appropriate depending on the stack temperature). Use 

of any particular method shall conform to the EPA requirements specified in 40 

C.F.R. Part 60, Appendix A and 40 C.F.R. § 60.50Da (b) and (e), or any federally 

approved method contained in the Alabama SIP. APC shall calculate the PM 

Emission Rates from the exit stack test results in accordance with 40 C.F.R. 

§ 60.8(f). 

VII. MERCURY EMISSIONS MONITORING 

52. APC shall install, certify and operate a mercury continuous emissions 

monitoring system (“Mercury CEMS”) at Plant Miller by December 31, 2008. 

Thereafter, APC shall operate the Mercury CEMS at Plant Miller and shall retain 

the data generated from it pursuant to Section XVII (Information Collection and 

Retention) of this Decree. 

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VIII. NETTING CREDITS OR OFFSETS 

53. Emission reductions generated by APC to comply with the 

requirements of this Consent Decree shall not be considered as a creditable 

contemporaneous emission decrease for the purpose of obtaining a netting credit 

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

54. The limitations on the generation and use of netting credits or offsets 

set forth in the previous Paragraph do not apply to emission reductions achieved by 

Unit 3 or Unit 4 at Plant Miller that exceed those achieved by attaining a NOx 30­

Day Rolling Average Emission Rate of 0.100 lb/mmBTU and a SO2 30-Day 

Rolling Average Removal Efficiency of 95% (or such alternate 30-Day Rolling 

Average Removal Efficiency as may be established pursuant to Paragraphs 43-49). 

For purposes of this Paragraph, emission reductions from Unit 3 or Unit 4 are 

greater than those required under this Consent Decree if they result from 

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

the above-mentioned NOx 30-Day Rolling Average Emission Rate and SO2 30-Day 

Rolling Average Removal Efficiency and applicable provisions of the Clean Air 

Act or the Alabama SIP. 

55. Nothing in this Consent Decree is intended to preclude the emission 

reductions generated under this Consent Decree from being considered by the State 

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of Alabama 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 NAAQS, PSD increment, or air 

quality related values, including visibility, in a Class I area. 

IX. RETIREMENT OF EMISSION ALLOWANCES AND RESTRICTION ON 

USE OF SO2 ALLOWANCES AFTER 2020 

56. Not later than forty-five (45) days after entry of this Consent Decree, 

APC shall retire, by means of a transfer to a nonprofit third-party recipient as 

provided below, vintage 2007 SO2 emission allowances. The value of the 

allowances to be transferred shall be not less than four million, nine-hundred 

thousand dollars ($4,900,000) on the date of transfer. The actual number of 

allowances transferred is to be determined by the price of such allowances on the 

date of transfer. APC shall use the United States Environmental Protection 

Agency Acid Rain Program Allowance Transfer Form (OMB No. 2060-0258) to 

effect this transfer to the third-party recipient. 

57. APC shall, by written agreement with the third-party recipient of the 

SO2 emission allowances (which shall be a 501(c)(3) organization mutually 

agreeable to APC and EPA), provide that said organization shall not sell, trade, or 

otherwise exchange any of the SO2 emission allowances transferred to it by APC 

pursuant to the preceding Paragraph. 

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58. Pursuant to Section XII (Periodic Reporting) of this Decree, APC 

shall include a description of APC’s transfer of SO2 emission allowances in the 

first report submitted to Plaintiffs following the date said transfer was required by 

Paragraph 56. Such report shall: 

(i) provide proof of the value of the SO2 emission allowances on 

the date of transfer; 

(ii) identify the nonprofit third-party organization to which APC has made 

said transfer; 

(iii) list the serial numbers of the transferred SO2 emission allowances; and 

(iv) include a certification by the third-party recipient stating that the 

recipient will not sell, trade, or otherwise exchange any of the SO2 emission 

allowances, will not use any of the SO2 emission allowances to meet any obligation 

imposed by the Clean Air Act or any environmental law, and will permanently 

surrender to EPA all of the transferred allowances within three (3) years after said 

organization’s receipt of the transferred allowances from APC. 

59. The Parties hereby agree and acknowledge that APC has agreed to 

make the transfer of SO2 emission allowances pursuant to this Section as part of an 

appropriate response to the claims addressed by this Consent Decree; that this 

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transfer is not in lieu of any fine or penalty; and, that APC regards such transfer as 

voluntary and in furtherance of APC’s commitment to environmental stewardship. 

60. Beginning January 1, 2021, APC shall not sell, trade, or otherwise 

exchange any Plant Miller excess SO2 emission allowances outside of the APC 

system. For purposes of this provision, (a) “Plant Miller excess emission 

allowances” shall mean all SO2 emission allowances generated by the operation of 

Plant Miller Units 3 and 4 that APC does not need to meet applicable state or 

regulatory requirements for those units, including the Clean Air Interstate Rule; 

and (b) “the APC system” shall mean all coal-fired electric generating units that 

APC owns or operates as of the time the restriction in this Paragraph applies. 

X. CIVIL PENALTY 

61. Not later than forty-five (45) days after entry of this Consent Decree, 

APC shall pay to the United States $100,000 to resolve the United States’ claim for 

a civil penalty. The payment shall be made by Electronic Funds Transfer (“EFT”) 

to the United States Department of Justice, in accordance with current EFT 

procedures, referencing USAO File Number 2001V00043 and DOJ Case Number 

90-5-2-1-06994 and the civil action case name and case number of this action. The 

costs of such EFT shall be APC’s responsibility. Payment shall be made in 

accordance with instructions provided to APC by the Financial Litigation Unit of 

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the U.S. Attorney’s Office for the Northern District of Alabama. Any funds 

received after 2:00 p.m. EDT shall be credited on the next business day. At the 

time of payment, APC shall provide notice of payment, referencing the USAO File 

Number, the DOJ Case Number, and the civil action case name and case number, 

to the Department of Justice and to EPA in accordance with Section XVIII 

(Notices) of this Consent Decree. 

62. Failure to timely make payment shall subject APC 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 APC 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. 

63. Payments made pursuant to this Section are not tax-deductible 

expenditures for purposes of federal law, pursuant to Section 162(f) of the Internal 

Revenue Code, 26 U.S.C. § 162(f). 

XI. RESOLUTION OF CLAIMS 

64. Entry of this Decree shall resolve all civil claims for relief as to Plant 

Miller that were alleged by the United States in its Initial Complaint and Amended 

Complaint, and all claims for relief as to Plant Miller that were alleged by AEC in 

its Complaint. 

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XII. PERIODIC REPORTING 

65. Beginning thirty (30) days after the end of the first full calendar 

quarter following the entry of this Consent Decree, continuing on a semi-annual 

basis until December 31, 2013, or until enforcement of the obligations of this 

Consent Decree is conditionally terminated pursuant to Paragraph 132 of this 

Decree, whichever is earlier, and in addition to any other express reporting 

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

66. The progress report shall contain the following information: 

a. all information necessary to determine compliance with this 

Consent Decree; 

b. all information indicating that the installation and 

commencement of operation for a pollution control device may be 

delayed, including the nature and cause of the delay, and any steps 

taken by APC to mitigate such delay. 

67. In addition to the progress reports required pursuant to this Section, 

and until enforcement of the obligations of this Consent Decree is conditionally 

terminated pursuant to Paragraph 132 of this Decree, APC shall provide a written 

report to EPA of any violation of the requirements of this Consent Decree, 

including but not limited to any exceedances of the NOx and SO2 emission limits 

- 25 ­
established in Paragraphs 35 and 43 and, if applicable, Paragraphs 44 through 49 

above, within ten (10) business days of when APC knew or should have known of 

any such violation. In this report, APC shall explain the cause or causes of the 

violation and all measures taken or to be taken by APC to prevent such violations 

in the future. 

68. Each APC report shall be signed by APC’s Vice President of 

Environmental Affairs, or, in his or her absence, any officer of APC, 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. 

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XIII. STIPULATED PENALTIES 

69. For any failure by APC to comply with the terms of this Consent 

Decree, and subject to the provisions of Sections XIV (Force Majeure) and XV 

(Dispute Resolution), APC shall pay, within thirty (30) days after receipt of written 

demand by the United States, the following stipulated penalties to the United 

States: 

Consent Decree Violation Stipulated Penalty 

(Per day per violation, 

unless otherwise 

specified) 

a. Failure to make payment as specified in Section 

X (Civil Penalty) of this Consent Decree 

$10,000 

b. Failure to comply with any applicable 30-Day 

Rolling Average Emission Rate for NOx, 30-Day 

Rolling Average Removal Efficiency for SO2, or 

Emission Rate for PM set forth in or established 

pursuant to this Consent Decree 

$ 5,000 

c. Failure to comply with any applicable 365-Day 

Rolling Average Emission Rate established by this 

Consent Decree 

$200,000 for a 365- Day 

Rolling Average Emission 

Rate violation, plus $5,000 

for each subsequent 365­

Day Rolling Average 

Emission Rate violation 

that includes any day in a 

previously-assessed 365­

Day Rolling Average 

Emission Rate violation 

d. Failure to install or operate Mercury CEMS as 

specified in Section VII 

$1,000 per day per 

violation 

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e. Failure to donate SO2 Allowances as required 

by Section IX (Retirement of Emission Allowances 

and Restriction on Use of SO2 Allowances After 

2020) 

(a) $32,500 plus (b) $1,000 

per day 

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

70. Violation of an Emission Rate or Removal Efficiency that is based on 

a 30-Day Rolling Average is a violation on every day on which the average is 

based. 

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

Day Rolling Average Removal Efficiency (for the same pollutant and from the 

same Unit) recurs, APC shall not pay a daily stipulated penalty for any day of the 

recurrence for which a stipulated penalty has already been paid. 

72. All stipulated penalties shall begin to accrue on the day after the 

performance is due or on the day a violation occurs, whichever is applicable, and 

shall continue to accrue until performance is satisfactorily completed or until the 

violation ceases. Nothing in this Consent Decree shall prevent the simultaneous 

accrual of separate stipulated penalties for separate violations of this Consent 

Decree. 

73. APC shall pay all stipulated penalties to the United States within 

thirty (30) days of receipt of written demand to APC from the United States, and 

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shall continue to make such payments every thirty (30) days thereafter until the 

violation(s) no longer continue(s), unless APC elects within twenty (20) days of 

receipt of written demand to APC from the United States to dispute stipulated 

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

this Consent Decree. 

74. Stipulated penalties shall continue to accrue as provided in accordance 

with Paragraph 72 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 EPA 

pursuant to Section XV (Dispute Resolution) of this Consent Decree 

that is not appealed to the Court, accrued stipulated penalties agreed 

or determined to be owing, together with accrued interest, shall be 

paid within thirty (30) days of the effective date of the agreement or 

of the receipt of EPA’s decision; 

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

part, APC shall, within sixty (60) days of receipt of the Court’s 

decision or order, pay all accrued stipulated penalties determined by 

the Court to be owing, together with accrued interest, except as 

- 29 ­
provided in Subparagraph c; 

c. If the Court’s decision is appealed by APC or EPA, APC shall, within 

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

accrued stipulated penalties determined to be owing, together with 

accrued interest. 

For purposes of this Paragraph, the accrued stipulated penalties agreed by 

APC and EPA, or determined by APC and EPA through Dispute Resolution, to be 

owing may be less than the stipulated penalty amounts set forth in Paragraph 69. 

75. All stipulated penalties shall be paid in the manner set forth in 

Section X (Civil Penalty) of this Consent Decree. 

76. Should APC 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. 

77. 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 APC’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, APC shall be allowed a credit 

for stipulated penalties paid against any statutory penalties also imposed for such 

- 30 ­
violation. 

XIV. FORCE MAJEURE 

78. 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 APC, its contractors, or any other entity controlled by or working for APC that 

delays compliance with any provision of this Consent Decree or otherwise causes a 

period of noncompliance with any provision of this Consent Decree despite APC’s 

exercise of due care / best efforts to fulfill the obligation. 

79. Notice of Force Majeure Events. If any Force Majeure event occurs 

or has occurred that may delay compliance with or otherwise cause a period of 

noncompliance with any obligation under this Consent Decree, APC shall notify 

EPA in writing as soon as practicable of the event, but, except for good cause 

shown, in no event later than thirty (30) business days following the date APC first 

knew, or by the exercise of due diligence should have known, that the event caused 

or may cause such delay or violation. For purposes of this Section, “good cause” 

shall mean a catastrophic event (e.g., hurricane) or other event that necessarily 

impaired APC’s capacity to comply with the notice requirement of this Paragraph. 

In this notice, APC shall describe the event, the anticipated length of time of the 

event and any delay it caused or will cause, and the measures, if any, taken or to be 

- 31 ­
taken by APC to prevent or minimize the delay or period of noncompliance. APC 

shall adopt all reasonable measures to avoid or minimize such delays. Failure by 

APC to give notice shall not void or constitute a waiver of APC’s ability to claim 

Force Majeure, provided APC demonstrates good cause for such failure to give 

notice. 

80. EPA’s Response. EPA shall notify APC in writing of its decision 

regarding APC’s claim of Force Majeure within thirty (30) business days of receipt 

of the notice provided under Paragraph 79. If EPA (after consultation with AEC) 

agrees that a Force Majeure Event occurred, EPA and APC shall stipulate to the 

period of time during which the event occurred and the period of time for excused 

non-performance and/or the period of time for any extension of deadline(s) for 

performance of the affected compliance requirement(s). In such circumstances, an 

appropriate modification shall be made pursuant to Section XXII (Modification) of 

this Consent Decree. 

81. Disagreement. If EPA does not accept APC’s claim of Force 

Majeure, or if EPA and APC cannot agree on the length of the event or delay 

actually caused by the Force Majeure Event, or if EPA does not agree that any 

failure by APC to give notice of a Force Majeure Event was for good cause, the 

matter shall be resolved in accordance with Section XV (Dispute Resolution) of 

- 32 ­
this Consent Decree. 

82. Burden of Proof. In any dispute regarding Force Majeure, APC 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. APC shall also bear the burden of proving that APC gave 

the notice (or had good cause for any failure to give 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. 

83. Events Excluded. Unanticipated or increased costs or expenses 

associated with the performance of APC’s obligations under this Consent Decree 

shall not constitute a Force Majeure Event. 

84. Potential Force Majeure Events. The Parties agree that, depending 

upon the circumstances related to an event and APC’s response to such 

circumstances, the kinds of events listed below are among those that could qualify 

as Force Majeure Events within the meaning of this Section: construction, labor, 

or equipment delays; malfunction of a Unit or emission control device; natural gas 

or coal supply interruption or unavailability; pollution control catalyst, chemicals 

- 33 ­
or materials supply interruption or unavailability; acts of God; acts of war or 

terrorism; a condition or circumstance deemed by the permitting authority to 

constitute an emergency under the operating permit for Plant Miller; and orders by 

a government official, government agency, or other regulatory body acting under 

and authorized by applicable law that directs APC to supply electricity in response 

to a system-wide (state-wide, regional, or national) emergency or to perform any 

act or refrain from performing any act that prevents or delays compliance with 

obligations in this Consent Decree. Depending upon the circumstances and APC’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 APC and APC 

has taken appropriate steps to obtain the necessary permit. 

85. As part of the resolution of any matter submitted to this Court under 

Section XV (Dispute Resolution) of this Consent Decree regarding a claim of 

Force Majeure, APC and EPA 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 approved by the Court. APC 

shall be liable for stipulated penalties for its failure thereafter to complete the work 

- 34 ­
in accordance with the extended or modified schedule. 

XV. DISPUTE RESOLUTION 

86. Other than for disputes regarding the SO2 30-Day Rolling Average 

Removal Efficiency for Plant Miller Units 3 and 4 (the resolution of which is 

provided for under Section V), the dispute resolution procedure provided by this 

Section shall be available to govern the resolution of 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. 

87. The dispute resolution procedure required herein shall be invoked by 

either APC or EPA 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 APC and EPA 

shall expeditiously schedule a meeting to discuss the dispute informally not later 

than fourteen (14) days following receipt of such notice. 

88. Disputes submitted to dispute resolution under this Section shall, in 

the first instance, be the subject of informal negotiations between APC and EPA. 

Such period of informal negotiations shall not extend beyond thirty (30) calendar 

days from the date of the first meeting among the disputing parties’ representatives 

- 35 ­
unless they agree in writing to shorten or extend this period. During the informal 

negotiations period, APC and EPA may also submit their dispute to a mutuallyagreed-upon alternative dispute resolution (“ADR”) forum if they agree that the 

ADR activities can be completed within the 30-day informal negotiations period 

(or such longer period as APC and EPA may agree to in writing). 

89. If APC and EPA are unable to reach agreement during the informal 

negotiation period, EPA shall provide APC with a written summary of its position 

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

binding unless, within forty-five (45) calendar days thereafter, APC seeks judicial 

resolution of the dispute by filing a petition with this Court. EPA may respond to 

the petition within forty-five (45) calendar days of filing. 

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

of the issue is required, the time periods set out in this Section may be shortened 

upon motion of APC or EPA. 

91. This Court shall not draw any inferences nor establish any 

presumptions adverse to either party as a result of invocation of this Section or 

APC and EPA’s inability to reach agreement. 

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

appropriate circumstances APC and EPA may agree, or this Court may order, an 

- 36 ­
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. APC shall be liable for stipulated penalties for its 

failure thereafter to complete the work in accordance with the extended or 

modified schedule, provided that APC 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. 

93. The Court shall decide all disputes pursuant to applicable principles of 

law for resolving such disputes. The Parties reserve their right to assert what shall 

be the applicable standard of review governing resolution of the particular dispute, 

and shall state their respective positions concerning the applicable standard of 

review in their initial filings with the Court under Paragraph 89. 

XVI. PERMITS 

94. Unless expressly stated otherwise in this Consent Decree, in any 

instance where otherwise applicable law or this Consent Decree requires APC to 

secure a permit to authorize construction or operation of any device, including all 

preconstruction, construction, and operating permits required under state law, APC 

shall make such application in a timely manner. 

95. Notwithstanding the previous Paragraph, nothing in this Consent 

- 37 ­
Decree shall be construed to require APC to apply for or obtain a PSD or 

Nonattainment NSR permit for physical changes in, or changes in the method of 

operation of, any APC System Unit that would give rise to claims resolved by 

Section XI (Resolution of Claims) of this Consent Decree. 

96. Notwithstanding the reference to federally enforceable operating 

permits and site-specific revisions to the Alabama SIP in this Consent Decree, the 

enforcement of such permits and provisions shall be in accordance with their own 

terms and the Act. The federally enforceable operating permits and site-specific 

revisions to the Alabama SIP 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 federally enforceable operating permit or a site-specific revision 

to the Alabama SIP, subject to the terms of Section XXVI (Conditional 

Termination of Enforcement Under Decree) of this Consent Decree. 

97. When APC applies to renew its Title V operating permit for Plant 

Miller, and in no event later than November 18, 2007, APC shall apply for 

amendment of its Title V operating permit to include a schedule for all Unitspecific performance, operational, maintenance, and control technology 

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

- 38 ­
required emission rates and removal efficiency requirements in Paragraphs 35, 43, 

and 44 through 49. 

98. Before termination of this Consent Decree, APC shall apply to include 

the requirements and limitations enumerated in this Consent Decree in a federally 

enforceable operating permit issued under the Alabama SIP. 

99. APC shall provide EPA with a copy of each application to amend its 

federally enforceable operating permit or site-specific revision to the Alabama SIP, 

as well as a copy of any permit or SIP revision proposed as a result of such 

application, to allow for timely participation in any public comment opportunity. 

XVII. INFORMATION COLLECTION AND RETENTION 

100. Any authorized representative of the United States or Permitting 

Authority, upon presentation of credentials, shall have a right of entry upon the 

premises of Plant Miller 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; 

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

APC or its representatives, contractors, or consultants; and 

- 39 ­
d. assessing APC’s compliance with this Consent Decree. 

101. APC 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 APC’s performance of its obligations under this 

Consent Decree for five (5) years following compliance with the obligation of this 

Consent Decree to which the records relate. This record retention requirement 

shall apply regardless of any corporate document retention policy to the contrary. 

102. All information and documents submitted by APC 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) APC claims in accordance with 40 

C.F.R. Part 2 that the information and documents contain confidential business 

information. 

103. Nothing in this Section is intended to supersede document retention or 

record keeping requirements established by state or federal law to the extent such 

requirements are more stringent than the requirements of this Section. 

- 40 ­
104. Nothing in this Consent Decree shall limit the authority of EPA to 

conduct tests and inspections at APC’s facilities under Section 114 of the Act, 42 

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

XVIII. NOTICES 

105. 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 

Washington, D.C. 20044-7611 

DJ# 90-5-2-1-06994 

and 

Director, Air Enforcement Division 

Office of Enforcement and Compliance Assurance 

U.S. Environmental Protection Agency 

Ariel Rios Building [2242A] 

1200 Pennsylvania Avenue, N.W. 

Washington, DC 20460 

and 

Regional Administrator 

U.S. EPA Region 4 

61 Forsyth Street, S.W. 

- 41 ­
Atlanta, Georgia 30303-8960 

As to EPA: 

Regional Administrator 

U.S. EPA Region 4 

61 Forsyth Street, S.W. 

Atlanta, Georgia 30303-8960 

As to AEC: 

Jayme Hill, Executive Director 

Alabama Environmental Council 

2717 7th Avenue South, Ste. 207 

Birmingham, AL 35233 

As to APC: 

Karl R. Moor 

Southern Company 

30 Ivan Allen Jr. Blvd. NW 

Atlanta, GA 30308 

(404) 506-0853 

Willard L. Bowers 

Vice President, Environmental Affairs 

Alabama Power Company 

600 North 18th Street 

Birmingham, AL 35291 

Steven G. McKinney 

Michael D. Freeman 

Balch & Bingham LLP 

1901 Sixth Avenue North 

Birmingham, AL 35203 

(205) 251-8100 

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Daniel S. Reinhardt 

Margaret C. Campbell 

Troutman Sanders LLP 

600 Peachtree Street, Suite 5200 

Atlanta, GA 30308 

(404) 885-3000 

106. All notifications, communications or submissions made pursuant to 

this Section shall be sent either by: (a) overnight mail or delivery service; (b) 

certified or registered mail, return receipt requested; or (c) electronic transmission, 

unless the recipient is not able to review the transmission in electronic form. All 

notifications, communications and transmissions (a) sent by overnight, certified or 

registered mail shall be deemed submitted on the date they are postmarked, or (b) 

sent by overnight delivery service shall be deemed submitted on the date they are 

delivered to the delivery service. All notifications, communications, and 

submissions made by electronic means shall be electronically signed and certified, 

and shall be deemed submitted on the date that such transmissions are sent, unless 

the recipient shows it did not receive such transmission. 

107. Any 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. 

XIX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS 

108. If APC sells or transfers to an entity unrelated to APC (“Third Party 

- 43 ­
Purchaser”) part or all of its ownership interest in Unit 3 or 4 at Plant Miller 

(“Ownership Interest”), APC shall comply with the requirements of Paragraphs 

109 and 110 with regard to that Unit prior to any such sale or transfer unless, 

following any such sale or transfer, APC remains the holder of the Title V permit 

for such facility. 

109. If APC sells or transfers an Ownership Interest to a Third Party 

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

this Consent Decree prior to such sale or transfer, and shall provide a copy of such 

written notification to the United States and EPA pursuant to Section XVIII 

(Notices) of this Consent Decree. 

110. The Third Party Purchaser shall be jointly and severally liable with 

APC for all the requirements of this Decree that may be applicable to the 

transferred or purchased Ownership Interests, except as provided in Paragraph 112. 

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

any Ownership Interests between APC and any Third Party Purchaser as long as 

the requirements of this Consent Decree are met. This Consent Decree shall not be 

construed to prohibit a contractual allocation – as between APC and any Third 

Party Purchaser of Ownership Interests – of the burdens of compliance with this 

Decree, provided that both APC and such Third Party Purchaser shall remain 

- 44 ­
jointly and severally liable to EPA for the obligations of the Decree applicable to 

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

112. 

112. If EPA agrees, EPA, APC, and the Third Party Purchaser may execute 

a modification to this Consent Decree that relieves APC 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 Ownership Interests. In 

considering whether to assent to such a modification, EPA will evaluate whether 

the Third Party Purchaser is financially capable of fulfilling the assumed 

obligations of the Consent Decree. Notwithstanding the foregoing, however, APC 

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

Decree that is not specific to the purchased or transferred Ownership Interests, 

including the obligations set forth in Sections IX (Retirement of Emission 

Allowances and Restriction on Use of SO2 Allowances After 2020) and X (Civil 

Penalty). APC may propose and EPA may agree to restrict the scope of joint and 

several liability of any purchaser or transferee for any obligations of this Consent 

Decree that are not specific to the transferred or purchased Ownership Interests, to 

the extent such obligations may be adequately separated in an enforceable manner. 

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XX. EFFECTIVE DATE

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

this Consent Decree is entered by the Court. 

XXI. RETENTION OF JURISDICTION 

114. Continuing Jurisdiction. The Court shall retain jurisdiction of this 

case after entry of this Consent Decree to enforce compliance with the terms and 

conditions of this Consent Decree and to take any action necessary or appropriate 

for its interpretation, construction, execution, modification, or adjudication of 

disputes. During the term of this Consent Decree, either APC or EPA may apply 

to the Court for any relief necessary to construe or effectuate this Consent Decree. 

XXII. MODIFICATION 

115. The terms of this Consent Decree may be modified only by a 

subsequent written agreement signed by APC and EPA. Where the modification 

constitutes a material change to any term of this Decree, it shall be effective only 

upon approval by the Court. 

XXIII. GENERAL PROVISIONS 

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

this Consent Decree does not guarantee compliance with all applicable federal, 

state, or local laws or regulations. The emission rates set forth herein do not 

- 46 ­
relieve APC from any obligation to comply with other state and federal 

requirements under the Clean Air Act, including APC’s obligation to satisfy any 

state modeling requirements set forth in the Alabama SIP. 

117. This Consent Decree does not apply to any claim(s) of alleged 

criminal liability. 

118. In any subsequent administrative or judicial action initiated by the 

United States for injunctive relief or civil penalties relating to the facilities covered 

by this Consent Decree, APC 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 Section XI (Resolution of 

Claims). 

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

this Consent Decree shall relieve APC of its obligation to comply with all 

applicable federal, state, and local laws and regulations. Subject to the provisions 

in Section XI (Resolution of Claims), nothing contained in this Consent Decree 

shall be construed to prevent or limit the rights of the United States to obtain 

- 47 ­
penalties or injunctive relief under the Act or other federal, state, or local statutes, 

regulations, or permits. 

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

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

provided in this Decree, every other term used in this Decree that is also a term 

under the Act or the regulations implementing the Act shall mean in this Decree 

what such term means under the Act or those implementing regulations. 

121. Nothing in this Consent Decree is intended to, or shall, alter or waive 

any applicable law (including but not limited to any defenses, entitlements, 

challenges, or clarifications related to the Credible Evidence Rule, 62 Fed. Reg. 

8315 (Feb. 27, 1997)) concerning the use of data for any purpose under the Act, 

generated either by the reference methods specified herein or otherwise. 

122. 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. APC 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 

- 48 ­
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. APC shall report data to the number of significant digits in which the 

standard or limit is expressed. 

123. This Consent Decree does not limit, enlarge or affect the rights of any 

Party to this Consent Decree as against any third parties. 

124. This Consent Decree constitutes the final, complete and exclusive 

agreement and understanding between the Parties with respect to the settlement 

embodied in this Consent Decree, and supersedes all prior agreements and 

understandings between the Parties related to the subject matter herein. No 

document, representation, inducement, agreement, understanding, or promise 

constitutes any part of this Decree or the settlement it represents, nor shall they be 

used in construing the terms of this Consent Decree. 

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

126. AEC shall have the right to receive any and all notices required under 

this Consent Decree, but shall have no right to create or cause a dispute, or to 

invoke or participate in any Dispute Resolution proceedings under this Consent 

Decree without first making an adequate showing to the Court that the United 

- 49 ­
States has failed or is failing to diligently enforce the terms of this Consent Decree. 

XXIV. SIGNATORIES AND SERVICE 

127. 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. 

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

counterpart signature pages shall be given full force and effect. 

129. Each Party hereby agrees to accept service of process by mail with 

respect to all matters arising under or relating to this Consent Decree and to waive 

the formal service requirements set forth in Rule 4 of the Federal Rules of Civil 

Procedure and any applicable Local Rules of this Court including, but not limited 

to, service of a summons. 

XXV. PUBLIC COMMENT 

130. The Parties agree and acknowledge that final approval by the United 

States and entry of this Consent Decree is subject to the procedures of 28 C.F.R. 

§ 50.7, which provides for notice of the lodging of this Consent Decree in the 

Federal Register, an opportunity for public comment, and the right of the United 

States to withdraw or withhold consent if the comments disclose facts or 

considerations which indicate that the Consent Decree is inappropriate, improper 

- 50 ­
or inadequate. APC 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 APC, in writing, that the United States no longer supports entry of the 

Consent Decree. 

XXVI. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER 

DECREE 

131. Termination as to Completed Tasks. As soon as APC completes a 

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

ongoing or recurring, APC may, by motion to this Court, seek termination of the 

provision or provisions of this Consent Decree that imposed the requirement. 

132. Conditional Termination of Enforcement Through the Consent 

Decree. After APC: 

a. has successfully completed construction, and has maintained 

operation of pollution controls as required by this Consent 

Decree for two (2) years; and 

b. has applied to revise its Title V operating permit pursuant to 

this Consent Decree and has obtained a final federally 

enforceable operating permit issued under the Alabama SIP that 

includes as enforceable permit terms the requirements set forth 

in Paragraphs 35, 36, 37, 38, 42, 43, 44, 49, 50 (first sentence), 

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______________________________________ 

51, 52, and 60 of this Decree; 

then APC may so certify these facts to the United States and this Court. If the 

Plaintiffs do not object in writing with specific reasons within forty-five (45) days 

of receipt of APC’s certification, then, for any Consent Decree violations that 

occur after the filing of notice, the United States may pursue enforcement of the 

requirements contained in the Title V operating permit or other federally 

enforceable operating permit issued under the Alabama SIP through the applicable 

permit but not through this Consent Decree and APC may, by motion to this Court, 

seek termination of the provision or provisions of this Consent Decree that 

imposed the requirement or the Consent Decree in its entirety. 

XXVII. FINAL JUDGMENT 

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

Consent Decree shall constitute a final judgment in the above-captioned matter 

between Plaintiffs and APC as to the claims addressed by this Decree, pursuant to 

Section XI (Resolution of Claims) and Fed. R. Civ. P. 54(b). 

SO ORDERED, THIS _____ DAY OF ________________, 2006. 

VIRGINIA EMERSON HOPKINS 

UNITED STATES DISTRICT JUDGE 

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_______________________________ 

_______________________________ 

Signature Page for Consent Decree in: United States of America and Alabama 

Environmental Council, Inc. v. Alabama Power Company 

FOR THE UNITED STATES OF AMERICA: 

SUE ELLEN WOOLDRIDGE 

Assistant Attorney General 

Environment and Natural Resources Division 

United States Department of Justice 

W. BENJAMIN FISHEROW 

Deputy Chief 

DAVID ROSSKAM 

Senior Counsel 

Environmental Enforcement Section 

Environment and Natural Resources Division 

United States Department of Justice 

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_______________________________ 

_______________________________ 

_______________________________ 

Signature Page for Consent Decree in: United States of America and Alabama 

Environmental Council, Inc. v. Alabama Power Company 

GRANTA NAKAYAMA 

Assistant Administrator 

Office of Enforcement and Compliance Assurance 

United States Environmental Protection Agency 

ADAM M. KUSHNER 

Director, Air Enforcement Division 

Office of Enforcement and Compliance Assurance 

United States Environmental Protection Agency 

MEREDITH G. MILLER 

Attorney Advisor 

Air Enforcement Division 

Office of Enforcement and Compliance Assurance 

United States Environmental Protection Agency 
_______________________________ 

_______________________________ 

Signature Page for Consent Decree in: United States of America and Alabama 

Environmental Council, Inc. v. Alabama Power Company 

MARY KAY LYNCH 

Regional Counsel and Director 

Office of Environmental Accountability 

U.S. Environmental Protection Agency 

Region 4 

61 Forsyth St., S.W. 

Atlanta, GA 30303 

VERA S. KORNYLAK 

Associate Regional Counsel 

U.S. Environmental Protection Agency 

Region 4 

61 Forsyth St., S.W. 

Atlanta, GA 30303 
_______________________________ 

_______________________________ 

Signature Page for Consent Decree in: United States of America and Alabama 

Environmental Council, Inc. v. Alabama Power Company 

FOR ALABAMA ENVIRONMENTAL COUNCIL, INC.: 

JEFFREY M. GLEASON 

Southern Environmental Law Center 

201 West Main Street, Suite 14 

Charlottesville, VA 22902 

M. JAMES GRODE 

GILBERT B. ROGERS 

Southern Environmental Law Center 

127 Peachtree Street, Suite 605 

Atlanta, GA 30303-1840 
___________________________________ 

Signature Page for Consent Decree in: United States of America and Alabama 

Environmental Council, Inc. v. Alabama Power Company 

FOR ALABAMA POWER COMPANY: 

Willard L. Bowers 

Vice President, Environmental Affairs 

Alabama Power Company 

600 North 18th Street 

Birmingham, AL 35291