UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

EPA REGION 4

 

IN THE MATTER OF: ) 

)

)

TENNESSEE VALLEY AUTHORITY ) Consent Agreement and Final Order

)

400 West Summit Hill Drive ) 

Knoxville, Tennessee 37092 ) 

)

Allen, Bull Run, Colbert, Cumberland, ) Docket No. CAA-04-2010-1528(b)

John Sevier, Kingston, Paradise, ) 

and Shawnee Fossil Plants )

)

Respondent. )

 )

CONSENT AGREEMENT AND FINAL ORDER

I. Nature of the Action/Jurisdictional Statements

1. This is a civil administrative penalty proceeding pursuant to Section 113(d) of the 

Clean Air Act (“CAA” or “Act”), 42 U.S.C. § 7413(d), and the Consolidated Rules of Practice 

Governing the Administrative Assessment of Civil Penalties and the Revocation/Termination or 

Suspension of Permits (Consolidated Rules), 40 C.F.R. Part 22, for alleged violations of (a) the 

Prevention of Significant Deterioration (“PSD”) and Nonattainment New Source Review 

(“Nonattainment NSR”) provisions of the Act, its implementing regulations, and the relevant 

portions of the federally approved PSD provisions in the State Implementation Plans (“SIPs”) for 

Alabama, Kentucky, and Tennessee, (b) the New Source Performance Standards (NSPS), 

Section 111 of the Act, 42 U.S.C. § 7411, and (c) Title V of the Act, 42 U.S.C. § 7661-7661f, 

and the federally approved state regulations implementing the federal Title V program. 

Complainant is the Director, Air, Pesticides and Toxics Management Division, Region 4, United 
2

States Environmental Protection Agency (“EPA”). Respondent is the Tennessee Valley 

Authority (“TVA”), which owns and operates facilities located in Region 4.

2. As further described herein, Complainant alleges that Respondent modified and 

thereafter operated, thirteen coal-fired electric generating units at eight facilities located in 

Alabama, Kentucky, and Tennessee without first obtaining appropriate permits authorizing the 

modification and subsequent operation of such units, and without installing and employing 

appropriate pollution control technology to control emissions of nitrogen oxides (“NOx”), sulfur 

dioxide (“SO2”), and particular matter (“PM”), as the Act requires. 

3. Complainant and Respondent (collectively referred to herein as “the Parties”) have 

conferred for the purpose of settlement pursuant to 40 C.F.R. § 22.18(b)(2) and desire to resolve 

this matter and settle the allegations described herein without further litigation or adjudication. 

Therefore, before the taking of any additional testimony or evidence, the making of any 

additional arguments, without further adjudication of any issue of fact or law in this matter, and 

upon consent and agreement of the Parties, this Consent Agreement and Final Order (“CAFO”) 

will simultaneously commence and conclude this matter as authorized by 40 C.F.R. 

§ 22.13(b)(2).

4. The authority to take action under Section 113(d) of the Clean Air Act, 42 U.S.C. 

§ 7413(d), is vested in the Administrator. The Administrator has delegated this authority to the 

Regional Administrator, Region 4, by EPA Delegation 7-6-A. The Regional Administrator, 

Region 4, has redelegated this authority to the Director, Air, Pesticides and Toxics Management 

Division, by EPA Region 4 Delegation 7-6-A. Pursuant to that delegation, the Director of the

Air, Pesticides and Toxics Management Division has the authority to commence an enforcement 

action as Complainant in this matter. 
3

5. EPA has provided TVA and the States of Alabama, Kentucky, and Tennessee actual 

notice of the alleged violations in accordance with Section 113(a)(1) of the Clean Air Act, 42 

U.S.C. § 7413(a)(1).

6. Consistent with Section 113(d) of the CAA, 42 U.S.C. § 7413(d), the requisite joint 

determination was made by EPA and the United States Department of Justice.

7. Respondent is a corporate agency and instrumentality of the United States, created 

and existing pursuant to the Tennessee Valley Authority Act of 1933, 16 U.S.C. §§ 831-831ee. 

8. Respondent is a “person” within the meaning of Section 302(e) of the Act, 42 

U.S.C. § 7602(e).

9. Respondent owns and operates 59 coal-fired electric generating units at eleven 

facilities located in Alabama, Kentucky, and Tennessee.

10. In 1999, EPA issued TVA an administrative compliance order alleging, inter alia

11. On September 15, 2000, the United States Environmental Appeals Board (“EAB”) 

issued a Final Order on Reconsideration, 

, 

that TVA violated the PSD and Nonattainment NSR programs of the Clean Air Act, its 

implementing regulations, and the relevant SIPs. The administrative compliance order was 

subsequently amended several times, including on April 10, 2000. 

In re Tennessee Valley Auth.

12. In that Final Order on Reconsideration, the EAB concluded that TVA had violated 

the PSD program for NOx, SO2, and/or PM at the following units: Allen Unit 3, located at the 

Allen Fossil Plant in Memphis, Tennessee; Bull Run Unit 1, located at the Bull Run Fossil Plant 

near Oak Ridge, Tennessee; Colbert Unit 5, located at the Colbert Fossil Plant in Tuscumbia, 

, 9 E.A.D. 357 (EAB 

2000), in which the EAB sustained in part and vacated in part the allegations in the amended 

administrative compliance order. 
4

Alabama; Cumberland Units 1 and 2, located at the Cumberland Fossil Plant in Cumberland 

City, Tennessee; John Sevier Unit 3, located at the John Sevier Fossil Plant near Rogersville, 

Tennessee; Kingston Units 6 and 8, located at the Kingston Fossil Plant near Kingston, 

Tennessee; Paradise Units 1, 2, and 3, located at the Paradise Fossil Plant in Drakesboro, 

Kentucky; and Shawnee Units 1 and 4, located at the Shawnee Fossil Plant near Paducah, 

Kentucky. See

13. In that Final Order on Reconsideration, the EAB concluded that Respondent had 

violated the federally approved and enforceable Nonattainment NSR provisions of the Alabama

SIP for SO2 and the NSPS program for NOx, SO2, and PM at Colbert Unit 5. 

9 E.A.D. at 451-52 (and 9 E.A.D. at 451, Chart No. 6). 

See

14. TVA petitioned for review of the administrative compliance order and the EAB’s 

Final Order on Reconsideration in the United States Court of Appeals for the Eleventh Circuit, 

which concluded that EPA’s administrative proceedings, and the CAA provisions under which 

the order was issued, violated due process. 

9 E.A.D. at 

451 n. 110; 9 E.A.D. at 452-58. 

Tennessee Valley Auth. v. Whitman, 336 F.3d 1236, 

1244, 1260 (11th Cir. 2003), cert. denied, 541 U.S. 1030 (2004). See Brief for Respondent in 

Opposition to a Writ of Certiorari (“Brief for Respondent”) at 4, National Parks Conservation 

Ass’n, et al. v. Tennessee Valley Auth., 554 U.S. 917 (2008) (No. 07-867). The court then held 

that the unconstitutionality of the CAA provision meant that EPA’s order was not a “final agency 

action” and that the court of appeals therefore lacked jurisdiction to review it. See Brief for 

Respondent at 4 (citing Whitman, 336 F.3d at 1248, 1260).
5

II. Legal Background

15. The Clean Air Act is designed to protect and enhance the quality of the nation’s air 

so as to promote the public health and welfare and the productive capacity of its population. 42 

U.S.C. § 7401(b)(1).

16. Section 109 of the Act, 42 U.S.C. § 7409, requires the Administrator to promulgate 

regulations establishing primary and secondary national ambient air quality standards 

(“NAAQS”) for those air pollutants (“criteria pollutants”) for which air quality criteria have been 

issued pursuant to Section 108 of the Act, 42 U.S.C. § 7408. The primary NAAQS are to be 

adequate to protect the public health with an adequate margin of safety, and the secondary 

NAAQS are to be adequate to protect the public welfare from any known or anticipated adverse 

effects associated with the presence of the air pollutant in the ambient air. 

The National Ambient Air Quality Standards

17. Under Section 107(d) of the Act, 42 U.S.C. § 7407(d), each state is required to 

designate those areas within its boundaries where the air quality is better or worse than the 

NAAQS for each criteria pollutant, or where the air quality cannot be classified due to 

insufficient data. An area that meets the NAAQS for a particular pollutant is termed an 

“attainment” area. An area that does not meet the NAAQS is termed a “nonattainment” area. 

An area that cannot be classified due to insufficient data is “unclassifiable.”

18. Pursuant to Section 110 of the Act, 42 U.S.C. § 7410, each state must adopt and 

submit to EPA for approval a SIP that provides for the attainment and maintenance of the 

NAAQS. Under Section 110(a)(2), 42 U.S.C. § 7410(a)(2), each SIP must include a permit 

program to regulate the modification and construction of any stationary source of air pollution, 
6

including stationary sources in attainment and nonattainment areas of the state, as necessary to 

assure the NAAQS are achieved. 

19. Upon approval, state SIP requirements are federally enforceable under Section 113 

of the Act, 42 U.S.C. § 7413. 

20. Part C of the Act, 42 U.S.C. §§ 7470-7492, sets forth requirements for the 

prevention of significant deterioration (“PSD”) of air quality in those areas designated as either 

attainment or unclassifiable for purposes of meeting the NAAQS. These requirements are 

designed to protect public health and welfare, to assure that economic growth will occur in a 

manner consistent with the preservation of existing clean air resources, and to assure that any 

decision to permit increased air pollution is made only after careful evaluation of all the 

consequences of such decision and after public participation in the decision making process. 

These provisions are referred to herein as the “PSD program.”

The Prevention of Significant Deterioration Requirements

21. Section 161 of the Act, 42 U.S.C. § 7471, requires that each applicable SIP contain 

a PSD program. 

22. Section 165 of the Act, 42 U.S.C. § 7475, among other things, prohibits the 

construction and operation of a “major emitting facility” in an area designated as attainment 

unless a permit has been issued that comports with the requirements of Section 165 of the Act, 

and the facility employs best available control technology (“BACT”) for each pollutant subject 

to regulation under the Act that is emitted from the facility. 

23. Section 169(1) of the Act, 42 U.S.C. § 7479(1), designates fossil fuel-fired steam 

electric plants of more than two hundred and fifty million British Thermal Units (“BTU’s”) per 
7

hour heat input and that emit or have the potential to emit one hundred tons per year or more of 

any pollutant to be “major emitting facilities.” 

24. Section 169(2)(C) of the Act, 42 U.S.C. § 7479(2)(C), defines construction as 

including “modification” (as defined in Section 111(a) of the Act). “Modification” is defined in 

Section 111(a) of the Act, 42 U.S.C. § 7411(a), to be “any physical change in, or change in the 

method of operation of, a stationary source which increases the amount of any air pollutant 

emitted by such source or which results in the emission of any air pollutant not previously

emitted.” 

25. Applicable federal regulations codified at 40 C.F.R. Parts 51 and 52, as well as 

those in the federally approved SIPs for Alabama, Kentucky, and Tennessee (including 

Memphis/Shelby County) have at all times relevant to this CAFO prohibited a major stationary 

source from constructing a major modification in an area designated as attainment without, 

among other things, first obtaining a PSD permit, undergoing a BACT determination, and 

applying BACT pursuant to such determination for each relevant pollutant. The definitions 

contained in the federal PSD regulations and in the relevant SIPs have at all relevant times 

defined “construction” to include any physical change or change in the method of operation 

which would result in a change in actual emissions. These regulations have at all times relevant 

to this CAFO also defined “major modification” to include a physical change in or change in the 

method of operation of a major stationary source that would result in a significant net emissions 

increase of any pollutant subject to regulation under the Act. These regulations have at all times 

relevant to this CAFO defined “major stationary source” to include fossil fuel-fired steam 

electric plants of more than 250 million BTUs per hour heat input. These regulations have at all 

times relevant to this CAFO defined “significant,” in reference to a net emissions increase, to 
8

mean a rate of emissions that would equal or exceed 40 tons per year each for NOx and SO2, and 

25 tons per year of PM emissions. 

26. Part D of Title I of the Act, 42 U.S.C §§ 7501-7515, sets forth provisions for new 

source review requirements for areas designated as being in nonattainment with the NAAQS. 

These provisions are referred to herein as the “Nonattainment NSR program.” The 

Nonattainment NSR program is intended to reduce emissions of air pollutants in areas that have 

not attained the NAAQS, so that the areas make progress towards meeting the NAAQS.

Nonattainment New Source Review Requirements

27. Under Section 172(c)(5) of the Nonattainment NSR provisions of the Act, 42 U.S.C. 

§ 7502(c)(5), each state is required to adopt Nonattainment NSR SIP rules that include 

provisions requiring permits to conform to the requirements of Section 173 of the Act, 42 U.S.C. 

§ 7503, for the construction and operation of modified major stationary sources within 

nonattainment areas. Section 173 of the Act, in turn, sets forth a series of minimum 

requirements for the issuance of permits for major modifications to major stationary sources 

within nonattainment areas. 

28. Section 173(a) of the Act, 42 U.S.C § 7503, provides that construction and 

operating permits my be issued if, among other things: (a) sufficient offsetting emission 

reductions have been obtained to reduce existing emissions to the point where reasonable further 

progress towards meeting the national ambient air quality standards is maintained; and (b) the 

pollution controls to be employed will reduce emissions to the “lowest achievable emission rate” 

(“LAER”). 

29. Applicable federal regulations codified at 40 C.F.R. Part 51, as well as the 

Nonattainment NSR program in the federally approved SIP for Alabama, have at all times 
9

relevant to this CAFO prohibited a major stationary source from constructing a major 

modification in an area designated as nonattainment without, among other things, applying for 

and obtaining a Nonattainment NSR permit, obtaining sufficient offsetting emission reductions, 

and installing and operating state-of-the-art pollution control technology to comply with LAER. 

These regulations have at all times relevant to this CAFO also defined “major modification” to 

include “a physical change in or change in the method of operation of a major stationary source 

that would result in a significant net emissions increase of any pollutant subject to regulation 

under [the Clean Air Act].” These regulations have at all times relevant to this CAFO defined 

“major stationary source” to include fossil fuel-fired steam electric plants of more than 250 

million BTUs per hour heat input. 

30. Section 111 of the Act, 42 U.S.C. § 7411, requires the Administrator to publish a list 

of categories of stationary sources that emit or may emit any air pollutant and to promulgate 

regulations establishing federal standards of performance for new sources (“NSPS”) of air 

pollutants within each of these categories. 

The New Source Performance Standards 

31. Section 111(a)(2), 42 U.S.C. § 7411(a)(2), defines new sources to include existing 

sources that are modified. Section 111(a)(4), 42 U.S.C. § 7411(a)(4), defines a modification as 

any physical or operational change that increases the amount of any air pollutant emitted by such 

source or results in the emission of any air pollutant not previously emitted.

32. Section 111(e), 42 U.S.C. § 7411(e), prohibits an owner or operator of a new or 

modified source from operating that source in violation of an NSPS after the effective date of the 

applicable NSPS to such source.
10

33. 40 C.F.R. § 60.1 states that the provisions of 40 C.F.R. Part 60 apply to the owner or 

operator of any stationary source that contains an affected facility, the construction or 

modification of which is commenced after the publication in Part 60 of any standard (or, if 

earlier, the date of publication of any proposed standard) applicable to that facility.

34. 40 C.F.R. § 60.2 defines “affected facility” as any apparatus to which a standard is 

applicable.

35. The NSPS applicable to “electric utility steam generating units” is codified at 40 

C.F.R. Part 60 subpart Da. 

36. The “affected facility” to which subpart Da applies is an “electric utility steam 

generating unit” that is capable of combusting more than 73 megawatts (250 BTU/hour) heat 

input of fossil fuel (either alone or in combination with any other fuel) and for which 

construction or modification is commenced after September 19, 1978. 40 C.F.R. § 60.40Da.

37. An “electric utility steam generating unit” means any steam electric generating unit 

that is constructed for the purpose of supplying more than one-third of its potential electric 

output capacity and more than 25 megawatts electrical output to any utility power distribution 

system for sale. 40 C.F.R. § 60.41Da.

38. Pursuant to 40 C.F.R. § 60.14, upon modification, an existing facility becomes an 

“affected facility” for which the applicable NSPS must be satisfied.

39. Title V of the Act, 42 U.S.C. §§ 7661-7661f, establishes an operating permit 

program for certain sources, including “major sources.” The purpose of Title V is, among other 

things, to ensure that all “applicable requirements” for compliance with the Act, including PSD, 

are collected in one place.

Title V Requirements 
11

40. A “major source” for purposes of Title V is defined, among other things, as a source 

with a potential to emit greater than 100 tons per year of any air pollutant. 42 U.S.C. § 7661(2).

41. Pursuant to Section 502(b), 42 U.S.C. § 7661a(b), EPA promulgated regulations to 

implement the Title V program, which are codified at 40 C.F.R. Parts 70 and 71. 

42. The Alabama Title V operating permit program was granted final approval by EPA 

on November 8, 2001, and is codified at Ala. Admin. Code ch. 335-3-16. The Kentucky Title V 

operating permit program was granted final approval by EPA on November 30, 2001, and is 

codified at 401 Ky. Admin. Regs. 52:020. The Tennessee Title V operating permit program was

granted final approval by EPA on November 30, 2001, and is codified at Tenn. Comp. R. & 

Regs. R. 1200-3-9-.02.

43. Section 502(a) of the Act, 42 U.S.C. § 7661a(a), and the approved Title V programs 

for Alabama, Kentucky, and Tennessee, have at all relevant times made it unlawful for any 

person to operate a major source except in compliance with a permit issued by a permitting 

authority under Title V.

44. Section 503(c) of the Act, 42 U.S.C § 7661b(c), the Title V regulations codified at 

40 C.F.R. §§ 70.5(a), (c), and (d), and the approved Title V programs for Alabama, Kentucky, 

and Tennessee, have at all relevant times required the owner or operator of a source to submit an 

application for a Title V permit that is timely and complete and includes, among other things: the 

citations and descriptions of all requirements applicable to the source (including any requirement 

to meet BACT pursuant to PSD); a description of, and compliance plan for, requirements for 

which the source is not in compliance; and a certification by a responsible official of the truth, 

accuracy, and completeness of the application.
12

45. Section 504(a), 42 U.S.C. § 7661c(a), 40 C.F.R. § 70.6(a)(1), and the approved Title 

V programs for Alabama, Kentucky, and Tennessee, have at all times relevant to this CAFO 

required that each Title V permit include, among other things, enforceable emission limitations 

and such other conditions as are necessary to assure compliance with applicable requirements of 

the Clean Air Act and the requirements of the applicable SIP, including any applicable PSD and 

Nonattainment NSR requirement to comply with an emission rate that meets BACT and LAER.

46. A state may comply with sections 110, 161, and 172(c) of the Act, 42 U.S.C. §§ 

7410, 7471, 7502(c), by having its own PSD and Nonattainment NSR regulations approved by 

EPA as part of its SIP, which must be at least as stringent as those set forth at 40 C.F.R. §§ 

51.165 and 51.166, and Appendix S to Part 51. 

State Implementation Plan Requirements

47. EPA has promulgated two largely identical sets of regulations to implement the PSD 

program. One set, found at 40 C.F.R. § 52.21, contains EPA’s own federal PSD program, which 

applies in areas without a SIP-approved state PSD program. The other set of regulations, found 

at 40 C.F.R. § 51.166, contains requirements that state PSD programs must meet to be approved 

as part of a SIP. EPA has promulgated one set of regulations to implement the Nonattainment 

NSR program, codified at 40 C.F.R. § 51.165, which contains requirements that state 

Nonattainment NSR programs must meet to be approved as part of a SIP.

48. Pursuant to the Act and federal regulations codified at 40 C.F.R. § 52.21, no 

construction or operation of a modification of a major stationary source can occur in an 

attainment area without first obtaining a permit. See

49. Pursuant to the Act, and at all times relevant to this CAFO, the Alabama SIP 

requires that no construction or operation of a modification of a major stationary source occur in 

42 U.S.C. § 7475; 40 C.F.R. § 52.21.
13

an attainment or nonattainment area without first obtaining a permit. See

50. Pursuant to the Act, and at all times relevant to this CAFO, the Kentucky SIP 

requires that no construction or operation of a modification of a major stationary source occur in 

an attainment area without first obtaining a permit. 

Ala. Admin. Code r. 

335-3-14-.04; Ala. Admin. Code r. 335-3-14-.05.

See

51. Pursuant to the Act, and at all times relevant to this CAFO, the Tennessee SIP 

requires that no construction or operation of a modification of a major stationary source occur in 

an attainment area without first obtaining a permit. 

401 Ky. Admin. Regs. 51:017. 

See

52. The SIP provisions identified in Paragraphs 49-51, above, are federally enforceable 

pursuant to Sections 110 and 113 of the Act, 42 U.S.C. §§ 7410 and 7413.

Tenn. Comp. R. & Regs. R.1200-3-9-

.01(4). With regard to the City of Memphis, Tennessee, and Shelby County, Tennessee, the 

State of Tennessee has issued a Certificate of Exemption to the local governments pursuant to 

Tenn. Code. Ann. § 68-201-115. During all times relevant to this CAFO, this Certificate of 

Exemption was recognized by EPA. 40 C.F.R. § 52.2220 (Table 2). This Certificate of 

Exemption (hereinafter referred to as “Memphis/Shelby County local program”) incorporates all 

relevant provisions of the Tennessee SIP. 

53. Sections 113(a)(1) and (3), 42 U.S.C. §§ 7413(a)(1) and (3), provide that the 

Administrator may bring an administrative penalty action pursuant to Section 113(d) of the Act, 

42 U.S.C. § 7413(d), whenever, on the basis of any information available, the Administrator 

finds that any person has violated or is in violation of any requirement or prohibition of, 

Enforcement Provisions

inter

alia, the Prevention of Significant Deterioration provisions of Section 165(a) of the Act, 42 
14

U.S.C. § 7475(a); the federally approved PSD and Nonattainment NSR provisions of the relevant 

SIP; and Title V of the Act, 42 U.S.C. §§ 7661 -7661f, or any rule or permit issued thereunder.

54. Section 113(d), 42 U.S.C. § 7413(d), authorizes the Administrator to assess a civil 

administrative penalty against any person of up to $25,000 per day for each violation occurring 

before January 31, 1997; $27,500 per day for each such violation occurring on or after January 

31, 1997; $32,500 per day for each such violation occurring after March 15, 2004; and $37,500 

per day for each such violation occurring after January 12, 2009. See

III. 

40 C.F.R. Part 19. 

Factual Allegations

55. At all times relevant to this CAFO, Respondent was the owner and operator of the 

Allen Fossil Plant, a fossil fuel-fired electric utility steam generating plant located in Shelby 

County, Memphis, Tennessee. At all times relevant to this CAFO, the Allen Fossil Plant was 

located in an area classified as attainment for NO2, SO2, and PM10. At all times relevant to this 

CAFO, the Allen Fossil Plant was within the jurisdiction of the Memphis/Shelby County local 

program. At all times relevant to this CAFO, the Allen Fossil Plant was a “major emitting 

facility” and a “major stationary source” within the meaning of the Act, its implementing 

regulations, and the applicable PSD provisions of the Memphis/Shelby County local program. 

The Allen Fossil Plant and Allen Unit 3

56. During a three-month period from 1992 through 1993, Respondent performed the 

following project at Allen Unit 3: replaced several boiler components, including the existing 

horizontal reheater with a redesigned reheater. 

57. At all times relevant to this CAFO, Respondent was the owner and operator of the 

Bull Run Fossil Plant, a fossil fuel-fired electric utility steam generating plant located in 

The Bull Run Fossil Plant and Bull Run Unit 1
15

Anderson County, Clinton, Tennessee. At all times relevant to this CAFO, the Bull Run Fossil 

Plant was located in an area classified as attainment for NO2, SO2, and PM10. At all times 

relevant to this CAFO, Tennessee had a SIP-approved PSD program governing PSD permitting. 

At all times relevant to this CAFO, the Bull Run Fossil Plant was a “major emitting facility” and 

“major stationary source” within the meaning of the Act, its implementing regulations, and the 

applicable PSD provisions of the Tennessee SIP.

58. During a three-month period in 1988, Respondent performed the following project 

at Bull Run Unit 1: removed and replaced over 67 miles of tubing from the economizer and 

removed and replaced over 58,000 feet of tubing from the secondary superheater. 

59. At all times relevant to this CAFO, Respondent was the owner and operator of the 

Colbert Fossil Plant, a fossil fuel-fired electric utility steam generating plant located in Colbert 

County, Tuscumbia, Alabama. At all times relevant to this CAFO, the Colbert Fossil Plant was 

located in an area classified as attainment for NO2 and TSP/PM10. At all times relevant to this 

CAFO, the Colbert Fossil Plant was located in an area classified as nonattainment for SO2. At 

all times relevant to this CAFO, Alabama had a SIP-approved PSD and Nonattainment NSR 

program governing PSD and Nonattainment NSR permitting respectively. At all times relevant 

to this CAFO, the Colbert Fossil Plant was a “major emitting facility” and a “major stationary 

source,” and Colbert Unit 5 was an “electric utility steam generating unit,” within the meaning of 

the Act, its implementing regulations, and the applicable PSD and Nonattainment NSR 

provisions of the Alabama SIP.

The Colbert Fossil Plant and Colbert Unit 5

60. During a thirteen-month period from 1982 through 1983, Respondent performed the 

following project at Colbert Unit 5: replaced the waterwalls and horizontal reheater, modified 
16

the startup system, modified the superheater by adding wingwalls in the furnace, replaced the gas 

proportioning dampers, replaced the windbox, redesigned and replaced the control system, and 

converted the unit from forced draft to balanced draft operation.

61. At all times relevant to this CAFO, Respondent was the owner and operator of the 

Cumberland Fossil Plant, a fossil fuel-fired electric utility steam generating plant located in 

Stewart County, Cumberland City, Tennessee. At all times relevant to this CAFO, the 

Cumberland Fossil Plant was located in an area classified as attainment for NO2, SO2, and PM10. 

At all times relevant to this CAFO, Alabama had a SIP-approved PSD program governing PSD 

permitting. At all times relevant to this CAFO, the Cumberland Fossil Plant was a “major 

emitting facility” and “major stationary source” within the meaning of the Act, its implementing 

regulations, and the applicable PSD provisions of the Alabama SIP.

The Cumberland Fossil Plant and Cumberland Units 1 and 2

62. During a three-month period in 1994, Respondent performed the following project 

at Cumberland Unit 2: replaced and redesigned the secondary superheater outlet headers, 

replaced the secondary superheater pendant elements, and replaced the lower slope and lower 

waterwalls. During a three-month period in 1996, Respondent performed the following project 

at Cumberland Unit 1: replaced and redesigned the secondary superheater outlet headers, 

replaced the secondary superheater pendant elements, and replaced the lower slope and lower 

waterwalls. 

63. At all times relevant to this CAFO, Respondent was the owner and operator of the 

John Sevier Fossil Plant, a fossil fuel-fired electric utility steam generating plant located in 

Hawkins County, Rogersville, Tennessee. At all times relevant to this CAFO, the John Sevier 

The John Sevier Fossil Plant and John Sevier Unit 3
17

Fossil Plant was located in an area classified as attainment for NO2, SO2, and PM10. At all times 

relevant to this CAFO, Tennessee had a SIP-approved PSD program governing PSD permitting. 

At all times relevant to this CAFO, the John Sevier Fossil Plant was a “major emitting facility” 

and “major stationary source” within the meaning of the Act, its implementing regulations, and 

the applicable PSD provisions of the Tennessee SIP.

64. During a two-month period in 1986, Respondent performed the following project at 

John Sevier Unit 3: replaced the superheater platen elements, replaced all burner tube panels, 

and replaced the waterwalls in the front, rear, and sidewalls.

65. At all times relevant to this CAFO, Respondent was the owner and operator of the 

Kingston Fossil Plant, a fossil fuel-fired electric utility steam generating plant located in Roane 

County, Kingston, Tennessee. At all times relevant to this CAFO, the Kingston Fossil Plant was 

located in an area classified as attainment for NO2, SO2, and PM10. At all times relevant to this 

CAFO, Tennessee had a SIP-approved PSD program governing PSD permitting. At all times 

relevant to this CAFO, the Kingston Fossil Plant was a “major emitting facility” and “major 

stationary source” within the meaning of the Act, its implementing regulations, and the 

applicable PSD provisions of the Tennessee SIP.

The Kingston Fossil Plant and Kingston Units 6 and 8

66. During a two-month period in 1989, Respondent performed the following project at 

Kingston Unit 6: replaced all reheater and superheater intermediate pendant elements, and 

replaced the waterwalls of the superheater and reheater. During a three-month period from 1989 

through 1990, Respondent performed the following project at Kingston Unit 8: replaced all 

reheater and superheater intermediate pendant elements, and replaced the waterwalls of the 

superheater and reheater.
18

67. At all times relevant to this CAFO, Respondent was the owner and operator of the 

Paradise Fossil Plant, a fossil fuel-fired electric utility steam generating plant located in 

Muhlenburg County, Drakesboro, Kentucky. At all times relevant to this CAFO, the Paradise 

Fossil Plant was located in an area classified as attainment for NO2. At all times relevant to this 

CAFO, Kentucky did not have a SIP-approved PSD program governing PSD permitting. At all 

times relevant to this CAFO, the federal PSD regulations codified at 40 C.F.R. § 52.21 governed 

PSD permitting in Kentucky. At all times relevant to this CAFO, the Paradise Fossil Plant was a 

“major emitting facility” and “major stationary source” within the meaning of the Act, its 

implementing regulations, and the applicable federal PSD provisions codified at 40 C.F.R. § 

52.21.

The Paradise Fossil Plant and Paradise Units 1-3

68. During a 6 month-period in 1985, Respondent performed the following project at 

Paradise Unit 1: replaced all 14 cyclone burners, and cut out and replaced the lower waterwall 

below 465 feet, including the lower headers and floor. During a four-month period from 1985 

through 1986, Respondent performed the following project at Paradise Unit 2: replaced all 14 

cyclone burners, and cut out and replaced the lower waterwall below 465 feet, including the 

lower headers and floor. During a six-month period from 1984 through 1985, Respondent 

performed the following project at Paradise Unit 3: replaced all 23 cyclone burners, and cut out 

and replaced the waterwalls between 418 feet and 501 feet. 

69. At all times relevant to this CAFO, Respondent was the owner and operator of the 

Shawnee Fossil Plant, a fossil fuel-fired electric utility steam generating plant located in 

McCracken County, Paducah, Kentucky. At all times relevant to this CAFO, the Shawnee Fossil 

The Shawnee Fossil Plant and Shawnee Units 1 and 4
19

Plant was located in an area classified as attainment for NO2 and SO2. At all times relevant to 

this CAFO, Kentucky had a SIP-approved PSD program governing PSD permitting. At all times 

relevant to this CAFO, the Shawnee Fossil Plant was a “major emitting facility” and “major 

stationary source” within the meaning of the Act, its implementing regulations, and the 

applicable PSD provisions of the Kentucky SIP.

70. During a two-month period from 1989 through 1990, Respondent performed the 

following project at Shawnee Unit 1: replaced the secondary superheater and reheater pendant 

elements and crossover elements, including the header stubs. During a four-month period in 

1990, Respondent performed the following project at Shawnee Unit 2: replaced the secondary 

superheater and reheater pendant elements and crossover elements, including the header stubs. 

IV. Alleged Violations

71. The projects identified in Paragraphs 56, 58, 60, 62, 64, 66, 68, and 70 pertaining to 

Allen Unit 3, Bull Run Unit 1, Colbert Unit 5, Cumberland Units 1 and 2, John Sevier Unit 3, 

Kingston Units 6 and 8, Paradise Units 1, 2, and 3, and Shawnee Units 1 and 4, are physical 

changes in and/or changes in the method of operation of these coal-fired electric generating 

units. Each such project identified in Paragraphs 56, 58, 60, 62, 64, 66, 68, and 70 at the 

aforementioned units resulted in a significant net emissions increase, as defined by the relevant 

PSD regulations, in NOx, SO2, and/or PM. With respect to Allen Unit 3, the project identified in 

Paragraph 56 resulted in a significant net emissions increase in NOx and SO2. With respect to 

Bull Run Unit 1, the project identified in Paragraph 58 resulted in a significant net emissions 

increase in NOx and SO2. With respect to Colbert Unit 5, the project identified in Paragraph 60 

resulted in a significant net emissions increase in NOx and PM. With respect to Cumberland 

Alleged PSD Violations
20

Units 1 and 2, the projects identified in Paragraph 62 resulted in a significant net emissions 

increase in NOx. With respect to John Sevier Unit 3, the project identified in Paragraph 64 

resulted in a significant net emissions increase in SO2. With respect to Kingston Units 6 and 8, 

the projects identified in Paragraph 66 resulted in a significant net emissions increase in NOx and 

SO2. With respect to Paradise Units 1, 2, and 3, the projects identified in Paragraph 68 resulted 

in a significant net emissions increase in NOx. And with respect to Shawnee Units 1 and 4, the 

projects identified in Paragraph 70 resulted in a significant net emissions increase in NOx and 

SO2.

72. Accordingly, the projects identified in Paragraphs 56, 58, 60, 62, 64, 66, 68, and 70 

are major modifications within the meaning of the Act and the applicable PSD provisions, 

including the federal PSD requirements codified at 40 C.F.R. § 52.21 and the SIP-approved PSD 

programs for Alabama, Kentucky, and Tennessee (including the Memphis/Shelby County local 

program).

73. Respondent did not comply with the applicable PSD requirements in the relevant 

SIPs (for the projects identified in Paragraphs 56, 58, 60, 62, 64, 66, and 70) or the federal PSD 

program (for the projects identified in Paragraph 68) with respect to the major modifications at 

Allen Unit 3, Bull Run Unit 1, Colbert Unit 5, Cumberland Units 1 and 2, John Sevier Unit 3, 

Kingston Units 6 and 8, Paradise Units 1, 2, and 3, and Shawnee Units 1 and 4. Among other 

things, Respondent failed to obtain a PSD permit as required by the Act, the federal PSD 

program, and the Alabama SIP, the Kentucky SIP, and the Tennessee SIP (including the 

Memphis/Shelby County local program), prior to commencing construction and operation of the 

major modifications at the aforementioned units. Respondent did not undergo a BACT 

determination in connection with these major modifications. Respondent failed to install and 
21

operate BACT for control of NOx, SO2, and/or PM, pursuant to such determination, as required 

by the Act, the federal PSD program, and the PSD-approved SIPs for Alabama, Kentucky, and 

Tennessee (including the Memphis/Shelby County local program).

74. Accordingly, Respondent has violated Section 165 of the Act, 40 C.F.R. § 52.21, the 

Alabama SIP, the Kentucky SIP, the Tennessee SIP, and the Memphis/Shelby County local 

program. 

75. The project identified in Paragraph 60 is a physical change in and/or change in the 

method of operation of Colbert Unit 5. The project identified in Paragraph 60 resulted in a 

significant net emissions increase in SO2. The project identified in Paragraph 60 increased the 

hourly emission rate of NOx, SO2, and PM from Colbert Unit 5 above the maximum hourly 

emissions previously achieved. 

Alleged Nonattainment NSR and NSPS Violations at Colbert Unit 5

76. The project identified in Paragraph 60 is a major modification within the meaning of 

the Act and the SIP-approved Nonattainment NSR program for Alabama. 

77. Respondent did not comply with the applicable Nonattainment NSR requirements in 

the Alabama SIP. Among other things, Respondent failed to obtain a Nonattainment NSR permit 

as required by the Act and the Alabama SIP prior to commencing construction and operation of 

the major modification at Colbert Unit 5. Respondent did not undergo a LAER determination in 

connection with this major modification. Respondent failed to install and operate LAER for 

control of SO2 pursuant to such determination, as required by the Act and the Alabama SIP. 

78. Accordingly, Respondent violated the Act and the Alabama SIP.

79. The project identified in Paragraph 60 is a modification of an affected facility within 

the meaning of the Act and 40 C.F.R. Part 60. 
22

80. Respondent failed to comply with the requirements of 40 C.F.R. Part 60 subparts A 

and Da for Colbert Unit 5 as an affected facility.

81. Accordingly, Respondent violated the Section 111(e) of the Act and 40 C.F.R. Part 

60 subparts A and Da. 

82. As set forth above, Respondent commenced major modifications at Allen Unit 3, 

Bull Run Unit 1, Colbert Unit 5, Cumberland Units 1 and 2, John Sevier Unit 3, Kingston Units 

6 and 8, Paradise Units 1, 2, and 3, and Shawnee Units 1 and 4. As a result, these modifications 

triggered the requirements to, 

Alleged Title V Violations

inter alia

83. Respondent failed to submit a complete application for a Title V operating permit 

for the Allen Fossil Plant, the Bull Run Fossil Plant, the Colbert Fossil Plant, the Cumberland 

Fossil Plant, the John Sevier Fossil Plant, the Kingston Fossil Plant, the Paradise Fossil Plant, 

and the Shawnee Fossil Plant and identify all applicable requirements, accurately certify 

compliance with such requirements, and contain a compliance plan for all applicable 

requirements for which Respondent’s units were not in compliance with the Act (including the 

requirement to meet BACT/LAER pursuant to a BACT/LAER determination under PSD and 

Nonattainment NSR, and the applicable NSPS requirements of 40 C.F.R. Part 60 subpart A and 

Da for Colbert Unit 5). Respondent failed to obtain a proper or adequate Title V operating 

permit for the aforementioned facilities that contained emission limitations for NOx, SO2, and/or 

PM that met BACT/LAER pursuant to a BACT/LAER determination and the applicable 

, undergo a BACT/LAER determination, to obtain a 

PSD/Nonattainment NSR permit establishing emission limitations that meet BACT/LAER 

pursuant to such a determination, and to operate in compliance with such limitations. 

Respondent failed to satisfy these requirements. 
23

emission limitations in the NSPS for Colbert Unit 5. Respondent thereafter operated the 

modified units without meeting such limitations and without having a valid operating permit that 

required compliance with such limitations or that contained a compliance plan for all applicable 

requirements for which Respondent’s units were not in compliance. Respondent’s conduct 

violated Sections 502, 503, and 504 of the Act, 42 U.S.C. §§ 7661a, 7661b and 7661c; the 

regulations codified at 40 C.F.R. Part 70, including, but not limited to, 40 C.F.R. §§ 70.1(b), 

70.5(a), (b) and (c), 70.6 and 70.7(b); and the federally approved Title V programs of Alabama, 

Kentucky, and Tennessee.

84. As provided in Section 113(d) of the Act, the violations set forth in Paragraphs 71-

83 subject Respondent to civil administrative penalties of up to $25,000 per day for each 

violation occurring before January 31, 1997; $27,500 per day for each such violation occurring 

on or after January 31, 1997; $32,500 per day for each such violation occurring after March 15, 

2004; and $37,500 per day for each such violation occurring after January 12, 2009.

V. 

85. Solely or purposes of this CAFO, and for no other purpose, as required by 40 C.F.R. 

§ 22.18(b)(2), Respondent admits the jurisdictional allegations set forth in Paragraphs 1-14, 

above.

Consent Agreement

86. Solely for purposes of this CAFO, and for no other purpose, as required by 40 

C.F.R. § 22.18(b)(2), Respondent neither admits nor denies the factual allegations set forth in 

Paragraphs 55-70, above.

87. Solely for purposes of this CAFO, and as referenced in the Federal Facilities 

Compliance Agreement Between the United States Environmental Protection Agency and the 

Tennessee Valley Authority, Docket No. CAA-04-2010-1760 (“Compliance Agreement”) 
24

(attached hereto as Exhibit A), and for no other purpose, as required by 40 C.F.R. § 22.18(b)(2), 

Respondent waives any right to contest the factual and legal allegations set forth above (although 

TVA in fact denies such factual and legal allegations), its right to appeal the proposed final order 

accompanying this agreement, and its right to request a conference with the Administrator. 

88. Respondent consents to the assessment of and agrees to pay the civil penalty as set 

forth in this CAFO. Based upon an analysis of the penalty assessment criteria in Section 113(e) 

of the Act, 42 U.S.C. § 7413(e), Complainant has determined that an appropriate civil penalty to 

settle this matter is $8,000,000. 

89. Except as otherwise provided in Section V.H (Resolution of Claims) of the 

Compliance Agreement, payment of the civil administrative penalty set forth in this CAFO shall 

resolve the alleged violations and factual issues contained herein, and EPA hereby releases 

Respondent from liability for the facts and violations alleged herein. This CAFO shall not 

otherwise affect any liability of Respondent, if any, to the United States. Other than as expressed 

herein, pursuant to 40 C.F.R. § 22.18(c), settlement of this matter shall not affect the right of 

EPA or the United States to pursue appropriate injunctive or other equitable relief or criminal 

sanctions for any violations of law. Neither EPA nor Complainant waives any right to bring an 

enforcement action against Respondent for violation of any federal or state statute, regulation, or 

permit, to initiate an action for imminent and substantial endangerment, or to pursue criminal 

enforcement for allegations of violations not contained in this CAFO.

90. Complainant and Respondent agree to settle this matter by their execution of this 

CAFO. The Parties agree that the settlement of this matter is in the public interest and that this 

CAFO, together with the Compliance Agreement, are consistent with the requirements of the 

Act. 
25

VI. 

91. Respondent shall pay a civil administrative penalty of EIGHT MILLION 

DOLLARS ($8,000,000) within 30 days of the effective date of the Compliance Agreement by 

wire transfer to the Federal Reserve Bank of New York with the following wire transfer content: 

Final Order

Federal Reserve Bank of New York

ABA: 021030004

Account Number: 68010727

SWIFT address: FRNYUS33

TIN: 52-0852695

33 Liberty St.

New York NY 10045

Field Tag 4200 of the Fedwire message should read: “D 68010727 Environmental 

Protection Agency”

92. At the time of payment, Respondent shall send a copy of the wire transfer 

authorization form and transaction record, together with a transmittal letter which shall state that 

the payment is for the civil administrative penalty owed pursuant to the Consent Agreement and 

Final Order in In re Tennessee Valley Authority

Regional Hearing Clerk

, Docket No. CAA-04-2010-1528(b), to the 

following persons at the following addresses:

U.S. EPA – Region 4

61 Forsyth Street

Atlanta, Georgia 30303

Mr. Jason Dressler

Air, Pesticides and Toxics Management Division

Air and EPCRA Enforcement Branch

U.S. EPA - Region 4

61 Forsyth Street

Atlanta, Georgia 30303

Ms. Saundi Wilson (OEA)

U.S. EPA – Region 4

61 Forsyth Street

Atlanta, Georgia 30303
26

Ms. Ilana Saltzbart

U.S. EPA – Headquarters

Mail Code 2242A

1200 Pennsylvania Avenue, N.W. 

Washington, DC 20460

93. Pursuant to 31 U.S.C. § 3717, EPA is entitled to assess interest and penalties on 

debts owed to the United States and a charge to cover the cost of processing and handling a 

delinquent claim. Interest will therefore begin to accrue on the civil administrative penalty from 

the effective date of this CAFO, if the penalty is not paid by the date required. Interest will be 

assessed at the rate established by the Secretary of Treasury, pursuant to 31 U.S.C. § 3717. A 

charge will be assessed to cover the costs of debt collection, including processing and handling 

costs and attorney fees. In addition, a penalty charge of up to six percent per year compounded 

annually may be assessed on any portion of the debt that remains delinquent more than ninety 

(90) days after payment is due.

94. The penalty described in Paragraph 91, shall represent civil penalties assessed by 

Complainant within the meaning of Section 162(f) of the Internal Revenue Code, 26 U.S.C. § 

162(f), and is not a tax-deductible expenditure for purposes of federal law. Respondent, as an 

agency and instrumentality of the United States, is not subject to federal or state taxation. 

95. Complainant and Respondent shall bear their own costs and attorney fees in this 

matter.

96. This CAFO shall be binding upon Respondent, its successors and assigns.

97. The following individual is authorized to receive service for EPA in this proceeding: 

Ms. Beverly A. Spagg, Chief

Air Enforcement and EPCRA Branch

Air, Pesticides and Toxics Management Division

U.S. EPA – Region 4

61 Forsyth Street

Atlanta, Georgia 30303
27

98. Each undersigned representative of the Parties to this CAFO certifies that he or she 

is fully authorized by the party represented to enter into this CAFO and legally bind that party to 

it.

99. This CAFO shall not relieve Respondent of its obligation to comply with all 

applicable provisions of federal, state, or local law, nor shall it be construed to be a ruling on, or 

determination of, any issue related to any federal, state, or local permit.

VII. 

100. The effective date of this CAFO shall be the date on which the Final Order is filed.

Effective Date

AGREED AND CONSENTED TO:

FOR COMPLAINANT: FOR RESPONDENT:

__________________________ __________________________

Beverly H. Banister, Director Anda Ray, Senior Vice President

Air, Pesticides and Toxics Environment and Technology

Management Division Tennessee Valley Authority 

U.S. Environmental Protection

Agency, Region 4

Date: _____________________ Date:______________________

APPROVED AND SO ORDERED this _________ day of ________, 2011.

______________________

Susan B. Schub

Regional Judicial Officer

EPA, Region 4