IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF WISCONSIN 

UNITED STATES OF AMERICA ) 

) 

Plaintiff, ) 

) 

v. ) Civil Action No. __________ 

)

WISCONSIN ELECTRIC POWER COMPANY, )

)

Defendant. ) 

) 

) 

CONSENT DECREE 
TABLE OF CONTENTS 

I. Jurisdiction and Venue ........................................................4

II. Applicability ...............................................................4

III. Definitions ................................................................5

IV. Units to be Controlled or Retired. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 

V. NOx Emission Reductions and Controls .........................................14

A. NOx Emission Controls ................................................14

B. System-wide NOx Emission Limits .......................................17

C. NOx Emission Limitations at Presque Isle Units 1 and 2 ......................18

x Emission Allowances .......................................18 

x Provisions ................................................20 

D. Use of NO

E. General NO

VI. SO2 Emission Reductions and Controls .........................................21

A. SO2 Emission Controls ................................................21

B. System-wide SO2 Emission Limits .................................... . . .22

C. Surrender of SO2 Emission Allowances .................................. ..23

D. Fuel Limitations .....................................................26

E. General SO2 Provisions ................................................26

VII. PM Emission Reductions and Controls ........................................27

A. Optimization of PM Controls ...........................................27

B. Upgrades of PM Controls ..............................................27

C. PM Monitoring ......................................................28

D. General PM Provisions ................................................32

ii 
VIII. Prohibition on Netting Credits or Offsets from Required Controls ..................33

IX. Environmental Projects .....................................................33

X. Civil Penalty ..............................................................36

XI. Resolution of Claims .......................................................37

A. Resolution of U.S. Civil Claims .........................................37

B. Pursuit of U.S. Civil Claims Otherwise Resolved ...........................38

XII. Periodic Reporting ........................................................41

XIII. Review and Approval of Submittals ..........................................43

XIV. Stipulated Penalties .......................................................43

XV. Force Majeure ...........................................................49

XVI. Dispute Resolution .......................................................52

XVII. Emission Limitations on the South Oak Creek and Elm Road Generating Stations. . . . . 54

XVIII. Permits ...............................................................55

XIX. Information Collection and Retention ........................................57

XX. Notices .................................................................59

XXI. Sales or Transfers of Ownership Interests .....................................60

XXII. Effective Date ..........................................................62

XXIII. Retention of Jurisdiction .................................................62

XXIV. Modification ...........................................................62

XXV. General Provisions ......................................................63

XXVI. Signatories and Service ..................................................65

XXVII. Public Comment .......................................................65

XXVIII. Conditional Termination of Enforcement Under Decree .......................66

iii 
XXIX. Final Judgment .........................................................67 

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

States Environmental Protection Agency (“EPA”) has filed a Complaint with this Consent 

Decree, against Wisconsin Electric pursuant to Sections 113(b) and 167 of the Clean Air Act (the 

“Act"), 42 U.S.C. §§ 7413(b) and 7477, for injunctive relief and the assessment of civil penalties 

for alleged violations of: 

(a) the Prevention of Significant Deterioration provisions in Part C of Subchapter

I of the Act, 42 U.S.C. §§ 7470-92; 

(b) the nonattainment New Source Review provisions in Part D of Subchapter I

of the Act, 42 U.S.C. §§ 7501-7515; 

(c) the federally-enforceable State Implementation Plan developed by the State of

Michigan (the “Michigan SIP”);

(d) the federally-enforceable State Implementation Plan developed by the State of 

Wisconsin (the “Wisconsin SIP”); and

WHEREAS, in its Complaint, Plaintiff alleges, inter alia, that Wisconsin Electric failed

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

sulfur dioxide, nitrogen oxides, and/or particulate matter emissions, and that such emissions can 

damage human health and the environment; 

WHEREAS, the Plaintiff alleges that its Complaint states claims upon which relief can 

be granted against Wisconsin Electric under Sections 113 and 167 of the Act, 42 U.S.C. §§ 7413 

and 7477, and 28 U.S.C. § 1355; 

1
WHEREAS, Wisconsin Electric has not answered or otherwise responded to the 

Complaint filed by the United States in light of the settlement memorialized in this Consent 

Decree; 

WHEREAS, Wisconsin Electric has denied and continues to deny the violations alleged 

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

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

imposed by this Consent Decree solely to avoid the costs and uncertainties of litigation, and to 

reduce its emissions; 

WHEREAS, EPA provided Wisconsin Electric and the States of Michigan and Wisconsin 

with actual notice of violations pertaining to Wisconsin Electric’s alleged violations, in 

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

WHEREAS, the Parties anticipate that the States of Michigan and Wisconsin may seek to 

intervene in this case, and the Parties anticipate that they will consent to such intervention; 

WHEREAS, Wisconsin Electric, consistent with its environmental, health and safety 

policy, met with the United States in February 2003, to resolve the Parties’ respective goals for 

achieving emission reductions of certain emissions at the electric generating stations covered 

under this Consent Decree; 

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

equipment pursuant to this Consent Decree will achieve significant reductions in SO2, NOx and 

PM emissions and thereby improve air quality and that certain actions that Wisconsin Electric 

has agreed to undertake are expected to advance technologies and methodologies for reducing 

certain air emissions, including mercury; 

2
WHEREAS, nothing in this Consent Decree is intended to prohibit the use of emission 

reductions under this Consent Decree to demonstrate attainment with §110 of the Act (42 U.S.C. 

§ 7410); 

WHEREAS, Wisconsin Electric has begun the process of retiring the coal-fired units at 

the Port Washington Generating Station and has applied for and received permits to construct 

two new combined cycle natural gas units at that facility; 

WHEREAS, Wisconsin Electric is seeking approval, including air emissions permits, to 

construct three new coal-fired units in Wisconsin at a site adjacent to the South Oak Creek 

Generating Station, designated as the Elm Road Generating Station; 

WHEREAS, EPA supports the construction of cleaner power plants to meet growing 

energy demands; 

WHEREAS, the United States and Wisconsin Electric 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; that this settlement is fair, reasonable, in the best interest of the Parties and in 

the public interest; consistent with the goals of the Act; and that entry of this Consent Decree 

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

and 

WHEREAS, the United States and Wisconsin Electric 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 

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

DECREED as follows: 

3
I. JURISDICTION AND VENUE 

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

Parties consenting hereto, pursuant to 28 U.S.C. §§ 1331, 1345, 1355, and 1367, Sections 113(b) 

and 167 of the Act, 42 U.S.C. §§ 7413(b) and 7477, the Michigan SIP, 40 C.F.R. § 52.1180(b); 

45 Fed. Reg. 8348 (February 7, 1980), and the Wisconsin SIP, 40 C.F.R. § 52.2570; Wis. 

Admin. Code, NR § 405. 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 

Plaintiff’s underlying Complaint, Wisconsin Electric waives all objections and defenses that it 

may have to the claims set forth in the underlying Complaints, and to the jurisdiction of the 

Court over Wisconsin Electric and this action, and to venue in this District. Wisconsin Electric 

shall not challenge the terms of this Consent Decree or this Court’s jurisdiction to enter and 

enforce this Consent Decree. For purposes of the Complaint filed by the United States in this 

matter and resolved by the Consent Decree, and for purposes of entry and enforcement of this 

Decree, Wisconsin Electric 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 Wisconsin Electric. Except as provided by Section XXVII (Public 

Comment), 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 and Wisconsin Electric, its successors and assigns, and Wisconsin 

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

4
3. Wisconsin Electric shall provide a copy of this Consent Decree to all vendors, 

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

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

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

Wisconsin Electric shall be responsible for ensuring that all work is performed in accordance 

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

Wisconsin Electric shall not assert as a defense the failure of its officers, directors, employees, 

servants, agents, or contractors to take actions necessary to comply with this Consent Decree, 

unless Wisconsin Electric establishes that such failure resulted from a Force Majeure Event, as 

defined in Paragraph 143 of this Consent Decree. 

III. DEFINITIONS 

4. A “30-day Rolling Average Emission Rate” shall be determined by calculating an 

arithmetic average of all hourly emission rates in lb/mmBTU for the current day and the previous 

29 Operating Days. A new 30-day Rolling Average Emission Rate shall be calculated for each 

new Operating Day. Each 30-Day Rolling Average Emission Rate shall include all start-up, shut 

down and Malfunction periods within each Operating Day. A Malfunction shall be excluded 

from this Emission Rate, however, if it is determined to be a Force Majeure Event and satisfies 

the Force Majeure provisions of this Consent Decree. 

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

the mass of a pollutant achieved by a Unit’s pollution control device over a 30-day period. This 

percentage shall be calculated by subtracting the Unit’s outlet 30-Day Rolling Average Emission 

Rate from the Unit’s inlet 30-Day Rolling Average Emission Rate, dividing that difference by 

5
the Unit’s inlet 30-Day Rolling Average Emission Rate, and then multiplying by 100. A new 

30-Day Rolling Average Removal Efficiency shall be calculated for each new Operating Day, 

and shall include all periods of startup, shutdown and Malfunction within an Operating Day. A 

Malfunction shall be excluded from this removal efficiency, however, if it is determined to be a 

Force Majeure Event and satisfies the Force Majeure provisions of this Consent Decree. 

6. “Air Quality Control Region” means a geographic area designated under Section 

107(c) of the Act, 42 U.S.C. § 7407(c). 

7. “Baseline” means the annual average emissions of SO2 and NOx of the Plants in 

the Wisconsin Electric System for calendar years 2000 and 2001, as measured under 40 C.F.R. 

Part 75. 

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

coal pulverizers, crusher, stoker, and fuel burners); (B) combustion air system; (C) steam 

generating system (i.e., firebox, boiler tubes and walls); and (D) draft system (excluding the 

stack), as further described in “Interpretation of Reconstruction,” by John B. Rasnick, U.S. EPA 

(November 25, 1986) and the attachments thereto. 

9. “BH” means baghouse, a pollution control device for the reduction of particulate 

matter (“PM”). 

10. “Capital Expenditure” means all capital expenditures, as defined by Generally 

Accepted Accounting Principles (“GAAP”), excluding the cost of installing or upgrading 

pollution control devices. 

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

involving NOx and SO2 under this Decree, the devices defined in 40 C.F.R. § 72.2 and installed 

and maintained as required by 40 C.F.R. Part 75. 

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

7671q, and its implementing regulations. 

13. “Consent Decree” or “Decree” means this Consent Decree. 

14. “Elm Road Generating Station” means the proposed coal-fired electric generating 

units, for which Wisconsin Electric is seeking regulatory approval to construct at a site adjacent 

to the South Oak Creek Generating Station. 

15. “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. 

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

17. “ESP” means electrostatic precipitator, a pollution control device for the 

reduction of particulate matter (“PM”). 

18. “Existing Units” means those Units included in the Wisconsin Electric System. 

19. “Flue gas desulfurization system,” or “FGD,” means a pollution control device 

that employs flue gas desulfurization technology for the reduction of sulfur dioxide. 

20. “Fossil fuel” means any hydrocarbon fuel, including coal, petroleum oil, or 

natural gas. 

21. “Improved Unit” means, in the case of NOx, a Wisconsin Electric System Unit 

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

approved pursuant to Paragraph 56) or to be retired, and, in the case of SO2, a Wisconsin Electric 

7
System Unit scheduled under this Decree to be equipped with an FGD (or equivalent SO2 control 

technology approved pursuant to Paragraph 71) or to be retired. A Unit may be an Improved 

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

22. “lb/mmBTU” mean one pound of a pollutant per million British Thermal Units of 

heat input. 

23. “Malfunction” means malfunction as that term is defined under 40 C.F.R.§ 60.2. 

24. “MW” means a megawatt, or one million Watts. 

25. “National Ambient Air Quality Standards” means national air quality standards 

promulgated pursuant to Section 109 of the Act, 42 U.S.C. § 7409. 

26. “New Units” means any coal-fired or natural gas fired units that commence 

operation after entry of this Consent Decree, including but not limited to the re-powered natural 

gas units at the Port Washington Generating Station. 

27. “NOx” means oxides of nitrogen, as measured in accordance with the provisions 

of this Consent Decree. 

28. “Nonattainment NSR” means the nonattainment area New Source Review 

program within the meaning of Part D of Subchapter I of the Act, 42 U.S.C. §§ 7510-7515, 40 

C.F.R. Part 51. 

29. “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, 40 C.F.R. Part 60. 

30. “Operating Day” means any calendar day on which a Unit fires fossil fuel. 

8
31. “Other Unit” means any Unit of the Wisconsin Electric System that is not an 

Improved Unit for the pollutant in question. A Unit may be an Improved Unit for NOx and an 

Other Unit for SO2 and vice versa. 

32. “PM Control Device” means an electrostatic precipitator (“ESP”) or a baghouse 

(“BH”), devices which reduce emissions of particulate matter (PM). 

33. “Parties” means Wisconsin Electric and the United States. 

34. “Permitting State” means the state in which a particular Unit is located from 

which Wisconsin Electric is required to obtain permits, licenses, or approvals in order to install 

or operate a source of air pollution. 

35. “Plaintiff” means the United States. 

36. “PM” means particulate matter, as measured in accordance with the provisions of 

this Consent Decree. 

37. “PM CEMS” or “PM continuous emission monitoring system” means equipment 

that samples, analyzes, measures, and provides PM emissions data -- by readings taken at 

frequent intervals – and makes an electronic or paper record of the PM emissions measured. 

38. “PM Emission Rate” shall mean the average number of pounds of PM emitted per 

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

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

39. “Project Dollars” means Wisconsin Electric’s expenditures and payments 

incurred or made in carrying out the projects identified in Section IX of this Consent Decree 

(Environmental Projects) to the extent that such expenditures or payments both: (a) comply with 

the Project Dollar and other requirements set by this Consent Decree in Section IX of this 

9
Consent Decree (Environmental Projects); and (b) constitute Wisconsin Electric’s external costs 

for contractors, vendors, and equipment, and its internal costs consisting of employee time, 

travel, and other out-of-pocket expenses specifically attributable to these particular projects and 

documented in accordance with “GAAP”. 

40. “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. 

41. “SCR” means a device that employs selective catalytic reduction technology for 

the reduction of nitrogen oxides. 

42. “SO2 ” means sulfur dioxide, as measured in accordance with this Consent 

Decree. 

43. “SO2 Allowance” means an “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. 

44. [RESERVED.] 

45. “System-wide 12-Month Rolling Average Emission Rate” means (a) summing the 

pounds of pollutant in question emitted from the Wisconsin Electric System during the most 

recent complete month and the previous eleven (11) months, (b) summing the heat input to the 

Wisconsin Electric System in mmBTU during the most recent complete month and the previous 

eleven (11) months, and (c) dividing the total number of pounds of pollutants emitted during the 

twelve (12) months by the total heat input during the twelve (12) months, and expressing the 

resulting figure in lbs/mmBTU. A new System-wide 12-Month Rolling Average Emission Rate 

shall be calculated for each new complete month. Each “System-wide 12-Month Rolling 

10
Average Emission Rate” shall include all start-up, shut down and Malfunction periods within 

each complete month. 

46. “System-wide 12-Month Rolling Tonnage” means the sum of the tons of pollutant 

in question emitted from the Wisconsin Electric System in the most recent month and the 

previous eleven (11) months. A new System-wide 12-Month Rolling Tonnage will be calculated 

for each new complete month. 

47. “Title V Permit” means the permit required of Wisconsin Electric’s major sources 

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

48. “Unit” means, for the purpose of this Consent Decree, collectively, the coal 

pulverizer, the 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, or systems necessary for the production of electricity. An electric utility steam 

generating station may be comprised of one or more Units. 

49. “Unit-Specific 12-Month Rolling Tonnage” means the sum of the tons of 

pollutant in question emitted from the applicable Unit in the most recent month and the previous 

eleven (11) months. A new Unit-Specific 12-Month Rolling Tonnage will be calculated for each 

new complete month. 

50. “WEC” means Wisconsin Energy Corporation, the parent company of Wisconsin 

Electric and W.E. Power. 

51. “W.E. Power” means W.E. Power LLC, a subsidiary of WEC and an affiliate of 

Wisconsin Electric. 

11
52. “Wisconsin Electric” means the Wisconsin Electric Power Company. 

53. “Wisconsin Electric System” means, solely for purposes of this Consent Decree, 

the following twenty-three (23) coal-fired, electric utility steam generating Units (with the rated 

MW(net) capacity of each Unit noted in parentheses): 

! Presque Isle Generating Station in Marquette, Michigan - Unit 1 (25 

MW), 2 (37.5 MW), 3 (54.4 MW), 4 (57.8 MW), 5 (90 MW), 6 (90 MW), 

7 (90 MW), 8 (90 MW), and 9 (90 MW); 

! Pleasant Prairie Generating Station in Kenosha, Wisconsin - Units 1 

(616.6 MW) and 2 (616.6 MW); 

! South Oak Creek Generating Station in Oak Creek, Wisconsin - Units 5 

(275 MW), 6 (275 MW), 7 (317.6 MW), and 8 (324 MW); 

! Port Washington Generating Station in Port Washington, Wisconsin -

Units 1 (80 MW), 2 (80 MW), 3 (80 MW), and 4 (80 MW); 

! Valley Generating Station in Milwaukee, Wisconsin - Units 1 (80 MW), 2 

(80 MW), 3 (80 MW), and 4 (80 MW). 

12
IV. UNITS TO BE CONTROLLED OR RETIRED 

54. Wisconsin Electric shall either satisfy the emission control requirements of 

Paragraphs 55 and 70 with regard to the following Units or retire and permanently cease to 

operate the following Units within the Wisconsin Electric System by the following dates: 

Unit Date by which 

Wisconsin Electric Must 

Control or Cease to 

Operate Unit 

Port Washington Unit 4 Upon Entry of this 

Consent Decree 

Port Washington Unit 1 December 31, 2004 

Port Washington Unit 2 December 31, 2004 

Port Washington Unit 3 December 31, 2004 

Oak Creek Unit 5 December 31, 2012 

Oak Creek Unit 6 December 31, 2012 

Presque Isle Unit 1 December 31, 2012 

Presque Isle Unit 2 December 31, 2012 

Presque Isle Unit 3 December 31, 2012 

Presque Isle Unit 4 December 31, 2012 

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V. NOx EMISSION REDUCTIONS AND CONTROLS 

A. NOx Emission Controls 

55. Wisconsin Electric shall install and commence continuous operation of Selective 

Catalytic Reduction technology (“SCR”) (or equivalent NOx control technology approved 

pursuant to Paragraph 56) so as to achieve a 30-Day Rolling Average Emission Rate not greater 

than 0.100 lb/mmBTU NOx on the following Units within the Wisconsin Electric System by the 

following dates: 

Unit Date by Which 

Wisconsin Electric Must 

Complete Installation 

and Continuously 

Operate SCR 

Pleasant Prairie Unit 2 December 31, 2003 

Pleasant Prairie Unit 1 December 31, 2006 

Oak Creek Unit 7 December 31, 2012 

Oak Creek Unit 8 December 31, 2012 

56. With prior written notice to and approval from EPA, Wisconsin Electric may, in 

lieu of installing and operating any such SCR, install and operate equivalent NOx control 

technology so long as such equivalent NOx control technology achieves a 30-Day Rolling 

Average Emission Rate not greater than 0.100 lb/mmBTU NOx. 

57. Wisconsin Electric shall continuously operate SCR (or equivalent NOx control 

technology approved pursuant to Paragraph 56) at all times that the Unit it serves is in operation 

consistent with the technological limitations, manufacturers’ specifications, and good operating 

practices, for the SCR or equivalent technology. 

14
58. Wisconsin Electric shall also operate either low NOx burners (“LNB”) or 

combustion control technology on the following Units within the Wisconsin Electric System. 

Such low-NOx burner or combustion control technology shall be operational in accordance with 

the following schedule: 

15
Units to be 

Controlled 

NOx Control Deadline for 

Commencement of 

Operation 

Valley Boiler 1 LNB and Combustion 

Optimization Software 

(Existing LNB and 

Combustion Optimization 

Software) 

30 days after the 

date of lodging of 

this Consent Decree 

Valley Boiler 2 LNB and Combustion 

Optimization Software 

(Existing LNB and 

Combustion Optimization 

Software) 

30 days after the 

date of lodging of 

this Consent Decree 

Valley Boiler 3 LNB and Combustion 

Optimization Software 

(Existing LNB and 

Combustion Optimization 

Software) 

30 days after the 

date of lodging of 

this Consent Decree 

Valley Boiler 4 LNB and Combustion 

Optimization Software 

(Existing LNB and 

Combustion Optimization 

Software) 

30 days after the 

date of lodging of 

this Consent Decree 

Presque Isle Unit 

5 

LNB and Combustion 

Optimization Software 

December 31, 2003 

Presque Isle Unit 

6 

LNB and Combustion 

Optimization Software 

December 31, 2003 

Presque Isle Unit 

7 

LNB and Combustion 

Optimization Software 

(Existing LNB) 

December 31, 2005 

Presque Isle Unit 

8 

LNB and Combustion 

Optimization Software 

(Existing LNB) 

December 31, 2005 

Presque Isle Unit 

9 

LNB and Combustion 

Optimization Software 

(Existing LNB) 

December 31, 2006 

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B. System-Wide NOx Emission Limits 

59. Wisconsin Electric shall not exceed the Wisconsin Electric System-wide 12-

Month Rolling Average Em x ission Rates for NO as specified below: 

Beginning on System-wide 12-Month 

Rolling Average 

Emission Rate for NOx 

January 1, 2005 0.270 lbs/mmBTU 

January 1, 2007 0.190 lbs/mmBTU 

January 1, 2013 0.170 lbs/mmBTU 

60. In addition to meeting the system-wide emission limit set forth in the preceding 

Paragraph, Wisconsin Electric shall not emit NOx on a System-wide 12-Month Rolling Tonnage 

basis from the Wisconsin Electric System in an amount greater than the following number of 

tons: 

Beginning on System-wide 12-Month 

Rolling Tonnage 

Limitation for NOx 

January 1, 2005 31,500 tons 

January 1, 2007 23,400 tons 

January 1, 2013 17,400 tons 

Wisconsin Electric shall meet the above NOx tonnage limitations exclusively through the 

operation of all control equipment required to be installed and operated by this Decree, Unit 

retirements, and any additional control equipment that Wisconsin Electric installs and operates. 

Wisconsin Electric shall not use NOx allowances or credits to comply with these limitations. 

17
C. NOx Emission Limitations at Presque Isle Units 1 and 2 

61. In addition to meeting the System-wide 12-Month Rolling Tonnage limitations 

for NOx set forth in Paragraph 60, after December 31, 2003, Wisconsin Electric shall not emit 

NOx from the Units 1 and 2 at the Presque Isle Generating Plant in an amount greater than 130 

and 194 tons per year, respectively, based upon a Unit-Specific 12-Month Rolling Tonnage. If a 

Unit exceeds the applicable Unit-Specific 12-Month Rolling Tonnage limitation specified in this 

Paragraph, Wisconsin Electric shall install and operate LNB technologies on that Unit no later 

than December 31 of the calendar year following such exceedance. 

62. So long as Units 1 through 4 at the Presque Isle Generating Station discharge 

through a common stack, are of the same design and combust the same fuel, Wisconsin Electric 

shall determine monthly mass emissions of NOx by apportioning NOx emissions from the 

common stack to Units 1 and 2. To apportion emissions, Wisconsin Electric shall utilize the 

load based apportionment protocol used in the Acid Rain Program to apportion heat rates to units 

that share a common stack. Each month, Wisconsin Electric shall calculate the Unit-Specific 12-

month Rolling Tonnage of NOx mass (tons/year) attributed to Units 1 and 2. 

D. Use of NOx Emission Allowances 

63. For any and all actions taken by Wisconsin Electric to conform to the 

requirements of this Consent Decree, Wisconsin Electric shall not use, sell, or trade any resulting 

NOx emission allowances or credits in any emission trading or marketing program of any kind, 

except as provided in this Consent Decree. 

64. NOx emission allowances or credits allocated to the Wisconsin Electric System by 

the Administrator of EPA under the Act, or by any State under its State Implementation Plan, 

18
may be used by Wisconsin Electric to meet its own federal and/or state Clean Air Act regulatory 

requirements for any Existing Unit or New Unit owned or operated, in whole or in part, by 

Wisconsin Electric. 

65. Nothing in this Consent Decree shall preclude Wisconsin Electric from using, 

selling, or transferring NOx emission reductions below the emission requirements of Wi. Admin. 

Code NR 428 among the units in the Wisconsin Electric System in order to demonstrate 

compliance with either Wi. Admin. Code NR 428 or Mich. Admin. Code Rule 801. Use of 

emission reductions generated from the Wisconsin Electric System to comply with the 

requirements of Mich. Admin. Code Rule 801 will conform to the Memorandum of 

Understanding (“MOU”) among the State of Wisconsin, the State of Michigan and Wisconsin 

Electric, dated November 8, 2002, as that MOU may be amended from time to time. 

66. Nothing in this Consent Decree shall preclude Wisconsin Electric from using, 

x selling or transferring excess NO emission allowances or credits that may arise as a result of:

a. activities which occur prior to the date of entry of this Consent Decree; 

b. achieving NOx emission reductions at an Improved Unit that are below 

both the 30-Day Rolling Average Emission Rate of 0.100 lb/mmBTU NOx 

and the System-wide 12-Month Rolling Tonnage limitations set forth in 

this Consent Decree; or 

c. the NOx emission reductions achieved by virtue of Wisconsin Electric’s 

installation and operation any NOx pollution controls prior to the dates 

required under Section V (NOx Emission Reductions and Controls) of this 

Consent Decree, 

19
so long as Wisconsin Electric timely reports the creation of such allowances or credits in 

accordance with Section XII of this Consent Decree. For purposes of this Paragraph, excess 

NOx emission allowances or credits equal the number of tons of NOx that Wisconsin Electric 

removed from its emissions that are in excess of the NOx reductions required by this Decree. 

67. Wisconsin Electric may not purchase or otherwise obtain NOx allowances or 

credits from another source for purposes of complying with the requirements of this Consent 

Decree. However, nothing in this Consent Decree shall prevent Wisconsin Electric from 

purchasing or otherwise obtaining NOx allowances or credits from another source for purposes of 

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

law. 

E. General NOx Provisions 

68. In determining Emission Rates for NOx, Wisconsin Electric shall use CEMs in 

accordance with those reference methods specified in 40 C.F.R. Part 75. 

69. In calculating the 30-day Rolling Average Emission Rate or System-wide 12-

Month Rolling Average Emission Rate for NOx for a given Unit or group of Units, Wisconsin 

Electric shall not exclude any period of time that the Unit(s) is/are in operation, including 

periods in which any NOx emission control technology for the Unit(s) is not in operation. 

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VI. SO2 EMISSION REDUCTIONS AND CONTROLS 

A. SO2 Emission Controls 

1. New FGD Installations 

70. Wisconsin Electric shall install and commence continuous operation of Flue Gas 

Desulfurization technology (“FGD”) (or equivalent SO2 control technology approved pursuant to 

Paragraph 71) so as to achieve either a 30-Day Rolling Average Emission Rate of not greater 

than 0.100 lb/mmBTU SO2 or a 30-day Rolling Average SO2 Removal Efficiency of at least 95 

percent on the following Units within the Wisconsin Electric System by the dates specified 

below: 

Unit Date by which 

Wisconsin Electric Must 

Complete Installation 

and Continuously 

Operate FGD 

Pleasant Prairie Unit 1 December 31, 2006 

Pleasant Prairie Unit 2 December 31, 2007 

Oak Creek Unit 7 December 31, 2012 

Oak Creek Unit 8 December 31, 2012 

71. In lieu of installing and operating such FGDs, Wisconsin Electric may, with prior 

written notice to and approval from EPA, install and operate equivalent SO2 control technology, 

so long as such equivalent SO2 control technology achieves a 30-Day Rolling Average Emission 

Rate of not greater than 0.100 lb/mmBTU SO2 or a 30-day Rolling Average Removal Efficiency 

of at least 95 percent. 

72. Wisconsin Electric shall continuously operate each FGD (or equivalent SO2 

control technology approved pursuant to Paragraph 71) in the Wisconsin Electric System at all 

21
times that the Unit it serves is in operation, except that, following startup of the Unit, Wisconsin 

Electric need not operate such control technology until the Unit is fired with any coal. 

Wisconsin Electric shall use good operating practices at all times that the Unit is in operation. 

B. System-Wide SO2 Emission Limits 

73. Wisconsin Electric shall not exceed the Wisconsin Electric System-Wide 12-

Month Rolling Average Emission Rates for SO2 as specified below: 

Beginning on System-wide 12-Month 

Rolling Average 

Emission Rate for SO2 

January 1, 2005 0.76 lbs/mmBTU 

January 1, 2007 0.61 lbs/mmBTU 

January 1, 2008 0.45 lbs/mmBTU 

January 1, 2013 0.32 lbs/mmBTU 

74. In addition to installing the controls, retiring Units, achieving the SO2 Emission 

Rates or Removal Efficiencies described in Paragraph 70, and surrendering the SO2 Allowances 

required in this Consent Decree, Wisconsin Electric shall not emit SO2 on a System-wide 12-

Month Rolling Tonnage basis from the Wisconsin Electric System in an amount greater than the 

following number of tons: 

Beginning on System-wide 

12-Month Rolling Tonnage 

Limit for SO2 

January 1, 2005 86,900 tons 

January 1, 2007 74,400 tons 

January 1, 2008 55,400 tons 

January 1, 2013 33,300 tons 

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Wisconsin Electric shall meet the above SO2 tonnage limitations exclusively through the 

operation of all control equipment required to be installed and operated by this Decree, Unit 

retirements, and any additional control equipment that Wisconsin Electric installs and operates. 

Wisconsin Electric shall not use SO2 allowances or credits to comply with these limitations. 

C. Surrender of SO2 Allowances 

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

permanently surrendering allowances from the accounts administered by EPA for all units in the 

Wisconsin Electric System, so that such allowances can never be used to meet any compliance 

requirement under the Clean Air Act, the Michigan or Wisconsin State Implementation Plans, or 

this Consent Decree. 

76. Beginning on January 1, 2004, Wisconsin Electric may use any SO2 Allowances 

allocated by EPA to the Wisconsin Electric System only to satisfy the operational needs of 

Existing Units or New Units. Wisconsin Electric shall not sell or transfer any allocated SO2 

Allowances to a third party, except as provided in Paragraphs 77, 78 and 81 below. However, 

for the calendar years 2004 through 2007, Wisconsin Electric may bank SO2 allowances 

allocated by EPA to the Units in the Wisconsin Electric System for use at the Existing Units or 

New Units during the years 2004 through 2007. 

77. For each calendar year, beginning with calendar year 2007, Wisconsin Electric 

shall surrender to EPA, or transfer to a non-profit third party selected by Wisconsin Electric for 

surrender, any SO2 Allowances that exceed the operational needs of the Existing Units and New 

Units for SO2 Allowances, collectively. Surrender shall occur annually thereafter and within 45 

days of Wisconsin Electric’s receipt from EPA of the Annual Deduction Reports for SO2. In 

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addition, in calendar year 2008, Wisconsin Electric shall surrender any allowances allocated by 

EPA to the Units in the Wisconsin Electric System that were banked and not used during the 

years 2004 through 2007. Wisconsin Electric shall surrender SO2 Allowances by the use of 

applicable United States Environmental Protection Agency Acid Rain Program Allowance 

Transfer Form. 

78. If any allowances are transferred directly to a third party, Wisconsin Electric shall 

include a description of such transfer in the next report submitted to the Plaintiffs pursuant to 

Section XII (Periodic Reporting) of this Consent Decree. Such report shall: (i) provide the 

identity of the non-profit third-party recipient(s) of the SO2 Allowances and a listing of the serial 

numbers of the transferred SO2 Allowances; and (ii) include a certification by the third-party 

recipient(s) stating that the recipient will not sell, trade, or otherwise exchange any of the 

allowances and will not use any of the SO2 Allowances to meet any obligation imposed by any 

environmental law. No later than the next Section XII periodic report due 12 months after the 

first report due after the transfer, Wisconsin Electric shall include in a statement that the thirdparty recipient(s) surrendered the SO2 Allowances for permanent surrender to EPA within one 

year after Wisconsin Electric transferred the SO2 Allowances to them. Wisconsin Electric shall 

not have complied with the SO2 Allowance surrender requirements of this Paragraph until all 

third-party recipient(s) shall have actually surrendered the transferred SO2 Allowances to EPA. 

79. For all SO2 Allowances surrendered to EPA, Wisconsin Electric shall first submit 

an SO2 Allowance transfer request form to EPA’s Office of Air and Radiation’s Clean Air 

Markets Division directing the transfer of the SO2 Allowances held or controlled by Wisconsin 

Electric to the EPA Enforcement Surrender Account or to any other EPA account that EPA may 

24
direct. As part of submitting these transfer requests, Wisconsin Electric shall irrevocably 

authorize the transfer of these SO2 Allowances and identify -- by name of account and any 

applicable serial or other identification numbers or station names -- the source and location of 

the SO2 Allowances being surrendered. 

80. The requirements in Paragraphs 76 and 77 of this Decree pertaining to Wisconsin 

Electric’s use and retirement of SO2 Allowances are permanent injunctions not subject to any 

termination provision of this Decree. These provisions shall survive any termination of this 

Decree in whole or in part. 

81. Notwithstanding the provisions in Paragraph 76 and 77, nothing in this Consent 

Decree shall preclude Wisconsin Electric from using, banking, selling or transferring excess 

emission SO2 allowances that may arise as a result of: 

a. activities which occur prior to the date of entry of this Consent Decree; 

b. achieving SO2 emissions at an Improved Unit that are below both the 30-Day 

Rolling Average Emission Rate of 0.100 lb/mmBTU SO2 and the System-wide 

12-Month Rolling Tonnage limitations set forth in this Consent Decree; 

c. achieving a 30-Day Rolling Average Removal Efficiency at an Improved Unit 

greater than 95 percent and achieving emissions below the System-wide 12-

Month Rolling Tonnage limitations set forth in this Consent Decree; or 

d. the installation and operation of any SO2 pollution controls prior to the dates 

required under Section VI (SO2 Emission Reductions and Controls) of this 

Consent Decree 

25
so long as Wisconsin Electric timely reports such use under Section XII. For purposes of this 

paragraph, excess SO2 emission allowances equal the number of tons of SO2 that Wisconsin 

Electric removed from its emissions that are in excess of the SO2 reductions required by this 

Decree. 

D. Fuel Limitations 

82. Wisconsin Electric shall not burn coal having a sulfur content greater than any 

amount authorized by regulation or state permit at any Wisconsin Electric System Unit. Upon 

entry of the Consent Decree, Wisconsin Electric shall not receive petroleum coke at any Unit 

that is not controlled by an FGD (or equivalent SO2 control technology approved pursuant to 

Paragraph 71), except that Wisconsin Electric may continue to receive petroleum coke at 

Presque Isle Units 1 through 6 until June 30, 2006. 

E. General SO2 Provisions 

83. In determining Emission Rates for SO2, Wisconsin Electric shall use CEMs in 

accordance with those reference methods specified in 40 C.F.R. Part 75 and 40 C.F.R. Part 60. 

84. For Units that are required to be equipped with SO2 control equipment and that 

are subject to the 95% removal provisions, the outlet SO2 Emission Rate and the inlet SO2 

Emission Rate shall be determined in accordance with 40 C.F.R. § 75.15 (using SO2 CEMS data 

from both the inlet and outlet of the control device). For Units that are required to meet a 0.100 

lb/mmBTU limitation, the SO2 Emission Rate shall be determined only at the outlet of the 

control equipment in accordance with 40 C.F.R. § 75.15 (using SO2 CEMS data from only the 

outlet of the control device). 

26
VII. PM EMISSION REDUCTIONS AND CONTROLS 

A. Optimization of PM Controls 

85. Within 45 days of lodging of this Consent Decree and continuing thereafter, 

Wisconsin Electric shall continuously operate each Particulate Matter Control Device on its 

Existing Units to maximize PM emission reductions, consistent with the operational and 

maintenance limitations of the Units. Specifically, Wisconsin Electric shall, at a minimum: (a) 

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

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

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

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

bag leak detection and replacement program to assure optimal operation of each BH. 

B. Upgrade of PM Controls 

86. Within 365 days of lodging of this Consent Decree, Wisconsin Electric shall 

operate each of the ESPs and BHs within the Wisconsin Electric System, except Units 5 and 6 at 

the Presque Isle Generating Station, to achieve and maintain a PM Emission Rate of 0.030 

lb/mmBTU. Presque Isle Unit 5 shall achieve and maintain a PM Emission Rate of 0.030 

lb/mmBTU by June 30, 2005 and Presque Isle Unit 6 shall achieve and maintain a PM Emission 

Rate of 0.030 lb/mmBTU by June 30, 2006. 

87. Wisconsin Electric shall continuously operate each ESP and BH in the Wisconsin 

Electric System at all times that the Unit it serves is combusting coal. Wisconsin Electric shall 

use good operating practices at all times that the Unit is combusting coal. 

27
C. PM Monitoring 

1. PM Stack Tests 

88. Beginning in calendar year 2004, and continuing annually thereafter, Wisconsin 

Electric shall conduct a performance test on each Wisconsin Electric System Unit. The annual 

stack test requirement imposed on each Wisconsin Electric System Unit by this Paragraph may 

be satisfied by Wisconsin Electric’s stack tests conducted as required by its permits from the 

States of Michigan and Wisconsin for any year that such stack tests are required under the 

permits. Wisconsin Electric may perform biannual rather than annual testing provided that (a) 

two of the most recently completed test results from tests conducted in accordance with Method 

5 or Method 17 demonstrate that the particulate matter emissions are equal to or less than a 0.015 

lb/mmBTU emission limitation, or (b) the Unit is equipped with a PM CEMS in accordance with 

Paragraph 93. Wisconsin Electric shall perform annual rather that biannual testing the year 

immediately following any test result demonstrating that the particulate matter emissions are 

greater than a 0.015 lb/mmBTU emission limitation. 

89. The reference and monitoring methods and procedures for determining 

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

A, Method 5 or Method 17. 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. § 60.48a (b) and (e), or 

any federally approved SIP method. Wisconsin Electric shall calculate the PM Emission Rates 

from the stack test results in accordance with 40 C.F.R. § 60.8(f), and 40 C.F.R. § 60.46a(c). 

The results of each PM stack test shall be submitted to EPA within 45 days of completion of 

each test. 

28
90. The PM Emission Rates established under Paragraph 86 of this Section shall not 

apply during periods of startup and shutdown or during periods of control equipment or Unit 

Malfunction, if the Malfunction meets the requirements of the Force Majeure section of this 

Consent Decree. Periods of startup shall not exceed two hours after any amount of coal is 

combusted. Periods of shutdown shall only commence when the Unit ceases burning any 

amount of coal. 

2. PM CEMS 

91. Wisconsin Electric shall undertake a program to install and operate Continuous 

Emission Monitoring System for Particulate Matter (“PM CEMS”). Each PM CEMS shall be 

comprised of a continuous particle mass monitor measuring particulate matter concentration, 

directly or indirectly, on an hourly average basis and a diluent monitor used to convert results to 

units of lb/mmBTU. Wisconsin Electric shall maintain, in an electronic database, the hourly 

average emission values of all PM CEMS in lb/mmBTU. Wisconsin Electric shall use 

reasonable efforts to keep each PM CEMS running and producing data whenever any Unit 

served by the PM CEMS is operating. 

92. No later than one year prior to the deadline to commence operation as set forth in 

Paragraph 93, Wisconsin Electric shall submit to EPA for review and approval a plan for the 

installation and certification of each PM CEMS. 

93. Wisconsin Electric shall install, certify, and operate PM CEMS on 10 Units, 

stacks or common stacks in accordance with the following schedule: 

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Unit Deadline to Commence 

Operation 

Location 

Presque Isle Units 

1-4 

April 1, 2006 Common Outlet Flue at Stack 

Presque Isle Unit 5 April Stack 

Presque Isle Unit 6 April Stack 

Presque Isle Units 

7-9 

April Common Outlet Duct of 

TOXECON 

Oak Creek Units 

5&6 

April Common Stack 

Oak Creek Unit 7 April 1, 2005 Precipitator Outlet Duct 

Oak Creek Unit 8 April Precipitator Outlet Duct 

Pleasant Prairie Units 

1&2 

April Common Stack 

Valley Unit 1 April 1, 2006 Common Stack 

Valley Unit 2 April 1, 2006 Common Stack 

1, 2006 

1, 2006 

1, 2006 

1, 2005 

1, 2005 

1, 2005 

94. Notwithstanding the requirements of Paragraph 93, by April 1, 2005, Wisconsin 

Electric may install two mercury CEMS, one of which will be installed at Pleasant Prairie Unit 1 

or Unit 2, and one of which will be installed at Oak Creek Unit 7 or Unit 8, in lieu of a PM 

CEMS on Presque Isle Units 1 through 4 and one of the units at Valley. 

95. No later than 120 days prior to the deadline to commence operation of each PM 

CEMS, Wisconsin Electric shall submit to EPA for approval pursuant to Section XIII (Review 

and Approval of Submittals) a proposed Quality Assurance/Quality Control (“QA/QC”) protocol 

that shall be followed in calibrating such PM CEMS. Following EPA’s approval of the protocol, 

Wisconsin Electric shall thereafter operate each PM CEMS in accordance with the approved 

protocol. 

30
96. In developing both the plan for installation and certification of the PM CEMS 

and the QA/QC protocol, Wisconsin Electric may use the criteria set forth in EPA’s proposed 

revisions to Performance Specification 11: Specification and Test Procedures for PM CEMS and 

Procedure 2: PM CEMS at Stationary Sources (PS 11), as published at 66 Fed. Reg 64176 

(December 12, 2001) or other available PM CEMS guidance. 

97. No later than 90 days after Wisconsin Electric begins operation of the PM CEMS, 

Wisconsin Electric shall conduct tests of each PM CEMS to demonstrate compliance with the 

PM CEMS plan submitted to and approved by EPA in accordance with Paragraph 92. 

98. If after Wisconsin Electric operates the PM CEMS for at least two years, and if 

the Parties then agree that it is infeasible to continue operating PM CEMS, Wisconsin Electric 

shall submit an alternative PM monitoring plan for review and approval by EPA. The plan shall 

include an explanation of the basis for stopping operation of the PM CEMS and a proposal for an 

alternative monitoring protocol. Until EPA approves such plan, Wisconsin Electric shall 

continue to operate the PM CEMS. 

99. Operation of a PM CEMS shall be considered “infeasible” if (a) the PM CEMS 

cannot be kept in proper condition for sufficient periods of time to produce reliable, adequate, or 

useful data consistent with the QA/QC protocol; or (b) Wisconsin Electric demonstrates that 

recurring, chronic, or unusual equipment adjustment or servicing needs in relation to other types 

of continuous emission monitors cannot be resolved through reasonable expenditures of 

resources. If the United States determines that Wisconsin Electric has demonstrated infeasibility 

pursuant to this Paragraph, Wisconsin Electric shall be entitled to discontinue operation of and 

remove the PM CEMS. 

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3. PM Reporting 

100. Following the installation of each PM CEMS, Wisconsin Electric shall begin and 

continue to report to EPA, pursuant to Section XII, the data recorded by the PM CEMS, 

expressed in lb/mmBTU on a 3-hour, 24-hour, 30-day, and 365-day rolling average basis in 

electronic format, as required in Paragraph 91. 

D. General PM Provisions 

101. In determining the PM Emission Rate, Wisconsin Electric shall use the reference 

methods specified in 40 C.F.R. Part 60, Appendix A, Method 5 or Method 17, using stack tests, 

or alternative methods that are either promulgated by EPA or requested by Wisconsin Electric 

and approved by EPA. Wisconsin Electric shall also calculate the PM Emission Rates from 

annual (or biannual) stack tests in accordance with 40 C.F.R. § 60.8(f). Wisconsin Electric shall 

also determine PM Emission Rates using PM CEMS consistent with the approved QA/QC 

protocol. 

102. Data from the PM CEMS shall be used by Wisconsin Electric, at a minimum, to 

monitor progress in reducing PM emissions. Nothing in this Consent Decree is intended to, or 

shall, alter or waive any applicable law (including 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. 

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VIII. PROHIBITION ON NETTING CREDITS OR 

OFFSETS FROM REQUIRED CONTROLS 

103. For any and all actions taken by Wisconsin Electric to comply with the 

requirements of this Consent Decree, including but not limited to the upgrade of ESPs and BHs, 

the installation of FGDs, SCRs, or equivalent control devices approved under this Consent 

Decree, the re-powering of certain units, the retirement of certain units, and the reduction of 

emissions to satisfy annual emission tonnage limitations, any emission reductions generated 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. 

Notwithstanding the preceding sentence, Wisconsin Electric may use any creditable 

contemporaneous emission decreases of Volatile Organic Compounds (“VOCs”) generated 

under this Consent Decree for the purpose of obtaining a netting credit for VOCs under the 

Clean Air Act’s Nonattainment NSR and PSD programs. 

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

generated under this Decree from being considered 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 and PSD increment consumption. 

IX. ENVIRONMENTAL PROJECTS 

105. Wisconsin Electric, in cooperation with the United States Department of Energy 

(“DOE”) and potentially other parties, shall design, construct, operate and analyze the first full 

scale TOXECON with activated carbon injection with the goal of achieving a 90% removal of all 

species of mercury (“the TOXECON Project”). The TOXECON Project will be implemented 

at Units 7, 8, and 9 of Wisconsin Electric’s Presque Isle Generating Station. 

33
106. At least six months before it plans to commence implementation of the 

TOXECON Project, Wisconsin Electric shall submit to the Plaintiff for review and approval 

pursuant to Section XIII of this Consent Decree a plan for the implementation of the TOXECON 

Project, including the date by which Wisconsin Electric will commence design and construction 

of the Project, and the date by which Wisconsin Electric will complete the Project. To the extent 

that any change to the TOXECON Project may be required, Wisconsin Electric shall notify the 

Plaintiff of such change within 60 days of becoming aware a change is necessary. Wisconsin 

Electric shall implement the TOXECON Project in compliance with the schedules and terms of 

this Consent Decree and the plans for such Project approved under this Decree. 

107. For purposes of this Consent Decree, in performing the TOXECON Project, 

Wisconsin Electric shall, prior to December 31, 2006, spend no less than $20 million, and shall 

not be required to spend more than $25 million, in Project Dollars (measured in calendar year 

2003 constant dollars). Wisconsin Electric shall maintain all documents required by Generally 

Accepted Accounting Principles to substantiate the Project Dollars spent by Wisconsin Electric, 

and shall provide copies of these documents to the Plaintiff within 30 days of a request by the 

Plaintiff for these documents. 

108. All plans and reports prepared by Wisconsin Electric pursuant to the requirements 

of this Section in this Consent Decree shall be publicly available without charge, subject to the 

limitations contained in Paragraph 172. 

109. Wisconsin Electric shall certify, as part of each plan submitted to the United 

States for any Project, that it is unaware of any person required by law, other than this Consent 

Decree, to perform the Project described in the plan. 

34
110. Wisconsin Electric shall use good faith efforts to secure as much benefit as 

possible for the Project Dollars expended, consistent with the applicable requirements and limits 

of this Consent Decree. 

111. Within 60 days following the completion of the TOXECON Project, Wisconsin 

Electric shall submit to the EPA a report that documents the date that the Project was completed, 

Wisconsin Electric’s results of implementing the Project, including the emission reductions or 

other environmental benefits achieved, and the Project Dollars expended by Wisconsin Electric 

in implementing the Project. 

112. Following completion of the TOXECON Project, Wisconsin Electric shall 

maintain the baghouse component of the TOXECON in the flue gas stream regardless of the 

results of the demonstration project. If Wisconsin Electric determines that the demonstration 

project has removed reasonable levels of mercury and is operationally viable, Wisconsin Electric 

shall also continue sorbent injection for mercury control. 

113. Wisconsin Electric shall not financially benefit from the sale or transfer of the 

TOXECON technology or the collection or distribution of information collected during this 

demonstration project. 

114. Wisconsin Electric shall provide the United States with semi-annual updates 

concerning the progress of the TOXECON Project. Wisconsin Electric also shall make 

information concerning the performance of the TOXECON Project available to the public in an 

expeditious matter, consistent with DOE’s requirements concerning the disclosure of project 

information and subject to the limitations contained in Paragraph 172. Such information 

disclosure shall include, but not be limited to, release of periodic progress reports, clearly 

35
identifying demonstrated removal efficiencies of mercury and other pollutants, sorbent injection 

rates and cost effectiveness. In addition, periodic technology transfer open houses and plant 

tours shall be scheduled, consistent with DOE’s requirements for disclosure of project 

information and subject to the limitations contained in Paragraph 172. 

X. CIVIL PENALTY 

115. Within thirty (30) calendar days of entry of this Consent Decree, Wisconsin 

Electric shall pay to the United States a civil penalty in the amount of $ 3.2 million. The civil 

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

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

2003V00451 and DOJ Case Number 90-5-2-1-07493 and the civil action case name and case 

number of this action, with notice given to the Plaintiff, in accordance with Section XX 

(Notices) of this Consent Decree. The costs of such EFT shall be Wisconsin Electric’s 

responsibility. Payment shall be made in accordance with instructions provided to Wisconsin 

Electric by the Financial Litigation Unit of the U.S. Attorney's Office for the Eastern District of 

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

At the time of payment, Wisconsin Electric shall provide notice of payment, referencing the 

USAO File Number, DOJ Case Number 90-5-2-1-07493, and the civil action case name and case 

number, to the Department of Justice and to EPA, as provided in Paragraph 174 (Notice) of this 

Consent Decree. 

116. Failure to timely pay the civil penalty shall subject Wisconsin Electric 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 Wisconsin Electric liable for all charges, costs, fees, and 

36
penalties established by law for the benefit of a creditor or of the United States in securing 

payment. 

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

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

expenditures for purposes of federal law. 

XI. RESOLUTION OF CLAIMS 

A. RESOLUTION OF U.S. CIVIL CLAIMS 

118. Claims Based on Modifications Occurring Before the Lodging of Decree. 

Entry of this Decree shall resolve all civil claims of the United States under either: (i) Parts C or 

D of Subchapter I of the Clean Air Act or (ii) 40 C.F.R. Section 60.14, that arose from any 

modifications that commenced at any Wisconsin Electric System Unit prior to the date of 

lodging of this Decree, including but not limited to those modifications alleged in the Complaint 

in this civil action. 

119. Claims Based on Modifications After the Lodging of Decree. 

Entry of this Decree also shall resolve all civil claims of the United States for pollutants 

regulated under Parts C or D of Subchapter I of the Clean Air Act, and under regulations 

promulgated as of the date of lodging of this Decree, where such claims are based on a 

modification completed before December 31, 2015 and: 

(a) commenced at any Wisconsin Electric System Unit after lodging of this Decree; or 

(b) that this Consent Decree expressly directs Wisconsin Electric to undertake. 

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

under the Clean Air Act statute as it existed on the date of lodging of this Decree. 

37
120. Reopener. The resolution of the civil claims of the United States provided by this 

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

B. PURSUIT OF U.S. CIVIL CLAIMS OTHERWISE RESOLVED 

121. Bases for Pursuing Resolved Claims Across Wisconsin Electric System. 

If Wisconsin Electric violates Paragraph 60 (System-wide NOx Rolling Tonnage Limits), 

Paragraph 59 (System-wide NOx Rolling Average Emission Rate), Paragraph 74 (System-wide 

Rolling SO2 Tonnage Limits), Paragraph 73 (System-wide SO2 Emission Rates), or Paragraph 82 

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

operation of any emission control device required pursuant to Paragraphs 55 or 70; or fails by 

more than ninety days to control or retire and permanently cease to operate Wisconsin Electric 

System Units pursuant to Paragraph 54, then the United States may pursue any claim at any 

Wisconsin Electric System Unit that has otherwise been resolved under Subsection A of this 

Section, subject to (A) and (B) below. 

(A) For any claims based on modifications undertaken at an Other Unit, claims may 

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

within the five years preceding the violation or failure specified in this Paragraph. 

(B) For any claims based on modifications undertaken at an Improved Unit, claims 

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

commenced (i) after lodging of the Consent Decree and (ii) within the five years 

preceding the violation or failure specified in this Paragraph. 

122. Additional Bases for Pursuing Resolved Claims for Modifications at an Improved 

Unit. Solely with respect to Improved Units, the United States may also pursue claims arising 

38
from a modification (or collection of modifications) at an Improved Unit that has otherwise been 

resolved under Section A if the modification (or collection of modifications) at the Improved 

Unit on which such claim is based (i) was commenced after lodging of this Consent Decree, and 

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

NOx or SO2 (as measured by 40 C.F.R. § 60.14 (b) and (h)) by more than ten percent (10%). 

123. Additional Bases for Pursuing Resolved Claims for Modifications at an Other 

Unit. Solely with respect to Other Units, the United States may also pursue claims arising from 

a modification (or collection of modifications) at an Other Unit that has otherwise been resolved 

under Section XI. A if the modification (or collection of modifications) on which the claim is 

based was commenced within the five years preceding any of the following events: 

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

lodging of this Consent Decree increases the maximum hourly emission rate for such Other Unit 

for the relevant pollutant (NOx or SO2) as measured by 40 C.F.R. § 60.14(b) and (h); 

(B) the aggregate of all Capital Expenditures made at such Other Unit exceed $125/KW 

on the Unit’s Boiler Island (based on the capacity numbers included in Paragraph 53) during any 

of the following five year periods: January 1, 2006 through December 31, 2010; January 1, 2011 

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

December 31, 2005, the $125/KW limit shall be pro-rated to include only that portion of the 

five-year period (January 1, 2000 through December 31, 2005) following the date of lodging of 

this Decree. (Capital Expenditures shall be measured in calendar year 2002 constant dollars, as 

adjusted by the McGraw-Hill Engineering News-Record Construction Cost Index); or 

39
(C) a modification (or collection of modifications) at such Other Unit commenced 

after lodging of this Consent Decree results in an emissions increase of NOx and/or SO2 at such 

Other Unit, and such increase: 

(1) presents, by itself, or in combination with other emissions

or sources, “an imminent and substantial endangerment” within

the meaning of Section 303 of the Act, 42 U.S.C. §7603; 

(2) causes or contributes to violation of a National Ambient

Air Quality Standard (“NAAQS”) in any Air Quality Control Area

that is in attainment with that NAAQS; 

(3) causes or contributes to violation of a PSD increment; or 

(4) causes or contributes to any adverse impact on any formally-recognized

air quality and related values in any Class I area. 

(D) Solely for purposes of Paragraph 123, Subparagraph (C), the determination of 

whether there was an emissions increase must take into account any emissions changes relevant 

to the modeling domain that have occurred or will occur under this Decree at other Wisconsin 

Electric System Units. In addition, an emissions increase shall be deemed to have occurred at an 

Other Unit if the annual emissions of the relevant pollutant (NOx or SO2) from the plant at which 

such modification(s) occurred exceed the Baseline for that plant. 

(E) The introduction of any new or changed National Ambient Air Quality Standard 

shall not, standing alone, provide the showing needed under Paragraph 123, Subparagraphs 

40
(C)(2) or (C)(3), to pursue any claim for a modification at an Other Unit resolved under 

Subsection A of this Section. 

124. [RESERVED.] 

XII. PERIODIC REPORTING 

125. Within 180 days after each date established by this Consent Decree for Wisconsin 

Electric to achieve and maintain a certain Emission Rate or Removal Efficiency at any 

Wisconsin Electric System Unit, Wisconsin Electric shall conduct performance tests that 

demonstrate compliance with the Emission Rate or Removal Efficiency required by this Consent 

Decree. Within 45 days of each such performance test, Wisconsin Electric shall submit the 

results of the performance test to EPA at the addresses specified in Section XX (Notices) of this 

Consent Decree. 

126. Beginning thirty days after the end of the first full calendar quarter following the 

entry of this Consent Decree or December 31, 2003, whichever is later, continuing on a semiannual basis until December 31, 2015, and in addition to any other express reporting requirement 

in this Consent Decree, Wisconsin Electric shall submit to EPA a progress report. 

127. The progress report shall contain the following information: 

a. all information necessary to determine compliance with this Consent 

Decree; 

b. all information relating to emission allowances and credits that Wisconsin 

Electric claims to have generated in accordance with Paragraphs 66 and 81 by 

compliance beyond the requirements of this Consent Decree; and 

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c. all information indicating that the installation and commencement of 

operation for a pollution control device may be delayed, including the nature and 

cause of the delay, and any steps taken by Wisconsin Electric to mitigate such 

delay. 

128. In any periodic progress report submitted pursuant to this Section, Wisconsin 

Electric may incorporate by reference information previously submitted under its Title V 

permitting requirements, provided that Wisconsin Electric attaches the Title V permit report and 

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

the information sought in the periodic progress report. 

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

Electric shall provide a written report to EPA of any violation of the requirements of this 

Consent Decree, including exceedances of required Emission Rates, removal efficiencies, and 

Unit-Specific and System-wide Rolling Average Emission Rate and Rolling Tonnage limits, 

within 10 business days of when Wisconsin Electric knew or should have known of any such 

violation. In this report, Wisconsin Electric shall explain the cause or causes of the violation and 

all measures taken or to be taken by Wisconsin Electric to prevent such violations in the future. 

130. Each Wisconsin Electric report shall be signed by Wisconsin Electric’s Vice 

President Environmental, or, in his or her absence, General Counsel, or higher ranking official, 

and shall contain the following certification: 

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

in accordance with a system designed to assure that qualified personnel properly 

gather and evaluate the information submitted. Based on my evaluation, or the 

directions 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 

42
true, accurate, and complete. I understand that there are significant penalties for 

submitting false, inaccurate, or incomplete information to the United States. 

131. If any allowances are surrendered to any third party pursuant to Section VI.C of 

this Consent Decree, the third party’s certification shall be signed by a managing officer of the 

third party and shall contain the following language: 

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

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

any of the allowances to meet any obligation imposed by any environmental law. 

I understand that there are significant penalties for making false, inaccurate, or 

incomplete information to the United States. 

XIII. REVIEW AND APPROVAL OF SUBMITTALS 

132. Wisconsin Electric shall submit and complete each plan, report, or other item to 

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

pursuant to this Consent Decree. EPA may approve the submittal or decline to approve it and 

provide written comments. Within 60 days of receiving written comments from EPA, Wisconsin 

Electric shall either: (i) alter the submittal consistent with the written comments and provide the 

revised submittal for final approval to EPA if called for in this Consent Decree; or (ii) submit the 

matter for dispute resolution, including the period of informal negotiations, under Section XVI 

(Dispute Resolution) of this Consent Decree. 

133. Upon receipt of EPA’s final approval of the submittal, or upon completion of the 

submittal pursuant to dispute resolution, Wisconsin Electric shall implement the submittal in 

accordance with the approved submittal. 

XIV. STIPULATED PENALTIES 

134. For any failure by Wisconsin Electric to comply with the terms of this Consent 

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

43
Resolution), Wisconsin Electric shall pay, within 30 days after written demand to Wisconsin 

Electric by the United States the following stipulated penalties to EPA: 

Consent Decree Violation Stipulated Penalty 

(Per day per violation, unless 

otherwise specified) 

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

(Civil Penalty) of this Consent Decree 

$10,000 

b. Failure to meet any 30-Day Rolling Average Emission 

Rate, any 30-Day Rolling Average Removal Efficiency, or 

any other Emission Rate or emission limitation (other than 

the System-wide 12-month Rolling Average Emission 

Rates, System-wide 12-month Rolling Tonnage limitations 

or any other 12-month rolling limitation), where the 

violation is less than 5% in excess of the limits set forth in 

this Consent Decree 

$2,500 

c. Failure to meet any 30-Day Rolling Average Emission 

Rate, any 30-Day Rolling Average Removal Efficiency, or 

any other Emission Rate or emission limitation (other than 

the System-wide 12-month Rolling Average Emission 

Rates, System-wide 12-month Rolling Tonnage limitations 

or any other 12-month rolling limitation), where the 

violation is equal to or greater than 5% but less than 10% in 

excess of the limits set forth in this Consent Decree 

$5,000 

d. Failure to meet any 30-Day Rolling Average Emission 

Rate, any 30-Day Rolling Average Removal Efficiency, or 

any other Emission Rate or emission limitation (other than 

the System-wide 12-month Rolling Average Emission 

Rates, System-wide 12-month Rolling Tonnage limitations 

or any other 12-month rolling limitation), where the 

violation is equal to or greater than 10% in excess of the 

limits set forth in this Consent Decree 

$10,000 

e. Failure to meet any System-wide 12-month Rolling 

Average Emission Rate, where the violation is less than 5% 

in excess of the limits set forth in this Consent Decree 

$2,500 per month 

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f. Failure to meet any System-wide 12-month Rolling 

Average Emission Rate, where the violation is equal to or 

greater than 5% but less than 10% in excess of the limits set 

forth in this Consent Decree 

$5,000 per month 

g. Failure to meet any System-wide 12-month Rolling 

Average Emission Rate, where the violation is equal to or 

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

Consent Decree 

$10,000 per month 

h. Failure to meet the System-wide 12-month Rolling SO2 

and NOx Tonnage Limits as set out in Paragraphs 60 and 74 

or any other the 12-month rolling tonnage limitation 

$5,000 per ton per month for 

the first 100 tons over the limit, 

and $10,000 per ton per month 

for each additional ton over the 

limit 

i. Failure to install, commence operation, or continue 

operation of the NOx, SO2, and PM pollution control 

devices on any Unit, or failure to retire a Unit 

$10,000 during the first 30 

days, $27,500 thereafter 

j. Failure to meet the fuel use limitations at a Unit, as 

required by Paragraph 82 

$10,000 

k. Failure to install or operate CEMS as required in 

Paragraph 93, subject to Paragraph 99 

$1,000 

l. Failure to conduct annual or biannual performance tests 

of PM emissions, as required in Paragraph 88 

$1,000 

m. Failure to apply for the permits required by Paragraphs 

165-167 

$1,000 

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

approved, the reports, plans, studies, analyses, protocols, or 

other submittals required by this Consent Decree 

$750 for the first ten days, 

$1,000 thereafter. 

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o. Using, selling, or transferring SO2 Allowances, except as 

permitted by Paragraphs 76, 77 and 81 

(a) three times the market value 

of the improperly used 

allowance, as measured at the 

time of the improper use, plus 

(b) the surrender, pursuant to 

the procedures set forth in 

Paragraphs 77 through 79 of 

this Decree, of SO2 Allowances 

in an amount equal to the SO2 

Allowances used, sold, or 

transferred in violation of the 

Decree 

p. Using, selling or transferring NOx allowances or credits 

except as permitted under Paragraph 64-66 

(a) three times the market value 

of the improperly used 

allowance, as measured at the 

time of the improper use, plus 

(b) the surrender, pursuant to 

the procedures set forth in 

Section XII (Periodic 

Reporting) of this Decree, of 

NOx allowances or credits in an 

amount equal to the NOx 

allowances or credits used, 

sold, or transferred in violation 

of the Decree 

q. Failure to surrender an SO2 Allowance in accordance 

with Paragraph 77 

(a) $27,500 plus (b) $1,000 per 

SO2 Allowance 

r. Failure to demonstrate the third-party surrender of an 

SO2 Allowance in accordance with Paragraph 78 

$2,500 

s. Failure to undertake and complete any of the 

Environmental Projects in compliance with Section IX 

(Environmental Projects) 

$1,000 for the first 30 days, 

$5,000 thereafter 

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

135. Violation of an Emission Rate or Removal Efficiency that is based on a 30-Day 

Rolling Average is a violation on every day on which the average is based. Violation of Systemwide 12-Month Rolling Average Emission Rates, System-wide 12-Month Rolling Tonnage 

46
Limitations or any other 12-month rolling limitation is a violation each month on which the 

average is based. 

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

Efficiency (for the same pollutant and from the same source) recurs within periods less than 30 

days, Wisconsin Electric shall not pay a daily stipulated penalty for any day of the recurrence for 

which a stipulated penalty has already been paid. 

137. 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 herein shall 

prevent the simultaneous accrual of separate penalties for separate violations of this Consent 

Decree. 

138. Wisconsin Electric shall pay all stipulated penalties to the United States, in the 

manner set forth below in Paragraph 140, within 30 days of any violation of this Consent Decree, 

and shall continue to make such payments every 30 days thereafter until the violation(s) no 

longer continues, unless Wisconsin Electric elects within 20 days of the violation to dispute the 

accrual of stipulated penalties in accordance with the provisions in Section XVI (Dispute 

Resolution) of this Consent Decree. 

139. Penalties shall continue to accrue as provided in accordance with Paragraph 137 

during any dispute, with interest on accrued 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: 

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a. If the dispute is resolved by agreement or by a decision of the Plaintiff that is not 

appealed to the Court, accrued penalties determined to be owing, together with 

accrued interest, shall be paid to the United States within thirty (30) days of the 

effective date of the agreement or the receipt of EPA’s decision or order; 

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

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

decision or order, pay all accrued penalties determined by the Court to be owing, 

together with accrued interest, except as provided in Subparagraph c, below; 

c. If the District Court’s decision is appealed by any Party, Wisconsin Electric shall, 

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

accrued penalties determined to be owing to the United States, together with 

accrued interest. 

140. All stipulated penalties must be paid within thirty (30) days of the date payable, 

and payment shall be made in the manner set forth in Section X of this Consent Decree (Civil 

Penalty). 

141. Should Wisconsin Electric 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. 

142. 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 Wisconsin 

Electric’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 also provides for payment 

48
of a stipulated penalty, Wisconsin Electric shall be allowed a credit for stipulated penalties paid 

against any statutory penalties imposed for such violation. 

XV. FORCE MAJEURE 

143. 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 Wisconsin Electric, 

its contractors, or any entity controlled by Wisconsin Electric that delays compliance with any 

provision of this Consent Decree or otherwise causes a violation of any provision of this Consent 

Decree despite Wisconsin Electric’s best efforts to fulfill the obligation. “Best efforts to fulfill 

the obligation” include using best efforts to anticipate any potential Force Majeure Event and to 

address the effects of any such event (a) as it is occurring and (b) after it has occurred, such that 

the delay or violation is minimized to the greatest extent possible. 

144. Notice. If any event occurs or has occurred that may delay compliance with or 

otherwise cause a violation of any obligation under this Consent Decree, as to which Wisconsin 

Electric intends to assert a claim of Force Majeure, Wisconsin Electric shall notify the Plaintiffs 

in writing as soon as practicable, but in no event later than fourteen (14) business days following 

the date Wisconsin Electric first knew, or by the exercise of due diligence should have known, 

that the Force Majeure Event caused or may cause such delay or violation. In this notice, 

Wisconsin Electric shall reference this Paragraph of this Consent Decree and describe the 

anticipated length of time that the delay or violation may persist, the cause or causes of the delay 

or violation, all measures taken or to be taken by Wisconsin Electric to prevent or minimize the 

delay or violation, the schedule by which Wisconsin Electric proposes to implement those 

measures, and Wisconsin Electric’s rationale for attributing a delay or violation to a Force 

49
Majeure Event. Wisconsin Electric shall adopt all reasonable measures to avoid or minimize 

such delays or violations. Wisconsin Electric shall be deemed to know of any circumstance of 

which Wisconsin Electric, its contractors, or any entity controlled by Wisconsin Electric knew or 

should have known. 

145. Failure to Give Notice. If Wisconsin Electric fails to comply with the notice 

requirements of this Section, the EPA may void Wisconsin Electric’s claim for Force Majeure as 

to the specific event for which Wisconsin Electric has failed to comply with such notice 

requirement. 

146. Plaintiff’s Response. The EPA shall notify Wisconsin Electric in writing 

regarding Wisconsin Electric's claim of Force Majeure within (20) twenty business days of 

receipt of the notice provided under Paragraph 144. If EPA agrees that a delay in performance 

has been or will be caused by a Force Majeure Event, the Parties shall stipulate to an extension 

of deadline(s) for performance of the affected compliance requirement by a period not to exceed 

the delay actually caused by the event. In such circumstances, an appropriate modification shall 

be made pursuant to Section XXIV of this Consent Decree (Modification). 

147. Disagreement. If EPA does not accept Wisconsin Electric's claim of Force 

Majeure, the matter shall be resolved in accordance with Section XVI of this Consent Decree 

(Dispute Resolution). 

148. Burden of Proof. In any dispute regarding Force Majeure, Wisconsin Electric 

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. 

Wisconsin Electric shall also bear the burden of proving that Wisconsin Electric gave the notice 

50
required by this Section and 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. 

149. Events Excluded. Unanticipated or increased costs or expenses associated with 

the performance of Wisconsin Electric's obligations under this Consent Decree shall not 

constitute a Force Majeure Event. 

150. Potential Force Majeure Events. The Parties agree that, depending upon the 

circumstances related to an event and Wisconsin Electric’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 and gas transportation availability delay; acts of God; acts 

of war or terrorism; and orders by a government official, government agency, or other regulatory 

body acting under and authorized by applicable law that directs Wisconsin Electric to supply 

electricity in response to a system-wide (state-wide or regional) emergency. Depending upon the 

circumstances and Wisconsin Electric’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 Wisconsin Electric 

and Wisconsin Electric has taken all steps available to it to obtain the necessary permit, 

including, but not limited to, submitting a complete permit application, responding to requests 

for additional information by the permitting authority in a timely fashion, accepting lawful 

permit terms and conditions, and prosecuting in an expeditious fashion appeals of any allegedly 

unlawful terms and conditions imposed by the permitting authority. 

51
151. As part of the resolution of any matter submitted to this Court under this Section, 

the Parties by agreement, or this Court by order, may in appropriate circumstances extend or 

modify the schedule for completion of work under this Consent Decree to account for the delay 

in the work that occurred as a result of any delay agreed to by EPA or approved by this Court. 

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

work in accordance with the extended or modified schedule. 

XVI. DISPUTE RESOLUTION 

152. The dispute resolution procedure provided by this Section shall be available to 

resolve all disputes arising under this Consent Decree, except as provided in either this Section 

(Dispute Resolution) or Section XV (Force Majeure) of this Consent Decree, provided that the 

Party making such application has first made a good faith attempt to resolve the matter with the 

other Party. 

153. The dispute resolution procedure required herein shall be invoked by one Party to 

this Consent Decree giving written notice to the other party to this Consent Decree advising of a 

dispute pursuant to this Section. The notice shall describe the nature of the dispute and shall 

state the noticing Party's position with regard to such dispute. The Party receiving such a notice 

shall acknowledge receipt of the notice, and the Parties in dispute shall expeditiously schedule a 

meeting to discuss the dispute informally not later than fourteen (14) days following receipt of 

such notice. 

154. Disputes submitted to dispute resolution under this Section shall, in the first 

instance, be the subject of informal negotiations between the disputing Parties. Such period of 

informal negotiations shall not extend beyond thirty (30) calendar days from the date of the first 

52
meeting among the disputing Parties’ representatives unless they agree to shorten or extend this 

period. During the informal negotiations period, the disputing Parties may also submit their 

dispute to a mutually-agreed-upon alternative dispute resolution (ADR) forum if the Parties 

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

155. If the disputing Parties are unable to reach agreement during the informal 

negotiation period, the EPA shall provide Wisconsin Electric with a written summary of their 

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

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

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

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

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

is required, the time periods set out in this Section may be shortened upon motion of one of the 

Parties to the dispute. 

157. This Court shall not draw any inferences nor establish any presumptions adverse 

to any disputing Party as a result of invocation of this Section or the disputing Parties' inability to 

reach agreement. 

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

circumstances the disputing Parties may agree, or this Court may order, an extension or 

modification of the schedule for the completion of the activities required under this Consent 

Decree to account for the delay that occurred as a result of dispute resolution. Wisconsin 

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

accordance with the extended or modified schedule. 

53
159. As to disputes arising under Section VII of this Consent Decree (PM Emission 

Reductions and Controls), the Court shall sustain the position of the EPA as to the feasibility of 

obtaining accurate and reliable data from the PM CEMS that Wisconsin Electric is to install 

pursuant to Paragraph 93, unless Wisconsin Electric demonstrates that the position of the EPA is 

arbitrary or capricious. The Court shall decide all other disputes pursuant to applicable 

principles of law for resolving such disputes. In their initial filings with the Court under 

Paragraph 155, the disputing Parties shall state their respective positions as to the applicable 

standard of law for resolving the particular dispute. 

XVII. EMISSIONS LIMITATIONS ON THE SOUTH OAK CREEK AND 

ELM ROAD GENERATING STATIONS 

160. Wisconsin Electric has submitted an application for a PSD Permit for the 

construction of proposed new coal-fired generating Units, which if approved will be known as 

the Elm Road Generating Station. If, at any time after the date of lodging of this Consent 

Decree, one or more of the new units at the proposed Elm Road Generating Station is approved 

and constructed, Wisconsin Electric shall limit the combined emissions of SO2, NOx, PM, 

mercury, VOCs, hydrochloric acid, hydrofluoric acid, and sulfuric acid from both its South Oak 

Creek Generating Station and its Elm Road Generating Station to 38,400 tons per year, 

collectively. This emission limitation is based on actual or calculated emissions of SO2, NOx, 

PM, mercury, VOCs, hydrochloric acid, hydrofluoric acid, and sulfuric acid from the existing 

units at South Oak Creek Generating Station in calendar year 2000. Compliance with this 

emission limitation shall be demonstrated on a 12-month rolling average. The emission 

limitation shall be included in the Title V operating permit issued to the South Oak Creek 

Generating Station and the Elm Road Generating Station, if approved and constructed. 

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XVIII. PERMITS 

161. Unless expressly stated otherwise in this Consent Decree, in any instance where 

otherwise applicable law or this Consent Decree requires Wisconsin Electric to secure a permit 

to authorize construction or operation of any device, including all preconstruction, construction, 

and operating permits required under state law, Wisconsin Electric shall make such application 

in a timely manner. EPA will use its best efforts to expeditiously review all permit applications 

submitted pursuant to this Consent Decree. 

162. Notwithstanding the previous paragraph, nothing in this Consent Decree shall be 

construed to require Wisconsin Electric to apply for or obtain a PSD or Nonattainment NSR 

permit for physical changes or changes in the method of operation that would give rise to claims 

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

163. When permits are required by the Paragraph 161, Wisconsin Electric shall 

complete and submit applications for such permits to the appropriate authorities to allow 

sufficient time for all legally required processing and review of the permit request. Any failure 

by Wisconsin Electric to submit a timely permit application for any Unit in the Wisconsin 

Electric System shall bar any use by Wisconsin Electric of Section XV (Force Majeure), where a 

Force Majeure claim is based on permitting delays. 

164. Notwithstanding the reference to Title V permits in this Consent Decree, the 

enforcement of such permits shall be in accordance with their own terms and the Act. The Title 

V permits shall not be directly enforceable under this Decree, although any term or limit 

established by or under this Decree shall be enforceable under this Decree regardless of whether 

55
such term has or will become part of a Title V permit, subject to the terms of Section XXVIII 

(Conditional Termination of Enforcement Under Decree). 

165. Within ninety (90) days of entry of this Consent Decree, Wisconsin Electric shall 

amend any applicable Title V permit application, or apply for amendments of its Title V permits, 

to include a schedule for all performance, operational, maintenance, and control technology 

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

removal efficiencies, limits on fuel use, and the requirement in Paragraph 77 pertaining to 

surrender of SO2 allowances. 

166. Within one year from the commencement of operation of each pollution control 

device to be installed or upgraded on an Improved Unit under this Consent Decree, Wisconsin 

Electric shall apply to modify its Title V permit for the generating plant where such device is 

installed to reflect all new requirements applicable to that plant, including, but not limited to any 

applicable 30-Day Rolling Average Emission Rate or Removal Efficiency. 

167. Prior to January 1, 2015, Wisconsin Electric shall apply to amend the Title V 

permit for each plant in the Wisconsin Electric System to include specific Emission Rates or 

tonnage limitations as described below. Wisconsin Electric shall be in compliance with this 

requirement if, by January 1, 2015, it has applied to amend each such Title V permit to include 

Emissions Rate limitations applicable to Improved Units and tonnage limitations applicable to 

plants with Other Units. Improved Units shall not exceed a 12-Month Rolling Average Emission 

Rate for NOx of 0.080 lb/mmBTU and a 12-Month Rolling Average Emission Rate for SO2 of 

0.080 lb/mmBTU or a Removal Efficiency of 96% for SO2. The plants with Other Units shall 

meet the following Unit-specific 12-Month Rolling Tonnage: 

56
Plant NOx SO2 

Valley 3, 989 9,973 

Presque Isle 7,376 17, 257 

168. Wisconsin Electric shall provide the EPA with a copy of each application to 

amend its Title V permit, as well as a copy of any permit proposed as a result of such 

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

169. If Wisconsin Electric sells or transfers to a Third Party Purchaser part or all of its 

ownership interest in a Unit in the Wisconsin Electric System, Wisconsin Electric shall comply 

with the requirements of Paragraph 167 with regard to that Unit, prior to any such sale or transfer 

unless, following any such sale or transfer, Wisconsin Electric remains the holder of the Title V 

permit for such facility. For purposes of this Paragraph and Section XXI, “Third Party 

Purchaser” refers to an entity unrelated to Wisconsin Electric, WEC or W.E. Power that may 

acquire an ownership interest in one or more of the Units in the Wisconsin Electric System. 

XIX. INFORMATION COLLECTION AND RETENTION 

170. Any authorized representative of the United States or Permitting State Agency, 

including their attorneys, contractors, and consultants, upon presentation of credentials, shall 

have a right of entry upon the premises of any facility in the Wisconsin Electric System 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; 

57
c. obtaining samples and, upon request, splits of any samples taken by Wisconsin 

Electric or its representatives, contractors, or consultants; and 

d. assessing Wisconsin Electric’s compliance with this Consent Decree. 

171. Wisconsin Electric 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 Wisconsin Electric’s performance of its obligations under this Consent Decree for the 

following periods: (a) until December 31, 2020 for records concerning physical or operational 

changes undertaken in accordance with Paragraph 119 (Resolution of U.S. Claims Based On 

Modifications after Lodging of the Decree) of this Consent Decree; and (b) until December 31, 

2017 for all other records. This record retention requirement shall apply regardless of any 

corporate document retention policy to the contrary. 

172. All information and documents submitted by Wisconsin Electric 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) Wisconsin Electric claims and substantiates that the information and documents 

contain confidential business information in accordance with 40 C.F.R. Part 2. 

173. Nothing in this Consent Decree shall limit the authority of the EPA to conduct 

tests and inspections at Wisconsin Electric’s facilities under Section 114 of the Act, 42 U.S.C. 

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

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XX. NOTICES 

174. Unless otherwise provided herein, whenever notifications, submissions, or 

communications are required by this Consent Decree, they shall be made in writing and 

addressed as follows: 

As to the United States of America: 

Chief, Environmental Enforcement Section 

Environment and Natural Resources Division 

U.S. Department of Justice 

P.O. Box 7611, Ben Franklin Station 

Washington, D.C. 20044-7611

DJ# 90-5-2-1-06965

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 V

77 West Jackson Blvd.

Chicago, Illinois 60604-3590

As to Wisconsin Electric:

Vice President Environmental

Wisconsin Electric Power Company

231 W. Michigan Street

Milwaukee, Wisconsin 53203

and

59
General Counsel

Wisconsin Electric Power Company

231 W. Michigan Street

Milwaukee, Wisconsin 53203

175. All notifications, communications or submissions made pursuant to this Section 

shall be sent either by: (a) overnight mail or by certified or registered mail, return receipt 

requested; (b) electronic transmission, unless the recipient is not able to review the transmission 

in electronic form. All notifications, communications and transmissions sent by overnight, 

certified or registered mail shall be deemed submitted on the date they are postmarked. All 

notifications, communications, and submissions made by electronic means shall be electronically 

signed and certified, and shall be deemed submitted on the date that Wisconsin Electric receives 

written acknowledgment of receipt of such transmission. 

176. 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. 

177. [RESERVED.] 

XXI. SALES OR TRANSFERS OF OWNERSHIP INTERESTS 

178. If Wisconsin Electric proposes to sell or transfer part or all of its ownership 

interest in any Existing Unit (“Ownership Interest”) to an entity unrelated to Wisconsin Electric, 

WEC or W.E. Power (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 send a copy of 

such written notification to EPA pursuant to Section XX (Notices) at least sixty (60) days before 

such proposed sale or transfer. 

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179. No sale or transfer of an Ownership Interest shall take place before the Third 

Party Purchaser and EPA have executed, and the Court has approved, a modification pursuant to 

Section XXIV (Modification) of this Consent Decree making the Third Party Purchaser a party 

defendant to this Consent Decree and jointly and severally liable with Wisconsin Electric for all 

the requirements of this Decree that may be applicable to the transferred or purchased Ownership 

Interests, including joint and several liability with Wisconsin Electric for all requirements 

specific to the Existing Unit, as well as all requirements in this Consent Decree that are not 

specific to these Existing Units, except as provided in Paragraph 181. 

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

Ownership Interests between Wisconsin Electric and any Third Party Purchaser as long the 

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

prohibit a contractual allocation – as between Wisconsin Electric and any Third Party Purchaser 

of Ownership Interests – of the burdens of compliance with this Decree, provided that both 

Wisconsin Electric and such Third Party Purchaser shall remain 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 181. 

181. If EPA agrees, EPA, Wisconsin Electric, and the Third Party Purchaser that has 

become a party defendant to this Consent Decree pursuant to Paragraph 179, may execute a 

modification that relieves Wisconsin Electric 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. Notwithstanding the foregoing, however, 

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

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

the obligations set forth in Sections IX (Environmental Projects) and X (Civil Penalty). 

Wisconsin Electric may propose and the 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 Unit, to the extent such obligations may be adequately separated in an enforceable 

manner. 

XXII. EFFECTIVE DATE 

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

Consent Decree is entered by the Court. 

XXIII. RETENTION OF JURISDICTION 

183. 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 Party to this Consent Decree may apply to the Court for any relief necessary to construe or 

effectuate this Consent Decree. 

XXIV. MODIFICATION 

184. The terms of this Consent Decree may be modified only by a subsequent written 

agreement signed by both Parties. Where the modification constitutes a material change to any 

term of this Decree, it shall be effective only upon approval by the Court. 

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XXV. GENERAL PROVISIONS 

185. 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. 

186. This Consent Decree does not apply to any claim(s) of alleged criminal liability. 

187. 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, 

Wisconsin Electric 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). 

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

Decree shall relieve Wisconsin Electric 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) of this Consent Decree, nothing contained in this Consent Decree shall be construed to 

prevent or limit the rights of the United States to obtain penalties or injunctive relief under the 

Act or other federal, state, or local statutes, regulations, or permits. 

189. 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, 

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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. 

190. Nothing in this Consent Decree alters or waives any applicable law (including but 

not limited to, any defenses, entitlements, or clarifications related to the Credible Evidence Rule 

(62 Fed. Reg. 8314 (Feb. 27, 1997))), concerning the use of data for any purpose under the Act, 

generated by the reference methods specified herein or otherwise. 

191. Each limit and/or other requirement established by or under this Decree is a 

separate, independent requirement. 

192. Performance standards, emissions limits, and other quantitative standards set by 

or under this Decree must be met to the number of significant digits in which the standard or 

limit is expressed. Thus, for example, an Emission Rate of 0.100 is not met if the actual 

Emission Rate is 0.101. Wisconsin Electric shall round the fourth significant digit to the nearest 

third significant digit, or the third significant digit to the second significant digit, depending 

upon whether the limit is expressed to two or three significant digits. Thus, for example, if an 

actual Emission Rate is 0.1004, that shall be reported as 0.100, and shall be in compliance with 

an Emission Rate of 0.100, and if an actual Emission Rate is 0.1005, that shall be reported as 

0.101, and shall not be in compliance with an Emission Rate of 0.100. Wisconsin Electric shall 

collect and report data to the number of significant digits in which the standard or limit is 

expressed. As otherwise applicable and unless this Decree expressly directs otherwise, the 

calculation and measurement procedures established under 40 C.F.R. Parts 75 and 76 apply to 

the measurement and calculation of NOx and SO2 under this Decree. 

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193. This Consent Decree does not limit, enlarge or affect the rights of any Party to 

this Consent Decree as against any third parties. 

194. 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 supercedes all prior agreements and understandings between the Parties related to 

the subject matter herein. No document, representation, inducement, agreement, or 

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. 

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

XXVI. SIGNATORIES AND SERVICE 

196. 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 the Party he or she represents to this document. 

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

signature pages shall be given full force and effect. 

198. 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. 

XXVII. PUBLIC COMMENT 

199. 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 

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notice of the lodging of this Consent Decree in the Federal Register, an opportunity for public 

comment, and the right of the United States to withdraw or withhold consent if the comments 

disclose facts or considerations which indicate that the Consent Decree is inappropriate, 

improper or inadequate. Wisconsin Electric 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 Wisconsin Electric, in writing, that the United States no longer supports entry of the 

Consent Decree. 

XXVIII. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER DECREE 

200. Termination as to Completed Tasks. As soon as Wisconsin Electric completes a 

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

recurring, Wisconsin Electric may seek termination of the provision or provisions of this 

Consent Decree that imposed the requirement. 

201. Conditional Termination of Enforcement Through the Consent Decree. Once 

Wisconsin Electric: 

(A) believes that it has successfully completed and commences successful 

operation of all pollution controls required by this Decree; 

(B) has obtained final Title V permits (a) as required by the terms of this Consent 

Decree; (b) that cover all Units in this Consent Decree; and (c) that include as enforceable permit 

terms all of the Unit performance and other requirements required by Section XVIII (Permits); 

and 

(C) certifies that the date is later than December 31, 2015; 

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then Wisconsin Electric may so certify these facts to the EPA and this Court. If EPA does not 

object in writing with specific reasons within forty-five (45) days of receipt of Wisconsin 

Electric’s certification, then, for any violations that occur after the filing of notice, the United 

States shall pursue enforcement of the requirements contained in the Title V permit through the 

applicable Title V permit and not through this Consent Decree. 

202. Resort to Enforcement under this Consent Decree. Notwithstanding Paragraph 

201, if enforcement of a provision in this Decree cannot be pursued by a party under the 

applicable Title V permit, or if a Decree requirement was intended to be part of a Title V Permit 

and did not become or remain part of such permit, then such requirement may be enforced under 

the terms of this Decree at any time. 

XXIX. FINAL JUDGMENT 

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

Decree shall constitute a final judgment between the United States and Wisconsin Electric. 

SO ORDERED, THIS _____ DAY OF ________________, 2003. 

_________________________________________ 

UNITED STATES DISTRICT COURT JUDGE 

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FOR THE UNITED STATES OF AMERICA:

THOMAS L. SANSONETTI

Assistant Attorney General

Environmental and Natural Resources Division

United States Department of Justice

NICOLE VEILLEUX

ARNOLD ROSENTHAL

Trial Attorneys

Environmental Enforcement Section

Environmental and Natural Resources Division

United States Department of Justice
_________________________

STEVEN M. BISKUPIC

United States Attorney

Eastern District of Wisconsin

United States Department of Justice
____________________

JOHN PETER SUAREZ

Assistant Administrator

Office of Enforcement and Compliance Assurance

United States Environmental Protection Agency

____________________

BRUCE C. BUCKHEIT

Director, Air Enforcement Division

Office of Enforcement and Compliance Assurance

United States Environmental Protection Agency

____________________

EDWARD MESSINA

Attorney Advisor

Air Enforcement Division

Office of Enforcement and Compliance Assurance

United States Environmental Protection Agency
____________________

THOMAS SKINNER

Regional Administrator

Region 5

United States Environmental Protection Agency
FOR WISCONSIN ELECTRIC:

____________________

RICHARD R. GRIGG

President and Chief Operating Officer

Wisconsin Electric Power Company