IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

UNITED STATES OF AMERICA, et al., : 

:

 Plaintiffs, : 

: Civil Action No. 2:99-cv-1181 

 v. :

OHIO EDISON COMPANY, et al., 

: 

: 

:

Judge Sargus 

Magistrate Judge Kemp

 Defendants. : 

JOINT MOTION TO MODIFY CONSENT DECREE 

WITH ORDER MODIFYING CONSENT DECREE 

WHEREAS on July 11, 2005, this Court entered a Consent Decree in the abovecaptioned matter. 

WHEREAS pursuant to Paragraph 83, by no later than December 31, 2008, Ohio 

Edison shall elect either to: satisfy the emission control requirements of Paragraph 82 for 

Burger Units 4 and 5; shut down Burger Units 4 and 5 no later than December 31, 2010; 

or repower Burger Units 4 and 5 no later than December 31, 2012, including through the 

construction of circulating fluidized bed boilers or other clean coal technologies of 

equivalent environmental performance. 

WHEREAS pursuant to Paragraph 83.b, if Ohio Edison elects to repower Burger 

Units 4 and 5 including through the construction of circulating fluidized bed boilers or 

other clean coal technologies of equivalent environmental performance, such units are 

required to achieve and maintain a 30-day Rolling Average Emission Rate not greater 

than 0.100 lb/mmBtu for SO2 or a Removal Efficiency of at least ninety-five percent 

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(95%) for SO2; a 30-Day Rolling Average Emission Rate not greater than 0.100 

lb/mmBtu for NOx; and a PM Emission Rate not greater than 0.015 lb/mmBtu. 

WHEREAS by Order dated January 30, 2009, this Court extended Ohio Edison’s 

election requirement from December 31, 2008 to March 31, 2009. 

WHEREAS prior to March 31, 2009, Ohio Edison informed the United States, 

and the states of Connecticut, New Jersey, and New York (“the Plaintiffs”) that the 

company was interested in repowering Burger Units 4 and 5 to combust biomass fuel. 

WHEREAS Ohio Edison has represented to the Plaintiffs that it intends to 

combust 100% biomass fuel but that it may be necessary to co-fire Burger Units 4 and 5 

with a fossil fuel. 

 WHEREAS on March 31, 2009, Ohio Edison elected to repower Burger Units 4 

and 5 to combust principally biomass fuel. 

WHEREAS concurrent with Ohio Edison’s election, the parties reached 

preliminary agreement, subject to formal approval by Plaintiffs’ respective senior 

management, regarding a proposed modification to the Consent Decree. 

WHEREAS all parties have obtained the necessary approvals for the proposed 

modification to the Consent Decree for the repowering project at Burger Units 4 and 5. 

For good cause shown, the parties hereby seek to modify the Consent Decree in 

this matter, and move that the Court sign and enter the following Order: 

1. Modify Paragraph 83 as follows: 

83. No later than March 31, 2009, Ohio Edison shall elect either to satisfy the 

emission control requirements of Paragraph 82 for Burger Units 4 and 5, or: 

a. Shut down Burger Units 4 and 5 no later than December 31, 2010; 

b. Repower Burger Units 4 and 5 no later than December 31, 2012, including 

through construction of circulating fluidized bed boilers or other clean coal technologies 

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of equivalent environmental performance that at a minimum achieve and maintain a 30-

Day Rolling Average Emission Rate not greater than 0.100 lb/mmBtu for SO2 or a 

Removal Efficiency of at least ninety-five percent (95%) for SO2; a 30-Day Rolling 

Average Emission Rate not greater than 0.100lb/mmBtu for NOX; and a PM Emission 

Rate not greater than 0.015 lb/mmBtu; 

or 

c. Repower Burger Units 4 and 5 no later than December 31, 2012 to 

combust principally biomass fuels and commence operation. Ohio Edison 

has elected this option, which shall be undertaken in accordance with the 

following requirements: 

i. For purposes of Paragraph 83.c, the term “biomass fuels” shall 

mean a blend of renewable feedstock consisting solely of: wood 

(including residues from harvesting or processing such as bark, leaves, 

wood chips, sawdust, and byproducts from paper manufacturing, but 

solely if the manufacturing process does not use any chlorinated 

compounds for bleaching), agricultural crops, grasses, dedicated energy 

crops (including, but not limited to, trees crops, grasses, and shrubs), other 

vegetation waste or products (including, but not limited to, landscape or 

right-of-way trimmings, algae, food waste and by-products), including up 

to five percent (5%) binding materials or additives that have demonstrated 

emission reduction properties and/or other biomass fuels proposed by OE 

and approved by the Plaintiffs prior to use, but in no event shall biomass 

fuels include animal wastes, construction debris, or non-natural wood such 

as plywood, pressure-treated wood and the like; 

ii.. Once Burger Units 4 and 5 commence operation following 

completion of the projects necessary to permit combustion principally of 

biomass fuels, Ohio Edison shall continuously operate all combustion 

control and pollution control equipment at Burger Units 4 and 5, including 

such equipment as ESP, SNCR, low-NOx burners, and over-fired air 

consistent with good engineering practices to minimize emissions to the 

extent practicable; 

iii. During the first 180 days after Burger Units 4 and 5 commence 

operation following completion of the projects necessary to permit combustion 

principally of biomass fuels (the “Shakedown Period”), Ohio Edison shall operate 

the Burger Units 4 and 5 using its reasonable best efforts to achieve and maintain 

a 30-Day Rolling Average Emission Rate for SO2 of 0.100 lb/mmBtu, a 30-Day 

Rolling Average Emission Rate for NOx of 0.100 lb/mmBtu, and a PM Emission 

Rate of 0.015 lb/mmBtu; 

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iv. If, by the end of the Shakedown Period, Ohio Edison is able to 

achieve and maintain the emission rates specified in subparagraph 83.c.iii at 

representative operations, then Burger Units 4 and 5 shall be subject to the 

emission rates specified in subparagraph 83.c.iii immediately following the end of 

the Shakedown Period. Ohio Edison shall thereafter comply with those rates. If, 

by the end of the Shakedown Period, Ohio Edison is unable to achieve and 

maintain the emission rates specified in subparagraph 83.c.iii at representative 

operations, then a second 180-day operating period (the “Cure Period”), shall 

apply. During the Cure Period, Ohio Edison shall optimize Burger Units 4 and 5 

in order to achieve the emission rates specified in subparagraph 83.c.iii, if 

feasible, using its reasonable best efforts. At a minimum, Ohio Edison shall 

optimize Burger Units 4 and 5 to reduce emissions by undertaking upgrades or 

modifications to the boilers, combustion controls, and/or pollution controls, 

and/or by reducing the percentage of low sulfur western coal as part of the cofiring operation of Burger Units 4 and 5. For purposes of this subparagraph, 

Ohio Edison shall not be required to install Flue Gas Desulfurization (as defined 

by Paragraph 22 of the Consent Decree), Selective Catalytic Reduction System 

(as defined by Paragraph 45 of the Consent Decree), or baghouse systems as part 

of its reasonable best efforts to achieve the emission rates specified in 

subparagraph 83.c.iii; 

v. At all times during the Shakedown Period and Cure Period, 

emissions at Burger Units 4 and 5 shall not exceed the following: for SO2, a 30-

Day Rolling Average Emission Rate not greater than 0.150 lb/mmBtu, for NOx, a 

30-day Rolling Average Emission Rate not greater than 0.200 lb/mmBtu, and for 

PM, a PM Emission Rate not greater than 0.020 lb/mmBtu; 

vi. At the expiration of the Cure Period, Ohio Edison shall submit a 

compliance plan to Plaintiffs for review and approval pursuant to Section XIII 

(Review and Approval of Submittals) in which Ohio Edison shall propose a 30-

Day Rolling Average Emission Rate for NOx and SO2 and a PM Emission Rate 

for Burger Units 4 and 5 consistent with Ohio Edison’s reasonable best efforts 

during the Shakedown and Cure Periods to achieve and maintain the emission 

rates specified in subparagraph 83c.iii, based upon the emission data generated by 

Ohio Edison during the Shakedown Period and Cure Period. In no event shall 

Ohio Edison propose a 30-Day Rolling Average Emission Rate greater than 0.150 

lb/mmBtu for SO2, a 30-Day Rolling Average Emission Rate greater than 0.200 

lb/mmBtu for NOX, or a PM Emission Rate greater than 0.020 lb/mmBtu or a 30-

Day Rolling Average Emission Rate lower than 0.100 lb/mmBtu for SO2, a 30-

Day Rolling Average Emission Rate lower than 0.100 lb/mmBtu for NOX, or a 

PM Emission Rate lower than 0.015 lb/mmBtu. Upon approval of the compliance 

plan by Plaintiffs, Ohio Edison shall comply with the 30-Day Rolling Average 

Emission Rate for NOx and SO2 and PM Emission Rate for Burger Units 4 and 5 

approved under the plan; 

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vii. At all times during the Shakedown and Cure Periods, co-firing of 

coal, if any, in Burger Units 4 and 5 shall be limited to low-sulfur western coal. 

Following the Shakedown Period (or Cure Period, if applicable), Ohio Edison 

shall seek approval from the Plaintiffs prior to co-firing more than twenty percent 

(20%) low sulfur western coal in Burger Units 4 and 5. Following approval by 

the Plaintiffs, the emissions rates listed in subparagraph 83. c.iii above shall apply 

during any period in which more than twenty percent (20%) low sulfur western 

coal is co-fired in Burger Units 4 and 5; and 

viii.	 Reporting and Testing Requirements. No later than 30 days after 

the end of each quarterly period commencing at the start of the 

Shakedown Period until the end of the Cure Period, Ohio Edison 

shall report to Plaintiffs pursuant to Paragraphs 144 and 185 SO2 

and NOx emissions data as determined by CEMS in accordance 

with 40 C.F.R. Part 75 on both a daily basis and 30-day rolling 

average basis, and emissions data for PM from any PM stack test 

performed at Burger Units 4 and 5 regardless of the number of test 

runs or length of such runs. Using the reference methods described 

below for measuring the PM Emission Rate, Ohio Edison shall 

conduct two stack tests during the Shakedown Period – the first 

one within the first 90 days of the Shakedown Period and the 

second one within the second 90 days of the Shakedown Period --

and two stack tests during the Cure Period (if a Cure Period is 

required for PM) – the first one within the first 90 days of the Cure 

Period and the second one within the second 90 days of the Cure 

Period. 

In measuring the PM Emission Rate, Ohio Edison shall conduct periodic 

stack tests in accordance with 40 C.F.R. Part 60, Appendix A, Method 5, or 

Method 5B, or alternative methods requested by Ohio Edison and approved by 

EPA. For units that are required to be equipped with SO2 control equipment and 

that are subject to the percent removal efficiency requirements of this Consent 

Decree, the outlet SO2 Emission Rate and the inlet SO2 Emission Rate shall be 

determined based on the data generated in accordance with 40 C.F.R. Part 75 

(using SO2 CEMS data from both the inlet and outlet of the control device), 

except that, if it is not feasible to install SO2 CEMS at the inlet of the control 

device, Ohio Edison may use fuel sampling consistent with ASTM protocols and 

standards to compute the inlet SO2 Emission Rate. 

2. Modify Section XIV (Stipulated Penalties), by adding items r., s., t., u. and v. 

to the table of “Stipulated Penalties” as follows: 

Consent Decree Violation 

Stipulated Penalty 

(Per day per violation, unless 

otherwise specified) 

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r. Use of biomass fuels other than as stated in or not 

in accordance with Paragraph 83ci. or approved by 

Plaintiffs prior to use 

$15,000 per day, except the Stipulated 

Penalty shall be reduced to $1,500 per 

day for the first thirty (30) days of 

violation only, provided OE establishes 

that (1) use of such fuel during the 

initial 30-day period of violation was 

due to the fact that the vendor 

supplying the biomass fuel for Burger 

Units 4 and 5 delivered biomass fuel 

that was not in accordance with the 

requirements of Paragraph 83c.i (or as 

otherwise approved by Plaintiffs), and 

(2) Burger Units 4 and 5 achieved and 

maintained the applicable 30-Day 

Rolling Average Emission Rate for 

NOx and SO2 and the Emission Rate 

for PM for that initial 30-day period of 

violation 

s. Once Burger Units 4 and 5 commence operation 

following completion of the projects necessary to 

permit combustion principally of biomass fuels, 

failure to continuously operate all combustion 

control and pollution control equipment at Burger 

Units 4 and 5, including such equipment as ESP, 

low-Nox burners and over-fired air, consistent with 

good engineering practices to minimize emissions to 

the extent practicable, in accordance with Paragraph 

83c.ii 

$3,500 per day 

t. If a Cure Period applies to the repowering of 

Burger Units 4 and 5 with biomass fuels, failure to 

optimize Burger Units 4 and 5, as required by 

Paragraph 83c.iv., in order to achieve the emission 

rates specified in Paragraph 83c.iii, if feasible, using 

its reasonable best efforts 

$40,000 for entire Cure period; 

following the Cure Period, $4,000 per 

day of operation of Burger Units 4 and 

5 commencing on the day that 

Plaintiffs provide written notice to OE 

specifying such failure to optimize 

Burger Units 4 and 5 until OE 

completes such optimization of Burger 

Units 4 and 5 

u. Failure to co-fire, if at all, with only low sulfur 

western coal in Burger Units 4 and 5 during 

Shakedown and Cure Periods. Following 

Shakedown Period (or Cure Period, if applicable), 

failure to seek approval from Plaintiffs prior to cofiring more than twenty percent (20%) low sulfur 

western coal in Burger Units 4 and 5, in accordance 

with Paragraph 83c.vii 

$50,000 per day 

v. Failure to conduct stack tests on Burger Units 4 $1,000 per test per day 

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 ____________________________________ 

and 5 during the Shakedown and Cure Periods in 

accordance with Paragraph 83c.viii 

3. Modify Paragraph 164 as follows: 

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

circumstances related to an event and Ohio Edison’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; biomass 

fuel or coal supply interruption; 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 Ohio Edison to supply 

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

Depending upon the circumstances and Ohio Edison’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 Ohio Edison and Ohio Edison 

has taken all steps available to it to obtain the necessary permit, including, but not 

limited to: submitting a complete permit application; responding to requests for 

additional information by the permitting authority in a timely fashion, and 

accepting lawful permit terms and conditions after expeditiously exhausting any 

legal rights to appeal terms and conditions imposed by the permitting authority. 

4. Except as specifically provided in this Order, all other terms and conditions of 

the Consent Decree remain unchanged and in full effect. 

SO ORDERED THIS _______ DAY OF __________________ 2009 

 UNITED STATES DISTRICT JUDGE 

Respectfully submitted, 

FOR THE UNITED STATES OF AMERICA: 

 JOHN C. CRUDEN 

 Acting Assistant Attorney General 

 Environment and Natural Resources Division 

 United States Department of Justice 

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______________________________________ 

_______________________________________ 

 

 _____________________________________ 

 JEROME W. MACLAUGHLIN 

ARNOLD S. ROSENTHAL 

 Environmental Enforcement Section 

Environment and Natural Resources Division 

 United States Department of Justice 

P.O. Box 7611 

 Washington, D.C. 20530 

(202) 514-0056 

CYNTHIA GILES 

Assistant Administrator 

Office of Enforcement and Compliance Assurance 

U.S. Environmental Protection Agency 

ADAM M. KUSHNER 

Director, Office of Civil Enforcement 

Office of Enforcement and Compliance Assurance 

U.S Environmental Protection Agency 

FOR THE STATE OF CONNECTICUT: 

RICHARD BLUMENTHAL 

ATTORNEY GENERAL 

 STATE OF CONNECTICUT 

By: ____________________________________ 

LORI D. DIBELLA 

Assistant Attorney General 

55 Elm Street, P.O. Box 120 

Hartford, Connecticut 06141-0120 

(860) 808-5250 

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____________________________________ 

 

 

 

FOR THE STATE OF NEW JERSEY: 

ANNE MILGRAM 

 ATTORNEY GENERAL

 STATE OF NEW JERSEY 

By: __________________________ 

 KEVIN P. AUERBACHER 

 Deputy Attorney General 

R.J. Hughes Justice Complex 

25 Market Street 

P.O. Box 093 

Trenton, NJ 08625 

(609) 292-6945 

FOR THE STATE OF NEW YORK: 

ANDREW M. CUOMO 

ATTORNEY GENERAL 

 STATE OF NEW YORK 

By: ___________________________ 

ROBERT ROSENTHAL 

Assistant Attorney General 

The Capitol 

Albany, NY 12224 

(518) 402-2260 

FOR OHIO EDISON COMPANY: 

GARY D. BENZ 

Associate General Counsel 

 Ohio Edison Company 

 DOUGLAS J. WEBER

 Senior Attorney

 Ohio Edison Company 

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CERTIFICATE OF SERVICE 

I hereby certify that on this day of August, 2009, I electronically filed the 

foregoing Joint Motion to Modify Consent Decree with Order Modifying Consent Decree 

with the Clerk of Court using the CM/ECF systems, which will send notification of such 

filing to the following counsel for Defendants: 

James A. King 

Trial Attorney 

Porter, Wright, Morris & Arthur LLP 

41 South High Street 

Columbus, Ohio 43215-6194 

Jerome W. MacLaughlin 

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