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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

AT WHEELING

WEST VIRGINIA RIVERS COALITION,

WEST VIRGINIA HIGHLANDS 

CONSERVANCY, OHIO VALLEY 

ENVIRONMENTAL COALITION, and,

SIERRA CLUB

Plaintiffs,

v. CIVIL ACTION NO. 

OHIO POWER COMPANY,

KENTUCKY POWER COMPANY and

AEP GENERATION RESOURCES INC.,

d/b/a/ AMERICAN ELECTRIC POWER

Defendant. 

CONSENT DECREE

Recitals

1. On November 7, 2013, Plaintiffs West Virginia Rivers Coalition, West Virginia Highlands 

Conservancy, Ohio Valley Environmental Coalition, and Sierra Club (collectively, Plaintiffs) sent 

by certified letter to American Electric Power (AEP), the U.S. Environmental Protection Agency 

(U.S. EPA), and the West Virginia Department of Environmental Protection (WV DEP), a notice 

of alleged violations under the Federal Water Pollution Control Act, 33 U.S.C. §1251 et seq. (also 

referred to as the Clean Water Act or CWA), occurring at the Kammer and Mitchell Power Plants 

in Moundsville, West Virginia (Kammer Plant and Mitchell Plant, respectively).

2. AEP responded to the notice letter and met with Plaintiffs on January 17, 2014, to discuss 

the allegations and provide additional information concerning major changes in the operations at 

the Kammer Plant and Mitchell Plant, the status of its appeal of WV NPDES Permit No. 

WV0005304, the action plans submitted to and the administrative compliance orders issued by 

WV DEP, and the progress in making improvements in the quality of the water discharges at the 

Kammer Plant and the Mitchell Plant.

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3. On January 1, 2014, in accordance with orders from the Public Utilities Commission of 

Ohio to separate its generating business from its regulated utility operations and serve its load 

through the competitive power markets within PJM Interconnection, LLC, Ohio Power Company 

transferred its ownership interests in the Kammer and Mitchell Plants to AEP Generation 

Resources Inc. (AEPGR), and on the same day Kentucky Power Company (KPCo) acquired an 

undivided one-half interest in the Mitchell Plant from AEPGR. Pursuant to an operating agreement 

approved by the Federal Energy Regulatory Commission, KPCo is now the operator of the 

Kammer and Mitchell Plants. AEPGR, KPCo and Ohio Power Company are all affiliated with 

and do business as AEP.

4. On August 1, 2014, Plaintiffs filed their Complaint in this action alleging that, 

notwithstanding the issuance of administrative orders by WV DEP extending the compliance 

schedule for achieving final effluent limitations at Outlet 004 at the Kammer Plant and Outlet 004 

at the Mitchell Plant, AEP violated the terms of the Kammer NPDES Permit and the Mitchell 

NPDES Permit.

5. Based on the negotiations of the Parties, simultaneously with the filing of the Complaint, 

the Parties lodged this Consent Decree with the Court.

6. The Parties recognize, and the Court by entering this Consent Decree finds, that the 

Consent Decree has been negotiated by the Parties in good faith and will avoid further litigation 

by the Parties, and that this Decree is fair, reasonable, and in the public interest. 

7. By entering into this Consent Decree, Defendants do not admit any fact, conclusion of law, 

or liability alleged in the notice letter or the Complaint, and do not waive any defenses to the 

allegations therein.

NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:

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Jurisdiction and Venue

8. This Court has jurisdiction over the Parties and over the subject matter of the action 

pursuant to 28 U.S.C. §1331 (federal question jurisdiction) and 28 U.S.C. §1365 (CWA citizen 

suit provision).

9. Venue is proper in the Northern District of West Virginia pursuant to 33 U.S.C. §1365(c) 

because the source of the alleged violations of the CWA is located in the Northern District of West 

Virginia.

10. For purposes of the administration or enforcement of this Consent Decree, the Parties 

consent to the jurisdiction of this Court and venue in this judicial district.

Parties Bound

11. The provisions of this Consent Decree apply to and are binding upon the Plaintiffs and 

those with authority to act on their behalf, including, but not limited to, their officers, directors, 

and staff, and upon Defendants and their successors or assigns.

12. If, during the term of this Consent Decree, ownership of the Kammer or Mitchell Plant is 

transferred to another entity, Defendant shall provide a copy of this Consent Decree to the proposed 

transferee, and require the transferee to provide written confirmation to the Court acknowledging 

the terms of this Consent Decree and its obligation to be bound thereby, whereupon one or more 

of Defendants shall no longer be subject to the terms of this Consent Decree as set forth in the 

written confirmation provided to the Court.

Definitions

13. Whenever the terms set forth below are used in this Consent Decree, the following 

definitions shall apply:

a. “Complaint” shall mean the complaint filed by Plaintiffs in this matter on August 1, 

2014.

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b. “Conner Run Impoundment” shall mean the fly ash surface impoundment that 

receives fly ash from the Kammer and Mitchell Plants.

c. “Conner Run Impoundment NPDES Permit” shall mean WV NPDES Permit No. 

WV00116939, effective on April 1, 2014.

d. “Consent Decree” shall mean this Consent Decree filed simultaneously with the 

Complaint.

e. “Defendants” shall mean AEPGR, Ohio Power Company, and KPCo, and their

successors and assigns.

f. “Effective Date” shall mean the date this Consent Decree is issued as a final order 

of the Court, or the date a motion to enter this Consent Decree is granted by the Court, 

whichever occurs first, as recorded on the docket in this matter.

g. “Force Majeure Event” shall mean an event that has been or will be caused by 

circumstances beyond the control of Defendants or any entity controlled by Defendants

that delays compliance with or otherwise causes a violation of any provision of this 

Consent Decree despite Defendants’ best efforts to fulfill the obligation. The Parties agree 

that, depending on the circumstances related to such an event, and Defendants’ 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 Consent Decree: construction, labor, or 

equipment delays; malfunction of a unit or treatment system; unanticipated interruptions 

or delays in deliveries of treatment additives; acts of God; acts of war or terrorism; orders 

by a governmental official, regional transmission operations official, or other regulatory 

authority acting under and authorized by applicable law, that directs Defendant to operate 

a unit or units at Kammer or Mitchell Plant in response to a local or system-wide (state or 

regional) emergency (which could include unanticipated operation to avoid loss of load or 

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to meet unserved load requirements). “Best efforts to fulfill the obligation” include using 

best efforts to anticipate any potential Force Majeure Event and best efforts to address the 

effects of any such event as it is occurring or after it has occurred to prevent or minimize 

any resulting delay to the extent possible. “Force Majeure Event” does not include 

Defendants’ financial inability to perform any obligation under this Consent Decree. 

h. “Kammer Compliance Deadline” shall mean the date that is six months after the 

issuance of a modified permit that adjusts the limitation for total recoverable iron at Outlet 

004, or December 31, 2014, whichever is earlier.

i. “Kammer NPDES Permit” shall mean WV NPDES Permit No. WV0005291.

j. “Kammer Plant” shall mean the Kammer Power Plant located in Moundsville, West 

Virginia.

k. “Mitchell Compliance Deadline” shall mean November 15, 2014.

l. “Mitchell NPDES Permit” shall mean WV Permit No. 0005304 as in effect prior to 

April 1, 2014.

m. “Mitchell Plant” shall mean the Mitchell Power Plant located in Moundsville, West 

Virginia.

n. “Parties” shall mean Plaintiffs and Defendant, and “Party” shall mean either 

Plaintiffs or Defendant.

o. “Plaintiffs”shall mean the West Virginia Rivers Coalition, West Virginia Highlands 

Conservancy, Ohio Valley Environmental Coalition, and Sierra Club, and those with 

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authority to act on their behalf, including, but not limited to, their officers, directors, and 

staff.

Prospective Injunctive Relief – Kammer Plant

14. Defendant AEPGR shall achieve compliance with the applicable limitations for total 

recoverable iron at Outlet 004 by the Kammer Compliance Deadline.

15. Defendant AEPGR shall cease providing electric service from the three generating units at 

the Kammer Plant no later than December 31, 2015.

16. Defendant AEPGR shall cease sluicing fly ash from the generation of electricity at the 

three generating units at the Kammer Plant to the Conner Run Impoundment no later than 

December 31, 2015.

Prospective Injunctive Relief – Mitchell Plant

17. Defendants AEPGR and KPCo shall complete the transition from wet fly ash handling to 

dry fly ash handling at the two generating units at the Mitchell Plant according to the following 

schedule:

a. Mechanical Systems Construction Begins: April 1, 2014

b. Electrical Systems Construction Begins: April 1, 2014

c. Transition from Wet to Dry Fly Ash Begins: August 15, 2014

d. Fly Ash Outlet 001 Compliance: November 15, 2014

18. Defendants AEPGR and KPCo shall conduct monitoring to evaluate the abundance and 

diversity of aquatic life in Conner Run below the discharge of the Conner Run Impoundment at 

Outlet 001 in the Conner Run Impoundment NPDES Permit during the period of July-September, 

2014, in accordance with the study plan attached hereto as Exhibit A. Copies of the raw data 

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collected during the study period shall be provided to Counsel for Plaintiffs within one hundred 

twenty (120) days of completion of the sampling and other activities required by the plan.

Mitigation Payment

19. Defendants shall pay for mitigation activities to improve, conserve and protect natural 

resources in the State of West Virginia by providing mitigation funding in the amount of $38,250

for the land acquisition, restoration and/or conservation activities of the West Virginia Land Trust. 

20. Payment of the amount due to the West Virginia Land Trust shall be made by Defendants

within thirty (30) days of the Effective Date of this Consent Decree. Payment shall be made by 

wire transfer in accordance with the instructions provided by Plaintiffs to Defendants, and 

confirmation of the payment shall be provided to Counsel for Plaintiffs in accordance with the 

notice provisions of the Consent Decree. 

Civil Penalty

21. Defendant shall pay a civil penalty amount of $4,250 to the United States as set forth in 

paragraph 18 below. Together with the Mitigation Payment set forth above, the payment of this 

civil payment is made in settlement of all of Plaintiffs’ claims in this action under the CWA for 

violations occurring prior to the Effective Date of this Consent Decree.

22. Defendants shall pay the civil penalty due the United States Treasury within thirty (30) 

days of the Effective Date of this Consent Decree. That payment shall be made by certified 

check, bank check, or money order to the Treasurer of the United States and should be sent to the 

following address: Debt Collection Specialist, Environment and Natural Resources Division, 

Executive Office, PO Box 775, Ben Franklin Station, Washington, D.C. 20044-7754. The check 

or money order shall reference West Virginia Rivers Coalition v. Ohio Power Company, et al., 

Civil Action No. _____ and payment shall be considered paid upon mailing or direct delivery to 

the specified address. A copy of the check and cover letter shall be sent to Plaintiffs at the time 

payment is made, and shall state that payment is being made pursuant to this Decree. 

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Stipulated Penalties – Kammer Plant

23. Defendant AEPGR shall be liable for stipulated penalties in the following amounts if it 

fails to achieve and maintain compliance with the applicable limitations for total recoverable iron 

at Outlet 004 in the Kammer NPDES Permit at any time after the Kammer Compliance Deadline:

a. $1,500 per exceedance for the daily maximum limitation for total recoverable iron; 

b. $3,000 per exceedance of the monthly average limitation for total recoverable iron.

24. In any month during which Defendant AEPGR collects a single sample and the 

concentration exceeds both the maximum daily limitation and the monthly average limitation for 

a single parameter, Defendant AEPGR shall be liable for stipulated penalties for an exceedance of 

both the daily maximum and monthly average limitation. However, if Defendant AEPGR 

resamples in an effort to investigate and mitigate the impact of an exceedance, no additional 

penalties shall be assessed during that month unless the subsequent sample exceeds the maximum 

daily limitation.

25. Defendant AEPGR shall be liable for Stipulated Penalties in the amount of $8,000 per day for

any day after December 31, 2015, that fly ash from the generation of electricity at any of the 

generating units at the Kammer Plant is sluiced to the Conner Run Impoundment.

26. Defendant AEPGR shall notify Counsel for Plaintiffs of any event that would trigger the 

obligation to pay Stipulated Penalties pursuant to this Consent Decree thirty days following the 

end of each calendar quarter (i.e., April 30, July 30, October 30, and January 30), based on a review 

of the electronic discharge monitoring reports submitted to WV DEP during the prior calendar 

quarter and other records. Payments shall be made within thirty (30) days following the date notice 

is given the Plaintiffs’ Counsel by wire transfer to the West Virginia Land Trust in the accordance 

with the instructions provided by Plaintiffs to Defendant, and confirmation of the payment shall 

be provided to Counsel for Plaintiffs in accordance with the notice provisions of the Consent 

Decree.

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Stipulated Penalties – Mitchell Plant

27. Defendants AEPGR and KPCo shall be liable for Stipulated Penalties in the amount of 

$8,000 per day for any day after November 15, 2014, that fly ash from the generation of electricity 

at any of the generating units at the Mitchell Plant is sluiced to the Conner Run Impoundment.

28. Defendants AEPGR and KPCo shall notify Counsel for Plaintiffs of any event that would 

trigger the obligation to pay Stipulated Penalties pursuant to this Consent Decree thirty days 

following the end of each calendar quarter (i.e., April 30, July 30, October 30, and January 30), 

based on a review of the operating records maintained during the prior calendar quarter. Payments 

shall be made within thirty (30) days following the date notice is given the Plaintiffs’ Counsel by 

wire transfer to the West Virginia Land Trust in the accordance with the instructions provided by 

Plaintiffs to Defendant, and confirmation of the payment shall be provided to Counsel for Plaintiffs 

in accordance with the notice provisions of the Consent Decree.

Fees and Costs

29. Within thirty (30) days of the Effective Date of this Consent Decree, Defendants shall pay 

$7,500 in full consideration and settlement of any claim of Plaintiffs for attorneys’ fees and costs 

incurred by Plaintiffs up to the Effective Date of the Consent Decree.

Release of Claims and Reservation of Rights

30. This Consent Decree resolves all civil claims of Plaintiffs for the violations alleged in the 

notice letter, the Complaint, and any alleged violations of the maximum daily limitations or 

monthly average limitations for total recoverable iron from Outlet 004 in the Kammer NPDES 

permit that occur prior to the Kammer Compliance Deadline. This Consent Decree resolves all 

civil claims of Plaintiffs for the violations alleged in the notice letter, the Complaint, and any 

alleged violations of narrative water quality criteria, and the maximum daily limitations or monthly 

average limitations for cadmium, aluminum, and chronic toxicity (ceriodaphnia and pimephanes)

from Outlet 004 in the Mitchell NPDES Permit or Outlet 001 in the Conner Run Impoundment 

NPDES Permit that occur prior to the Mitchell Compliance Deadline. Plaintiffs shall not seek any 

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remedies under the CWA for alleged violations of the total recoverable iron limitations at Outlet 

004 of the Kammer Plant, or for alleged violations of narrative water quality criteria or the 

cadmium, aluminum, chronic toxicity limitations at Outlet 001 of the Conner Run Impoundment 

NPDES Permit while this Consent Decree remains in effect, other than the remedies set forth in 

this Consent Decree. 

31. Nothing in this Consent Decree relieves Defendants of their obligations to comply with 

applicable federal, state, or local laws, regulations, or permits.

32. Nothing in this Consent Decree prevents Defendants from seeking regulatory changes, 

permit modifications, or other relief that would affect the limitations in the Kammer, Mitchell or 

Conner Run Impoundment NPDES Permits.

33. Nothing in this Consent Decree prevents Plaintiffs from opposing regulatory changes, 

permit modifications, or other relief that would affect the limitations in the Kammer, Mitchell, or 

Conner Run Impoundment NPDES Permits, except that no such challenges brought before a 

regulatory or judicial adjudicator shall be based on the information provided by Defendants 

pursuant to Paragraph 18. Plaintiffs agree that information provided by Defendants pursuant to 

paragraph 18 shall be kept confidential among employees, staff, and counsel of the Plaintiffs 

organizations. 

34. This Consent Decree shall not be construed to create rights in, or grant any cause of action 

to, any third party not a Party to this Consent Decree.

Force Majeure

35. If any event occurs or has occurred that may delay or impede the performance of any 

obligation of Defendants under this consent Decree, whether or not caused by a Force Majeure 

Event, Defendants shall provide notice orally or by electronic mail to Plaintiffs’ Counsel within 

five (5) business days of when Defendants first knew that the event might cause or delay or 

interruption in performance. Within fourteen (14) days thereafter, Defendants shall provide a 

written explanation of the event, the anticipated impact of the event on Defendants’ obligations 

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including any estimate of the duration of any potential delay, and any actions taken or to be taken 

to prevent or minimize such delay.

36. If Plaintiffs agree that the event is a Force Majeure Event, Defendants’ time for 

performance of any obligations affected by the Force Majeure Event will be extended for such 

time as is necessary to address or mitigate the impact of the Force Majeure Event. An extension 

of time for performance due to a Force Majeure Event shall not, of itself, extend the time for 

performance of any other obligations of Defendants under this Consent Decree. Plaintiffs will 

notify Defendants in writing within five (5) business days of receipt of the written explanation 

from Defendants of the length of the extension, if any, for performance of the obligations affected 

by the Force Majeure Event.

37. If Plaintiffs do not agree that the delay or impairment of Defendants’ ability to perform its 

obligation is the result of a Force Majeure Event, Plaintiffs will notify Defendants of their

determination within five (5) business days of its receipt of the written explanation from 

Defendants. Any dispute between the Parties regarding a claim of a Force Majeure Event will be 

resolved by the Court in accordance with the dispute resolution provisions of this Consent Decree.

Dispute Resolution

38. The dispute resolution procedure can be invoked by either Party giving written notice to 

the other Party advising of the existence of a dispute pursuant within thirty (30) days of discovery 

of an area of dispute. 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 shall expeditiously schedule a meeting or telephone 

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

such notice.

39. Disputes submitted to dispute resolution under this Section shall, in the first instance, be 

the subject of informal negotiations among the Parties. Such period of informal negotiations shall 

extend for thirty (30) calendar days from the date of the first meeting among the disputing Parties' 

representatives, unless they agree in writing to shorten or extend this period. 

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40. If the Parties are unable to resolve the dispute through the informal process described 

above, the disputing Party waives its rights to further dispute the issue unless it files a petition or 

other filing with the Court describing the dispute and serves it on the other Party within sixty (60) 

days after the informal resolution period ends. The other Party shall have forty-five (45) days after 

the receipt of the petition to file and serve a written response. The filing Party will then have fifteen 

(15) days to file a reply.

41. As part of the resolution of any dispute, in appropriate circumstances the Parties by 

agreement, or this Court by order, may extend or modify 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, or may excuse non-compliance with any other requirement of this Consent 

Decree due to a Force Majeure Event. Defendants shall not be precluded from asserting that a 

Force Majeure Event has caused or may cause a delay in complying with the extended or modified 

schedule or has resulted in non-compliance with any other requirement of this Consent Decree, 

except as otherwise provided for in this Consent Decree.

42. The Parties' sole and exclusive remedy for breach of this Agreement shall be an action for 

specific performance or injunction. In no event shall any Party be entitled to monetary damages 

for breach of this Agreement.

Notices

43. 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:

To Plaintiffs: J. Michael Becher, Esq.

Appalachian Mountain Advocates

P.O. Box 507

Lewisburg, WV 24901

(304) 382-4798

mbecher@appalmad.org

To Defendant: Janet J. Henry

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American Electric Power Service Corporation

1 Riverside Plaza

Columbus, OH 43215

(614) 716-1612

jjhenry@aep.com

Effective Date

44. This Consent Decree shall be effective on the date this Consent Decree is issued as a final 

order of the Court, or the date a motion to enter this Consent Decree is granted by the Court, 

whichever occurs first, as recorded on the docket in this matter.

Retention of Jurisdiction

45. The Court shall retain jurisdiction over this case after the Effective Date of this Consent 

Decree to enforce compliance with its terms, or to take any action necessary or appropriate for its 

interpretation, construction, execution, modification, or the resolution of disputes. During the term 

of this Consent Decree, any Party may apply to the Court for any relief necessary to construe or 

effectuate its terms.

44. Except as limited by paragraph 42, the Parties reserve all legal and equitable rights and 

defenses available to them to enforce or defend the provisions of this Consent Decree.

Modification

46. Except as provided in Paragraph 12, the terms of this Consent Decree may be modified 

only by a subsequent written agreement signed by the Plaintiffs and Defendants, or upon motion 

properly presented to the Court. If the modification constitutes a material change to the Consent 

Decree, it shall be effective only upon approval by the Court.

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Signatories

47. Each undersigned representative of Plaintiffs and Defendant certifies that he or she is fully 

authorized to enter into this Consent Decree and to execute and legally bind the Party he or she 

represents to the terms and conditions of this Consent Decree.

48. This Consent Decree may be signed in counterparts, and its validity shall not be challenged 

on that basis.

Integration

49. This Consent Decree constitutes the final, complete, and exclusive agreement and 

understanding among the Parties with respect to the settlement of this action, and supersedes all 

prior agreements and understanding, whether oral or written. Other than required submittals 

pursuant to this Consent Decree, no other document, nor any representation, inducement, 

agreement, understanding or promise constitutes any part of this Consent Decree or the settlement 

it represents, nor shall it be used in construing the terms of this Consent Decree.

Termination

50. The Stipulated Penalty provisions for total recoverable iron at Outlet 004 at the Kammer 

Plant shall automatically terminate on the date that is two years after the Kammer Compliance 

Deadline. The Stipulated Penalty provisions of this Consent Decree for sluicing fly ash from the 

Mitchell Plant shall automatically terminate on the date that is two years after the Mitchell 

Compliance Deadline. All remaining obligations of this Consent Decree shall automatically 

terminate on the date that is two years after December 31, 2015.

Final Judgment

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

constitute the final judgment in this matter as to Plaintiffs and Defendants. The Court, finding no 

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just reason for delay, therefore enters this Consent Decree as its final judgment under Fed. R. Civ. 

P. 54 and 58.

ENTERED, this ______ day of ______, 2014.

______________________________________

UNITED STATES DISTRICT JUDGE

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For Plaintiffs West Virginia Rivers Coalition, 

West Virginia Highlands Conservancy, Ohio

Valley Environmental Coalition, and Sierra Club

J. Michael Becher_________________________

J. Michael Becher, Esq. (WVBN 10588)

Appalachian Mountain Advocates

P.O. Box 507

Lewisburg, WV 24901

8/1/2014__________________________________

Date

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