### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 1 of41 

# Flt,ED [ APR

# = 4 

# 2006] EDWARD J. f:.LECKER, CLERi< 

### IN THE UNITED STATES DISTRICT COURT.V§PiSTRlcTCOUln- NORTH DAKOTA



### FORTHE DISTRICT OF NORTH DAKOTA

UNITED STATES OF AMERICA and ) 

### STATE OF NORTH DAKOTA, ) ) 

### Plaintiffs, ) ) v. ) 

### Civil Action No: ) ) 

### MINNKOTA POWER COOPERATIVE, Inc. and ) SQUARE BUTTE ELECTRIC COOPERATIVE, ) ) 

### Defendants. ) ---------------) 

### CONSENT DECREE

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 2 of 41

TABLE OF CONTENTS I. Jurisdiction and Venue 3 II. Applicability 3 III. Definitions 4 IV. S02 Emission Reductions and Controls 11 A. S02 Emission Controls
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11 B. Tonnage Limits for S02 Emissions 14 C. Surrender ofS02 Allowances 16 D. General S02 Provisions 18 V. NOx Emission Reductions and Controls 19 A. Phase I NOxEmission Reductions and Controls 19 B. Phase II NO Emission Reductions and Controls 19 x C. Use ofNOx Allowances 21 D. General NOxProvisions 22 VI. PM Emission Reductions and Controls 24 A. Optimization ofPM Emission Controls 24 B. Compliance with PM Emission Limits 24 C. PM Monitoring 26 VII. Prohibition onNetting Credits or Offsets from Required Controls 28 VIII. Additional Injunctive Relief 30 IX. Civil Penalty 33 X. Resolution ofClaims 35

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XI. Periodic Reporting 37 XII. Review and Approval ofSubmittals 38 XIII. Stipulated Penalties 

### 40 XIV. Force Majeure 

### 44 XV. Dispute Resolution 

### 49 XVI. Permits 52 XVII. Information Collection and Retention 

### 54 XVIII. Notices 55 XIX. Sales or Transfers ofOwnership Interests 57 XX. Effective Date 58 XXI. Retention ofJurisdiction 59 XXII. Modification 59 XXIII. General Provisions 59 XXIV. Signatories and Service 62 XXV. Public Comment 62 XXVI. Conditional Termination ofEnforcement Under ConsentDecree 63 XXVII. Final Judgment 64

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### Case 1**:06~cv-00034-DLH-CSM** 

### Document 2 Filed 04/24/2006 Page 4 of 41

WHEREAS, Plaintiffs, the United States ofAmerica ("the United States"), on behalfof the United States Environmental Protection Agency("EPA"), and the State ofNorth Dakota ("State"), have filed a Complaint for injunctive reliefand civil penaltiespursuantto Sections 113(b)(2) and 167 ofthe Clean Air Act (the "Act"), 42 U.S.C. §§ 7413(b)(2) and 7477, alleging that Defendants, Minnkota Power Cooperative ("Minnkota") and Square Butte Electric Cooperative ("Square Butte") have undertaken construction projects at major emitting facilities in violation ofthe Prevention ofSignificant Deteriorationprovisions ofPart C ofSubchapter I of the Act, 42 U.S.C. §§ 7470-7492, and in violation ofthe federally approved and enforceable NorthDakota State Implementation Plan; WHEREAS, in their Complaint, the United States and the State (collectively, "the Plaintiffs") allege, inter alia, that Minnkota and Square Butte (collectively, the "Settling Defendants") failed to obtain the necessary permits and install the controls necessary under the Act to reduce their sulfur dioxide (S02)' nitrogen oxide (N0x), and/or particulate matter (PM) emissions; WHEREAS, the Complaint alleges claims upon which reliefcan be granted againstthe Settling Defendants under Sections 113 and 167 ofthe Act, 42 U.S.C. §§ 7413 and 7477; WHEREAS, the United States providedthe Settling Defendants and the State with actual notice ofalleged violations in accordance with Section 113(a)(1) ofthe Act, 42 U.S.C. 

### § 7413(a)(1); WHEREAS, the Settling Defendants assert that there may be difficulty associated with the continuous operation ofFlue Gas Desulfurization Systems at the Milton R. Young Station during the extremely cold ambient airtemperatures atthe plant in the winter months, and the

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 5 of 41

Parties have consideredthese circumstances inreaching this agreement; WHEREAS, the Settling Defendants assert that it would be very difficultto install and continuously operate certain NOxemission controls at the cyclone-fired, lignite-burning Units at the Milton R. Young Station; WHEREAS, NDDH contemplates that, upon full implementation ofthe controls and other requirements ofthis ConsentDecree, the Settling Defendants will have installed BACTlevel S02 controls for purposes ofnetting underthis Decree; WHEREAS, the Parties have agreed that settlement ofthis action is in the best interest of the Parties and in the public interest, and that entry ofthis ConsentDecree without further litigation is the most appropriate means ofresolving this matter; WHEREAS, the Parties recognize, and the Court by entering this Consent Decree finds, that this Consent Decree has been negotiated in good faith and at arm's length and that this ConsentDecree is fair, reasonable, consistent with the goals ofthe Act, and in the public interest; WHEREAS, the Settling Defendants have cooperated in the resolution ofthis matter; WHEREAS, the Settling Defendants have denied and continue to deny the violations alleged in the Complaint, and nothing herein shall constitute an admission ofliability; and WHEREAS, the Parties have consented to entry ofthis Consent Decree withouttrial of any issues; NOW, THEREFORE, without any admission offact or law, it is hereby ORDERED, ADmDGED, AND DECREED as follows:

2Case 1 :06-cv-00034-DLH-CSIV1 Document 2 Filed 04/24/2006 Page 6 of 41

I. JURISDICTION AND VENUE 1. This Courthasjurisdiction over this action, the subject matter herein, and the Parties consenting hereto, pursuantto 28 U.S.C. §§ 1331, 1345, 1355, and 1367, and pursuant to Sections 113 and 167 ofthe Act, 42 U.S.C. §§ 7413 and 7477. Venue is properunder Section 113(b) ofthe Act, 42 U.S.C. § 7413(b), and under 28 U.S.C. § 1391(b) and (c). Solely for the purposes ofthis ConsentDecree and the underlying Complaint, the Settling Defendants waive all objections and defenses that they may have to the Court'sjurisdiction over this action, to the Court'sjurisdiction overthe Settling Defendants, and to venue in this District. The Settling Defendants shall not challengethe terms ofthis Consent Decree orthis Court'sjurisdictionto enter and enforce this Consent Decree. Forpurposes ofthe Complaint filed by the Plaintiffs in this matter and resolved by the Consent Decree, and for purposes ofentry and enforcement of this Consent Decree, the Settling Defendants waive any defense orobjectionbased on standing. Except as expressly provided for herein, this Consent Decree shall not create any rights in any party other than the Parties to this ConsentDecree. Except as provided in SectionXXV (Public Comment) ofthis Consent Decree, the Parties consentto entry ofthis Consent Decree without further notice. II. APPLICABILITY 2. Except as set forth 

### inParagraph 3, the provisions ofthis Consent Decree shall, upon entry, apply to and be binding uponthe Settling Defendants and their successors and assigns, and upon the Settling Defendants' officers, employees and agents solely in their capacities as such. 3. Upon entry, the provisions ofthis ConsentDecree thatrelate exclusively to Unit 1 at the Milton R. Young Station shall only apply to and be binding upon Minnkota, and its

3

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successors and assigns, and upon Minnkota's officers, employees and agents solely in their capacities as such. 4. The Settling Defendants shall provide a copy ofthis Consent Decree to all vendors, suppliers, consultants, contractors, agents, and any other company or other organization retained to perfonn any ofthe work required by this Consent Decree. Notwithstanding any retention of contractors, subcontractors, or agents to perfonn any work required under this Consent Decree, the Settling Defendants shall be responsible for ensuring that all work is perfonned in accordance with the requirements ofthis Consent Decree. In any action to enforce this Consent Decree, the Settling Defendants shall not assert as a defense the failure oftheir officers, directors, employees, servants, agents, or contractors to take actions necessary to comply with this Consent Decree, unless it is detennined to be a Force Majeure Event and satisfies the Force Majeure provisions ofthis Consent Decree. 

### III. DEFINITIONS 5. A "30-day Rolling Average Emission Rate" shall be detennined by calculating an arithmetic average ofall hourly emission rates in Ibs/MMBtu for the current Operating 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, shutdown and Malfunction periods within each Operating Day. A Malfunction shall be excluded from this Emission Rate, however, ifit is detennined to be a Force Majeure Event and satisfies the Force Majeure provisions ofthis Consent Decree. The reference methods for determining S02 and NOx Emission Rates shall be those specified in 40 C.F.R. Part 75, Appendix F.

4

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6. A "30-day Rolling Average Removal Efficiency" means the percent reduction in the
mass ofa pollutant achieved by a Unit's pollution control device over a 30-0perating 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 the Unit's inlet 30-day Rolling Average Emission Rate, and thenmultiplying by 100. A new 30-day Rolling Average Removal Efficiency shall be calculated for each new Operating Day, and shall include all start-up, shutdown and Malfunctionperiods with each Operating Day. A MalfWlction shall be excluded from this Removal Efficiency, however, ifit is determined to be a Force Majeure Event and satisfies the Force Majeure provisions ofthis Consent Decree. The reference method for determining boththe inlet and outlet 30-day Rolling Average Emission Rate, for the purposes ofcalculating the S02 30-day Rolling Average Removal Efficiency, shall be that specified in 40 C.F.R. Part 75, Appendix F. 7. "CEMS" or "Continuous Emission Monitoring System," means, for obligations involving NOx and S02 Wlder this Consent Decree, the devices defined in 40 C.F.R. § 72.2, and installed and maintained as required by 40 C.F.R. Part 75. 8. "Clean Air Act" or "Act" means the federal Clean Air Act, 42 U.S.c. §§7401-767Iq, and its implementing regulations. 9. "Consent Decree" means this Consent Decree. 10. "Emission Rate" for a given pollutant means the number ofpOWlds ofthatpollutant emittedpermillion Britishthermal Wlits ofheat input (lb/MMBtu), measured in accordance with this Consent Decree. II. "EPA" means the United States Environmental Protection Agency.

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12. "ESP" means electrostatic precipitator, a pollution control device for the reduction of PM. 13. "Flue Gas Desulfurization System" or "FGD" means a pollution control device that employs flue gas desulfurization technology, including an absorber utilizing lime, flyash, or limestone slurry, for the reduction ofsulfur dioxide emissions. 14. "Fossil Fuel" means any hydrocarbon fuel, including coal, petroleum coke, petroleum oil, or natural gas. 15. "lbIMMBtu" means onepound ofa pollutantper million Britishthermal units ofheat input. 16. "Malfunction" means malfunction as thatterm is defined under 40 C.F.R. § 60.2 (July 1,2004). 17. "MW" means a megawatt or one million Watts. 18. "Milton R. Young Station" means, for purposes ofthis Consent Decree only, the Settling Defendants' electric generating Units near Center, North Dakota, which currently consist oftwo lignite-fired cyclone units. Unit 1has a nominal net rating of235 MW. Unit 2 has a nominal netrating of440 MW. "MiltonR. Young Station" also includes the Settling Defendants' proposed Unit 3, with a proposed net rating of600 MW. The Settling Defendants anticipate submitting a permit to construct application on or before June 1, 2009. Subject to NDDH's permit to constructreviewprocess, the Unit 3 permit is anticipated to be issued by December 31, 2010, construction is expected to commence on orbefore December 31,2012, and operation is expected to commence onorbefore December 31, 2015. 19. "NDDH" shall mean the North Dakota Department ofHealth.

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20. "Netting" shall meanthe process ofdetermining whether a particularphysical change or change in the method ofoperation ofa major stationary source results in a net emissions increase, as that term is defined at40 C.F.R. § 52.21(b)(3)(i) and Chapter 33-15-15 of the North DakotaAdministrative Code (Feb. 1,2005). 21. "NO " means oxides ofnitrogen, measured in accordance with the provisions ofthis x Consent Decree. 22. "NOx Allowance" means an authorization or credit to emit a specified amount of NOx that is allocated orissued under anemissions trading or marketablepermitprogram ofany kind established under the Act or a State ImplementationPlan. The Parties acknowledge that at the time oflodging ofthis Consent Decree that no NOxAllowance program is applicable to Milton R. Young Station. 23. ''N0x BACT Determination" shall meanthe conclusions made by the NDDH as a result ofreviewing the NOxTop-Down BACTAnalysis. Such determination shall be carried out in accordance with the applicable federal and state statutes, regulations, and guidance cited inthe definition of"NOxTop-Down BACT Analysis," below, and shall include the selection ofcontrol technology to be installed onUnits 1 and 2 and 30-day Rolling Average Emission Rates applicable to Units 1 and 2 and to be continuously complied withby the Settling Defendants. 24. "NO Top-Down BACT Analysis" shall mean a study prepared bythe Settling x Defendants to identify the emission limits required by 42 U.S.C. § 7475(a)(4) and 40 C.F.R. 

### § 52.210)(3), defined by 42 U.S.C. 

### § 7479(3) and 40 C.F.R. §52.21(b)(12), and expressed as a 30-Day Rolling Average NOx Emission Rate. The study shall be carried out in accordance with the provisions ofChapter B ofEPA's "New Source Review Workshop Manual-Prevention of

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Significant Deterioration and Nonattainment Area Permitting," (Draft October 1990) ("EPA's NSRManual"). The study shall not include any other elements ofPSDpermitting required by other chapters ofEPA's NSR Manual (notwithstanding any cross-reference in Chapter B to such other chapters), 40 C.F.R. § 52.21, orN.D. ADMIN. CODE §33-15-15-01.2. 25. "Over-fire Air" means a technology to reduce NOx formation in a Unit boiler by directing a portion ofthe airto be combustedthroughports above the level ofthe cyclones in the furnace. 26. "Operating Day" means any calendar day on which a Unit fires fossil fuel. 27. "Parties" means the United States ofAmerica, the State ofNorth Dakota, and the Settling Defendants. "Party" means one ofthe four named "Parties." 28. "Plant-Wide 12-Month Rolling Average Tonnage" means the sum ofthe tons ofthe pollutant in question emitted from the Milton R. Young Station in the most recent complete month and the previous eleven (11) months. A newPlant-Wide 12-Month Rolling Average Tonnage shall be calculated for each new complete month in accordance with the provisions of this Consent Decree. The calculation ofeach Plant-Wide 12-MonthRolling Average Tonnage shall include the pollutants emitted during periods ofstartup, shutdown, and Malfunction within each calendar month, unless the Malfunction event is also deemed a "Force Majeure Event" as defined in Section XIV ofthis Consent Decree (Force Majeure), in which case such emissions shall be excluded. 29. "Plant-Wide Tonnage for One Calendar Year" means the sum ofthe tons ofthe pollutant in question emitted from the Milton R. Young Station in any 12-Month calendaryear. A new Plant-Wide Tonnage for One Calendar Year shall be calculated for each new calendar


### 8

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year. The calculation ofeach Plant-Wide Tonnage for One Calendar Year shall include the pollutants emitted during periods ofstartup, shutdown, and Malfunction within each 12-Month calendar year, unless the Malfunction event is also deemed a "Force Majeure Event" as defined in SectionXIV ofthis Consent Decree (Force Majeure), in which case such emissions shall be excluded. 30. "Plant-Wide Tonnage for the Annual Average ofTwo Calendar Years" means the
sum ofthe tons ofthe pollutant in question emitted from the Milton R. Young Station in any two consecutive 12-monthcalendar years, divided by two. A new Plant-Wide Tonnage for the Annual Average ofTwo Calendar Years shall be calculatedfor each new complete 12-month calendaryear. The calculation ofeach Plant-Wide Tonnage for the Annual Average ofTwo Calendar Years shall include the pollutants emitted during periods ofstartup, shutdown, and Malfunction within each 12-Monthcalendar year, unless the Malfunction event is also deemed a "Force Majeure Event" as defined in SectionXIV ofthis Consent Decree (Force Majeure), in which case such emissions shall be excluded. 31. "PM" means total particulate matter, measured in accordance with the provisions of this Consent Decree. 32. "PM CEMS" or "PM Continuous Emission Monitoring System" means, as specified in Section VI (PM Emission Reduction and Controls) ofthis Consent Decree, the equipmentthat samples, analyzes, measures, and provides, by readings taken at frequent intervals, an electronic
orpaperrecord ofPM emissions. 33. "PMEmission Rate" means the average number ofpounds ofPMemittedper million Britishthermal units ofheatinput ("lbs/MMBtu") from the Unit stack, as measured in an annual


### 9Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 13 of 41

stacktest from the Unit stack, in accordance with the reference method set forth in 40 C.F.R. Part 60, Appendix A, Method 5 (filterable portion only) or Method 17 (filterable portion only). 34. "Prevention ofSignificant Deterioration" or "PSD" means theprevention of significant deterioration ofair quality programunder Part C ofSubchapter I ofthe Clean Air Act, 42 U.S.C. §§ 7470

- 7492, and 40 C.F.R. Part 52. 35. "Project Dollars" means the Settling Defendants' expenditures and payments incurred ormade in carrying out the Projects identified in Section VIII (Additional Injunctive Relief) ofthis Consent Decree to the extentthat such expenditures orpayments both: (a) comply withthe requirements set forth in Section VIII (Additional Injunctive Relief) ofthis Consent Decree; and (b) constitute (i) the Settling Defendants' direct payments for suchprojects, (ii) the Settling Defendants' external costs for contractors, vendors, and equipment, (iii) the Settling Defendants' internal costs consisting ofemployee time, travel, or out-of-pocket expenses specifically attributable to these particularprojects and documented in accordance with Generally Accepted Accounting Principles ("GAAP"), or (iv) the discounted present value ofthe cash payments made by the Settling Defendants under a contract with another entityto carry out the project. 36. "RichReagent Injection" means a technology that injects reagent, such as ammonia
orurea, into a Unit boiler to react with and reduce NOx emissions. 37. "Selective Catalytic Reduction" means a pollution control device for reducing NO emissions through the use ofselective catalytic reduction technology. 38. "SelectiveNon-Catalytic Reduction" means a pollution control device for reducing NOx emissions through the use ofselective non-catalytic reductiontechnology.
10 x

### Case 1**:06-cv-00034~DLH-CSM** 

### Document 2 Filed 04/24/2006 Page 14 of41

39. "Settling Defendants" means MinnkotaPower Cooperative, Inc., and Square Butte Electric Cooperative. 40. "SOtmeans sulfur dioxide, measured in accordance with the provisions ofthis ConsentDecree. 41. "S02 Allowance" means "allowance" ofS02as defined at 42 U.S.C. § 7651a(3): "anauthorization, allocated to an affected Unit by the Administrator ofEPA under Subchapter IV ofthe Act, to emit, during or after a specified calendar year, one ton ofsulfur dioxide." 42. "Title V Permit" means the permitrequired ofthe Settling Defendants' major
sources under Subchapter V ofthe Act, 42 U.S.C. §§ 7661-7661e. 43. "Unit"means, for the purposes ofthis ConsentDecree, collectively, the coal crusher, stationary equipmentthat feeds coal to the boiler, the boilerthat produces steam for the steam turbine, the steam turbine, the generator, the equipment necessary to operate the generator, steam turbine and boiler, and all ancillary equipment, including pollution control equipment and systems necessary for the production ofelectricity. Anelectric utility steam generating station may comprise one ormore Units. IV. S02 EMISSION REDUCTIONS AND CONTROLS A. S02 Emission Controls 1. New FGDInstallations atMilton 

### R. Young Station Unit 1 44. No later than December 31, 2010, the Settling Defendants shall elect to install either
a wet FGD or a dry FGD (or equivalent S02 control technology approved pursuantto Paragraph 46) at Unit 1, and shall notify the Plaintiffs in writing as to which optionthe Settling Defendants have elected for this Unit.

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45. Beginning no later than December 31, 2011, the Settling Defendants shall install and
commence continuous operation ofthe FGD (or equivalent S02 control technology approved pursuant to Paragraph 46) elected above onUnit 1, and shall achieve and thereafter maintain:
a. Ifthe Settling Defendants elect to install a wet FGD, a 30-Day Rolling Average Removal Efficiency for S02 at Unit 1ofat least ninety-five percent (95%), subject to the provisions ofParagraph 49; b. Ifthe Settling Defendants elect to install a dry FGD, a 30-Day Rolling Average Removal Efficiency for S02 at Unit 1ofat least ninety percent (90%). 46. With prior written notice to and written approval from EPA and the State, the Settling Defendants may, in lieu ofinstalling and operating an FGD at Unit 1, install and operate
an altern,ative S02 control technology atthis Unit that achieves and maintains a 30-Day Rolling Average Removal Efficiency for S02ofat least ninety five percent (95%), unless Defendants demonstrate, and Plaintiffs agree, that the alternative control technology will provide significant additional multi-pollutant reductions, in which case Settling Defendant shall achieve and maintain a 30-Day Rolling Average Removal Efficiency for S020fat least ninety percent (90%). 

### 2. FGD Uperades for Milton R. Youne StationUnit 2 47. No laterthan December 31, 2010, the Settling Defendants shall design and upgrade the FGD on Unit 2. Beginning no later than this same date, the Settling Defendants shall also achieve and thereaftermaintain a 30-Day Rolling Average Removal Efficiency for S02 at Unit 2 ofat least ninety percent (90%), subject to the provisions ofParagraph 49.

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### 3. Continuous Operation ofS02 Controls 48. The Settling Defendants shall continuously operate eachFGD (or equivalent S02 control technology approved pursuantto Paragraph46) covered under this Consent Decree at all times that the Unit it serves is in operation, consistent withthe technological limitations, manufacturers' specifications, and good engineering and maintenance practices for the FGDs, or equivalenttechnology, for minimizing emissions to the extentpracticable. The Settling Defendants need not operate an FGD system during periods ofMalfunction ofthe FGD, or during periods ofMalfunction ofthe Unit that have a significant adverse impact onthe operation ofthe FGD, provided that the Settling Defendants satisfy the requirements for a Malfunction as setforth in Paragraph 138 (Malfunctions). As set forth in Paragraph 138, a Malfunction may also constitute a Force Majeure Event ifitmeets the requirements for a Force Majeure Event in SectionXIV (Force Majeure) ofthis ConsentDecree. 

### 4. Maximizine S02 Emission Reductions while Minimizine Ice Formation Durine

### Wintertime Operations ofFGDs 49. In light ofthe potential for substantial and dangerous ice formation on emission stacks utilizing wetFGDs as a result ofthe particularly severe winter weather conditions in North Dakota, the Settling Defendants shall, by December 31, 2006, submitto EPA and NDDH for review and approval an evaluation oftechnologies and bestmanagementpractices for minimizing and eliminating ice formation onthe stacks while minimizing any effect on emission reductions at any Units served orto be served by a wet FGD. Suchevaluation shall be performed by an independent contractor, and shall include an analysis ofthe feasibility, effectiveness, reliability, energy impacts, and economic costs ofsuch technologies and best managementpractices. In their submittal, the Settling Defendants shall evaluate such 13

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technologies and best management practices, and shall propose either available technologies, bestmanagement practices, orboth.
a. Upon EPA's andNDDH's approval ofthe Settling Defendants' evaluation, EPA and NDDH shall provide the Settling Defendants with a written determination regarding an available technology and best management practices. Within 

### 90 days after the installation or upgrade of
a wet FGD pursuant to this Consent Decree, the Settling Defendants shall
commence implementation ofEPA's and NDDH's determination, subject to the Dispute Resolution procedures setforth in Paragraphs 139 through 146 ofthis Consent Decree. b. The Settling Defendants shall include in the periodic compliance reports required pursuant to Section XI (Periodic Reporting) ofthis Consent Decree, a summary ofthe effectiveness ofany technologies and best management practices in minimizing and eliminating ice formation on the stacks while minimizing any effect on emission reductions at any Units servedby a wet FGD at the Milton R. Young Unit 2. B. Tonnaee Limits for 

### S02 Emissions 

### 50. The Settling Defendants shall comply with the following S02 emission limitations for the Milton R. Young Station:
a. Beginning January 1,2006, the Settling Defendants shall not emit more than 31,000 tons ofS02 per year based on a Plant-Wide Tonnage for the Annual Average ofTwo Calendar Years;

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b. Beginning January 1,2011, the Settling Defendants shall not emit more than 26,000 tons ofS02 peryear based on a Plant-Wide Tonnage for One Calendar Year;
c. Beginning January 1, 2012, and each yearthereafter, the Settling Defendants shall not emit more than 11,500 tons ofS02 peryear based on
a Plant-Wide Tonnage for the Annual Average ofTwo Calendar Years; and d. In the eventthat Milton 

### R. Young Unit 3 is not operational by December 31, 2015, then beginning January 1, 2014, and eachyearthereafter, the Settling Defendants shall not emit more than 8,500 tons ofS02 peryear based on a Plant-Wide Tonnage for the Annual Average ofTwo Calendar Years. 51. Beginning on the date ofentry ofthis Consent Decree, and priorto the Settling Defendants' implementation ofEPA's and NDDH's determination pursuantto Paragraph 49, above, the Settling Defendants shall continue to implement practices, to the extentpracticable, to minimize and eliminate ice formation on the stacks while minimizing any effect on emission reductions at Milton 

### R. Young Unit 2. 52. Notwithstanding the foregoing, the Settling Defendants may submit to EPA and NDDH a petition for a higher S02 emissions limitation thanthe 31,000 ton and 26,000 ton limits noted in Subparagraphs 50(a) and (b), above, ifthe Settling Defendants can demonstrate that they are unable to comply with such limitation giventhe energy demands oftheir cooperative, and despite utilization ofbest managementpractices and operation ofthe Milton 

### R. Young Unit

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2 FGD to minimize S02 emissions to the maximum extent practicable. EPA's and NDDH's disapproval ofany suchpetition shall be subject to the dispute resolution provisions in Section XV (Dispute Resolution) ofthis Consent Decree. 53. The Settling Defendants shall not use S02 Allowances 

### or credits to comply with the S02 emissions limitations set forth 

### inParagraph 50. 

### C. Surrender of

### S02 Allowances 54. Forpurposes ofthis Subsection, the "surrender ofallowances" means permanently surrendering allowances from the accounts administered by EPA for Units 1and 2-andfrom Unit 3 to the extentthat S02 Allowances are allocated by EPA to that Unit

- so that such S02 Allowances cannever be used to meet any compliance requirement under the CleanAir Act, the North Dakota State ImplementationPlan, 

### or this Consent Decree. 55. Foreachyear specified below, the Settling Defendants shall surrender to EPA, or transfer to a non-profit third party selected by the Settling Defendants for surrender, S02 Allowances that have been allocated to the Milton R. Young Station for the specified calendar year: Calendar Year Amount 2012-2015 4,346 Allowances 2016-2018 8,693 Allowances 2019 12,170 Allowances 2020 and thereafter 14,886 Allowances ifMilton R. Young Units 1,2, and 3 (as proposed) are operational by December 31, 2015, and 17,886 Allowances ifonly Milton R. Young Units 1 and 2 are operational by December 31, 2015

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The Settling Defendants shall make such surrender annually, within forty-five (45) days oftheir receipt from EPA ofthe Annual DeductionReports for S02' Any surrenderneed not include the specific S02 Allowances that were allocated to the Settling Defendants, so long as the Settling Defendants surrender S02 Allowances that are from the same year or an earlieryear and that are equal to the numberrequired to be surrenderedunderthis Paragraph. The requirements in this Subsection (IV(C)) ofthe Consent Decree pertainingto the Settling Defendants' use and retirement ofS02 Allowances are permanent injunctions not subjectto any termination provision ofthis Decree. 56. Ifany S02 Allowances are transferred directly to a non-profitthird pqTty, the Settling Defendants shall include a description ofsuchtransfer inthe next report submittedto EPA and NDDH pursuantto SectionXI (Periodic Reporting) ofthis Consent Decree. Suchreport shall: (i) provide the identity ofthe non-profit third-party recipient(s) ofthe S02 Allowances and a listing ofthe serial numbers ofthetransferred S02Allowances; and (ii) include a certificationby the third-party recipient(s) stating thatthe recipient(s) will not sell, trade, or otherwise exchange any ofthe allowances and will not use any ofthe S02 Allowances to meet any obligation imposed by any environmental law. No later thanthe third periodic report due afterthe transfer ofany S02 Allowances, the Settling Defendants shall include a statementthat the third-party recipient(s) surrendered the S02Allowances for permanent surrender to EPA in accordance with the provisions ofParagraphs 54 and 55 within one (1) year after the Settling Defendants transferred the S02 Allowancesto them. The Settling Defendants shall nothave complied with the S02 Allowance surrender requirements ofthis Paragraphuntil all third-party recipient(s) shall have actually surrendered the transferred S02 Allowances to EPA.
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57. For all S02 Allowances surrendered to EPA, the Settling Defendants orthe third-party recipient(s) (as the case may be) shall first submit an S02 Allowance transfer request form to EPA's Office ofAir and Radiation's CleanAir Markets Division directing the transfer of such S02 Allowances to the EPA Enforcement Surrender Account or to any otherEPA account that EPA may direct in writing. As part ofsubmitting these transfer requests, the Settling Defendants or the third-party recipient(s) shall irrevocably authorize the transfer ofthese S02 Allowances and identify

- by name ofaccount and any applicable serial orother identification numbers or stationnames - the source and location ofthe S02 Allowances being surrendered. 

### D. General S02 

### Provisions 58. In determining Emission Rates for S02' the Settling Defendants shall use CEMS in accordance with those reference methods specified in40 C.F.R. Part 75. 59. Forthe purpose ofcalculating the 30-Day Rolling Average Removal Efficiency, the outlet S02 Emission Rate and the inlet S02 Emission Rate shall be determinedbased onthe data generated in accordance with 40 C.F.R. Part 75 (using S02 CEMS data from boththe inlet and outlet ofthe control device). 60. Ifany Unit subjectto this Consent Decree is constructed to allow any flue gas to bypass the S02 pollution control equipment, the outlet 30-Day Rolling Average Emission Rate shall be detennined from S02 CEMS located after the by-pass return, andthe inlet 30-Day Rolling Average EmissionRate shall be determined from S02 CEMS located before the by-pass.

18

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 22 of41

V. NOx EMISSION REDUCTIONS AND CONTROLS A. Phase I NOxEmissions Reductions and Controls 61. No later than December 31, 2007, the Settling Defendants shall install and
commence continuous operation ofOver-fire Air onUnit 2 at the Milton R. Young Station. 62. No later than December 31, 2009, the Settling Defendants shall install and
commence continuous operation ofOver-fire Air onUnit 1at the Milton R. Young Station. 63. With prior writtennotice to and written approval from EPA and NDDH, the Settling Defendants may, in lieu ofinstalling and operating the NOx controls required by Paragraphs 61
or 62, install and operate equivalent technology that will achieve a NOxemissionrate ofno greaterthan 0.36 lblMMBtu based on a 30-Day Rolling Average Emission Rate. B. Phase II NOx Emissions Reductions and Controls 64. The Phase II 30-Day Rolling Average NOxEmission Rates shall be determined in accordance with the procedures set forth inthis subsection. 65. Within six months after entry ofthis Consent Decree, the Settling Defendants shall submit to NDDH for review and approval, and to EPA for review, a NOxTop-Down BACT Analysis for each existing coal-fired Unit atthe Milton R. Young Station. The Settling Defendants' NO Top-Down BACT Analysis shall include all information necessary for NDDH x to make a BACT Determination, and any additional informationrequested by EPA and NDDH. The Settling Defendants' NO Top-Down BACT Analysis shall include an evaluation of x Selective Catalytic Reduction, Selective Non-Catalytic Reduction, Over-fire Air, and Rich Reagent Injection, as well as otherNOx control technologies. This NOx Top-Down BACT Analysis is independent and separate from the Settling Defendants' plans to install one or more 19

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 23 of 41

technologies pursuantto Paragraphs 61 and 62. The Settling Defendants shall retain a qualified contractorto assist in the perfOlmance and completion ofeachNOx Top-Down BACT Analysis. 66. NDDH shall reviewthe Settling Defendants' NOxTop-Down BACT Analysis, and shall develop its BACT Determination, in accordance with applicable federal and state statues, regulations, and guidance, including those cited inthe definition ofaNO Top-Down BACT x Analysis under this Consent Decree. After consultation with EPA, NDDH shall provide to the Parties its BACT Determination for NOxemissions from each existing coal-fired Unit atthe Milton R. Young Station. NDDH's BACT Determination shall include for eachUnitthe specific control technologies to be installed and a specific Phase II 30-Day Rolling Average NOx Emission Rate limitation (lbs/MMBtu). NDDH's BACT Deteffilination shall also address specific NOx emission limitations during Unit startups. NDDH's BACT Deteffilination shall be subjectto the Dispute Resolutionprocedures set forth in Paragraph 

### 147 ofthis Consent Decree. 67. Beginning no later than December 31, 2010, the Settling Defendants shall achieve and maintain the Phase II 30-Day Rolling AverageNOx EmissionRates established by NDDH through its NOxBACT Detennination for Unit 2. Beginning no laterthan December 31, 2011, the Settling Defendants shall achieve and maintain the Phase II 30-Day Rolling AverageNOx EmissionRates established by NDDH through its NOx BACT Detennination for Unit 1. Such Phase II 30-Day Rolling Average NOx Emission Rates shall not affect the Settling Defendants' obligationto also comply withthe Phase I 30-Day Rolling AverageNOx Emission Rates set forth herein. 

## c. Use ofNO Allowances x 

### 68. Except as provided inthis Consent Decree, the Settling Defendants shall not sell or 20Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 24 of 41

trade any surplus NOxAllowances allocated to Units 1, 2, and 3 at the Milton R. Young Station that would otherwise be available for sale ortrade as a result ofthe actions taken by the Settling Defendants to comply with the requirements ofthis Consent Decree. 69. The number ofNOx Allowances that are surplus to the Settling Defendants' NOx Allowance-holding requirements shall be equal to the amount by which the NO Allowances x allocated to the Settling Defendants' Units 1,2, and 3 atthe Milton R. Young Station for a particular year are greater than the total amount ofNOx emissions from those same Units for the
same year. 70. Provided that the Settling Defendants are in compliance with the NO emission x limitations ofthis ConsentDecree, nothing inthis ConsentDecree shall preclude the Settling Defendants from selling ortransferring NOx Allowances allocated to the Milton R. Young Stationthat become available for sale or trade as a result of:
a. activities thatreduce NO emissions from any Unit at the Milton R. Young x Stationpriorto the date ofentry ofthis Consent Decree; b. the installation and operation ofany NO pollution control technology or x technique that is not otherwise required under this Consent Decree;
c. achievement and maintenance ofNOx emissionrates below the emission limits required by Section V (N0x Emissions Reductions and Controls); d. permanent shutdown ofany Unit at the MiltonR. Young Stations not otherwise required by this Consent Decree; and
e. otheremissionreduction measures that are agreed to by the Parties and made enforceable through modifications ofthis Consent Decree; 21

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 25 of 41

so long as the Settling Defendants timely report the generation ofsuch surplus NOx Allowances in accordance with Section XI (Periodic Reporting) ofthis Consent Decree. The Settling Defendants shall be allowed to sell ortransferNOx Allowances equal to the NO emissions reductions achieved for any given year by any ofthe actions specified in x Subparagraphs (b) through (e) only to the extent that the total NOx emissions from all Units at the Milton R. Young Station are below the emissions limits required by this Consent Decree. 71. The Settling Defendants may not purchase orotherwise obtainNOx Allowances from another source for purposes ofcomplying with the requirements ofthis ConsentDecree. However, nothing in this Consent Decree shall preventthe Settling Defendants from purchasing
or otherwise obtainingNO Allowances from another source for purposes ofcomplying with x state or federal Clean Air Actrequirements to the extent otherwise allowed by law. D. General 

### NOx 

### Provisions 72. In determining Emission Rates for NO ' the Settling Defendants shall use CEMS in x accordance with the reference methods specified in 

### 40 C.F.R. Part 75. 73. At any time following the commencement ofoperation ofthe specific NO control x technologies required by the NDDH'sNOx BACT Determination, the Settling Defendants may petition the Plaintiffs to revise the applicable Phase II 30-Day Rolling Average EmissionRate for NOx' In their petition, the Settling Defendants shall demonstrate and explain why they cannot consistently achieve and maintain the 30-Day Rolling Average Emission NO Rate x required by the NDDH'sNOx BACT Determination for the Unit in question, considering all relevant information. The Settling Defendants shall include in such petition a proposed 

### 22

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 26 of 41

alternative 30-Day Rolling Average Emission Rate for NOx' The Settling Defendants shall also retain a qualified contractor to assist in the preparation and completion ofthe petition for an alternative 30-Day Rolling Average EmissionRate for NOx' The Settling Defendants shall provide with eachpetition all pertinent documents and data. Ifthe Plaintiffs disapprove the alternative 30-Day Rolling Average Emission Rate for NOx proposed by the Settling Defendants, such disapproval shall be subjectto the provisions ofSection XV (Dispute Resolution) ofthis Consent Decree. The Settling Defendants shall submit any petition for any Unit under this Paragraph no later than six (6) months after the final compliance date specified for that Unit in Paragraph 67. 74. The Settling Defendants shall continuously operate all NOx control technology installed on the Milton R. Young Units at all times that the Unit served is in operation, consistent with the technological limitations, manufacturers' specifications to the extent practicable, and good engineering and maintenance practices for the NOxcontrol technology. The Settling Defendants need not operate NOx control technology during periods ofMalfunction ofthe NOx control technology, orduring periods ofMalfunction ofthe Unit that have a significant adverse impact onthe operation ofthe NOx control technology, provided that the Settling Defendants satisfy the requirements for Malfunction Events as set forth inParagraph 138 (Malfunction Events). As set forth in Paragraph 138, a Malfunction may also constitute a Force Majeure Event ifit meets the requirements for a Force Majeure Event in Section XIV (Force Majeure) of this Consent Decree. 

### VI. PMEMISSION REDUCTIONS AND CONTROLS A. Optimization of

### PM Emission Controls 23

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 27 of 41

75. Within ninety (90) days after entry ofthis ConsentDecree and continuing thereafter, the Settling Defendants shall continuously operate each PM Control Device onthe Milton R. Young Station Units to maximize PM emissionreductions, consistent with the operational and maintenance limitations ofthe units. Specifically, the Settling Defendants shall, at a minimum: (a) energize each section ofthe ESP for each Unit, regardless ofwhether that action is needed to comply with opacity limits; (b) maintain the energy or power levels delivered to the ESP for each Unit to achieve the greatest possible removal ofPM; (c) make best efforts to expeditiously repair and return to service transformer-rectifier sets when they fail; (d) inspect for, and schedule for repair, any openings in ESP casings and ductwork to minimize air leakage; (e) optimize for Unit 1the plate-cleaning and discharge-electrode cleaning systems for the ESP by varying the cycle time, cycle frequency, rapper-vibrator intensity, and number ofstrikes per cleaning event; and (f) optimize for Unit 

### 2 the plate-cleaning system for the ESPby varying the cycle time and frequency ofthe cycle. B. Compliance with PM Emission Limits 76. Within oneyear ofentry ofthe Consent Decree, and continuing annually thereafter, the Settling Defendants shall demonstrate, in accordance with Paragraphs 80 and 81, that Unit 2 at the Milton R. Young Station can achieve and thereafter maintain a PM Emission Rate ofno greater than 0.030 Ib/MMBtu. 77. No later than one-hundred-eighty (180) days after the Settling Defendants install and
commence continuous operation ofthe FOD (or equivalent S02 control technology approved pursuant to Paragraph 46) onUnit 1 at the Milton R. Young Station, and continuing annually thereafter, the Settling Defendants shall demonstrate, in accordance with Paragraphs 80 and 81, 24

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 28 of 41

that Unit 1 at the Milton R. Young Station can achieve and thereafter maintain a PM Emission Rate of:
a. No greater than 0.030 IblMMBtu ifthe Settling Defendants install a wet FGD; and b. No greater than 0.015 lblMMBtu ifthe Settling Defendants install a dry FGD. 78. The Settling Defendants shall continuously operate each ESP or baghouse at the Milton R. Young Station at all times that each Unit the ESP orbaghouse serves is combusting Fossil Fuel, consistent with good engineering practices for PM control, to minimize PM emissions to the extentpracticable. The Settling Defendants need not operate anESP or baghouse during periods ofMalfunction ofthe ESP or baghouse, or during periods of Malfunction ofthe Unit that have a significant adverse impact on the operation ofthe ESP or baghouse, provided that the Settling Defendants satisfy the requirements for Malfunction Events
as set forth in Paragraph 138 (MalfunctionEvents). As setforth in Paragraph 138, a Malfunction may also constitute a Force Majeure Event ifitmeets the requirements for a Force Majeure Event in Section XIV (Force Majeure) ofthis Consent Decree. 79. Within 180 days after the Settling Defendants complete the installation ofany equipmentrequired by Paragraphs 76 and 77, the Settling Defendants shall conduct a performancetest demonstrationto ensure that the PM emission limitation set forth in Paragraphs 76 and 77 can be consistently achieved inpractice, including all requirements pertaining to proper operation and maintenance ofcontrol equipment. Ifthe performance demonstration shows that the control equipment cannot consistently meetthe required PM emission limitation, the Settling Defendants shall submit a report to EPA andNDDHproposing alternative emission 

### 25

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 29 of41

limits. 

### C. PM Monitorin& 1. PM StackTests 80. Beginning in calendar year 2006, and continuing annually thereafter, the Settling Defendants shall conduct PM performance testing on Milton R. Young Station Units 1 and 2. Such annual performance tests may be satisfied by stack tests conducted in a givenyear, in accordance with the Settling Defendants' permit from the State ofNorth Dakota. 81. In determiningthe PM Emission Rate, the Settling Defendants shall use the reference methods specified in 40 C.F.R. Part 60, App. A, Method 5 (filterable portion only) or40 C.F.R. Part 60, App. A, Method 17 (filterable portion only), using stack tests, or alternative methods that are requested by the Settling Defendants and approved by EPA. The Settling Defendants shall also calculate the PM Emission Rates from annual stacktests in accordance with 40 C.F.R. § 60.8(f). In addition, the Settling Defendants shall submit the results ofeach PM stack test to NDDH and EPA within forty-five (45) days ofcompletion ofeach test. 

### 2. PMCEMS 82. The Settling Defendants shall install and operate PM CEMS in accordance with Paragraphs 82 through 88 on Unit 2 at the Milton R. Young Station. The PM CEMS shall comprise a continuous particle mass monitor measuring particulate matter concentration, directly
or indirectly, on an hourly average basis and a diluent monitor used to convert the concentration to units ofIb/MMBtu. The Settling Defendants shall maintain, in an electronic database, the hourly average emission values ofall PM CEMS in Ib/MMBtu. The Settling Defendants shall
use reasonable efforts to keep the PM CEMS running and producing data whenever Unit 2 is 26

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 30 of 41

operating. 83. No later than six (6) months after entry ofthis Consent Decree, the Settling Defendants shall submit to EPA andNDDH for review and approval pursuant to Section XII (Review and Approval ofSubmittals) ofthis Consent Decree a plan for the installation and certification ofthe PM CEMS for Milton R. Young Unit 2. 84. No later than one hundred twenty (120) days prior to the deadline to commence operation ofthe PM CEMS, the Settling Defendants shall submit to EPA and NDDH for review and approval pursuant to SectionXII (Review and Approval ofSubmittals) ofthis Consent Decree a proposed Quality Assurance/Quality Control ("QA/QC") protocol that shall be followed in calibrating such PM CEMS. Following EPA and NDDH's approval ofthe protocol, the Settling Defendants shall thereafter operate the PM CEMS in accordance withthe approved protocol. 85. In developing both the plan for installation and certification ofthe PM CEMS and the QA/QC protocol, the Settling Defendants shall use the criteria set forth in EPA's Amendments to Standards ofPerformance for New Stationary Sources: Monitoring Requirements, 69 Fed. Reg. 1786 (January 12,2004). 86. The Settling Defendants shall install and commence operation ofPM CEMS on or before June 30, 2008. 87. By December 31, 2008, the Settling Defendants shall conduct tests and demonstrate compliance with the PM CEMS installation and certificationplan submitted to and approved by EPAandNDDH in accordance with Paragraphs 83 and 84. 88. The Settling Defendants shall operate continuous opacity monitors on Unit 1and 27

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 31 of 41

Unit 2 ofthe Milton R. Ymmg Station at all times those units are in operation. However, ifthe Settling Defendants demonstrate that either one ofthese continuous opacity monitors cannot provide accurate opacity measurement due to the formation ofliquid water droplets in the flue gas ofa stack with a wet POD, in accordance with Question 5.6, Part 75 ofEPA's Emission Monitoring Policy Manual, then the Settling Defendants may submit to EPA and NDDH for review and approval alternative opacity procedures and requirements pursuantto the provisions of40 c.P.R. § 60.13(i)(1). VII. PROHIBITION ON NETTING CREDITS OR OFFSETS FROM REQUIRED CONTROLS 89. Emission reductions generated by the Settling Defendants to comply with the requirements ofthis Consent Decree shall not be considered as a creditable emission decrease for the purpose ofobtaining a netting credit under the Clean Air Act'sNonattainmentNSR and PSD programs. Notwithstanding the preceding sentence, the Settling Defendants may use any emission decreases ofNOx' S02' and PM generated under this ConsentDecree at Units 1 and 2
as creditable decreases for the purpose ofobtaining netting creditfor these pollutants at Unit 3 under the Clean Air Act'sNonattainmentNSR and PSD programs, if:
a. The Settling Defendants submit, as and addendumto its constructionpermit application for Unit 3, an analysis that proposes emissions limits for NOx, S02' and PM that are equivalentto BACT as defined in the 42 U.S.C. § 7479(3), and NDDH issues a federally enforceable permitfor Unit 3 that includes emissions limits that reflect BACT-equivalent level controls atthe time ofconstruction of the Unit, and that are at least as stringent as a 30-Day Rolling Average S02
28

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 32 of41

Removal Efficiency ofat leastninety-five percent 95% (ifthe Settling Defendants install a wet FGD on Unit 3) or 90% (ifthe Settling Defendants install a dry FGD
on Unit 3), a 30-Day Rolling Average NOx Emission Rate not greater than 0.100 IbIMMBtu, and an Emission Rate for PM ofno greater than 0.015 Ibs/MMBtu, provided that, at any time following the commencement ofoperation ofthis new Unit, the Settling Defendants may submit to EPA and NDDH a written petition for a higher 30-Day Rolling Average NOxEmission Rate ifthe Settling Defendants candemonstrate that it cannot achieve such an emissionrate on this
new Unit; b. The Settling Defendantshave been and remain in full compliance withthe plantwide S02 tonnage limitation set forth in Paragraph 50 ofthis Consent Decree and NDDH has issued a federally-enforceable permit for Units 1,2, and 3that will limitthe Plant-Wide Annual Average ofthe Tonnage for Two Calendar Years for S02 at those units to 11,500 tons peryear commencing January 1,2012; and
c. NDDH determines through air quality modeling submitted by the Settling Defendants in accordance with NDDH modeling protocols that the impact on either a PSD increment or on visibility in Class I Areas from the combined emissions at Units 1,2 and 3, afterthe pollution control upgrades and installations required by this Consent Decree are operational, will be less than the impact from the combined emissions atUnits 1and 2 before such controls are operational. 90. Decreases in actual emissions ofNOx' S02' and PM generated under this Consent Decree at Units 1 and 

### 2 qualify as contemporaneous decreases under 40 C.F.R. 

### § 52.21(b)(3)(ii) 29

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 33 of41

(July 1, 2005) for the purpose ofobtaining netting credits for these pollutants atUnit 3, as long
as the Settling Defendants commence construction ofUnit 3 onorbefore December 31, 2012. 91. Nothing in this Consent Decree is intended to affect the application ofSection 33-15­ 15-01.2 ofthe North Dakota Administrative Code regarding the availability ofextensions on the commencement ofconstruction for newly permitted facilities. 92. Nothing in this Consent Decree is intended to preclude the emissionreductions generated underthis Consent Decree from being considered by NDDH and EPA as creditable emission decreases for the purpose ofattainment demonstrations submittedpursuant to Section 110 ofthe Act, 42 U.S.C. § 7410, or in determining impacts onNAAQS or PSD increment. VIII. ADDITIONAL INJUNCTIVE RELIEF 93. The Settling Defendants shall implementthe windturbine project ("Project") described in this Section in compliance withthe approved plans and schedules for such Project and otherterms ofthis Consent Decree. The Settling Defendants shall submitplans for the Projectto the United States for review and approval pursuantto Section XII (Review and Approval ofSubmittals) ofthis Consent Decree in accordance with the schedules set forth inthis Section. Inimplementing the Project, the Settling Defendants shall spend no less than $5.0 million in funds ("Project Dollars") pursuantto the schedule set forth in Paragraph 103. The Settling Defendants shall maintain, and present to the United States, upon request, all documents to substantiate the ProjectDollars expended and shall provide these documents to the United States andNDDH within thirty (30) days ofa request by the United States orNDDH for the documents. 94. The Settling Defendants shall make all plans and reports prepared by the Settling 30

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 

### Page 34 of 41

Defendants pursuant to the requirements ofthis Section ofthe Consent Decreepublicly available without charge. 95. The Settling Defendants shall certify, as part ofthe plan submitted to the United States for the Projectthat, as ofthe date ofthis Consent Decree, the Settling Defendants are not otherwise required by law to perfonnthe Project described in the plan, thatthe Settling Defendants are unaware ofany other person who is required by law to perfonnthe Project, and that the Settling Defendants will not use the Project, orportionthereof, to satisfy any obligations that it may have under other applicable requirements oflaw. 96. The Settling Defendants shall use good faith effortsto secure as much benefit as possible for the ProjectDollars expended, consistent with the applicable requirements and limits ofthis Consent Decree. 97. Regardless ofwhether the Settling Defendants elected (where such election is allowed) to undertake the Projectby itselforto do so by contributing funds to anotherperson or instrumentality that will carry outthe Project, the Settling Defendants acknowledge thatthey will receive credit for the expenditure ofsuch funds as Project Dollars only ifthe Settling Defendants demonstrate that the funds have been actually spent by eitherthe Settling Defendants
orby theperson or instrumentality receiving them (or, in the case ofinternal costs, have actually been incurred by the Settling Defendants), andthat such expenditures met all requirements of this Consent Decree. 98. The Settling Defendants shall receive full credit for their expenditures only to the extent that they do notreceive an offsetting financial oreconomic benefitfrom such expenditures; in detennining howmany ProjectDollarshave been spentby the Settling 31

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 35 of 41

Defendants, the Settling Defendants shall debit any such offsetting fmancial oreconomic benefit received against any ofthe Settling Defendants' expenditures for the Project. 99. Within sixty (60) days following the completion ofthe Project required underthis ConsentDecree, the Settling Defendants shall submit to the United States a report that documents the date that the Project was completed, the Settling Defendants' results of implementingthe Project, including the emissionreductions orother environmental benefits achieved, and the ProjectDollars expended by the Settling Defendants in implementing the Project.100. The Settling Defendants shall not financially benefit to a greater extentthan any other member ofthe general public from the sale ortransfer oftechnology obtained in the course ofimplementing any Project. 101. Project Dollarcredit given for the Project shall reflect the Settling Defendants' net cost in implementingthe Project, and any economic benefit orincome resulting from the Project shall be deducted from the Project Dollar credit given to the Project. 102. Beginning one (1) year after entry ofthis Consent Decree, the Settling Defendants shall provide the United States with semi-annual updates concerning the progress ofthe Project. 103. Within 180 days after entry ofthis Consent Decree, the Settling Defendants shall submit a planto EPA and the State for a Projectto provide their members with electricity generated from wind turbines. The Project shall require the Settling Defendantsto either (a) by December 31, 2012, spend no less than $5,000,000 in Project Dollarsto purchase and install its
own wind turbines, or (b) by December 31, 2009, enterinto a powerpurchase agreement with a provider ofwind energy thatrequires the provider ofwind energy to buildnew wind turbines by 32

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 36 of 41

this same date inthe Settling Defendants' service territory with a capacity ofapproximately 5 MW, and that obligates the Settling Defendants to purchase the entire electric output from the turbines for a period ofno less than 15 years. The power purchase agreement shall have a discounted present value ofcash outflows ofno less than $5,000,000, based on a discount rate of 6.25%. IX. CIVIL PENALTY 104. Withinthirty (30) calendar days after entry ofthis Consent Decree, the Settling Defendants shall pay to the United States a civil penalty in the amount of$425,000. 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 2006V0009 and DO]Case Number 90-5-2-1-07717 andthe civil action case name and case number ofthis action. The costs ofsuchEFT shall be the Settling Defendants' responsibility. Payment shall be made in accordance with instructions providedto the Settling Defendants by the Financial Litigation Unit ofthe U.S. Attorney's Office for the District ofNorth Dakota. Any funds received after 2:00 p.m. EDT shall be credited onthe next business day. Atthe time ofpayment, the Settling Defendants shall provide notice ofpayment, referencing the USAO File Number, the DO]Case Number, and the civil action case name and case number, to the Department ofJustice and to EPA in accordance with Section XVIII (Notices) ofthis Consent Decree. 105. Within thirty (30) calendar days after entry ofthis Consent Decree, the Settling Defendants shall pay to the State a civil penalty in the amount of$425,000. Payment shallbe made in the form ofa certified check or cashier's check, and be payable to "NorthDakota Department ofHealth" Payment shall be sentto the Director, Air Quality Division, North 33

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 37 of41

DakotaDepartment ofHealth, Bismark, North Dakota 58506-5520. To ensure proper credit, the check must reference UnitedStates, etal. v. Minnkota Power Cooperative, etaI., and the civil action case number. 106. Failure to timely pay the civil penalty shall subjectthe Settling Defendants to interest accruing from the date payment is due until the date payment is made atthe rate prescribed by 28 U.S.C. § 1961, and shall render the Settling Defendants liable for all charges, costs, fees, and penalties establishedby lawfor the benefit ofa creditor or ofthe United States in securing payment. 107. Payments made pursuantto this Section are penalties withinthe meaning of Section 162(f) ofthe Internal Revenue Code, 26 U.S.C. § 162(f), and are not tax-deductible expenditures for purposes offederal law. X. RESOLUTION OF CLAIMS A. Resolution ofPlaintiffs' Civil Claims 108. Claims Based on Modifications Occurrin& Beforethe Lod&in& ofConsent Decree. Entry ofthis Consent Decree shall resolve all civil claims ofthe Plaintiffs under:
a. Parts C and D ofSubchapterI ofthe CleanAir Act; b. Section 111 ofthe CleanAir Act and 40 C.F.R. Part 60;
c. Sections 502(a) and 504(a) ofthe CleanAirAct, but only to the extent that such claims are based onthe Settling Defendants' failure to obtain an operating permit thatreflects applicable requirements imposed under Part C ofSubchapter I ofthe Clean AirAct; and d. Chapters 33-15-12 and 33-15-15 ofthe North DakotaAdministrative Code, as 34

### Case 1**:06-cv~00034-DLH-CSM** 

### Document 2 Filed 04/24/2006 Page 38 of 41

well as Chapters 

### 33-15-01 and 

### 33-15-14 as they relate to Chapters 

### 33-15-12 and 

### 33-15-15, and all relevantprior versions ofthese regulations; that arose from any modification that commenced at the Milton R. Young Stationpriorto the date oflodging ofthis Consent Decree, including but not limited to modifications alleged in the Complaint filed by the Plaintiffs inthis civil action. 

### 109. Claims Based on Modifications After theLodein2 ofConsentDecree. Entry of this Decree also shall resolve all civil claims ofthe Plaintiffs for pollutants regulated under:
a. Parts C and D ofSubchapter I ofthe Clean Air Act, and under regulations promulgatedthereunder as ofthe date oflodging ofthis Decree; and b. Chapter 

### 33-15-15 ofthe North Dakota Administrative Code, as well as Chapter 

### 33-15-01 and 

### 33-15-14 as they relate to Chapter 

### 33-15-15; where such claims are based on a modification completed before December 

### 31, 2015 and: i) commenced at either Unit 1orUnit 2 atthe Milton

### R. Young Station after lodging ofthis Decree; orii) that this ConsentDecree expressly directs the Settling Defendants to undertake. The term "modification" as used in this Paragraph shall have the meaning thatterm is given under the Clean Air Act statute as it existed onthe date oflodging ofthis Decree. 

### 110. Reopener. The resolution ofthe civil claims ofthe United States providedby this Subsection is subject to the provisions ofSection B ofthis Section. 

### B. PursuitofPlaintiffs' Civil Claims Otherwise Resolved Ill. Bases for PursuingResolved Claims. Ifthe Settling Defendants:
a. fail by more than ninety 

### (90) days (which may be extended by written agreement ofthe Parties) to complete installation orupgrade, and 

### 35

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 39 of 41

commence operation, ofany emission control device, unless thatfailure is excused under the Force Majeure provisions ofthis ConsentDecree; or b. emit more S02 than allowed by the following tonnage limitations: 1. 31,000 tons ofS02 based on a Plant-Wide l2-Month Rolling Average Tonnage beginning January 1,2006; 2. 26,000 tons ofS02 based on a Plant-Wide 12-Month Rolling Average Tonnage beginning January 1,2011; 3. 11,500 tons ofS02based on a Plant-Wide 12-Month Rolling Average Tonnage beginning January 1,2012; and 4. 8,500 tons ofS02 per yearbased on a Plant-Wide 12-Month Rolling Average Tonnage beginning January 1,2014,in the event that Milton

### R. Young Unit 3 is notoperational by December 31, 2015; then the Plaintiffs may pursue any claim that is otherwise covered by the covenant not to
sue orto bring administrative action under Subsection A ofthis Section for any claims based on modifications undertaken at a Unit where the modification(s) on which such claim is based was commenced after lodging ofthe Consent Decree and within the five years preceding the violation or failure specified in this Paragraph. 112. Additional Bases for Pursuin2 Resolved Claims for Modifications. The Plaintiffs may also pursue claims arising from a modification (or collection ofmodifications) at a Unit that is otherwise covered by the covenant not to sue orto bring administrative action under Subsection A ofthis Section, ifthe modification (or collection ofmodifications) at the Unit on 36

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 40 of 41

which such claims are based (a) was commenced after lodging ofthis Consent Decree, and (b) individually (or collectively) increased the maximumhourly emission rate ofthat Unit for NOx or S02 (as measuredby 40 C.F.R. § 60.14 (b) and (h)) by more thantenpercent (10%). 

### XI. 

### PERIODIC REPORTING 113. Beginning thirty (30) days after the end ofthe first full calendar quarter following the entry ofthis Consent Decree, continuing ona semi-annual basis until December 31, 2020, and in addition to any other express reporting requirement inthis Consent Decree, the Settling Defendants shall submitto EPA and the State a progress report, containing
a. all informationnecessary to determine compliance withthis Consent Decree, including but not limited to informationrequired to be included in the reports pursuantto Paragraphs 49, 55, 56, 70, and 99; and b. all information indicating thatthe installation and commencement ofoperation for
a pollution control device may be delayed, including the nature and cause ofthe delay, and any steps taken by the Settling Defendants to mitigate such delay. 114. In any periodic progress report submittedpursuantto this Section, the Settling Defendants may incorporate by reference informationpreviously submitted under their Title V permitting requirements, provided that the Settling Defendants attach the Title V permitreport (orpertinentportions ofsuchreport) andprovide a specific reference to the provisions ofthe Title V pennitreportthat are responsive tothe informationrequired in the periodic progress report. 115. In additionto the progress reports required pursuantto this Section, the Settling Defendants shall provide a writtenreportto Plaintiffs ofany violation ofthe requirements ofthis 37

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ConsentDecree, including exceedances ofthe 30-Day Rolling Average Removal Efficiencies, 30-day Rolling Average Emission Rates, PMEmission Rates, and Plant-Wide Tonnage limits within ten (10) business days ofwhenthe Settling Defendants knew or should have known of any such violation. Inthis report, the Settling Defendants shall explain the cause or causes ofthe violation and all measures taken orto betakenby the Settling Defendants to prevent such violations inthe future. Exceedances ofthe PMEmission Rates shall be reported within fortyfive (45) days ofthe completion ofthe stack test that demonstrates such non-compliance. Inthis report, the Settling Defendants shall explainthe cause or causes ofthe violation and all measures taken orto betaken by the Settling Defendantsto prevent such violations in the future. 116. Each Settling Defendant'sreport shall be signedby each ofthe Settling Defendant'sEnvironmental Manager or, in his orher absence, the Settling Defendant's Vice President ofGeneration, orhigherranking official, and shall contain the following certification: This informationwas prepared either by me orunder my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based onmy evaluation, orthe direction and my inquiry ofthe person(s) who manage the system, orthe person(s) directly responsible for gathering the information, I hereby certify underpenalty oflaw that, to the best ofmy knowledge and belief, this information is true, accurate, and complete. I understand that there are significantpenalties for submitting false, inaccurate, or incomplete information to the United States.

38

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XII. REVIEW AND APPROVAL OF SUBMITTALS 117. The Settling Defendants shall submit each plan, report, or other submission to EPA and the State whenever such a document is required to be submitted for review or approval pursuant to this Consent Decree. EPA and the State, to the extent thatthis Consent Decree provides forjointapproval with the State, may approve the submittal ordecline to approve it and provide written comments. Within sixty (60) days ofreceiving written comments from EPA, the Settling Defendants shall either: (a) revise the submittal consistent with the written comments and provide the revised submittal for final approval to EPA and, ifapplicable, to the State; or (b) submit the matter for dispute resolution, including the period ofinformal negotiations, under Section XV (Dispute Resolution) ofthis Consent Decree. 118. Uponreceipt ofEPA's final approval ofthe submittal, and the State's final approval, ifapplicable, orupon completion ofthe submittal pursuantto dispute resolution, the Settling Defendants shall implementthe approved submittal in accordance with the schedule specified therein. XIII. STIPULATED PENALTIES 119. For any failure by the Settling Defendants to comply with the terms ofthis Consent Decree, and subject to the provisions ofSections XIV (Force Majeure) and XV (Dispute Resolution) ofthis Consent Decree, the Settling Defendants shall pay, within thirty (30) days after receipt ofwritten demand to the Settling Defendants by the United States, the following stipulated penalties to the United States: 

### Stipulated Penalty (Per day perviolation, unless otherwise specified) Consent Decree Violation
39

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a. Failure to pay the civil penalty as specified in Section IX (Civil Penalty) ofthis Consent Decree $10,000 b. Failure to comply with any applicable NOx emission rate resulting from the State's BACT determination, 30-Day Rolling Average Removal Efficiency for SOz, or Emission Rate for PM, where the violation is less than 5% in excess ofthe limits set forth in this Consent Decree $2,500

c. Failure to comply with any applicable NOx emission rate or removal efficiency resulting from the State's BACT determination, 30-Day Rolling Average Removal Efficiency for SOz, orEmission Rate for PM, where the violation is equal to or greaterthan 5% but less than 10% in excess ofthe limits set forth in this Consent Decree $5,000

d. Failure to comply with any applicableNOx emission rate orremoval efficiency resulting from the State's BACT determination, 30-Day Rolling Average Removal Efficiency for SOz, orEmission Rate for PM, where the violation is equal to or greaterthan 10% in excess ofthe limits set forth inthis Consent Decree $10,000

e. Failure to comply with the Plant-Wide Tonnage Limitations for One Calendar Year orthe Plant-Wide Tonnage Limitations for the Annual Average ofTwo Calendar Years $60,000 perton peryear for the first 100 tons overthe limit, and $120,000 perton per yearfor each additional ton overthe limit 

### f. Failureto install, upgrade, commence operation, or continue operation ofthe NOx, SOz, and PM pollution control devices onany Unit $10,000 during the first 30 days, $27,000 thereafter



# . g. Failure to install or operate CEMS as required in Paragraphs 82 through 88 $1,000 h. Failureto conductannual performance tests of PM emissions, as required by Paragraphs 80 and 81 $1,000 i. Failure to apply for any permitrequired by this Consent Decree $1,000



### 40

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j. Failure to timely submit, modify, or implement, as approved, the reports, plans, studies, analyses, protocols, orother submittals required by this Consent Decree $750 during the first ten days, $1,000 thereafter k. Using, selling, or transferring S02 Allowances, except as permitted 

### in this ConsentDecree the surrender, pursuant to the procedures set forth in Paragraphs 55 through 57 of this Consent Decree, ofS02 Allowances 

### in an amount equal to four times the number ofS02 Allowances used, sold, or transferred in violation ofthis Consent Decree 

### 1. Using, selling ortransferring NOx Allowances except as permitted in Paragraphs 68 through 71 the surrender ofNOx Allowances in an amount equal to four times the number of NOxAllowances used, sold, or transferred in violation ofthis ConsentDecree m. Failure to surrender an S02 Allowance as required by Subsection B (Surrender ofS02 Allowances) of Section IV (S02 Emission Reductions and Controls) (a) $27,500 plus (b) $1,000 per S02 Allowance

n. Failure to undertake and complete any ofthe Projects in compliance with Section VIII (Additional Injunctive Relief) ofthis Consent Decree $1,000 during the first· 30 days, $5,000thereafter

o. Any other violation ofthis Consent Decree $1,000
120. Notwithstanding the foregoing, the Settling Defendants shall not be liable for failure to comply with a 3D-Day Rolling Average Removal Efficiency for S02 ifthe Settling Defendants are in full compliance withthe requirements ofParagraph49 ofthis Consent Decree, such exceedance is due to the Settling Defendants' efforts to reduce ice formation on a wet FGD stackby resorting to a partial bypass oftheir FGD, and the Settling Defendants maintain a 30­ Day Rolling Average Removal Efficiency for S02 ofno less than 83% during suchperiods of 41

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partial bypass. 121. Violation ofan Emission Rate or removal efficiency that is based on a 30-Day Rolling Average is a violation on every day on whichthe average is based. 122. Where a violation ofa 30-Day Rolling Average Removal Efficiency (fromthe same source) recurs within periods ofless than thirty (30) days, the Settling Defendants shall notpay a daily stipulatedpenalty for any day ofthe recurrence for which a stipulatedpenalty has already been paid. 123. All stipulatedpenalties shall begin to accrue on the day afterthe performance is due
or on the day a violation occurs, whichever is applicable, and shall continue to accrue until performance is satisfactorily completed or until the violation ceases. Nothing in this Consent Decree shall prevent the simultaneous accrual ofseparate stipulatedpenalties for separate violations ofthis ConsentDecree. 124. The Settling Defendants shall pay all stipulatedpenalties to the Plaintiffs within thirty (30) days ofreceipt ofwritten demandto the Settling Defendants from the United States, and shall continue to make such payments every thirty (30) days thereafter until the violation(s)
no longer continues, unlessthe Settling Defendants elects within 20 days ofreceipt ofwritten demand to the Settling Defendants from the United States to dispute the accrual ofstipulated penalties in accordance with the provisions in Section XV (Dispute Resolution) ofthis Consent Decree.125. Stipulatedpenalties shall continue to accrue as provided in Paragraph 119 during any dispute, with interest on accrued stipulated penalties payable and calculated at the rate established by the Secretary ofthe Treasury, pursuant to 28 U.S.C. § 1961, butneed not be paid 42

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until the following:
a. Ifthe dispute is resolved by agreement, or by a decision ofPlaintiffs pursuant to SectionXV (Dispute Resolution) ofthis Consent Decree that is not appealed to the Court, accrued stipulated penalties agreed or determined to be owing, together with accrued interest, shall be paid withinthirty (30) days ofthe effective date of the agreement or ofthe receipt ofPlaintiffs' decision; b. Ifthe dispute is appealed to the Court and Plaintiffs prevail in whole orin part, the Settling Defendants shall, within sixty (60) days ofreceipt ofthe Court's decision or order, pay all accrued stipulated penalties detennined by the Court to be owing, together with accrued interest, except as provided in Subparagraph (c);
c. Ifthe Court's decision is appealed by any Party, the Settling Defendants shall, within fifteen (15) days ofreceipt ofthe final appellate court decision, pay all accrued stipulated penalties detennined to be owing, together with accrued interest. Forpurposes ofthis Paragraph, the accrued stipulated penalties agreed by the Parties, or detenninedby the Plaintiffs through Dispute Resolution, to be owing may be less than the stipulated penalty amounts set forth in Paragraph 119. The Settling Defendants need not pay any stipulated penalties based on violations which they dispute and ultimately prevail under the Dispute Resolution provisions ofthis Consent Decree. 126. All stipulated penalties shall be paid in the manner set forth in Section IX (Civil Penalty) ofthis ConsentDecree. 127. Shouldthe Settling Defendants fail to pay stipulated penalties in compliance with 43

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the terms ofthis ConsentDecree, the Plaintiffs shall be entitled to collect interest on such penalties, as provided for in 28 U.S.C. 

### § 1961. 128. The stipulated penalties provided for in this Consent Decree shall be in additionto any other rights, remedies, or sanctions available to any Plaintiffby reason ofthe Settling Defendants' failure to comply with any requirement ofthis ConsentDecree or applicable law, except that for any violation ofthe Act for which this Consent Decree provides for payment ofa stipulated penalty, the Settling Defendants shall be allowed a credit for stipulated penalties paid against any statutory penalties also imposed for such violation. 

### XIV. FORCE MAJEURE 129. For purposes ofthis Consent Decree, a "Force Majeure Event" shall mean an event that has been orwill be caused by circumstances beyond the control ofthe Settling Defendants, their contractors, or any entity controlled by the Settling Defendants that delays compliance with any provision ofthis Consent Decree or otherwise causes a violation ofany provision ofthis Consent Decree despite the Settling Defendants' 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 ofany such event (a) as it is occurring and (b) after it has occurred, such that the delay orviolation is minimized to the greatest extent possible. 130. Notice ofForce MajeureEvents. Ifany event occurs or has occurred that may delay compliance with or otherwise cause a violation ofany obligation underthis Consent Decree, as to which the Settling Defendants intends to assert a claim ofForce Majeure, the Settling Defendants shall notify the United States and the State in writing as soon as practicable, but in no event later than fourteen (14) business days following the date the Settling Defendants 44

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first knew, orby the exercise ofdue diligence should have known, that the eventcaused or may
cause such delay or violation. In this notice, the Settling Defendants shall reference this Paragraph ofthis Consent Decree and describe the anticipated length oftime thatthe delay or violation may persist, the cause or causes ofthe delay orviolation, all measures taken orto be taken by the Settling Defendantsto prevent or minimize the delay orviolation, the schedule by whichthe Settling Defendants proposes to implementthose measures, and the Settling Defendants' rationale for attributing a delay orviolation to a Force Majeure Event. The Settling Defendants shall adopt all reasonable measures to avoid or minimize such delays orviolations. The Settling Defendants shall be deemedto know ofany circumstance which the Settling Defendants, their contractors, or any entity controlled by the Settling Defendants knew or should have known. 131. 

### Failure to Give Notice. Ifthe Settling Defendants fails to comply withthe notice requirements in the preceding Paragraph, the Plaintiffs may voidthe Settling Defendants' claim for Force Majeure as to the specific event for which the Settling Defendants have failed to comply with suchnotice requirement. 132. 

### Plaintiffs'Response. The Plaintiffs shall notify the Settling Defendants in writing regarding the Settling Defendants' claim ofForce Majeure within twenty (20) business days of receipt ofthe notice provided under Paragraph 130. Ifthe Plaintiffs agree that a delay in perfonnance has been or will be causedby a Force Majeure Event, the Parties shall stipulate to
an extension ofdeadline(s) for perfonnance ofthe affected compliance requirement(s) by a period equal to the delay actually causedby the event. In such circumstances, an appropriate modification shall be made pursuantto SectionXXII (Modification) ofthis Consent Decree. 45

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### Page 8 of 32

133. Disaereement. Ifthe Plaintiffs do not accept the Settling Defendants' claim of Force Majeure, orifthe Parties cannot agree on the length ofthe delay actually caused by the Force Majeure Event, the matter shall be resolved in accordance with Section XV (Dispute Resolution) ofthis Consent Decree. 134. Burden ofProof. In any dispute regarding Force Majeure, the Settling Defendants shall bear the burden ofproving that any delay in performance or any otherviolation ofany requirement ofthis Consent Decree was caused by orwill be caused by a Force Majeure Event. The Settling Defendants shall also bearthe burden ofproving that the Settling Defendants gave the notice required by Paragraph 130 and the burden ofproving the anticipated duration and extent ofany delay(s) attributable to a Force Majeure Event. 

### An extension ofone compliance date based on a particular event may, but will not necessarily, result in an extension ofa subsequent compliance date. 135. Events Excluded. Unanticipated or increased costs or expenses associated withthe performance ofthe Settling Defendants' obligations under this Consent Decree shall not constitute a Force Majeure Event. 136. Potential Force Majeure Events. The Parties agree that, depending upon the circumstances related to an event and the Settling Defendants' response to such circumstances, the kinds ofevents listed below are among those that could qualify as Force Majeure Events within the meaning ofthis Section: construction, labor, or equipment delays; Malfunction ofa Unit or emission control device; acts ofGod; acts ofwar orterrorism; and orders by a government official, government agency, orotherregulatory body acting under and authorized by applicable law that directs the Settling Defendants to supply electricity in response to a 46

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### Page 9 of 32

system-wide (state-wide orregional) emergency. Depending upon the circumstances and the Settling Defendants' response to such circumstances, failure ofa permitting authority to issue a necessary permitin a timely fashion may constitute a ForceMajeure Event where the failure of the permitting authority to act is beyond the control ofthe Settling Defendants and the Settling Defendants have 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, providedthat the Settling Defendants shall not be precluded from asserting that a new Force Majeure Eventhas caused ormay cause a new or additional delay in complying with the extended ormodified schedule. 137. As part ofthe resolution ofany matter submitted to this Court under Section XV (Dispute Resolution) ofthis Consent Decree regarding a claim ofForce Majeure, the Parties by agreement, orthis Court by order, may in appropriate circumstances extend or modify the schedule for completion ofwork underthis Consent Decree to account for the delay in the work that occurred as a result ofany delay agreed to by the United States andthe State or approved by the Court. The Settling Defendants shall be liable for stipulatedpenalties for their failure thereafterto complete the work in accordance with the extended ormodified schedule. 138. Malfunctions. The Settling Defendants shall notify EPA and NDDH in writing of each Malfunction impacting a pollution control technology required by this Consent Decree as
soon as practicable, but in no event laterthan fourteen (14) business days following the date that the Settling Defendants first knew, or by the exercise ofdue diligence should have known, ofthe 47

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Malfunction. The Settling Defendants shall be deemed to know ofany circumstance which the Settling Defendants, their contractors, or any entity controlled by the Settling Defendants knew
or should have known. In this notice, the Settling Defendants shall describe the anticipated length oftime that the Malfunction may persist, the cause or causes ofthe Malfunction, all
measures taken orto betaken by the Settling Defendants to minimize the duration ofthe Malfunction, and the schedule by whichthe Settling Defendants proposesto implementthose
measures. The Settling Defendants shall adopt all reasonable measures to minimize the duration ofsuch Malfunctions and, consistent with 40 C.F.R. 

### §60.11(d), shall, tothe extent practicable, maintain and operate any affected Unit and associated air pollution control equipment in a
manner consistent with good air pollution control practice for minimizing emissions. A Malfunction, as defined 

### in Paragraph 16 ofthis Consent Decree, does not constitute a Force Majeure Eventunless the Malfunction also meets the definition ofa Force Majeure Event, as provided inthis Section. Conversely, a period ofMalfunction may be excluded by the Settling Defendants from the calculations ofemissionrates and removal efficiencies, as allowed under this Paragraph, iftheMalfunction constitutes a Force Majeure event. XV. 

### DISPUTE RESOLUTION 139. The dispute resolution procedure provided by this Section shall be available to resolve all disputes arising under this Consent Decree, providedthatthe Party invoking such procedure has first made a good faith attemptto resolve the matter with the other Parties. 140. The dispute resolutionprocedure required herein shall be invoked by one Party giving written notice to the other Parties advising ofa dispute pursuantto this Section. The notice shall describe the nature ofthe dispute and shall state the noticing Party's position with 48

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regard to such dispute. The Parties receiving such a notice shall acknowledge receipt ofthe notice, and the Parties in dispute shall expeditiously schedule a meeting to discuss the dispute informally not later than fourteen (14) days following receipt ofsuch notice. 141. Disputes submitted to dispute resolution underthis Section shall, in the first instance, be the subject ofinformal negotiations among the disputing Parties. Suchperiod of informal negotiations shall not extend beyond thirty (30) calendar days from the date ofthe first meeting among the disputing Parties' representatives unless they agree in writing to shorten or extend this period. During the informal negotiations period, the disputing Parties may also submittheir dispute to a mutually-agreed-upon alternative dispute resolution ("ADR") forum if the Parties agree that the ADRactivities can be completed within the 3D-day informal negotiations period (or such longer period as the Parties may agree to in writing). 142. Ifthe disputing Parties are unable to reach agreement during the informal negotiation period, the Plaintiffs shall provide the Settling Defendants with a written summary of their position regarding the dispute. The written positionprovided by the Plaintiffs shall be considered binding unless, within forty-five (45) calendar days thereafter, the Settling Defendants seeksjudicial resolution ofthe dispute by filing a petition withthis Court. The Plaintiffs may respond to the petition withinforty-five (45) calendar days offiling. 143. Where the nature ofthe dispute is such that a more timely resolution ofthe issue is required, the time periods set out in this Section may be shortened uponmotion ofone ofthe Parties to the dispute. 144. This Court shall not draw any inferences nor establish any presumptions adverse to any disputing Party as a result ofinvocation ofthis Section orthe disputing Parties' inability to 

### 49

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reach agreement. 145. As part ofthe resolution ofany dispute under this Section, in appropriate circumstances the disputing Parties may agree, or this Court may order, an extension or modification ofthe schedule for the completion ofthe activities required under this Consent Decree to account for the delay that occurred as a result ofdispute resolution. The Settling Defendants shall be liable for stipulated penalties for their failure thereafterto complete the work in accordance withthe extended or modified schedule, provided that the Settling Defendants shall not be precluded from asserting that a Force Majeure Eventhas caused ormay cause a delay in complying withthe extended ormodified schedule. 146. The Court shall decide all disputes pursuant to applicable principles oflaw for resolving such disputes. In their initial filings with the Courtunder Paragraph 142, the disputing Parties shall state their respective positions as to the applicable standard oflaw for resolving the particular dispute. 147. This Paragraph shall govern all disputes under this Consent Decree between any Party regarding the BACTDeterminationprovided by NDDH under SectionV(B) ofthis Consent Decree. The Settling Defendants hereby waive their rights to challenge ordispute NDDH's BACTDetermination other than through this Paragraph, which shall constitute the sole
means by which the Settling Defendants may dispute such determination.
a. Ifany Party does not agree, 

### in whole orinpart, with NDDH's BACT Determination or with the 30-Day Rolling Average NOx EmissionRate establishedby NDDH as part ofits BACTDetermination, it shall notify the other Parties within thirty (30) days ofreceipt ofthe BACTDetermination. The notice 50

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shall describe the particularreason(s) for disagreeing with NDDH's BACT Determination. The disputing Party shall bear the burden ofproofthroughoutthe dispute resolution process. The Parties to the dispute shall endeavorto resolve the dispute informally for up to thirty (30) days following issuance ofsuch notice.

b. Ifthe Parties to the dispute do not reach an agreement during this informal dispute resolutionprocess, each disputing Party shall provide the other Parties with a written summary ofits position within thirty (30) calendar days after the end of the informal process. The written position(s) provided by the State shall be considered binding unless, within forty-five (45) calendar days thereafter, a Party files with this Court a petition which describes the nature ofthe dispute and seeks judicial resolution. The other Parties to the dispute shall respond to the petition(s) within forty-five (45) calendar days ofeach such filing.
c. The Court shall sustain the decision by NDDH unless the Party disputing the BACTDetermination demonstrates that itis not supported by the state administrative record and notreasonable in light ofapplicable statutory and regulatory provisions. 

### XVI. PERMITS 148. Unless expressly stated otherwise in this Consent Decree (e.g. Paragraph 109), in any instance where otherwise applicable laworthis ConsentDecree requires the Settling Defendants to secure a permitto authorize construction oroperation ofany device, including all preconstruction, construction, and operatingpermits required under state law, the Settling 51

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Defendants shall make such application in a timely manner. The United States andNDDH will
use their best efforts to expeditiously review all permit applications submittedby the Settling Defendants in order to meet the requirements ofthis ConsentDecree. 149. Whenpermits are required, the Settling Defendants shall complete and submit applications for suchpermits to the appropriate authorities to allow sufficient time for all legally required processing and review ofthe pennitrequest, including requests for additional informationby the permitting authorities. Any failure by the Settling Defendants to submit a timely permit application for any Unit at the Milton R. Young Station shall bar any use by the Settling Defendants ofSectionXIV (Force Majeure) ofthis ConsentDecree, where a Force Majeure claim is based on permitting delays. 150. Notwithstanding the reference to the Title V pennit in this Consent Decree, the enforcement ofthe permit shall be in accordance with its ownterms and the Act. The Title V pennit shall notbe enforceable under this Consent Decree, although any term or limit established by or underthis Consent Decree shall be enforceable under this ConsentDecree regardless of whether such termhas orwill become part ofa Title V pennit, subject to the terms ofSection XXVI (Conditional TerminationofEnforcement Under ConsentDecree) ofthis Consent Decree. 151. Within ninety (90) days after entry ofthis Consent Decree, the Settling Defendants shall amend any applicable Title V pennit application, or apply for amendments oftheir Title V permit, to include a schedule for all unit-specific and plant-specific performance, operational, maintenance, and control technology requirements established by this Consent Decree including, but not limited to, emissionrates, removal efficiencies, tonnage limitations, and the requirements pertainingto the surrender ofS02 Allowances. 52

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152. Within one (1) year from the commencement ofoperation ofeach pollution control device to be installed orupgraded on a Unit under this Consent Decree, the Settling Defendants shall apply to include the requirements and limitations enumerated in this Consent Decree in either a federally enforceablepermit (otherthan a Title V permit) or amendments to the North Dakota State Implementations Plan ("SIP"). Thepermit or SIP amendment shall require compliance with the following: (a) any applicable 30-Day Rolling Average Emission Rate or 30-Day Rolling Average Removal Efficiency, (b) the allowance surrender requirements set forth in this Consent Decree, and (c) any applicable Tonnage limitations set forth in this Consent Decree. 153. The Settling Defendants shall provide the United States with a copy ofeach application for a federally enforceable permit or SIP amendment, as well as a copy ofany permit proposed as a result ofsuch application, to allow for timely participation in any public comment opportunity. The Settling Defendants and the NDDH agree to incorporate the S02 limitations in Subparagraphs 50(c) (and Subparagraph 50(d), ifapplicable) as federally-enforceable limits for the Settling Defendants in future permitting proceedings. 154. Ifthe Settling Defendants sell or transfer to an entity unrelated to the Settling Defendants ("Third Party Purchaser") part or all ofan ownership interest in a Unit ("Ownership Interest") covered under this ConsentDecree, the Settling Defendants shall comply with the requirements ofParagraphs 148 through 153 with regard to that Unitprior to any such sale or transfer unless, following any such sale or transfer, the Settling Defendants remains the holder of the permit for such facility.

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XVII. INFORMATION COLLECTION AND RETENTION 155. Any authorized representative ofthe Plaintiffs, including their attorneys, contractors, and consultants, uponpresentation ofcredentials, shall have a right ofentry upon the premises ofany facility covered under this Consent Decree at any reasonable time for the purpose of:
a. monitoring the progress ofactivities required under this ConsentDecree; b. verifying any data or infonnation submittedto the Plaintiffs in accordance with the terms ofthis Consent Decree;
c. obtaining samples and, uponrequest, splits ofany samples taken by the Settling Defendants or their representatives, contractors, or consultants; and d. assessing the Settling Defendants' compliance with this Consent Decree. 156. The Settling Defendants shall retain, and instruct their contractors and agents to preserve, all non-identical copies ofall records and docwnents (including records and documents in electronic fonn) now in their ortheir contractors' or agents' possession or control, and that directly relate to the Settling Defendants' perfonnance oftheir obligations under this Consent Decree, until December 31, 2020. This record retention requirement shall apply regardless of any corporate documentretention policy to the contrary. 157. All infonnation and docwnents submitted by the Settling Defendants pursuantto this ConsentDecree shall be subject to public disclosure based onrequests under applicable law providing for such disclosure unless (a) the infonnation and docwnents are subjectto legal privileges orprotection or (b) the Settling Defendants claim and substantiate in accordance with 40 C.F.R. Part 2 that the infonnation and documents containconfidential business infonnation. 54

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158. Nothing in this ConsentDecree shall limitthe authority ofthe Plaintiffs to conduct tests and inspections at facilities covered under this ConsentDecree under Section 114 ofthe Act, 42 U.S.C. § 7414, or any other applicable federal or state laws, regulations orpermits. 

### XVIII. NOTICES 159. Unless otherwiseprovided 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 ofAmerica: Chief, Environmental Enforcement Section Environment and Natural Resources Division U.S. Department ofJustice P.O. Box7611, Ben Franklin Station Washington, D.C. 20044-7611 DOJ# 90-5-2-1-07717 and Director, AirEnforcement Division Office ofEnforcement and Compliance Assurance U.S. Environmental Protection Agency Ariel Rios Building [2242A] 1200 PennsylvaniaAvenue, N.W. Washington, DC 20460 and U. S. EPA, Region 8 Director, Office ofEnforcement, Compliance, and Environmental Justice 999 18th Street, Suite 300 Denver, Colorado 80202-2466 As to the State ofNorth Dakota: Director, Air Quality Division North Dakota Department ofHealth 55

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Bismark, North Dakota 58506-5520 As to the Settling Defendants: David Sogard, General Counsel John Graves, Environmental Manager 1822 State Mill Road P.O. Box 13200 Grand Forks, NO 58208-3200 160. All notifications, communications or submissions made pursuant to this Section shall be sent eitherby: (a) overnight mail or delivery service; (b) certified or registered mail, return receipt requested; or(c) electronic transmission, unless the recipient is not able to review the transmission in electronic fonn. All notifications, communications and transmissions (a) sent by overnight, certified orregistered mail shall be deemed submitted on the date they are postmarked, or (b) sentby overnight delivery service shall be deemed submitted onthe date they
are delivered to the delivery service. All notifications, communications, and submissions made by electronic means shall be electronically signed and certified, and shall be deemed submitted
on the date that the Settling Defendants receive written acknowledgment ofreceipt ofsuch transmission. 161. Any Party may change eitherthe notice recipient orthe address for providing notices to it by serving the otherParties with a notice setting forth such new notice recipient or address. XIX. SALES ORTRANSFERS OF OWNERSHIP INTERESTS 162. Ifthe Settling Defendants propose to sell ortransferpart or all oftheir ownership interest in any oftheir real property or operations subjectto this Consent Decree ("Ownership Interest") to an entity unrelated to the Settling Defendants ("Third Party Purchaser"), they shall 56

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advise the Third Party Purchaser in writing ofthe existence ofthis Consent Decree priorto such sale ortransfer, and shall send a copy ofsuch written notificationto the Plaintiffs pursuantto Section XVIII (Notices) at least sixty (60) days before such proposed sale or transfer. 163. No sale ortransfer ofan Ownership Interest shall take place before the Third Party Purchaser and the Plaintiffs have executed, and the Court has approved, a modification pursuant to Section XXII (Modification) ofthis Consent Decree making the Third Party Purchaser a party defendant to this Consent Decree andjointly and severally liable with the Settling Defendants for all the requirements ofthis Consent Decree that may be applicable to the transferred or purchased Ownership Interests, except asprovided in Paragraph 165, below. 164. This Consent Decree shall not be construed to impede the transfer ofany Ownership Interests betweenthe SettlingDefendants and any Third Party Purchaser as longthe requirements ofthis Consent Decree are met. In addition, this Consent Decree shall not be construed to prohibit a contractual allocation-as between the Settling Defendants and any Third Party Purchaser ofOwnership**Interests~f** the burdens ofcompliance with this Decree, provided that both the Settling Defendants and such Third Party Purchaser shall remainjointly and severally liable to the Plaintiffs for the obligations ofthe Decree applicable to the transferred or purchased Ownership Interests, except asprovided in Paragraph 165. 165. Ifthe Plaintiffs agree, the United States, the State, the Settling Defendants and the Third Party Purchaserthat has become aparty defendant to this Consent Decree pursuant to Paragraph 163 may execute a modification that relieves Minnkota and/or Square Butte oftheir liability underthis Consent Decree for, and makes the Third Party Purchaser liable for, all obligations and liabilities applicable to the purchased or transferred Ownership Interests. 57

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Notwithstanding the foregoing, however, the Settling Defendants may not assign, andmay not be released from, any obligationunder this Consent Decree that is not specific to the purchased
ortransferred Ownership Interests, including the obligations set forth in Sections VIII (Additional Injunctive Relief) and IX (Civil Penalty). The Settling Defendants may propose and the Plaintiffs may agree to restrict the scope of joint and several liability ofany purchaser or transferee for any obligations ofthis Consent Decree that are not specific to the purchased or transferred OwnershipInterests to the extent such obligations may be adequately separated in an enforceable manner. 

### XX. EFFECTIVE DATE 166. The effective date ofthis Consent Decree shall be the date upon which this Consent Decree is entered by the Court. XXI. 

### RETENTION OF JURISDICTION 167. ContinuineJurisdiction. The Court shall retainjurisdiction ofthis case after entry ofthis Consent Decree to enforce compliance with the tenns and conditions ofthis Consent Decree and to take any action necessary or appropriate for its interpretation, construction, execution, modification, or adjudication ofdisputes. During the tennofthis Consent Decree, any Party to this Consent Decree may apply to the Court for any reliefnecessary to construe or effectuate this Consent Decree.



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XXII. MODIFICATION 168. The terms ofthis Consent Decree may be modified only by a subsequent written agreement signed by all Parties. Where the modification constitutes a material change to any term ofthis Consent Decree, it shall be effective only upon approval by the Court. XXIII. GENERAL PROVISIONS 169. This Consent Decree is not a permit. Compliance with the terms ofthis Consent Decree does not guarantee compliance with all applicable federal, state, or local laws or regulations. Theremoval efficiencies and emissionrates setforth herein do not relieve the Settling Defendants from any obligation to comply with other state and federal requirements underthe CleanAirAct, including the Settling Defendants' obligations to satisfy any state modeling requirements set forth in the North Dakota State Implementation Plan. Unless otherwise indicated herein, citations to statutes or regulations herein shall meanthe version of the statutes orregulations inforce as ofJuly 1,2005. 170. This Consent Decree does not apply to any claim(s) ofalleged criminal liability. 171. In any subsequent administrative orjudicial action initiated by the Plaintiffs for injunctive reliefor civil penalties relating to the facilities covered by this Consent Decree, the Settling Defendants shall not assert any defense or claimbased upon principles ofwaiver, res judicata, collateral estoppel, issue preclusion, claimpreclusion, or claim splitting, or any other defense based upon the contentionthat the claims raised by the Plaintiffs inthe subsequent proceeding were brought, or should have beenbrought, in the instant case; provided, however, that nothing in this Paragraph is intended to, or shall, affectthe validity ofSection X (Resolution ofClaims) ofthis Consent Decree. 59

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172. Except as specifically providedby this Consent Decree, nothing in this Consent Decree shall relieve the Settling Defendants oftheir obligations to comply with all applicable federal, state, and local laws and regulations. Nothing contained in this ConsentDecree shall 

### be construedto prevent or limit the rights ofthe Plaintiffs to obtainpenalties, injunctive reliefor otherreliefunder the Act orother federal, state, or local statutes, regulations, orpermits. 173. Every term expressly defined by this Consent Decree shall have the meaning given to that term by this ConsentDecree and, except as otherwise provided in this ConsentDecree, every other term used inthis Consent Decree that is also a term under the Actorthe regulations implementing the Act shall mean in this Consent Decree what suchterm means underthe Act or those implementing regulations. 174. Nothing in this Consent Decree is intended to, or shall, alter or waive any applicable law (including but not limited to any defenses, entitlements, challenges, or clarifications related to the Credible Evidence Rule, 62 Fed. Reg. 8315 (Feb. 27, 1997» concerning the use ofdata for any purpose under the Act, generated either by the reference methods specified herein or otherwise. 175. Each limit and/or otherrequirement established by or under this Consent Decree is
a separate, independentrequirement. 176. Performance standards, emissions limits, and other quantitative standards set by or under this Consent Decree must be met to the number ofsignificant digits in which the standard
or limit is expressed. For example, an Emission Rate of0.100 is not met ifthe actual Emission Rate is 0.101. The Settling Defendants shall round the fourth significant digit to the nearest third significant digit, orthe third significant digit to the nearest second significant digit, depending 

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upon whether the limit is expressed to three ortwo significant digits. For example, ifan actual Emission Rate is 0.1004, that shall be reported as 0.100, and shall be in compliance with an Emission Rate of0.100, and ifan actual Emission Rate is 0.1005, that shall be reported as 0.101, and shall not be in compliance with an Emission Rate of0.100. The Settling Defendants shall report datato the number ofsignificant digits in which the standard or limit is expressed. 177. This ConsentDecree does not limit, enlarge or affectthe rights ofany Party to this Consent Decree as against any third parties. 178. This Consent Decree constitutesthe final, complete and exclusive agreement and understanding among the Parties with respectto the settlement embodied inthis Consent Decree, and supersedes all prior agreements and understandings among the Parties related to the subject matterherein. No document, representation, inducement, agreement, understanding, or promise constitutes any part ofthis Consent Decree orthe settlement it represents, nor shall they be used in construing the terms ofthis Consent Decree. 179. The United States and the Settling Defendants shall beartheir own costs and attorneys' fees. XXIV. SIGNATORIES AND SERVICE 180. Each undersigned representative ofthe Parties certifies that he or she is fully authorizedto enterinto the terms and conditions ofthis ConsentDecree and to execute and legally bind to this document the Party he or she represents. 181. This Consent Decree may be signedin counterparts, and such counterpart signature pages shall be given full force and effect. 182. Each Party hereby agrees to accept service ofprocess by mail withrespectto all 61Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 24 of 32

matters arising under or relating to this Consent Decree and to waive the fonnal service requirements set forth in Rule 4 ofthe Federal Rules ofCivil Procedure and any applicable Local Rules ofthis Court including, butnot limited to, service ofa summons. XXV. PUBLIC COMMENT 183. The Parties agree and acknowledge that final approval by the United States and entry ofthis Consent Decree is subjectto the procedures of28 C.F.R. 

### § 50.7, which provides for notice ofthe lodging ofthis Consent Decree inthe Federal Register, an opportunity for public comment, and the right ofthe United States to withdraw or withhold consent ifthe comments disclose facts or considerations which indicate that the Consent Decree is inappropriate, improper or inadequate. The Settling Defendants shall not oppose entry ofthis Consent Decree by this Court or challenge any provision ofthis Consent Decree unless the United States has notified the Settling Defendants, in writing, that the United States no longer supports entry ofthe Consent Decree. XXVI. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER CONSENT DECREE 184. Termination as to Completed Tasks. As soon as the Settling Defendants complete a construction project or any other requirement ofthis ConsentDecree that is not ongoing or recurring, the Settling Defendants may, by motion to this Court, seek termination of the provision orprovisions ofthis Consent Decree that imposed the requirement. 185. ConditionalTermination ofEnforcement Throup the ConsentDecree. After the Settling Defendants:
a. have successfully completed construction, and have maintained operation, ofall 

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### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 25 of 32

pollution controls as required by this Consent Decree; b. have obtained a final Title V permit 

### (I) as required by the terms ofthis Consent Decree; (ii) that cover all units in this ConsentDecree; and (iii) that include as enforceable permitterms all ofthe Unit performance and otherrequirements specified in SectionXVI (Permits) ofthis ConsentDecree; and
c. certified that the date is later than December 31, 20 15; then the Settling Defendants may so certify these facts to the Plaintiffs and this Court. Ifthe Plaintiffs do not object in writing with specific reasons within forty-five (45) days ofreceipt of the Settling Defendants' certification, then, for any ConsentDecree violations that occur after the filing ofnotice, the Plaintiffs shall pursue enforcement ofthe requirements contained in the Title V permit through the applicable Title V permit and not through this Consent Decree. 186. Resort to Enforcement under this Consent Decree. Notwithstanding Paragraph 187, ifenforcement ofa provision in this ConsentDecree cannotbe pursued by a Party under the applicable Title V permit, or ifa Consent Decree requirement was intended to be part ofa Title V Permit and did not become orremain part ofsuchpermit, then suchrequirement may be enforced under the terms ofthis Consent Decree at any time, unless and until the Settling Defendants have secured a source-specific revision to the North Dakota State Implementation Plan to reflect the emission limitations, emissions monitoring, and allowance surrender requirements set forth in this ConsentDecree.

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XXVII. FINAL JUDGMENT 187. Upon approval and entry ofthis Consent Decreeby the Court, this Consent Decree shall constitute a finaljudgmentinthe above-captioned matterbetween the Plaintiffs and the Settling Defendants. SO ORDERED, THIS

__ DAY OF , 2006.

UNITED STATES DISTRICT COURTJUDGE

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### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 27 of 32

FOR THE UNITED STATES OF AMERICA:

MAT HEW W. MORRISON Senio ounsel Environmental Enforcement Section Environmental andNatural Resources Division United States Department ofJustice

65

### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 

### 04/24/2006 Page 28 of 32

Director, Air Enforcement Division Office ofEnforcement and Compliance Assurance United States Environmental Protection Agency

-JE--"FF"'--RE---'y'-'-A-.+O-D"':-r

# I-H---=I::~:)..

# _~_l_~-I--'~ Attorney Advi or Air Enforcement Division Office ofEnforcement and Compliance Assurance United States Environmental Protection Agency



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### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 29 of 32

CAROL RUSHIN Assistant Regional Administrator Office ofEnforcement, Compliance and Environmental Justice

# /3unL~· BRENDA MORRIS EnforcementAttorney U.S. Environmental ProtectionAgency Region 8



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### Page 30 of 32



### FOR THE STATE OF NORTH DAKOTA:



### TE State He 

### lth Officer North DakotaDep't ofHealth

W E STENEHJEM Attorney General Attorney for North Dakota



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### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 31 of 32

### FORDEFENDANTMINNKOTAP~~ DAVID LOER President & 

### CEO



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### Case 1 :06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 32 of 32

## FORDEFENDANTSQUAREBU~~

DAVID LOER General Manager

70