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

Flt,ED 

[ APR =4 2006] 

EDWARD J. f:.LECKER, CLERi< 

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

FOR THE 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 of S02 Allowances 16
 

D. General S02 Provisions 18
 

V. NOx Emission Reductions and Controls 19
 

A. Phase I NOx Emission Reductions and Controls 19
 

B. Phase II NO Emission Reductions and Controls 19
 x
 

C. Use ofNOx Allowances 21
 

D. General NOx Provisions 22
 

VI. PM Emission Reductions and Controls 24
 

A. Optimization of PM Emission Controls 24
 

B. Compliance with PM Emission Limits 24
 

C. PM Monitoring 26
 

VII. Prohibition on Netting Credits or Offsets from Required Controls 28
 

VIII. Additional Injunctive Relief 30
 

IX. Civil Penalty 33
 

X. Resolution of Claims 35
 

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Case 1:06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 3 of 41 

XI. Periodic Reporting 37
 

XII. Review and Approval of Submittals 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 of Ownership 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 of Enforcement Under Consent Decree 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 behalf of 

the United States Environmental Protection Agency ("EPA"), and the State ofNorth Dakota 

("State"), have filed a Complaint for injunctive relief and civil penalties pursuant to 

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 of the Prevention of Significant Deterioration provisions ofPart C of Subchapter I of 

the Act, 42 U.S.C. §§ 7470-7492, and in violation ofthe federally approved and enforceable 

North Dakota 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 relief can be granted against the 

Settling Defendants under Sections 113 and 167 ofthe Act, 42 U.S.C. §§ 7413 and 7477; 

WHEREAS, the United States provided the Settling Defendants and the State with actual 

notice of alleged violations in accordance with Section 113(a)(1) of the Act, 42 U.S.C. 

§ 7413(a)(1); 

WHEREAS, the Settling Defendants assert that there may be difficulty associated with 

the continuous operation of Flue Gas Desulfurization Systems at the Milton R. Young Station 

during the extremely cold ambient air temperatures at the 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 considered these circumstances in reaching this agreement; 

WHEREAS, the Settling Defendants assert that it would be very difficult to install and 

continuously operate certain NOx emission controls at the cyclone-fired, lignite-burning Units at 

the Milton R. Young Station; 

WHEREAS, NDDH contemplates that, upon full implementation of the controls and 

other requirements of this Consent Decree, the Settling Defendants will have installed BACTlevel S02 controls for purposes of netting under this Decree; 

WHEREAS, the Parties have agreed that settlement of this action is in the best interest of 

the Parties and in the public interest, and that entry of this Consent Decree without further 

litigation is the most appropriate means of resolving 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 

Consent Decree is fair, reasonable, consistent with the goals of the Act, and in the public 

interest; 

WHEREAS, the Settling Defendants have cooperated in the resolution of this matter; 

WHEREAS, the Settling Defendants have denied and continue to deny the violations 

alleged in the Complaint, and nothing herein shall constitute an admission of liability; and 

WHEREAS, the Parties have consented to entry of this Consent Decree without trial of 

any issues; 

NOW, THEREFORE, without any admission of fact or law, it is hereby ORDERED, 

ADmDGED, AND DECREED as follows: 

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I. JURISDICTION AND VENUE 

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

consenting hereto, pursuant to 28 U.S.C. §§ 1331, 1345, 1355, and 1367, and pursuant to 

Sections 113 and 167 of the Act, 42 U.S.C. §§ 7413 and 7477. Venue is proper under Section 

113(b) of the Act, 42 U.S.C. § 7413(b), and under 28 U.S.C. § 1391(b) and (c). Solely for the 

purposes of this Consent Decree and the underlying Complaint, the Settling Defendants waive all 

objections and defenses that they may have to the Court's jurisdiction over this action, to the 

Court's jurisdiction over the Settling Defendants, and to venue in this District. The Settling 

Defendants shall not challenge the terms of this Consent Decree or this Court's jurisdiction to 

enter and enforce this Consent Decree. For purposes ofthe Complaint filed by the Plaintiffs in 

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

this Consent Decree, the Settling Defendants waive any defense or objection based on standing. 

Except as expressly provided for herein, this Consent Decree shall not create any rights in any 

party other than the Parties to this Consent Decree. Except as provided in Section XXV (Public 

Comment) of this Consent Decree, the Parties consent to entry of this Consent Decree without 

further notice. 

II. APPLICABILITY 

2. Except as set forth in Paragraph 3, the provisions ofthis Consent Decree shall, upon 

entry, apply to and be binding upon the 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 of this Consent Decree that relate exclusively to Unit 1 at 

the Milton R. Young Station shall only apply to and be binding upon Minnkota, and its 

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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 of this Consent Decree to all vendors, 

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

to perfonn any of the 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 of this Consent Decree. In any action to enforce this Consent 

Decree, the Settling Defendants shall not assert as a defense the failure of their 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 of this Consent Decree. 

III. DEFINITIONS 

5. A "30-day Rolling Average Emission Rate" shall be detennined by calculating an 

arithmetic average of all 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, if it is detennined to be a 

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

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6. A "30-day Rolling Average Removal Efficiency" means the percent reduction in the 

mass of a pollutant achieved by a Unit's pollution control device over a 30-0perating 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 then multiplying 

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 Malfunction periods 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 both the inlet and outlet 30-day Rolling 

Average Emission Rate, for the purposes of calculating 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 of pOWlds of that pollutant 

emitted per million British thermal Wlits of heat 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 of sulfur dioxide emissions. 

14. "Fossil Fuel" means any hydrocarbon fuel, including coal, petroleum coke, 

petroleum oil, or natural gas. 

15. "lbIMMBtu" means one pound of a pollutant per million British thermal units of heat 

input. 

16. "Malfunction" means malfunction as that term 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 of this Consent Decree only, the 

Settling Defendants' electric generating Units near Center, North Dakota, which currently 

consist of two lignite-fired cyclone units. Unit 1 has a nominal net rating of235 MW. Unit 2 

has a nominal net rating of 440 MW. "Milton R. Young Station" also includes the Settling 

Defendants' proposed Unit 3, with a proposed net rating of 600 MW. The Settling Defendants 

anticipate submitting a permit to construct application on or before June 1, 2009. Subject to 

NDDH's permit to construct review process, the Unit 3 permit is anticipated to be issued by 

December 31, 2010, construction is expected to commence on or before December 31,2012, and 

operation is expected to commence on or before December 31, 2015. 

19. "NDDH" shall mean the North Dakota Department of Health. 

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20. "Netting" shall mean the process of determining whether a particular physical 

change or change in the method of operation of a major stationary source results in a net 

emissions increase, as that term is defined at 40 C.F.R. § 52.21 (b)(3)(i) and Chapter 33-15-15 of 

the North Dakota Administrative Code (Feb. 1,2005). 

21. "NO " means oxides of nitrogen, measured in accordance with the provisions of this x 

Consent Decree. 

22. "NOx Allowance" means an authorization or credit to emit a specified amount of 

NOx that is allocated or issued under an emissions trading or marketable permit program of any 

kind established under the Act or a State Implementation Plan. The Parties acknowledge that at 

the time of lodging ofthis Consent Decree that no NOx Allowance program is applicable to 

Milton R. Young Station. 

23. ''N0x BACT Determination" shall mean the conclusions made by the NDDH as a 

result of reviewing the NOx Top-Down BACT Analysis. Such determination shall be carried out 

in accordance with the applicable federal and state statutes, regulations, and guidance cited in the 

definition of "NOx Top-Down BACT Analysis," below, and shall include the selection of control 

technology to be installed on Units 1 and 2 and 30-day Rolling Average Emission Rates 

applicable to Units 1 and 2 and to be continuously complied with by the Settling Defendants. 

24. "NO Top-Down BACT Analysis" shall mean a study prepared by the 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 of Chapter B of EPA's "New Source Review Workshop Manual-Prevention of 

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Significant Deterioration and Nonattainment Area Permitting," (Draft October 1990) ("EPA's 

NSR Manual"). The study shall not include any other elements ofPSD permitting 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, or N.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 of the air to be combusted through ports above the level of the cyclones in the 

furnace. 

26. "Operating Day" means any calendar day on which a Unit fires fossil fuel. 

27. "Parties" means the United States of America, the State of North Dakota, and the 

Settling Defendants. "Party" means one of the four named "Parties." 

28. "Plant-Wide 12-Month Rolling Average Tonnage" means the sum of the tons of the 

pollutant in question emitted from the Milton R. Young Station in the most recent complete 

month and the previous eleven (11) months. A new Plant-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 of each Plant-Wide 12-Month Rolling Average Tonnage 

shall include the pollutants emitted during periods of startup, shutdown, and Malfunction within 

each calendar month, unless the Malfunction event is also deemed a "Force Majeure Event" as 

defined in Section XIV of this Consent Decree (Force Majeure), in which case such emissions 

shall be excluded. 

29. "Plant-Wide Tonnage for One Calendar Year" means the sum of the tons of the 

pollutant in question emitted from the Milton R. Young Station in any 12-Month calendar year. 

A new Plant-Wide Tonnage for One Calendar Year shall be calculated for each new calendar 

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year. The calculation of each Plant-Wide Tonnage for One Calendar Year shall include the 

pollutants emitted during periods of startup, shutdown, and Malfunction within each 12-Month 

calendar year, unless the Malfunction event is also deemed a "Force Majeure Event" as defined 

in Section XIV of this Consent Decree (Force Majeure), in which case such emissions shall be 

excluded. 

30. "Plant-Wide Tonnage for the Annual Average of Two Calendar Years" means the 

sum ofthe tons ofthe pollutant in question emitted from the Milton R. Young Station in any two 

consecutive 12-month calendar years, divided by two. A new Plant-Wide Tonnage for the 

Annual Average of Two Calendar Years shall be calculated for each new complete 12-month 

calendar year. The calculation of each Plant-Wide Tonnage for the Annual Average of Two 

Calendar Years shall include the pollutants emitted during periods of startup, shutdown, and 

Malfunction within each 12-Month calendar year, unless the Malfunction event is also deemed a 

"Force Majeure Event" as defined in Section XIV of this 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) of this Consent Decree, the equipment that 

samples, analyzes, measures, and provides, by readings taken at frequent intervals, an electronic 

or paper record of PM emissions. 

33. "PM Emission Rate" means the average number of pounds of PM emitted per million 

British thermal units of heat input ("lbs/MMBtu") from the Unit stack, as measured in an annual 

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

stack test 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 of Significant Deterioration" or "PSD" means the prevention of 

significant deterioration of air quality program under Part C of Subchapter I of the 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 or made in carrying out the Projects identified in Section VIII (Additional Injunctive 

Relief) ofthis Consent Decree to the extent that such expenditures or payments both: (a) comply 

with the requirements set forth in Section VIII (Additional Injunctive Relief) of this Consent 

Decree; and (b) constitute (i) the Settling Defendants' direct payments for such projects, (ii) the 

Settling Defendants' external costs for contractors, vendors, and equipment, (iii) the Settling 

Defendants' internal costs consisting of employee time, travel, or out-of-pocket expenses 

specifically attributable to these particular projects and documented in accordance with 

Generally Accepted Accounting Principles ("GAAP"), or (iv) the discounted present value of the 

cash payments made by the Settling Defendants under a contract with another entity to carry out 

the project. 

36. "Rich Reagent Injection" means a technology that injects reagent, such as ammonia 

or urea, 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 of selective catalytic reduction technology. 

38. "Selective Non-Catalytic Reduction" means a pollution control device for reducing 

NOx emissions through the use ofselective non-catalytic reduction technology. 

10 

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Case 1:06-cv-00034~DLH-CSM Document 2 Filed 04/24/2006 Page 14 of 41 

39. "Settling Defendants" means Minnkota Power Cooperative, Inc., and Square Butte 

Electric Cooperative. 

40. "SOt means sulfur dioxide, measured in accordance with the provisions ofthis 

Consent Decree. 

41. "S02 Allowance" means "allowance" ofS02as defined at 42 U.S.C. § 7651a(3): 

"an authorization, allocated to an affected Unit by the Administrator of EPA under Subchapter 

IV of the Act, to emit, during or after a specified calendar year, one ton of sulfur dioxide." 

42. "Title V Permit" means the permit required of the Settling Defendants' major 

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

43. "Unit" means, for the purposes ofthis Consent Decree, collectively, the coal 

crusher, stationary equipment that feeds coal to the boiler, the boiler that produces steam for the 

steam turbine, the steam turbine, the generator, the equipment necessary to operate the generator, 

steam turbine and boiler, and all ancillary equipment, including pollution control equipment and 

systems necessary for the production of electricity. An electric utility steam generating station 

may comprise one or more Units. 

IV. S02 EMISSION REDUCTIONS AND CONTROLS 

A. S02 Emission Controls 

1. New FGD Installations at Milton 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 pursuant to Paragraph 

46) at Unit 1, and shall notify the Plaintiffs in writing as to which option the 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 of the FGD (or equivalent S02 control technology approved 

pursuant to Paragraph 46) elected above on Unit 1, and shall achieve and thereafter maintain: 

a.	 If the Settling Defendants elect to install a wet FGD, a 30-Day Rolling Average 

Removal Efficiency for S02 at Unit 1 of at least ninety-five percent (95%), 

subject to the provisions of Paragraph 49; 

b.	 If the Settling Defendants elect to install a dry FGD, a 30-Day Rolling Average 

Removal Efficiency for S02 at Unit 1 of at least ninety percent (90%). 

46. With prior written notice to and written approval from EPA and the State, the 

Settling Defendants may, in lieu of installing and operating an FGD at Unit 1, install and operate 

an altern,ative S02 control technology at this Unit that achieves and maintains a 30-Day Rolling 

Average Removal Efficiency for S02 of at 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 Station Unit 2 

47. No later than 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 thereafter maintain a 30-Day Rolling Average Removal Efficiency for S02 at Unit 2 

of at least ninety percent (90%), subject to the provisions of Paragraph 49. 

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3. Continuous Operation of S02 Controls 

48. The Settling Defendants shall continuously operate each FGD (or equivalent S02 

control technology approved pursuant to Paragraph 46) covered under this Consent Decree at all 

times that the Unit it serves is in operation, consistent with the technological limitations, 

manufacturers' specifications, and good engineering and maintenance practices for the FGDs, or 

equivalent technology, for minimizing emissions to the extent practicable. The Settling 

Defendants need not operate an FGD system during periods of Malfunction of the FGD, or 

during periods of Malfunction of the Unit that have a significant adverse impact on the operation 

ofthe FGD, provided that the Settling Defendants satisfy the requirements for a Malfunction as 

set forth in Paragraph 138 (Malfunctions). 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) ofthis Consent Decree. 

4. Maximizine S02 Emission Reductions while Minimizine Ice Formation 

Durine Wintertime Operations of FGDs 

49. In light ofthe potential for substantial and dangerous ice formation on emission 

stacks utilizing wet FGDs as a result ofthe particularly severe winter weather conditions in 

North Dakota, the Settling Defendants shall, by December 31, 2006, submit to EPA and NDDH 

for review and approval an evaluation of technologies and best management practices for 

minimizing and eliminating ice formation on the stacks while minimizing any effect on emission 

reductions at any Units served or to be served by a wet FGD. Such evaluation shall be 

performed by an independent contractor, and shall include an analysis of the feasibility, 

effectiveness, reliability, energy impacts, and economic costs of such technologies and best 

management practices. In their submittal, the Settling Defendants shall evaluate such 

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technologies and best management practices, and shall propose either available technologies, 

best management practices, or both. 

a.	 Upon EPA's and NDDH's approval of the 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 of EPA's and NDDH's determination, subject 

to the Dispute Resolution procedures set forth in Paragraphs 139 through 

146 of this Consent Decree. 

b.	 The Settling Defendants shall include in the periodic compliance reports 

required pursuant to Section XI (Periodic Reporting) of this Consent 

Decree, a summary of the effectiveness of any technologies and best 

management practices in minimizing and eliminating ice formation on the 

stacks while minimizing any effect on emission reductions at any Units 

served by 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 of S02 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 of S02 per year based on a Plant-Wide Tonnage for One 

Calendar Year; 

c.	 Beginning January 1, 2012, and each year thereafter, the Settling 

Defendants shall not emit more than 11,500 tons of S02 per year based on 

a Plant-Wide Tonnage for the Annual Average of Two Calendar Years; 

and 

d.	 In the event that Milton R. Young Unit 3 is not operational by December 

31, 2015, then beginning January 1, 2014, and each year thereafter, the 

Settling Defendants shall not emit more than 8,500 tons of S02 per year 

based on a Plant-Wide Tonnage for the Annual Average of Two Calendar 

Years. 

51. Beginning on the date of entry of this Consent Decree, and prior to the Settling 

Defendants' implementation of EPA's and NDDH's determination pursuant to Paragraph 49, 

above, the Settling Defendants shall continue to implement practices, to the extent practicable, 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 than the 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 given the energy demands of their cooperative, 

and despite utilization of best management practices 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 of any such petition shall be subject to the dispute resolution provisions in Section 

XV (Dispute Resolution) of this Consent Decree. 

53. The Settling Defendants shall not use S02 Allowances or credits to comply with the 

S02 emissions limitations set forth in Paragraph 50. 

C. Surrender of S02 Allowances 

54. For purposes of this Subsection, the "surrender of allowances" means permanently 

surrendering allowances from the accounts administered by EPA for Units 1 and 2-and from 

Unit 3 to the extent that S02 Allowances are allocated by EPA to that Unit - so that such S02 

Allowances can never be used to meet any compliance requirement under the Clean Air Act, the 

North Dakota State Implementation Plan, or this Consent Decree. 

55. For each year 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 if Milton R. Young 

Units 1,2, and 3 (as proposed) are 

operational by December 31, 2015, and 

17,886 Allowances if only 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 Deduction Reports for S02' Any surrender need 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 earlier year and that are 

equal to the number required to be surrendered under this Paragraph. The requirements in this 

Subsection (IV(C)) ofthe Consent Decree pertaining to the Settling Defendants' use and 

retirement of S02 Allowances are permanent injunctions not subject to any termination provision 

ofthis Decree. 

56. If any S02 Allowances are transferred directly to a non-profit third pqTty, the Settling 

Defendants shall include a description of such transfer in the next report submitted to EPA and 

NDDH pursuant to Section XI (Periodic Reporting) ofthis Consent Decree. Such report shall: 

(i) provide the identity ofthe non-profit third-party recipient(s) ofthe S02 Allowances and a 

listing ofthe serial numbers ofthe transferred S02 Allowances; and (ii) include a certification by 

the third-party recipient(s) stating that the 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 than the third periodic report due after the transfer 

of any S02 Allowances, the Settling Defendants shall include a statement that the third-party 

recipient(s) surrendered the S02 Allowances for permanent surrender to EPA in accordance with 

the provisions of Paragraphs 54 and 55 within one (1) year after the Settling Defendants 

transferred the S02 Allowances to them. The Settling Defendants shall not have complied with 

the S02 Allowance surrender requirements ofthis Paragraph until 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 or the 

third-party recipient(s) (as the case may be) shall first submit an S02 Allowance transfer request 

form to EPA's Office of Air and Radiation's Clean Air Markets Division directing the transfer of 

such S02 Allowances to the EPA Enforcement Surrender Account or to any other EPA account 

that EPA may direct in writing. As part of submitting these transfer requests, the Settling 

Defendants or the third-party recipient(s) shall irrevocably authorize the transfer of these S02 

Allowances and identify - by name of account and any applicable serial or other identification 

numbers or station names - 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 in 40 C.F.R. Part 75. 

59. For the purpose of calculating the 30-Day Rolling Average Removal Efficiency, the 

outlet S02 Emission Rate and the inlet S02 Emission Rate shall be determined based on the data 

generated in accordance with 40 C.F.R. Part 75 (using S02 CEMS data from both the inlet and 

outlet of the control device). 

60. If any Unit subject to 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, and the inlet 30-Day 

Rolling Average Emission Rate shall be determined from S02 CEMS located before the by-pass. 

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V. NOx EMISSION REDUCTIONS AND CONTROLS 

A. Phase I NOx Emissions Reductions and Controls 

61. No later than December 31, 2007, the Settling Defendants shall install and 

commence continuous operation of Over-fire Air on Unit 2 at the Milton R. Young Station. 

62. No later than December 31, 2009, the Settling Defendants shall install and 

commence continuous operation of Over-fire Air on Unit 1 at the Milton R. Young Station. 

63. With prior written notice 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 NOx emission rate of no 

greater than 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 NOx Emission Rates shall be determined in 

accordance with the procedures set forth in this subsection. 

65. Within six months after entry of this Consent Decree, the Settling Defendants shall 

submit to NDDH for review and approval, and to EPA for review, a NOx Top-Down BACT 

Analysis for each existing coal-fired Unit at the 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 information requested 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 other NOx control technologies. This NOx Top-Down BACT 

Analysis is independent and separate from the Settling Defendants' plans to install one or more 

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technologies pursuant to Paragraphs 61 and 62. The Settling Defendants shall retain a qualified 

contractor to assist in the perfOlmance and completion of each NOx Top-Down BACT Analysis. 

66. NDDH shall review the Settling Defendants' NOx Top-Down BACT Analysis, and 

shall develop its BACT Determination, in accordance with applicable federal and state statues, 

regulations, and guidance, including those cited in the definition of a NO Top-Down BACT x 

Analysis under this Consent Decree. After consultation with EPA, NDDH shall provide to the 

Parties its BACT Determination for NOx emissions from each existing coal-fired Unit at the 

Milton R. Young Station. NDDH's BACT Determination shall include for each Unit the 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 

subject to the Dispute Resolution procedures set forth in Paragraph 147 of this Consent Decree. 

67. Beginning no later than December 31, 2010, the Settling Defendants shall achieve 

and maintain the Phase II 30-Day Rolling Average NOx Emission Rates established by NDDH 

through its NOx BACT Detennination for Unit 2. Beginning no later than December 31, 2011, 

the Settling Defendants shall achieve and maintain the Phase II 30-Day Rolling Average NOx 

Emission Rates 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' 

obligation to also comply with the Phase I 30-Day Rolling Average NOx Emission Rates set 

forth herein. 

c. Use of NO Allowances x 

68.	 Except as provided in this Consent Decree, the Settling Defendants shall not sell or 

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trade any surplus NOx Allowances allocated to Units 1, 2, and 3 at the Milton R. Young Station 

that would otherwise be available for sale or trade as a result of the actions taken by the Settling 

Defendants to comply with the requirements of this 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 at the Milton R. Young Station for a 

particular year are greater than the total amount of NOx 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 Consent Decree, nothing in this Consent Decree shall preclude the Settling 

Defendants from selling or transferring NOx Allowances allocated to the Milton R. Young 

Station that become available for sale or trade as a result of: 

a.	 activities that reduce NO emissions from any Unit at the Milton R. Young x 

Station prior to the date of entry of this Consent Decree; 

b.	 the installation and operation of any NO pollution control technology or x 

technique that is not otherwise required under this Consent Decree; 

c.	 achievement and maintenance ofNOx emission rates below the emission 

limits required by Section V (N0x Emissions Reductions and Controls); 

d.	 permanent shutdown of any Unit at the Milton R. Young Stations not 

otherwise required by this Consent Decree; and 

e.	 other emission reduction measures that are agreed to by the Parties and 

made enforceable through modifications of this Consent Decree; 

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so long as the Settling Defendants timely report the generation of such surplus NOx 

Allowances in accordance with Section XI (Periodic Reporting) of this Consent Decree. 

The Settling Defendants shall be allowed to sell or transfer NOx Allowances equal to the 

NO emissions reductions achieved for any given year by any of the 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 or otherwise obtain NOx Allowances from 

another source for purposes of complying with the requirements of this Consent Decree. 

However, nothing in this Consent Decree shall prevent the Settling Defendants from purchasing 

or otherwise obtaining NO Allowances from another source for purposes of complying with x 

state or federal Clean Air Act requirements 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 of operation of the specific NO control x 

technologies required by the NDDH's NOx BACT Determination, the Settling Defendants may 

petition the Plaintiffs to revise the applicable Phase II 30-Day Rolling Average Emission Rate 

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's NOx BACT Determination for the Unit in question, considering all 

relevant information. The Settling Defendants shall include in such petition a proposed 

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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 of the petition for an 

alternative 30-Day Rolling Average Emission Rate for NOx ' The Settling Defendants shall 

provide with each petition all pertinent documents and data. If the Plaintiffs disapprove the 

alternative 30-Day Rolling Average Emission Rate for NOx proposed by the Settling Defendants, 

such disapproval shall be subject to the provisions of Section 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 NOx control technology. The Settling 

Defendants need not operate NOx control technology during periods of Malfunction ofthe NOx 

control technology, or during periods ofMalfunction of the Unit that have a significant adverse 

impact on the operation ofthe NOx control technology, provided that the Settling Defendants 

satisfy the requirements for Malfunction Events as set forth in Paragraph 138 (Malfunction 

Events). As set forth in Paragraph 138, a Malfunction may also constitute a Force Majeure 

Event if it meets the requirements for a Force Majeure Event in Section XIV (Force Majeure) of 

this Consent Decree. 

VI. PM EMISSION REDUCTIONS AND CONTROLS 

A.	 Optimization of PM Emission Controls
 

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75. Within ninety (90) days after entry ofthis Consent Decree and continuing thereafter, 

the Settling Defendants shall continuously operate each PM Control Device on the Milton R. 

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

maintenance limitations of the units. Specifically, the Settling Defendants shall, at a minimum: 

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

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

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

repair and return to service transformer-rectifier sets when they fail; (d) inspect for, and schedule 

for repair, any openings in ESP casings and ductwork to minimize air leakage; (e) optimize for 

Unit 1 the plate-cleaning and discharge-electrode cleaning systems for the ESP by varying the 

cycle time, cycle frequency, rapper-vibrator intensity, and number of strikes per cleaning event; 

and (f) optimize for Unit 2 the plate-cleaning system for the ESP by varying the cycle time and 

frequency of the cycle. 

B. Compliance with PM Emission Limits 

76. Within one year of entry of the 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 of no 

greater than 0.030 Ib/MMBtu. 

77. No later than one-hundred-eighty (180) days after the Settling Defendants install and 

commence continuous operation of the FOD (or equivalent S02 control technology approved 

pursuant to Paragraph 46) on Unit 1 at the Milton R. Young Station, and continuing annually 

thereafter, the Settling Defendants shall demonstrate, in accordance with Paragraphs 80 and 81, 

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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 if the 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 or baghouse serves is combusting 

Fossil Fuel, consistent with good engineering practices for PM control, to minimize PM 

emissions to the extent practicable. The Settling Defendants need not operate an ESP or 

baghouse during periods of Malfunction of the ESP or baghouse, or during periods of 

Malfunction ofthe Unit that have a significant adverse impact on the operation of the ESP or 

baghouse, provided that the Settling Defendants satisfy the requirements for Malfunction Events 

as set forth in Paragraph 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) ofthis Consent Decree. 

79. Within 180 days after the Settling Defendants complete the installation of any 

equipment required by Paragraphs 76 and 77, the Settling Defendants shall conduct a 

performance test demonstration to ensure that the PM emission limitation set forth in Paragraphs 

76 and 77 can be consistently achieved in practice, including all requirements pertaining to 

proper operation and maintenance of control equipment. Ifthe performance demonstration 

shows that the control equipment cannot consistently meet the required PM emission limitation, 

the Settling Defendants shall submit a report to EPA and NDDH proposing alternative emission 

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limits. 

C. PM Monitorin& 

1. PM Stack Tests 

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 given year, in 

accordance with the Settling Defendants' permit from the State of North Dakota. 

81. In determining the 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) or 40 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 stack tests in accordance with 40 C.F.R. 

§ 60.8(f). In addition, the Settling Defendants shall submit the results of each PM stack test to 

NDDH and EPA within forty-five (45) days of completion of each 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 of Ib/MMBtu. The Settling Defendants shall maintain, in an electronic database, the 

hourly average emission values of all 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 

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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 and NDDH for review and approval pursuant to Section XII 

(Review and Approval of Submittals) ofthis Consent Decree a plan for the installation and 

certification of the PM CEMS for Milton R. Young Unit 2. 

84. No later than one hundred twenty (120) days prior to the deadline to commence 

operation of the PM CEMS, the Settling Defendants shall submit to EPA and NDDH for review 

and approval pursuant to Section XII (Review and Approval of Submittals) of this 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 of the protocol, 

the Settling Defendants shall thereafter operate the PM CEMS in accordance with the approved 

protocol. 

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

the QA/QC protocol, the Settling Defendants shall use the criteria set forth in EPA's 

Amendments to Standards of Performance for New Stationary Sources: Monitoring 

Requirements, 69 Fed. Reg. 1786 (January 12,2004). 

86. The Settling Defendants shall install and commence operation of PM 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 certification plan submitted to and approved by 

EPA and NDDH in accordance with Paragraphs 83 and 84. 

88. The Settling Defendants shall operate continuous opacity monitors on Unit 1 and 

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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 of these continuous opacity monitors cannot 

provide accurate opacity measurement due to the formation of liquid water droplets in the flue 

gas ofa stack with a wet POD, in accordance with Question 5.6, Part 75 of EPA's Emission 

Monitoring Policy Manual, then the Settling Defendants may submit to EPA and NDDH for 

review and approval alternative opacity procedures and requirements pursuant to the provisions 

of 40 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 of this Consent Decree shall not be considered as a creditable emission decrease for 

the purpose of obtaining a netting credit under the Clean Air Act's Nonattainment NSR and PSD 

programs. Notwithstanding the preceding sentence, the Settling Defendants may use any 

emission decreases ofNOx' S02' and PM generated under this Consent Decree at Units 1 and 2 

as creditable decreases for the purpose of obtaining netting credit for these pollutants at Unit 3 

under the Clean Air Act's Nonattainment NSR and PSD programs, if: 

a. The Settling Defendants submit, as and addendum to its construction permit 

application for Unit 3, an analysis that proposes emissions limits for NOx, S02' 

and PM that are equivalent to BACT as defined in the 42 U.S.C. § 7479(3), and 

NDDH issues a federally enforceable permit for Unit 3 that includes emissions 

limits that reflect BACT-equivalent level controls at the time of construction of 

the Unit, and that are at least as stringent as a 30-Day Rolling Average S02 

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Case 1:06-cv-00034-DLH-CSM Document 2 Filed 04/24/2006 Page 32 of 41 

Removal Efficiency of at least ninety-five percent 95% (if the Settling Defendants 

install a wet FGD on Unit 3) or 90% (if the 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 of no greater than 0.015 Ibs/MMBtu, 

provided that, at any time following the commencement of operation of this new 

Unit, the Settling Defendants may submit to EPA and NDDH a written petition 

for a higher 30-Day Rolling Average NOx Emission Rate if the Settling 

Defendants can demonstrate that it cannot achieve such an emission rate on this 

new Unit; 

b.	 The Settling Defendants have been and remain in full compliance with the plantwide S02 tonnage limitation set forth in Paragraph 50 of this Consent Decree and 

NDDH has issued a federally-enforceable permit for Units 1,2, and 3 that will 

limit the Plant-Wide Annual Average of the Tonnage for Two Calendar Years for 

S02 at those units to 11,500 tons per year 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, after the pollution control upgrades and installations 

required by this Consent Decree are operational, will be less than the impact from 

the combined emissions at Units 1 and 2 before such controls are operational. 

90. Decreases in actual emissions of NOx' 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) 

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(July 1, 2005) for the purpose of obtaining netting credits for these pollutants at Unit 3, as long 

as the Settling Defendants commence construction of Unit 3 on or before December 31, 2012. 

91. Nothing in this Consent Decree is intended to affect the application of Section 33-15­

15-01.2 ofthe North Dakota Administrative Code regarding the availability of extensions on the 

commencement of construction for newly permitted facilities. 

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

generated under this Consent Decree from being considered by NDDH and EPA as creditable 

emission decreases for the purpose of attainment demonstrations submitted pursuant to Section 

110 ofthe Act, 42 U.S.C. § 7410, or in determining impacts on NAAQS or PSD increment. 

VIII. ADDITIONAL INJUNCTIVE RELIEF 

93. The Settling Defendants shall implement the wind turbine project ("Project") 

described in this Section in compliance with the approved plans and schedules for such Project 

and other terms ofthis Consent Decree. The Settling Defendants shall submit plans for the 

Project to the United States for review and approval pursuant to Section XII (Review and 

Approval of Submittals) of this Consent Decree in accordance with the schedules set forth in this 

Section. In implementing the Project, the Settling Defendants shall spend no less than $5.0 

million in funds ("Project Dollars") pursuant to 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 Project Dollars expended and shall provide these documents to the United 

States and NDDH within thirty (30) days of a request by the United States or NDDH for the 

documents. 

94. The Settling Defendants shall make all plans and reports prepared by the Settling 

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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 Decree publicly available 

without charge. 

95. The Settling Defendants shall certify, as part ofthe plan submitted to the United 

States for the Project that, as ofthe date of this Consent Decree, the Settling Defendants are not 

otherwise required by law to perfonn the Project described in the plan, that the Settling 

Defendants are unaware of any other person who is required by law to perfonn the Project, and 

that the Settling Defendants will not use the Project, or portion thereof, to satisfy any obligations 

that it may have under other applicable requirements of law. 

96. The Settling Defendants shall use good faith efforts to secure as much benefit as 

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

ofthis Consent Decree. 

97. Regardless of whether the Settling Defendants elected (where such election is 

allowed) to undertake the Project by itself or to do so by contributing funds to another person or 

instrumentality that will carry out the Project, the Settling Defendants acknowledge that they 

will receive credit for the expenditure of such funds as Project Dollars only if the Settling 

Defendants demonstrate that the funds have been actually spent by either the Settling Defendants 

or by the person or instrumentality receiving them (or, in the case of internal costs, have actually 

been incurred by the Settling Defendants), and that 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 not receive an offsetting financial or economic benefit from such 

expenditures; in detennining how many Project Dollars have been spent by the Settling 

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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 or economic benefit 

received against any ofthe Settling Defendants' expenditures for the Project. 

99. Within sixty (60) days following the completion ofthe Project required under this 

Consent Decree, 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 

implementing the Project, including the emission reductions or other environmental benefits 

achieved, and the Project Dollars expended by the Settling Defendants in implementing the 

Project. 

100. The Settling Defendants shall not financially benefit to a greater extent than any 

other member ofthe general public from the sale or transfer of technology obtained in the course 

of implementing any Project. 

101. Project Dollar credit given for the Project shall reflect the Settling Defendants' net 

cost in implementing the Project, and any economic benefit or income 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 plan to EPA and the State for a Project to provide their members with electricity 

generated from wind turbines. The Project shall require the Settling Defendants to either (a) by 

December 31, 2012, spend no less than $5,000,000 in Project Dollars to purchase and install its 

own wind turbines, or (b) by December 31, 2009, enter into a power purchase agreement with a 

provider ofwind energy that requires the provider ofwind energy to build new wind turbines by 

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this same date in the Settling Defendants' service territory with a capacity of approximately 

5 MW, and that obligates the Settling Defendants to purchase the entire electric output from the 

turbines for a period of no less than 15 years. The power purchase agreement shall have a 

discounted present value of cash outflows of no less than $5,000,000, based on a discount rate of 

6.25%. 

IX. CIVIL PENALTY 

104. Within thirty (30) calendar days after entry of this 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 and the civil action case name and case number ofthis 

action. The costs of such EFT shall be the Settling Defendants' responsibility. Payment shall be 

made in accordance with instructions provided to the Settling Defendants by the Financial 

Litigation Unit of the U.S. Attorney's Office for the District of North Dakota. Any funds 

received after 2:00 p.m. EDT shall be credited on the next business day. At the time of payment, 

the Settling Defendants shall provide notice of payment, referencing the USAO File Number, the 

DO] Case Number, and the civil action case name and case number, to the Department of Justice 

and to EPA in accordance with Section XVIII (Notices) of this 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 shall be 

made in the form of a certified check or cashier's check, and be payable to "North Dakota 

Department of Health" Payment shall be sent to the Director, Air Quality Division, North 

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Dakota Department ofHealth, Bismark, North Dakota 58506-5520. To ensure proper credit, the 

check must reference United States, et al. v. Minnkota Power Cooperative, et aI., and the civil 

action case number. 

106. Failure to timely pay the civil penalty shall subject the Settling Defendants to 

interest accruing from the date payment is due until the date payment is made at the rate 

prescribed by 28 U.S.C. § 1961, and shall render the Settling Defendants liable for all charges, 

costs, fees, and penalties established by law for the benefit of a creditor or of the United States in 

securing payment. 

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

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

expenditures for purposes of federal law. 

X. RESOLUTION OF CLAIMS 

A. Resolution of Plaintiffs' Civil Claims 

108. Claims Based on Modifications Occurrin& Before the Lod&in& of Consent 

Decree. Entry of this Consent Decree shall resolve all civil claims of the Plaintiffs under: 

a.	 Parts C and D of Subchapter I of the Clean Air Act; 

b.	 Section 111 ofthe Clean Air Act and 40 C.F.R. Part 60; 

c.	 Sections 502(a) and 504(a) of the Clean Air Act, but only to the extent that such 

claims are based on the Settling Defendants' failure to obtain an operating permit 

that reflects applicable requirements imposed under Part C of Subchapter I ofthe 

Clean Air Act; and 

d.	 Chapters 33-15-12 and 33-15-15 ofthe North Dakota Administrative Code, as 

34 
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well as Chapters 33-15-01 and 33-15-14 as they relate to Chapters 33-15-12 and 

33-15-15, and all relevant prior versions ofthese regulations; 

that arose from any modification that commenced at the Milton R. Young Station prior to the 

date oflodging ofthis Consent Decree, including but not limited to modifications alleged in the 

Complaint filed by the Plaintiffs in this civil action. 

109. Claims Based on Modifications After the Lodein2 of Consent Decree. Entry of 

this Decree also shall resolve all civil claims ofthe Plaintiffs for pollutants regulated under: 

a.	 Parts C and D of Subchapter I of the Clean Air Act, and under regulations 

promulgated thereunder as of the date oflodging of this Decree; and 

b.	 Chapter 33-15-15 of the 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 1 or Unit 2 at the Milton R. Young Station after lodging of this 

Decree; or ii) that this Consent Decree expressly directs the Settling Defendants to undertake. 

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

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

110. Reopener. The resolution ofthe civil claims of the United States provided by this 

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

B. Pursuit of Plaintiffs' Civil Claims Otherwise Resolved
 

Ill. Bases for Pursuing Resolved Claims. Ifthe Settling Defendants:
 

a.	 fail by more than ninety (90) days (which may be extended by written 

agreement of the Parties) to complete installation or upgrade, and 

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commence operation, of any emission control device, unless that failure is 

excused under the Force Majeure provisions of this Consent Decree; or 

b. emit more S02 than allowed by the following tonnage limitations: 

1.	 31,000 tons of S02 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 of S02 per year based on a Plant-Wide 12-Month 

Rolling Average Tonnage beginning January 1,2014, in the event 

that Milton R. Young Unit 3 is not operational by December 31, 

2015; 

then the Plaintiffs may pursue any claim that is otherwise covered by the covenant not to 

sue or to bring administrative action under Subsection A of this 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 of the 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 of modifications) at a 

Unit that is otherwise covered by the covenant not to sue or to bring administrative action under 

Subsection A of this Section, if the modification (or collection of modifications) at the Unit on 

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which such claims are based (a) was commenced after lodging of this Consent Decree, and (b) 

individually (or collectively) increased the maximum hourly emission rate ofthat Unit for NOx 

or S02 (as measured by 40 C.F.R. § 60.14 (b) and (h)) by more than ten percent (10%). 

XI. PERIODIC REPORTING 

113. Beginning thirty (30) days after the end ofthe first full calendar quarter following 

the entry of this Consent Decree, continuing on a semi-annual basis until December 31, 2020, 

and in addition to any other express reporting requirement in this Consent Decree, the Settling 

Defendants shall submit to EPA and the State a progress report, containing 

a.	 all information necessary to determine compliance with this Consent Decree, 

including but not limited to information required to be included in the reports 

pursuant to Paragraphs 49, 55, 56, 70, and 99; and 

b.	 all information indicating that the installation and commencement of operation for 

a pollution control device may be delayed, including the nature and cause of the 

delay, and any steps taken by the Settling Defendants to mitigate such delay. 

114. In any periodic progress report submitted pursuant to this Section, the Settling 

Defendants may incorporate by reference information previously submitted under their Title V 

permitting requirements, provided that the Settling Defendants attach the Title V permit report 

(or pertinent portions of such report) and provide a specific reference to the provisions of the 

Title V pennit report that are responsive to the information required in the periodic progress 

report. 

115. In addition to the progress reports required pursuant to this Section, the Settling 

Defendants shall provide a written report to Plaintiffs of any violation ofthe requirements of this 

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Consent Decree, including exceedances of the 30-Day Rolling Average Removal Efficiencies, 

30-day Rolling Average Emission Rates, PM Emission Rates, and Plant-Wide Tonnage limits 

within ten (10) business days of when the Settling Defendants knew or should have known of 

any such violation. In this report, the Settling Defendants shall explain the cause or causes of the 

violation and all measures taken or to be taken by the Settling Defendants to prevent such 

violations in the future. Exceedances of the PM Emission Rates shall be reported within fortyfive (45) days of the completion of the stack test that demonstrates such non-compliance. In this 

report, the Settling Defendants shall explain the cause or causes of the violation and all measures 

taken or to be taken by the Settling Defendants to prevent such violations in the future. 

116. Each Settling Defendant's report shall be signed by each of the Settling 

Defendant's Environmental Manager or, in his or her absence, the Settling Defendant's Vice 

President of Generation, or higher ranking official, and shall contain the following certification: 

This information was prepared either by me or under my direction 

or supervision in accordance with a system designed to assure that 

qualified personnel properly gather and evaluate the information 

submitted. Based on my evaluation, or the direction and my 

inquiry ofthe person(s) who manage the system, or the person(s) 

directly responsible for gathering the information, I hereby certify 

under penalty of law that, to the best of my knowledge and belief, 

this information is true, accurate, and complete. I understand that 

there are significant penalties for submitting false, inaccurate, or 

incomplete information to the United States. 

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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 that this Consent Decree 

provides for joint approval with the State, may approve the submittal or decline to approve it and 

provide written comments. Within sixty (60) days of receiving 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, if applicable, to the State; or (b) 

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

Section XV (Dispute Resolution) of this Consent Decree. 

118. Upon receipt of EPA's final approval of the submittal, and the State's final 

approval, if applicable, or upon completion of the submittal pursuant to dispute resolution, the 

Settling Defendants shall implement the 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 of this Consent 

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

Resolution) of this Consent Decree, the Settling Defendants shall pay, within thirty (30) days 

after receipt of written demand to the Settling Defendants by the United States, the following 

stipulated penalties to the United States: 

Stipulated Penalty 

(Per day per violation, 

unless otherwise specified) 

Consent Decree Violation 

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a. Failure to pay the civil penalty as specified in 

Section IX (Civil Penalty) of this 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 of the 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, or Emission Rate for PM, 

where the violation is equal to or greater than 5% but less 

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

Decree 

$5,000 

d. Failure to 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, or Emission Rate for PM, 

where the violation is equal to or greater than 10% in 

excess of the limits set forth in this Consent Decree 

$10,000 

e. Failure to comply with the Plant-Wide Tonnage 

Limitations for One Calendar Year or the Plant-Wide 

Tonnage Limitations for the Annual Average of Two 

Calendar Years 

$60,000 per ton per year 

for the first 100 tons over the 

limit, and $120,000 per ton per 

year for each additional ton 

over the limit 

f. Failure to install, upgrade, commence operation, 

or continue operation of the NOx, SOz, and PM pollution 

control devices on any 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. Failure to conduct annual performance tests of 

PM emissions, as required by Paragraphs 80 and 81 

$1,000 

i. Failure to apply for any permit required by this 

Consent Decree 

$1,000 

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j. Failure to timely submit, modify, or implement, 

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

or other 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 Consent Decree 

the surrender, pursuant 

to the procedures set forth in 

Paragraphs 55 through 57 of 

this Consent Decree, of S02 

Allowances in an amount equal 

to four times the number of S02 

Allowances used, sold, or 

transferred in violation of this 

Consent Decree 

1. Using, selling or transferring NOx Allowances 

except as permitted in Paragraphs 68 through 71 

the surrender of NOx 

Allowances in an amount equal 

to four times the number of 

NOx Allowances used, sold, or 

transferred in violation of this 

Consent Decree 

m. Failure to surrender an S02 Allowance as 

required by Subsection B (Surrender of S02 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 of the 

Projects in compliance with Section VIII (Additional 

Injunctive Relief) of this Consent Decree 

$1,000 during the first· 

30 days, $5,000 thereafter 

o. Any other violation of this 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 if the Settling 

Defendants are in full compliance with the requirements ofParagraph 49 of this Consent Decree, 

such exceedance is due to the Settling Defendants' efforts to reduce ice formation on a wet FGD 

stack by resorting to a partial bypass of their FGD, and the Settling Defendants maintain a 30­

Day Rolling Average Removal Efficiency for S02 ofno less than 83% during such periods of 

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partial bypass. 

121. Violation of an Emission Rate or removal efficiency that is based on a 30-Day 

Rolling Average is a violation on every day on which the average is based. 

122. Where a violation ofa 30-Day Rolling Average Removal Efficiency (from the same 

source) recurs within periods of less than thirty (30) days, the Settling Defendants shall not pay a 

daily stipulated penalty for any day of the recurrence for which a stipulated penalty has already 

been paid. 

123. All stipulated penalties shall begin to accrue on the day after the performance is due 

or on the day a violation occurs, whichever is applicable, and shall continue to accrue until 

performance is satisfactorily completed or until the violation ceases. Nothing in this Consent 

Decree shall prevent the simultaneous accrual of separate stipulated penalties for separate 

violations of this Consent Decree. 

124. The Settling Defendants shall pay all stipulated penalties to the Plaintiffs within 

thirty (30) days of receipt of written demand to 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, unless the Settling Defendants elects within 20 days of receipt of written 

demand to the Settling Defendants from the United States to dispute the accrual of stipulated 

penalties in accordance with the provisions in Section XV (Dispute Resolution) of this Consent 

Decree. 

125. Stipulated penalties 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 of the Treasury, pursuant to 28 U.S.C. § 1961, but need not be paid 

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until the following: 

a.	 If the dispute is resolved by agreement, or by a decision of Plaintiffs pursuant to 

Section XV (Dispute Resolution) of this 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 within thirty (30) days of the effective date of 

the agreement or of the receipt of Plaintiffs' decision; 

b.	 Ifthe dispute is appealed to the Court and Plaintiffs prevail in whole or in part, 

the Settling Defendants shall, within sixty (60) days of receipt of the 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.	 If the 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. 

For purposes of this Paragraph, the accrued stipulated penalties agreed by the Parties, or 

detennined by 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 of this Consent Decree. 

126. All stipulated penalties shall be paid in the manner set forth in Section IX (Civil 

Penalty) of this Consent Decree. 

127. Should the Settling Defendants fail to pay stipulated penalties in compliance with 

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the terms of this Consent Decree, 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 addition to 

any other rights, remedies, or sanctions available to any Plaintiffby reason of the Settling 

Defendants' failure to comply with any requirement of this Consent Decree or applicable law, 

except that for any violation of the Act for which this Consent Decree provides for payment of a 

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 of this Consent Decree, a "Force Majeure Event" shall mean an event 

that has been or will be caused by circumstances beyond the control of the Settling Defendants, 

their contractors, or any entity controlled by the Settling Defendants that delays compliance with 

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

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 of any such event (a) as it is occurring and (b) after it 

has occurred, such that the delay or violation is minimized to the greatest extent possible. 

130. Notice of Force Majeure Events. If any event occurs or has occurred that may 

delay compliance with or otherwise cause a violation of any obligation under this Consent 

Decree, as to which the Settling Defendants intends to assert a claim of Force 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 

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first knew, or by the exercise of due diligence should have known, that the event caused or may 

cause such delay or violation. In this notice, the Settling Defendants shall reference this 

Paragraph of this Consent Decree and describe the anticipated length of time that the delay or 

violation may persist, the cause or causes of the delay or violation, all measures taken or to be 

taken by the Settling Defendants to prevent or minimize the delay or violation, the schedule by 

which the Settling Defendants proposes to implement those measures, and the Settling 

Defendants' rationale for attributing a delay or violation to a Force Majeure Event. The Settling 

Defendants shall adopt all reasonable measures to avoid or minimize such delays or violations. 

The Settling Defendants shall be deemed to know of any 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. If the Settling Defendants fails to comply with the notice 

requirements in the preceding Paragraph, the Plaintiffs may void the Settling Defendants' claim 

for Force Majeure as to the specific event for which the Settling Defendants have failed to 

comply with such notice 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. If the Plaintiffs agree that a delay in 

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

an extension of deadline(s) for perfonnance of the affected compliance requirement(s) by a 

period equal to the delay actually caused by the event. In such circumstances, an appropriate 

modification shall be made pursuant to Section XXII (Modification) ofthis Consent Decree. 

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133. Disaereement. Ifthe Plaintiffs do not accept the Settling Defendants' claim of 

Force Majeure, or if the Parties cannot agree on the length of the 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 of Proof. In any dispute regarding Force Majeure, the Settling Defendants 

shall bear the burden of proving that any delay in performance or any other violation of any 

requirement ofthis Consent Decree was caused by or will be caused by a Force Majeure Event. 

The Settling Defendants shall also bear the burden of proving that the Settling Defendants gave 

the notice required by Paragraph 130 and the burden of proving the anticipated duration and 

extent of any delay(s) attributable to a Force Majeure Event. An extension of one compliance 

date based on a particular event may, but will not necessarily, result in an extension of a 

subsequent compliance date. 

135. Events Excluded. Unanticipated or increased costs or expenses associated with the 

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 of events listed below are among those that could qualify as Force Majeure Events 

within the meaning ofthis Section: construction, labor, or equipment delays; Malfunction of a 

Unit or emission control device; acts of God; acts ofwar or terrorism; and orders by a 

government official, government agency, or other regulatory body acting under and authorized 

by applicable law that directs the Settling Defendants to supply electricity in response to a 

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system-wide (state-wide or regional) emergency. Depending upon the circumstances and the 

Settling Defendants' response to such circumstances, failure of a permitting authority to issue a 

necessary permit in a timely fashion may constitute a Force Majeure Event where the failure of 

the permitting authority to act is beyond the control of the 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, provided that the Settling Defendants shall not be precluded 

from asserting that a new Force Majeure Event has caused or may cause a new or additional 

delay in complying with the extended or modified schedule. 

137. As part of the resolution of any matter submitted to this Court under Section XV 

(Dispute Resolution) of this Consent Decree regarding a claim of Force Majeure, the Parties by 

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

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

that occurred as a result of any delay agreed to by the United States and the State or approved by 

the Court. The Settling Defendants shall be liable for stipulated penalties for their failure 

thereafter to complete the work in accordance with the extended or modified 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 later than fourteen (14) business days following the date that 

the Settling Defendants first knew, or by the exercise of due diligence should have known, of the 

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Malfunction. The Settling Defendants shall be deemed to know of any 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 of the Malfunction, all 

measures taken or to be taken by the Settling Defendants to minimize the duration ofthe 

Malfunction, and the schedule by which the Settling Defendants proposes to implement those 

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, to the 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 Event unless the Malfunction also meets the definition of a Force Majeure Event, as 

provided in this Section. Conversely, a period ofMalfunction may be excluded by the Settling 

Defendants from the calculations of emission rates and removal efficiencies, as allowed under 

this Paragraph, ifthe Malfunction 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, provided that the Party invoking such 

procedure has first made a good faith attempt to resolve the matter with the other Parties. 

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

giving written notice to the other Parties advising of a dispute pursuant to this Section. The 

notice shall describe the nature ofthe dispute and shall state the noticing Party's position with 

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regard to such dispute. The Parties receiving such a notice shall acknowledge receipt of the 

notice, and the Parties in dispute shall expeditiously schedule a meeting to discuss the dispute 

informally not later than fourteen (14) days following receipt of such notice. 

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

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

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

meeting among the disputing Parties' representatives unless they agree in writing to shorten or 

extend this period. During the informal negotiations period, the disputing Parties may also 

submit their dispute to a mutually-agreed-upon alternative dispute resolution ("ADR") forum if 

the Parties agree that the ADR activities can be completed within the 3D-day informal 

negotiations period (or such longer period as the Parties may agree to in writing). 

142. If the 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 position provided by the Plaintiffs shall be 

considered binding unless, within forty-five (45) calendar days thereafter, the Settling 

Defendants seeks judicial resolution of the dispute by filing a petition with this Court. The 

Plaintiffs may respond to the petition within forty-five (45) calendar days of filing. 

143. Where the nature of the dispute is such that a more timely resolution of the issue is 

required, the time periods set out in this Section may be shortened upon motion of one of the 

Parties to the dispute. 

144. This Court shall not draw any inferences nor establish any presumptions adverse to 

any disputing Party as a result of invocation of this Section or the disputing Parties' inability to 

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reach agreement. 

145. As part ofthe resolution of any dispute under this Section, in appropriate 

circumstances the disputing Parties may agree, or this Court may order, an extension or 

modification of the schedule for the completion ofthe activities required under this Consent 

Decree to account for the delay that occurred as a result of dispute resolution. The Settling 

Defendants shall be liable for stipulated penalties for their failure thereafter to complete the work 

in accordance with the extended or modified schedule, provided that the Settling Defendants 

shall not be precluded from asserting that a Force Majeure Event has caused or may cause a 

delay in complying with the extended or modified schedule. 

146. The Court shall decide all disputes pursuant to applicable principles of law for 

resolving such disputes. In their initial filings with the Court under Paragraph 142, the disputing 

Parties shall state their respective positions as to the applicable standard of law for resolving the 

particular dispute. 

147. This Paragraph shall govern all disputes under this Consent Decree between any 

Party regarding the BACT Determination provided by NDDH under Section V(B) ofthis 

Consent Decree. The Settling Defendants hereby waive their rights to challenge or dispute 

NDDH's BACT Determination other than through this Paragraph, which shall constitute the sole 

means by which the Settling Defendants may dispute such determination. 

a.	 If any Party does not agree, in whole or in part, with NDDH's BACT 

Determination or with the 30-Day Rolling Average NOx Emission Rate 

established by NDDH as part of its BACT Determination, it shall notify the other 

Parties within thirty (30) days of receipt ofthe BACT Determination. The notice 

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shall describe the particular reason(s) for disagreeing with NDDH's BACT 

Determination. The disputing Party shall bear the burden of proof throughout the 

dispute resolution process. The Parties to the dispute shall endeavor to resolve 

the dispute informally for up to thirty (30) days following issuance of such notice. 

b.	 If the Parties to the dispute do not reach an agreement during this informal dispute 

resolution process, each disputing Party shall provide the other Parties with a 

written summary of its 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 of each such filing. 

c.	 The Court shall sustain the decision by NDDH unless the Party disputing the 

BACT Determination demonstrates that it is not supported by the state 

administrative record and not reasonable in light of applicable 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 law or this Consent Decree requires the Settling 

Defendants to secure a permit to authorize construction or operation of any device, including all 

preconstruction, construction, and operating permits required under state law, the Settling 

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Defendants shall make such application in a timely manner. The United States and NDDH will 

use their best efforts to expeditiously review all permit applications submitted by the Settling 

Defendants in order to meet the requirements of this Consent Decree. 

149. When permits are required, the Settling Defendants shall complete and submit 

applications for such permits to the appropriate authorities to allow sufficient time for all legally 

required processing and review of the pennit request, including requests for additional 

information by 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 of Section XIV (Force Majeure) of this Consent Decree, 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 of the permit shall be in accordance with its own terms and the Act. The Title V 

pennit shall not be enforceable under this Consent Decree, although any term or limit established 

by or under this Consent Decree shall be enforceable under this Consent Decree regardless of 

whether such term has or will become part of a Title V pennit, subject to the terms of Section 

XXVI (Conditional Termination of Enforcement Under Consent Decree) ofthis Consent Decree. 

151. Within ninety (90) days after entry of this Consent Decree, the Settling Defendants 

shall amend any applicable Title V pennit application, or apply for amendments of their 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, emission rates, removal efficiencies, tonnage limitations, and the requirements 

pertaining to the surrender of S02 Allowances. 

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152. Within one (1) year from the commencement of operation of each pollution 

control device to be installed or upgraded 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 enforceable permit (other than a Title V permit) or amendments to 

the North Dakota State Implementations Plan ("SIP"). The permit 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 of each 

application for a federally enforceable permit or SIP amendment, as well as a copy of any permit 

proposed as a result of such application, to allow for timely participation in any public comment 

opportunity. The Settling Defendants and the NDDH agree to incorporate the S02 limitations in 

Subparagraphs 50(c) (and Subparagraph 50(d), if applicable) as federally-enforceable limits for 

the Settling Defendants in future permitting proceedings. 

154. If the Settling Defendants sell or transfer to an entity unrelated to the Settling 

Defendants ("Third Party Purchaser") part or all of an ownership interest in a Unit ("Ownership 

Interest") covered under this Consent Decree, the Settling Defendants shall comply with the 

requirements of Paragraphs 148 through 153 with regard to that Unit prior 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 of the Plaintiffs, including their attorneys, 

contractors, and consultants, upon presentation of credentials, shall have a right of entry upon the 

premises of any facility covered under this Consent Decree at any reasonable time for the 

purpose of: 

a.	 monitoring the progress of activities required under this Consent Decree; 

b.	 verifying any data or infonnation submitted to the Plaintiffs in accordance with 

the terms of this Consent Decree; 

c.	 obtaining samples and, upon request, splits of any 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 of all records and docwnents (including records and documents 

in electronic fonn) now in their or their contractors' or agents' possession or control, and that 

directly relate to the Settling Defendants' perfonnance of their obligations under this Consent 

Decree, until December 31, 2020. This record retention requirement shall apply regardless of 

any corporate document retention policy to the contrary. 

157. All infonnation and docwnents submitted by the Settling Defendants pursuant to 

this Consent Decree shall be subject to public disclosure based on requests under applicable law 

providing for such disclosure unless (a) the infonnation and docwnents are subject to legal 

privileges or protection or (b) the Settling Defendants claim and substantiate in accordance with 

40 C.F.R. Part 2 that the infonnation and documents contain confidential business infonnation. 

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158. Nothing in this Consent Decree shall limit the authority of the Plaintiffs to conduct 

tests and inspections at facilities covered under this Consent Decree under Section 114 of the 

Act, 42 U.S.C. § 7414, or any other applicable federal or state laws, regulations or permits. 

XVIII. NOTICES 

159. Unless otherwise provided herein, whenever notifications, submissions, or 

communications are required by this Consent Decree, they shall be made in writing and 

addressed as follows: 

As to the United States of America:
 

Chief, Environmental Enforcement Section
 

Environment and Natural Resources Division
 

U.S. Department of Justice 

P.O. Box 7611, Ben Franklin Station
 

Washington, D.C. 20044-7611
 

DOJ# 90-5-2-1-07717
 

and 

Director, Air Enforcement Division
 

Office of Enforcement and Compliance Assurance
 

U.S. Environmental Protection Agency
 

Ariel Rios Building [2242A]
 

1200 Pennsylvania Avenue, N.W.
 

Washington, DC 20460
 

and 

U. S. EPA, Region 8 

Director, Office of Enforcement, Compliance, and Environmental Justice 

999 18th Street, Suite 300 

Denver, Colorado 80202-2466 

As to the State of North Dakota: 

Director, Air Quality Division
 

North Dakota Department of Health
 

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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 either by: (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 or registered mail shall be deemed submitted on the date they are 

postmarked, or (b) sent by overnight delivery service shall be deemed submitted on the 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 of receipt of such 

transmission. 

161. Any Party may change either the notice recipient or the address for providing 

notices to it by serving the other Parties with a notice setting forth such new notice recipient or 

address. 

XIX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS 

162. If the Settling Defendants propose to sell or transfer part or all oftheir ownership 

interest in any of their real property or operations subject to this Consent Decree ("Ownership 

Interest") to an entity unrelated to the Settling Defendants ("Third Party Purchaser"), they shall 

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advise the Third Party Purchaser in writing of the existence of this Consent Decree prior to such 

sale or transfer, and shall send a copy of such written notification to the Plaintiffs pursuant to 

Section XVIII (Notices) at least sixty (60) days before such proposed sale or transfer. 

163. No sale or transfer of an 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) of this Consent Decree making the Third Party Purchaser a party 

defendant to this Consent Decree and jointly 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 as provided in Paragraph 165, below. 

164. This Consent Decree shall not be construed to impede the transfer of any 

Ownership Interests between the Settling Defendants and any Third Party Purchaser as long the 

requirements of this 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~fthe burdens of compliance with this Decree, provided 

that both the Settling Defendants and such Third Party Purchaser shall remain jointly and 

severally liable to the Plaintiffs for the obligations of the Decree applicable to the transferred or 

purchased Ownership Interests, except as provided in Paragraph 165. 

165. If the Plaintiffs agree, the United States, the State, the Settling Defendants and the 

Third Party Purchaser that has become a party defendant to this Consent Decree pursuant to 

Paragraph 163 may execute a modification that relieves Minnkota and/or Square Butte of their 

liability under this Consent Decree for, and makes the Third Party Purchaser liable for, all 

obligations and liabilities applicable to the purchased or transferred Ownership Interests. 

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Notwithstanding the foregoing, however, the Settling Defendants may not assign, and may not 

be released from, any obligation under this Consent Decree that is not specific to the purchased 

or transferred 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 ofjoint and several liability of any purchaser or 

transferee for any obligations ofthis Consent Decree that are not specific to the purchased or 

transferred Ownership Interests to the extent such obligations may be adequately separated in an 

enforceable manner. 

XX. EFFECTIVE DATE 

166. The effective date of this Consent Decree shall be the date upon which this Consent 

Decree is entered by the Court. 

XXI. RETENTION OF JURISDICTION 

167. Continuine Jurisdiction. The Court shall retain jurisdiction of this 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 of disputes. During the tenn of this Consent Decree, 

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

Decree does not guarantee compliance with all applicable federal, state, or local laws or 

regulations. The removal efficiencies and emission rates set forth herein do not relieve the 

Settling Defendants from any obligation to comply with other state and federal requirements 

under the Clean Air Act, 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 mean the version of 

the statutes or regulations in force as of July 1,2005. 

170. This Consent Decree does not apply to any claim(s) of alleged criminal liability. 

171. In any subsequent administrative or judicial action initiated by the Plaintiffs for 

injunctive relief or civil penalties relating to the facilities covered by this Consent Decree, the 

Settling Defendants shall not assert any defense or claim based upon principles of waiver, res 

judicata, collateral estoppel, issue preclusion, claim preclusion, or claim splitting, or any other 

defense based upon the contention that the claims raised by the Plaintiffs in the subsequent 

proceeding were brought, or should have been brought, in the instant case; provided, however, 

that nothing in this Paragraph is intended to, or shall, affect the validity of Section X (Resolution 

of Claims) ofthis Consent Decree. 

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172. Except as specifically provided by this Consent Decree, nothing in this Consent 

Decree shall relieve the Settling Defendants of their obligations to comply with all applicable 

federal, state, and local laws and regulations. Nothing contained in this Consent Decree shall be 

construed to prevent or limit the rights of the Plaintiffs to obtain penalties, injunctive relief or 

other relief under the Act or other federal, state, or local statutes, regulations, or permits. 

173. Every term expressly defined by this Consent Decree shall have the meaning given 

to that term by this Consent Decree and, except as otherwise provided in this Consent Decree, 

every other term used in this Consent Decree that is also a term under the Act or the regulations 

implementing the Act shall mean in this Consent Decree what such term means under the 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 of data for any purpose under the Act, generated either by the reference 

methods specified herein or otherwise. 

175. Each limit and/or other requirement established by or under this Consent Decree is 

a separate, independent requirement. 

176. Performance standards, emissions limits, and other quantitative standards set by or 

under this Consent Decree must be met to the number of significant digits in which the standard 

or limit is expressed. For example, an Emission Rate of 0.1 00 is not met if the actual Emission 

Rate is 0.101. The Settling Defendants shall round the fourth significant digit to the nearest third 

significant digit, or the third significant digit to the nearest second significant digit, depending 

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upon whether the limit is expressed to three or two significant digits. For example, if an actual 

Emission Rate is 0.1004, that shall be reported as 0.100, and shall be in compliance with an 

Emission Rate of 0.100, and if an actual Emission Rate is 0.1005, that shall be reported as 0.101, 

and shall not be in compliance with an Emission Rate of 0.1 00. The Settling Defendants shall 

report data to the number of significant digits in which the standard or limit is expressed. 

177. This Consent Decree does not limit, enlarge or affect the rights of any Party to this 

Consent Decree as against any third parties. 

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

understanding among the Parties with respect to the settlement embodied in this Consent Decree, 

and supersedes all prior agreements and understandings among the Parties related to the subject 

matter herein. No document, representation, inducement, agreement, understanding, or promise 

constitutes any part of this Consent Decree or the settlement it represents, nor shall they be used 

in construing the terms of this Consent Decree. 

179. The United States and the Settling Defendants shall bear their own costs and 

attorneys' fees. 

XXIV. SIGNATORIES AND SERVICE 

180. Each undersigned representative of the Parties certifies that he or she is fully 

authorized to enter into the terms and conditions of this Consent Decree and to execute and 

legally bind to this document the Party he or she represents. 

181. This Consent Decree may be signed in counterparts, and such counterpart signature 

pages shall be given full force and effect. 

182. Each Party hereby agrees to accept service of process by mail with respect to all 

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matters arising under or relating to this Consent Decree and to waive the fonnal service 

requirements set forth in Rule 4 of the Federal Rules of Civil Procedure and any applicable Local 

Rules of this Court including, but not limited to, service of a summons. 

XXV. PUBLIC COMMENT 

183. The Parties agree and acknowledge that final approval by the United States and 

entry of this Consent Decree is subject to the procedures of28 C.F.R. § 50.7, which provides for 

notice of the lodging of this Consent Decree in the Federal Register, an opportunity for public 

comment, and the right of the United States to withdraw or withhold consent if the comments 

disclose facts or considerations which indicate that the Consent Decree is inappropriate, 

improper or inadequate. The Settling Defendants shall not oppose entry of this Consent Decree 

by this Court or challenge any provision of this Consent Decree unless the United States has 

notified 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 of this Consent Decree that is not 

ongoing or recurring, the Settling Defendants may, by motion to this Court, seek termination of 

the provision or provisions of this Consent Decree that imposed the requirement. 

185. Conditional Termination of Enforcement Throup the Consent Decree. After 

the Settling Defendants: 

a. have successfully completed construction, and have maintained operation, of all 

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pollution controls as required by this Consent Decree; 

b.	 have obtained a final Title V permit (I) as required by the terms of this Consent 

Decree; (ii) that cover all units in this Consent Decree; and (iii) that include as 

enforceable permit terms all ofthe Unit performance and other requirements 

specified in Section XVI (Permits) of this Consent Decree; 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 of receipt of 

the Settling Defendants' certification, then, for any Consent Decree violations that occur after 

the filing of notice, the Plaintiffs shall pursue enforcement of the 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, if enforcement of a provision in this Consent Decree cannot be pursued by a 

Party under the applicable Title V permit, or if a Consent Decree requirement was intended to be 

part of a Title V Permit and did not become or remain part of such permit, then such requirement 

may be enforced under the terms of this 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 Consent Decree. 

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XXVII. FINAL JUDGMENT 

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

shall constitute a final judgment in the above-captioned matter between the Plaintiffs and the 

Settling Defendants. 

SO ORDERED, THIS __ DAY OF , 2006. 

UNITED STATES DISTRICT COURT JUDGE
 

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FOR THE UNITED STATES OF AMERICA:
 

MAT HEW W. MORRISON 

Senio ounsel 

Environmental Enforcement Section 

Environmental and Natural Resources Division 

United States Department of Justice 

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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"':-rI-H---=I::~:).._~_l_~-I--'~ Attorney Advi or 

Air Enforcement Division 

Office of Enforcement and Compliance Assurance 

United States Environmental Protection Agency 

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CAROL RUSHIN 

Assistant Regional Administrator 

Office of Enforcement, Compliance 

and Environmental Justice 

/3unL~·
 BRENDA MORRIS 

Enforcement Attorney 

U.S. Environmental Protection Agency 

Region 8 

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FOR THE STATE OF NORTH DAKOTA: 

TE 

State He lth Officer 

North Dakota Dep't ofHealth 

W E STENEHJEM 

Attorney General 

Attorney for North Dakota 

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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