UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

____________________________________ 

 ) 

UNITED STATES OF AMERICA, ) 

 ) 

 Plaintiff, ) 

 ) 

 and ) 

 ) 

LOUISIANA DEPARTMENT OF ) 

ENVIRONMENTAL QUALITY, ) 

 ) 

 Plaintiff-Intervenor, ) 

 ) 

 v. ) Civil Action No. 09-100-JJB-DLD

 ) 

LOUISIANA GENERATING LLC, ) 

 ) 

 ) 

 Defendant. ) 

 ) 

____________________________________) 

 

 

CONSENT DECREE
-iTABLE OF CONTENTS

I. JURISDICTION AND VENUE.........................................................................................3 

II. APPLICABILITY.............................................................................................................3 

III. DEFINITIONS................................................................................................................. 4 

IV. NOx EMISSION REDUCTIONS AND CONTROLS................................................... 11 

V. SO2 EMISSION REDUCTIONS AND CONTROLS......................................................15 

VI. PM EMISSION REDUCTIONS AND CONTROLS ....................................................19 

VII. PROHIBITION ON NETTING CREDITS OR OFFSETS FROM REQUIRED 

CONTROLS...........................................................................................................................24 

VIII. ENVIRONMENTAL MITIGATION PROJECTS.......................................................25 

IX. CIVIL PENALTY............................................................................................................27 

X. RESOLUTION OF CERTAIN CIVIL CLAIMS OF THE PLAINTIFFS........................28 

XI. PERIODIC REPORTING................................................................................................29 

XII. REVIEW AND APPROVAL OF SUBMITTALS.........................................................30 

XIII. STIPULATED PENALTIES.........................................................................................31 

XIV. FORCE MAJEURE...................................................................................................... 41 

XV. DISPUTE RESOLUTION............................................................................................. 45 

XVI. PERMITS......................................................................................................................47 

XVII. INFORMATION COLLECTION AND RETENTION..............................................49 

XVIII. NOTICES...................................................................................................................51 

XIX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS........................................53 

XX. EFFECTIVE DATE........................................................................................................54 

XXI. RETENTION OF JURISDICTION..............................................................................54 
-iiXXII. MODIFICATION..............................................................................................................55 

XXIII. GENERAL PROVISIONS...............................................................................................55 

XXIV. SIGNATORIES AND SERVICE.....................................................................................58 

XXV. PUBLIC COMMENT........................................................................................................58 

XXVI. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER DECREE..............59 

XXVII. FINAL JUDGMENT.......................................................................................................60 
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WHEREAS, the United States of America (“the United States”), on behalf of the United 

States Environmental Protection Agency (“EPA”), filed a complaint on February 11, 2009, 

against Louisiana Generating LLC (“Louisiana Generating” or “Settling Defendant”) pursuant to 

Sections 113(b) and 167 of the Clean Air Act (“the Act”), 42 U.S.C. §§ 7413(b) and 7477, for 

injunctive relief and the assessment of civil penalties for violations of the Prevention of 

Significant Deterioration (“PSD”) provisions of the Act, 42 U.S.C. §§ 7470-92; the federally 

approved Louisiana PSD regulations of the Louisiana State Implementation Plan (“SIP”); Title V 

of the Act, 42 U.S.C. §§ 7661-7661f, and the federally approved Louisiana Title V program, or 

any rule or permit issued thereunder (“Title V”);

 WHEREAS, the Louisiana Department of Environmental Quality (“LDEQ”) filed a 

complaint on February 18, 2010, pursuant to Section 304 of the Act, 42 U.S.C. § 7604, alleging 

the same violations as are alleged in the United States’ complaint; 

 WHEREAS, EPA issued notices of violation (“NOVs”) to Louisiana Generating with 

respect to such allegations on February 15, 2005, and December 8, 2006; 

WHEREAS, in their complaints, the United States and LDEQ (“Plaintiffs”) allege, inter 

alia, that Louisiana Generating is responsible for the modification and operation of two electric 

generating units (Units 1 and 2) at the Big Cajun II Power Plant (“Big Cajun II”), located near 

New Roads, Louisiana, without necessary permits, and without installing and employing the best 

available control technology (“BACT”) to control emissions of nitrogen oxides (“NOx”) and/or 

sulfur dioxide (“SO2”) as the Act requires; 
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WHEREAS, the Settling Defendant denies that it is responsible for or committed 

violations of the Clean Air Act or that the projects performed at Big Cajun II required a PSD 

permit or the installation of BACT;

 WHEREAS, Plaintiffs’ complaints alleges claims upon which relief can be granted 

against the Settling Defendant under Sections 113, 167, and 304 of the Act, 42 U.S.C. §§ 7413, 

7477, and 7604; 

 WHEREAS, the United States provided the Settling Defendant and the State of Louisiana 

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 United States, LDEQ, and the Settling Defendant (“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 Settling Defendant affirms that a portion of the emissions technology, 

including related to PM emissions and refueling, under this consent decree, will allow it to 

comply with the Mercury Air Toxics Rule, a change in environmental law promulgated after the 

filing of the complaint; 

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 Defendant has cooperated in the resolution of this matter; 
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WHEREAS, the Settling Defendant maintains that it has been and remains in compliance 

with the Act and is not liable for civil penalties or injunctive relief, 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, 

ADJUDGED, AND DECREED as follows: 

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). The Settling 

Defendant consents to and shall not challenge entry of this Consent Decree or this Court’s 

jurisdiction to enter and enforce this Consent Decree. 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. 

I. JURISDICTION AND VENUE

2. Upon entry, the provisions of this Consent Decree shall apply to and be binding upon and 

inure to the benefit of Plaintiffs and the Settling Defendant, and their successors and assigns, and 

upon their officers, employees and agents solely in their capacities as such. 

II. APPLICABILITY
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3. The Settling Defendant shall provide a copy of this Consent Decree to all vendors, 

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

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

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

the Settling Defendant shall be responsible for ensuring that all work is performed in accordance 

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

Settling Defendant 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 the Settling Defendant establishes that such failure resulted from a Force Majeure Event, 

as defined in Section XIV of this Consent Decree. 

4. 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.

III. DEFINITIONS

5. A “30-day Rolling Average Emission Rate” for a Unit means, and shall be expressed as, 

a lb/mmBTU rate calculated in accordance with the following procedure: first, sum the total 

pounds of the pollutant in question emitted from the Unit during an Operating Day and the 

previous twenty-nine (29) Operating Days; second, sum the total heat input to the Unit in 

mmBTU during the Operating Day and during the previous twenty-nine (29) Operating Days; 

and third, divide the total number of pounds of pollutants emitted during the thirty (30) 
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Operating Days by the total heat input during the thirty (30) 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 emissions that occur during all periods within 

any Operating Day, including emissions from startup, shutdown, and Malfunction, except as 

otherwise provided by Section XIV (Force Majeure). 

6. “Big Cajun II” means Units 1, 2 and 3 of the Big Cajun II Power Station located near 

New Roads, Louisiana. 

7. “CEMS” or “Continuous Emission Monitoring System,” means, for obligations involving 

NOx and SO2 under 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. §§ 7401-7671q, 

and its implementing regulations.

9. “Consent Decree” means this Consent Decree.

10. “Continuously Operate” or “Continuous Operation” means that when a Dry FGD, DSI, 

SNCR, LNB, OFA, or ESP is used at a Unit, except during a Malfunction, such control shall be 

operated at all times the Unit is in operation, consistent with the technological limitations, 

manufacturers’ specifications, and good engineering and maintenance practices for minimizing 

emissions (as defined in 40 C.F.R. § 60.11(d)) for such equipment and the Unit.

11. “Date of Entry” means the date this Consent Decree is entered by the Court or a motion 

to enter the Consent Decree is granted, whichever occurs first, as recorded on the Court’s docket. 

12. “Date of Lodging” means the date this Consent Decree is filed for lodging with the Clerk 

of the Court for the United States District Court for the Middle District of Louisiana.
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13. “Day” means calendar day, unless otherwise specified.

14. “Dry Flue Gas Desulfurization” or “Dry FGD” means an add-on air pollution control 

system for the reduction of SO2 located downstream of a boiler that sprays an alkaline sorbent 

slurry in one or more absorber vessels designed to provide intimate contact between an alkaline 

slurry and the flue gas stream to react with and remove SO2 from the exhaust stream forming a 

dry powder material which is captured in a downstream particulate control device.

15. “Dry Sorbent Injection” or “DSI” means a process in which a sorbent is injected into the 

downstream boiler exhaust prior to the particulate air pollution control system. 

16. “Electrostatic Precipitator” or “ESP” means a device for removing particulate matter 

from combustion gases by imparting an electric charge to the particles and then attracting them 

to a metal plate or screen of opposite charge before the combustion gases are exhausted to the 

atmosphere.

17. “Emission Rate” for a given pollutant means the number of pounds of that pollutant 

emitted per million British thermal units of heat input (lb/MMBtu), measured in accordance with 

this Consent Decree.

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

19. “Fossil Fuel” means any hydrocarbon fuel, including coal, petroleum coke, petroleum 

oil, or natural gas. 

20. “lb/MMBtu” means one pound of a pollutant per million British thermal units of heat 

input. 

21. “Low NOx Burner” or “LNB” means commercially available combustion modification 

technology that minimizes NOx formation by introducing coal and combusting air into a boiler 
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such that initial combustion occurs in a manner that promotes rapid coal devolatilization in a 

fuel-rich (i.e., oxygen deficient) environment and introduces additional air to achieve a final fuellean (i.e., oxygen rich) environment to complete the combustion processes. 

22. “LDEQ” means the Louisiana Department of Environmental Quality. 

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

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

25. “National Ambient Air Quality Standards” or “NAAQS” means national ambient air 

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

26. “Natural Gas” means natural gas received directly or indirectly through a connection to 

an interstate pipeline transporting natural gas governed by a tariff approved by the Federal 

Energy Regulatory Commission. The Parties recognize that Natural Gas is expected to contain 

no more than 0.5 grains of sulfur per 100 standard cubic feet of gas. 

27. “Nonattainment NSR” means the new source review program within the meaning of Part 

D of Subchapter I of the Act, 42 U.S.C. §§ 7501-7515 and 40 C.F.R. Part 51, and corresponding 

provisions of the federally enforceable Louisiana SIP. 

28. “NOx” means oxides of nitrogen, measured in accordance with the provisions of this 

Consent Decree.

29. “NOx Allowance” means an authorization 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 Clean Air Act or applicable State Implementation Plan; provided, however, 

that with respect to any such program that first applies to emissions occurring after December 31, 

2011, a “NOx Allowance” shall include an allowance created and allocated to Big Cajun II under 
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such program only for compliance periods starting on or after the fourth anniversary of the date 

as of which emissions are first subject to such program. 

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

31. “Over Fire Air” or “OFA” mean an in-furnace staged combustion control to reduce NOx

emissions.

32. “Ownership Interest” means part or all of Settling Defendant’s legal or equitable 

ownership interest in Big Cajun II. 

33. “Parties” means the United States, LDEQ, and the Settling Defendant. “Party” means 

one of the named “Parties.” 

34. “Plant-Wide Annual Tonnage Limitation” means the limitation, as specified in this 

Consent Decree, on the number of tons of pollutant (SO2 or NOx) that may be emitted from the 

respective facility during the relevant calendar year (i.e., January 1 through December 31), and 

shall include all emissions of the specified pollutant that occur during all periods of operation, 

including startup, shutdown, and Malfunction 

35. “PM” means total filterable particulate matter, measured in accordance with the 

provisions of this Consent Decree. 

36. “PM CEMS” or “PM Continuous Emission Monitoring System” means, for obligations 

involving the monitoring of PM emissions under this Consent Decree, the continuous emission 

monitors installed and maintained as described in 40 C.F.R. § 63.10010 and 40 C.F.R. § 

60.49Da(v). 

37. “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. 
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§§ 7470 - 7492, and 40 C.F.R. Part 52, and corresponding provisions of the federally enforceable 

Louisiana SIP. 

38. “Project Dollars” means Settling Defendant’s expenditures and payments incurred or 

made in carrying out the Environmental Mitigation Projects identified in Section VIII 

(Environmental Mitigation Projects) of this Consent Decree to the extent that such expenditures 

or payments both: (a) comply with the requirements set forth in Section VIII (Environmental 

Mitigation Projects) and Appendix A of this Consent Decree, and (b) constitute Settling 

Defendant’s direct payments for such projects, or Settling Defendant’s external costs for 

contractors, vendors, and equipment. 

39. “Refuel to Natural Gas” or “Refueled to Natural Gas” means, solely for purposes of this 

Consent Decree, the modification of a unit such that the modified unit generates electricity solely 

through the combustion of Natural Gas rather than coal, including installation of the following 

combustion controls to reduce emissions of NOx: low- NOx natural gas burners, SNCR, and an 

overfire air system. Nothing herein shall prevent the reuse of any equipment from Big Cajun II 

Unit 2 at any other existing unit or new emissions unit, provided that Settling Defendant applies 

for, and obtains, all required permits, including, if applicable, a PSD or Nonattainment NSR 

permit.

40. “Repowers” or “Repowered” means, solely for purposes of this Consent Decree, the 

removal and replacement of the Unit components such that the replaced unit generates electricity 

solely through the combustion of Natural Gas rather than coal, through the use of a combined 

cycle combustion turbine technology. 
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41. “Retire” means to permanently shut down a Unit such that the Unit cannot physically or 

legally burn coal, and to comply with applicable state and federal requirements for permanently 

ceasing operation of the Unit as a coal-fired electric generating Unit, including removing the 

Unit from Louisiana’s air emissions inventory, and withdrawing and/or amending all applicable 

permits so as to reflect the permanent shutdown status of such Unit. 

42. “Retrofit” means that the Unit must install and Continuously Operate a Dry FGD or 

equivalent pollution control technology approved in accordance with the requirements of 

Paragraph 63 of this Consent Decree. 

43. “Selective Non-Catalytic Reduction” or “SNCR” means a pollution control device for the 

reduction of NOx emissions that utilizes ammonia or urea injection into the boiler.

44. “Settling Defendant” means Louisiana Generating LLC.

45. “SO2” means sulfur dioxide, measured in accordance with the provisions of this Consent 

Decree.

46. “SO2 Allowance” means an authorization to emit a specified amount of SO2 that is 

allocated or issued under an emissions trading or marketable permit program of any kind 

established under the Clean Air Act or applicable State Implementation Plan; provided, however, 

that with respect to any such program that first applies to emissions occurring after December 31, 

2011, an “SO2 Allowance” shall include an allowance created and allocated to Big Cajun II 

under such program only for compliance periods starting on or after the fourth anniversary of the 

date as of which emissions are first subject to such program. 
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47. “State Implementation Plan” or “SIP” means regulations and other materials promulgated 

by a state for purposes of meeting the requirements of the Clean Air Act that have been approved 

by EPA pursuant to Section 110 of the Act, 42 U.S.C. § 7410. 

48. “Surrender” means, with regard to SO2 and NOx Allowances, complying with the 

procedures set forth herein for permanently surrendering Allowances from the accounts 

administered by EPA and/or Louisiana, so that such Allowances can never be used to meet any 

compliance requirement under the Clean Air Act or a State Implementation Plan.

49. “Title V Permit” means the permit required for Big Cajun II under Subchapter V of the 

Act, 42 U.S.C. §§ 7661-7661e. 

50. “Unit” means, for the purposes of this 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. 

A.

IV. NOx EMISSION REDUCTIONS AND CONTROLS

1.

NOx Emission Limitations and Control Requirements

51. Settling Defendant shall install and Continuously Operate SNCR technology at Big Cajun 

II Unit 1, Unit 2, and Unit 3, by no later than the dates specified in the table below. 

Commencing no later than 30 Operating Days thereafter, Settling Defendant shall Continuously 

Operate such SNCR and existing LNB and OFA so that each Unit achieves and maintains a 30-

Unit-Specific SNCR Installations and Performance Requirements
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Day Rolling Average Emission Rate for NOx of no greater than the following: (a) for Unit 1: 

0.150 lb/mmBTU, (b) for Unit 2: 0.150 lb/mmBTU, and (c) for Unit 3: 0.135 lb/mmBTU. 

Units Date of Continuous Operation

SNCR at Unit 1 May 1, 2014

SNCR at Unit 2 May 1, 2014

SNCR at Unit 3 May 1, 2014

 

B. 

52. During each calendar year specified in the table below and continuing thereafter, actual 

total emissions of NOx from Big Cajun II shall not exceed the Plant-Wide Annual Tonnage 

Limitations specified below:

Annual Tonnage Limitations for NOx Emissions

Calendar Year Plant-Wide Annual Tonnage Limitations for 

NOx 

2013 12,600 tons 

2014 12,600 tons

2015 and each year thereafter 8,950 tons

C. 

53. In determining emission rates for NOx, Settling Defendant shall use CEMS in accordance 

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

General NOx Provisions
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D. 

54. Except as may be necessary to comply with Section XIII (Stipulated Penalties), Settling 

Defendant shall not use NOx Allowances to comply with any requirement of this Consent 

Decree, including by claiming compliance with any emission limitation or the Plant-Wide 

Annual Tonnage Limitation, by using, tendering, or otherwise applying NOx Allowances to 

achieve compliance or offset any emissions above the limits specified in this Consent Decree.

Use and Surrender of NOx Allowances

55. Except as provided in this Consent Decree, Settling Defendant shall not sell, trade, or 

transfer any NOx Allowances allocated to Big Cajun II Units 1 or 2, or Settling Defendant’s pro 

rata ownership share (58%) of any NOx Allowances allocated to Big Cajun II Unit 3, that would 

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

Defendant to comply with the requirements of this Consent Decree. 

56. NOx Allowances allocated to Big Cajun II Units 1 or 2, or Settling Defendant’s pro rata 

ownership share (58%) of any NOx Allowances allocated to Big Cajun II Unit 3, may be used by 

Settling Defendant only to meet its own federal and/or state Clean Air Act regulatory 

requirements for Big Cajun II. Beginning in calendar year 2013, and continuing each calendar 

year thereafter, Settling Defendant shall Surrender all NOx Allowances allocated to Settling 

Defendant for Big Cajun II for that calendar year that Settling Defendant does not need in order 

to meet its own federal and/or state Clean Air Act regulatory requirements for Big Cajun II. 

57. Nothing in this Consent Decree shall prevent Settling Defendant from purchasing or 

otherwise obtaining NOx Allowances from another source for purposes of complying with state 

or federal Clean Air Act requirements to the extent otherwise allowed by law.
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58. The requirements in this Consent Decree pertaining to the Defendant’s use of NOx

Allowances are permanent injunctions not subject to any termination provision of this Consent 

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

E. 

59. Notwithstanding Paragraphs 55 and 56, nothing in this Consent Decree shall preclude 

Settling Defendant from selling, banking, trading, or transferring NOx Allowances allocated to 

Big Cajun II that become available solely as a result of: 

Super-Compliant NOx Allowances

a. the installation and operation of any NOx pollution control technology or 

technique at Big Cajun II that is not otherwise required by this Consent Decree; or

 b. achievement and maintenance of an Emission Rate below an applicable 30-Day 

Rolling Average NOx Emission Rate, 

provided that Settling Defendant also is in compliance for that calendar year with all emission 

limitations for NOx set forth in this Consent Decree. Settling Defendant shall timely report the 

generation of such super-compliant NOx Allowances in accordance with Section XI (Periodic 

Reporting) of this Consent Decree. 

F.

60. Settling Defendant shall Surrender all NOx Allowances required to be Surrendered 

pursuant to Paragraph 56 by March 1 of the immediately following calendar year. 

Method for Surrender of NOx Allowances

61. For all NOx Allowances required to be Surrendered to EPA, the Settling Defendant shall 

first submit a NOx Allowance transfer request form to EPA’s Office of Air and Radiation’s 

Clean Air Markets Division directing the transfer of such NOx Allowances to the EPA 

Enforcement Surrender Account or to any other EPA account that EPA may direct in writing. 
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Such NOx Allowance transfer requests may be made in an electronic manner using the EPA’s 

Clean Air Markets Division Business System or similar system provided by EPA. As part of 

submitting these transfer requests, the Settling Defendant shall irrevocably authorize the transfer 

of these NOx Allowances and identify – by name of account and any applicable serial or other 

identification numbers or station names – the source and location of the NOx Allowances being 

Surrendered. 

A. 

V. SO2 EMISSION REDUCTIONS AND CONTROLS

 1. 

SO2 Emission Limitations and Control Requirements

Unit-Specific DSI Installation and Performance Requirements at Unit 1

62. Settling Defendant shall install and Continuously Operate DSI at Big Cajun II Unit 1 by 

no later than April 15, 2015. Commencing no later than thirty (30) Operating Days thereafter, 

and continuing until Retirement, Refueling, Repowering, or Retrofit pursuant to the following 

Paragraph 63, Settling Defendant shall Continuously Operate such DSI so that Unit 1 achieves 

and maintains a 30-Day Rolling Average Emission Rate for SO2 of no greater than 0.380 

lb/mmBTU. 

 

63. Settling Defendant shall Retire, Refuel, Repower, or Retrofit Big Cajun II Unit 1 by no 

later than April 1, 2025. No later than December 31, 2022, Settling Defendant shall elect in 

writing to Plaintiffs which option -- Retire, Refuel, Repower, or Retrofit – it elects for Big Cajun 

II Unit 1. If Settling Defendant Retrofits Big Cajun II Unit 1, then commencing no later than 

thirty (30) Operating Days following March 30, 2025, Settling Defendant shall Continuously 

Operate Dry FGD or an alternate equivalent pollution control technology approved by EPA 

pursuant to Section XII (Review and Approval of Submittals) so that Unit 1 achieves and 
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maintains a 30-Day Rolling Average Emission Rate for SO2 of no greater than the lower of (a) 

0.070 lb/mmBTU, or (b) the average emission rate of the lowest three (3) BACT emission rates 

listed in the EPA RACT/BACT/LAER Clearinghouse (RBLC) (http://cfpub.epa.gov/RBLC) as 

of January 1, 2021, for retrofit SO2 emission controls applied to any boiler burning subbituminous coal and using Dry FGD or the same alternate pollution control technology approved 

by EPA as contemplated in this Paragraph. This analysis shall be submitted to Plaintiffs on the 

date Settling Defendant submits the permit application for the Dry FGD or the same alternate 

pollution control technology approved by EPA as contemplated under this Paragraph or 

December 31, 2022, whichever is sooner. If Settling Defendant Repowers Unit 1, Settling 

Defendant shall apply for, and obtain, all required CAA permit(s) for the Repowered Unit 1, 

including any appropriate PSD or NNSR permit. 

 2. 

64. Settling Defendant shall Refuel Big Cajun II Unit 2 by no later than April 15, 2015. 

Settling Defendant shall apply for, and obtain, all required CAA permit(s) for the Refueled Unit 

2, including any appropriate PSD or NNSR permit. 

Refuel Unit 2

 3. Other SO2 Measures

65. Commencing January 1, 2013, and continuing thereafter, Settling Defendant shall burn 

only coal with no greater sulfur content than 0.45 percent by weight on a dry basis at Big Cajun 

II Units 1 and 3. The sulfur content shall be determined, and records shall be maintained, in 

accordance with required procedures within Louisiana permits for Units 1 and 3. 

 

 
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B. Annual Tonnage Limits for SO2 Emissions

66. During each calendar year specified in the table below and continuing thereafter, actual 

total emissions of SO2 from Big Cajun II shall not exceed the Plant-Wide Annual Tonnage 

Limitation specified below:

 

Calendar year Plant-Wide Annual Tonnage Limitations for 

SO2 

2013 38,000 tons

2014 38,000 tons

2015 33,000 tons

2016 and each year thereafter 18,950 tons

C. 

67. In determining Emission Rates for SO2, the Settling Defendant shall use CEMS in 

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

General SO2 Provisions

D. 

68. Except as may be necessary to comply with Section XIII (Stipulated Penalties), Settling 

Defendant shall not use SO2 Allowances to comply with any requirement of this Consent Decree, 

including by claiming compliance with any emission limitation or the Plant-Wide Annual 

Tonnage Limitation, by using, tendering, or otherwise applying SO2 Allowances to achieve 

compliance or offset any emissions above the limits specified in this Consent Decree.

Use and Surrender of SO2 Allowances

69. Except as provided in this Consent Decree, Settling Defendant shall not sell, trade, or 

transfer any SO2 Allowances allocated to Big Cajun II Units 1 or 2, or Settling Defendant’s pro 
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rata ownership share (58%) of any SO2 Allowances allocated to Big Cajun II Unit 3, that would 

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

Defendant to comply with the requirements of this Consent Decree.

70. SO2 Allowances allocated to Big Cajun II Units 1 or 2, or Settling Defendant’s pro rata 

ownership share (58%) of any SO2 Allowances allocated to Big Cajun II Unit 3, may be used by 

Settling Defendant only to meet its own federal and/or state Clean Air Act regulatory 

requirements for Big Cajun II. Beginning in calendar year 2013, and continuing each calendar 

year thereafter, Settling Defendant shall Surrender all SO2 Allowances allocated to Settling 

Defendant for Big Cajun II for that calendar year that Settling Defendant does not need in order 

to meet its own federal and/or state Clean Air Act regulatory requirements for Big Cajun II. 

71. Nothing in this Consent Decree shall prevent Settling Defendant from purchasing or 

otherwise obtaining SO2 Allowances from another source for purposes of complying with state 

or federal Clean Air Act requirements to the extent otherwise allowed by law.

72. The requirements in this Consent Decree pertaining to the Defendant’s use of SO2

Allowances are permanent injunctions not subject to any termination provision of this Consent 

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

E. 

73. Notwithstanding Paragraphs 69 and 70, nothing in this Consent Decree shall preclude 

Settling Defendant from selling, banking, trading, or transferring SO2 Allowances allocated to 

Big Cajun II that become available solely as a result of: 

Super-Compliance SO2 Allowances

a. the installation and operation of any SO2 pollution control technology or 

technique at Big Cajun II that is not otherwise required by this Consent Decree; or 
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 b. achievement and maintenance of an Emission Rate below an applicable 30-Day 

Rolling Average SO2 Emission Rate,

provided that Settling Defendant is also in compliance for that calendar year with all emission 

limitations for SO2 set forth in this Consent Decree. Settling Defendant shall timely report the 

generation of such super-compliant SO2 Allowances in accordance with Section XI (Periodic 

Reporting) of this Consent Decree. 

 F. 

74. Settling Defendant shall Surrender all SO2 Allowances required to be Surrendered 

pursuant to Paragraph 70 by March 1 of the immediately following calendar year. 

Method for Surrender of SO2 Allowances

75. For all SO2 Allowances Surrendered to EPA, the Settling Defendant shall first submit an 

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

Division directing the transfer of such SO2 Allowances to the EPA Enforcement Surrender 

Account or to any other EPA account that EPA may direct in writing. Such SO2 Allowance 

transfer requests may be made in an electronic manner using the EPA’s Clean Air Markets 

Division Business System or similar system provided by EPA. As part of submitting these 

transfer requests, the Settling Defendant shall irrevocably authorize the transfer of these SO2

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

numbers or station names – the source and location of the SO2 Allowances being Surrendered. 

A. 

VI. PM EMISSION REDUCTIONS AND CONTROLS

Operation and Maintenance of PM Pollution Controls

76. Beginning thirty (30) days after the Date of Entry of this Consent Decree, and continuing 

thereafter, Settling Defendant shall Continuously Operate each ESP on Big Cajun II Units 1 and 

 
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3, to maximize PM emission reductions at all times when the Unit each serves is in operation. 

The Settling Defendant shall, at a minimum, to the extent reasonably practicable: (a) fully 

energize each section of the ESP for each unit, and repair any failed ESP section at the next 

planned Unit outage (or unplanned outage of sufficient length); (b) operate automatic control 

systems on each ESP to maximize PM collection efficiency; (c) maintain power levels delivered 

to the ESPs, consistent with manufacturers’ specifications, the operational design of the Unit, 

and good engineering practices; and (d) inspect for and repair during the next planned Unit 

outage (or unplanned outage of sufficient length) any openings in ESP casings, ductwork, and 

expansion joints to minimize air leakage. 

B. PM Emission Rate and Testing

77. Commencing on the Date of Entry and continuing thereafter, Settling Defendant shall 

Continuously Operate ESPs at Big Cajun II Units 1 and 3. Commencing no later than the dates 

specified in the table below, and continuing thereafter, Settling Defendant shall Continuously 

Operate each such ESP so as to achieve and maintain a PM Emission Rate no greater than 0.030 

lb/mmBTU:

 

Big Cajun II Unit Date to Achieve and Maintain PM 

Emission Rate

ESP at Unit 1 April 15, 2015

ESP at Unit 3 April 15, 2015

78. Commencing in calendar year 2013, and continuing annually until the installation of PM 

CEMS at Unit 1 and 3 pursuant to Paragraph 83 herein or the Refueling at Unit 2, Settling 

Defendant shall conduct a stack test for PM pursuant to Paragraph 79 for Big Cajun II Unit 1, 
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Unit 2, and Unit 3. The annual performance test requirement imposed by this Paragraph may be 

satisfied by stack tests conducted by Settling Defendant as may be required by its permits from 

the State of Louisiana for any year that such stack tests are required under the permits. 

79. The reference methods and procedures for determining compliance with PM Emission 

Rates shall be those specified in 40 C.F.R. Part 63, § 10010 or Part 60, Appendix A, Method 5, 

5B, or 17, or an alternative method that is promulgated by EPA, requested for use herein by 

Settling Defendant, and approved for use herein by EPA. Use of any particular method shall 

conform to the EPA requirements specified in 40 C.F.R. Part 60, Appendix A and 40 C.F.R. § 

60.48a (b) and (e), or any federally-approved method contained in the Louisiana State 

Implementation Plan. If compliance is demonstrated with a stack test, Settling Defendant shall 

calculate the PM Emission Rates from the stack test results in accordance with 40 C.F.R. § 

60.8(f). The results of each PM stack test shall be submitted to Plaintiffs within forty-five (45) 

days of completion of each test. 

80. Commencing in calendar year 2013, and continuing annually thereafter until the 

installation of PM CEMS at Unit 1 and 3 pursuant to Paragraph 83 herein or the Refueling at 

Unit 2, Settling Defendant shall also conduct a PM stack test for condensable PM at each Big 

Cajun II Unit using the reference methods and procedures set forth at 40 C.F.R. Part 51, 

Appendix M, Method 202. Each test shall consist of three separate runs performed under 

representative operating conditions not including periods of startup, shutdown, or Malfunction. 

The sampling time for each run shall be at least 120 minutes and the volume of each run shall be 

at least 1.70 dry standard cubic meters (60 dry standard cubic feet). Settling Defendant shall 

calculate the number of pounds of condensable PM emitted per million BTU of heat input 
-22-

(lb/mmBTU) form the stack test results in accordance with 40 C.F.R. § 60.8(f). The results of 

the PM stack test conducted pursuant to this Paragraph shall not be used for the purpose of 

determining compliance with the PM Emission Rates required by this Consent Decree. The 

results of each PM stack test shall be submitted to Plaintiffs within forty-five (45) days of 

completion of each test, where completion includes any required QA/QC by the testing 

company.

C. Installation and Operation of PM CEMS

81. Settling Defendant shall install, calibrate, operate, and maintain PM CEMS, as specified 

below. Each 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 lb/mmBTU. Settling Defendant shall 

maintain, in an electronic database, the hourly average emission values produced by all PM 

CEMS in lb/mmBTU. Settling Defendant shall use reasonable efforts to keep each PM CEMS 

running and producing data whenever any Unit served by the PM CEMS is operating. 

 

82. No later than April 15, 2014, Settling Defendant shall submit to EPA pursuant to Section 

XII (Review and Approval of Submittals) of this Consent Decree: (a) a plan for the installation 

and certification of each PM CEMS, and (b) a proposed Quality Assurance/Quality Control 

(“QA/QC”) protocol that shall be followed in calibrating such PM CEMS. In developing both 

the plan for installation and certification of the PM CEMS and the QA/QC protocol, Settling 

Defendant shall use the criteria set forth in 40 C.F.R. Part 63 or in 40 C.F.R. Part 60, Appendix 

B, Performance Specification 11, and Appendix F, Procedure 3. Following approval by EPA of 
-23-

the protocol, Settling Defendant shall thereafter operate each PM CEMS in accordance with the 

approved protocol. 

83. No later than the dates specified below, Settling Defendant shall install, certify, and 

operate PM CEMS on the stacks for Units 1 and 3 at Big Cajun II.

Stack Date to Start Operation PM CEMS

Unit 1 April 15, 2015

Unit 3 April 15, 2015

84. No later than ninety (90) days after Settling Defendant begins operation of the PM 

CEMS, the Settling Defendant shall demonstrate compliance with the PM CEMS installation and 

certification plan submitted to and approved by EPA in accordance with Section XII (Review 

and Approval of Submittals) and shall report such information to EPA and Louisiana DEQ no 

later thirty (30) days after such tests.

D.

85. Within one-hundred and eighty (180) days after each date established by this Consent 

Decree for Settling Defendant to achieve and maintain a PM Emission Rate at Big Cajun II, 

Settling Defendant shall demonstrate compliance with the PM Emission Rate required by this 

Consent Decree by use of PM CEMS emissions data or a performance test. If a performance test 

is used to demonstrate compliance, Settling Defendant shall submit the results of the 

performance test to Plaintiffs within forty-five (45) days of each such performance test at the 

addresses specified in Section XIII (Notices) of this Consent Decree.

PM Reporting
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86. Following the installation of each PM CEMS, Settling Defendant shall begin and 

continue to report to Plaintiffs, pursuant to Section XI (Periodic Reporting), the data recorded by 

the PM CEMS, as expressed in lb/mmBTU on a 3-hour rolling average basis in electronic format 

or in a form required by 40 C.F.R. Part 63, including identification of each 3-hour average 

exceedance of the applicable PM Emission Limitation.

E.

87. Data from the PM CEMS shall be used to determine compliance with the PM Emission 

Rate established by this Consent Decree.

General PM Provisions

88. Emission reductions that result from actions to be taken by Settling Defendant after the 

Date of Entry of this Consent Decree to comply with the requirements of this Consent Decree 

shall not be considered as a creditable contemporaneous emission decrease for the purpose of 

obtaining a Netting credit or offset under the Clean Air Act’s Nonattainment NSR and PSD 

programs. 

VII. PROHIBITION ON NETTING CREDITS OR OFFSETS

89. The limitations on the generation and use of netting credits or offsets set forth in the 

previous Paragraph 88 do not apply to emission reductions achieved by Big Cajun II that are 

greater than those required under this Consent Decree. For purposes of this Paragraph, emission 

reductions from Big Cajun II are greater than those required under this Consent Decree if they 

result from Settling Defendant’s emission reductions that are greater than those limits imposed 

on Big Cajun II under this Consent Decree and under applicable provisions of the Clean Air Act 

or the Louisiana State Implementation Plan, and that are otherwise federally enforceable, 

creditable and contemporaneous under the Clean Air Act and applicable regulations. 
-25-

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

generated under this Consent Decree from being considered by the State of Louisiana or EPA as 

creditable contemporaneous emission decreases for the purpose of attainment demonstrations 

submitted pursuant to § 110 of the Act, 42 U.S.C. § 7410, or in determining impacts on NAAQS, 

PSD increment, or air quality related values, including visibility, in a Class I area.

91. Settling Defendant shall implement the Environmental Mitigation Projects (“Projects”) 

described in Appendix A to this Decree in compliance with the approved plans and schedules for 

such Project and other terms of this Consent Decree. Settling Defendant shall submit plans for 

the Projects to the Plaintiffs 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 

Appendix A. In implementing the Projects, Settling Defendant shall spend no less than 

$10,500,000. Settling Defendant shall not include its own personnel costs in overseeing the 

implementation of the Projects as Project Dollars.

VIII. ENVIRONMENTAL MITIGATION PROJECTS

92. Settling Defendant shall maintain, and present to the Plaintiffs upon request, all 

documents to substantiate the Project Dollars expended and shall provide these documents to the 

Plaintiffs within thirty (30) days of a request by the Plaintiffs for the documents.

93. All plans and reports prepared by Settling Defendant pursuant to the requirements of this 

Section of the Consent Decree and required to be submitted to EPA shall be publicly available 

from Settling Defendant without charge. 

94. Settling Defendant shall certify, as part of each plan submitted to the Plaintiffs for any 

Project, that Settling Defendant is not otherwise required by law to perform the Project described 
-26-

in the plan, that Settling Defendant is unaware of any other person who is required by law to 

perform the Project, and that Settling Defendant will not use any Project, or portion thereof, to 

satisfy any obligations that it may have under other applicable requirements of law.

95. Settling Defendant shall use good faith efforts to secure as much benefit as possible for 

the Project Dollars expended, consistent with the applicable requirements and limits of this 

Consent Decree.

96. If Settling Defendant elects (where such an election is allowed) to undertake a Project by 

contributing funds to another person or entity that will carry out the Project in lieu of Settling 

Defendant, but not including Settling Defendant’s agents or contractors, that person or 

instrumentality must, in writing: (a) identify its legal authority for accepting such funding; and 

(b) identify its legal authority to conduct the Project for which Settling Defendant contributes the 

funds. Regardless of whether Settling Defendant elected (where such election is allowed) to 

undertake a Project by itself or to do so by contributing funds to another person or 

instrumentality that will carry out the Project, Settling Defendant acknowledges that it will 

receive credit for the expenditure of such funds only if Settling Defendant demonstrates that the 

funds have been actually spent by either Settling Defendant or by the person or instrumentality 

receiving them, and that such expenditures met all requirements of this Consent Decree.

97. Beginning six (6) months after entry of this Consent Decree, and continuing until 

completion of each Project (including any applicable periods of demonstration or testing), 

Settling Defendant shall provide the Plaintiffs with semi-annual updates concerning the progress 

of each Project. 
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98. Within sixty (60) days following the completion of each Project required under this 

Consent Decree (including any applicable periods of demonstration or testing), Settling 

Defendant shall submit to the Plaintiffs a report that documents the date that the Project was 

completed, Settling Defendant’s results of implementing the Project, including the emission 

reductions or other environmental benefits achieved, and the Project Dollars expended by 

Settling Defendant in implementing the Project. 

99. Within thirty (30) Days after the Date of Entry of this Consent Decree, Settling 

Defendant shall pay to the United States and the State of Louisiana a civil penalty in the amount 

of $3.5 million. 

IX. CIVIL PENALTY

(a) The United States’ portion of the civil penalty shall be paid as follows: Within thirty (30) 

Days after the Date of Entry of this Consent Decree, Settling Defendant shall pay a civil 

penalty to the United States in the amount of $1.75 million paid by Electronic Funds 

Transfer (“EFT”) to the United States Department of Justice, in accordance with current 

EFT procedures, referencing USAO File Number 2009V00027 and DOJ Case Number

90-5-2-1-08529 and the civil action case name and case number of this action. The costs 

of such EFT shall be Settling Defendant’s responsibility. Payment shall be made in 

accordance with instructions provided to Settling Defendant by the Financial Litigation 

Unit of the U.S. Attorney’s Office for the Middle District of Louisiana. Any funds 

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

payment, Settling Defendant shall provide notice of payment, referencing the USAO File 

Number, the DOJ Case Number, and the civil action case name and case number, to the 
-28-

Department of Justice and to EPA in accordance with Section XVIII (Notices) of this 

Consent Decree.

(b) The LDEQ’s portion of the civil penalty shall be paid as follows: Within thirty (30) Days 

after entry of this Consent Decree, Settling Defendant shall pay to LDEQ a civil penalty 

in the amount of $1.75 million by certified check made payable to the Louisiana 

Department of Environmental Quality and sent to Denise Stafford, Fiscal Director, Office 

of Management and Finance, LDEQ, P.O. Box 4303, Baton Rouge, Louisiana 70821-

4303. 

100. Failure to timely pay the civil penalty shall subject Settling Defendant 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 Settling Defendant 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. 

101. 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. 

102. Entry of this Decree shall resolve all civil claims of the United States and LDEQ 

against Settling Defendant that arose from any modifications commenced at Big Cajun II Units 1 

and 2 prior to the Date of Lodging of this Consent Decree, including but not limited to those 

modifications alleged in the Plaintiffs’ Complaints in this civil action and in the NOVs issued to 

Settling Defendant on February 15, 2005, and December 8, 2006, under any or all of: (a) Parts C 

X. RESOLUTION OF CERTAIN CIVIL CLAIMS OF THE PLAINTIFFS
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or D of Subchapter I of the Clean Air Act, 42 U.S.C. §§ 7470-7492, 7501-7515; (b) Section 111 

of the Clean Air Act, 42 U.S.C. § 7411, and 40 C.F.R.§ 60.14; (c) the federally-approved and 

enforceable Louisiana State Implementation Plan; or (d) Sections 502(a) and 504(a) of Title V of 

the Clean Air Act, 42 U.S.C §§ 7611(a) and 7611(c), but only to the extent that such Title V 

claims are based on Defendant’s failure to obtain an operating permit that reflects applicable 

requirements imposed under Parts C or D of Subchapter I, or Section 111 of the Clean Air Act. 

103. Compliance Report. After entry of this Decree, Settling Defendant shall submit to 

Plaintiffs a periodic report, within sixty (60) days after the end of each half of the calendar year 

(January through June and July through December). The report shall include the following 

information: 

XI. PERIODIC REPORTING

 a. all information necessary to determine compliance with the requirements of 

this Consent Decree; 

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

Defendant claims to have generated in accordance with Sections IV.E and V.E through 

compliance beyond the requirements of this Consent Decree; 

 c. all information indicating that the installation and commencement of operation 

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

any steps taken by Settling Defendant to mitigate such delay; and

 d. all affirmative defenses asserted pursuant to Paragraphs 116 through 122 during 

the period covered by the progress report. 
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104. Deviations Report. In addition to the reports required by the previous Paragraph, 

if Settling Defendant violates or deviates from any provision of this Consent Decree, Settling 

Defendant shall submit to Plaintiffs a report on the violation or deviation within fourteen (14) 

business days after Settling Defendant knew or should have known of the event. In the report, 

Settling Defendant shall explain the cause or causes of the violation or deviation and any 

measures taken or to be taken by Settling Defendant to cure the reported violation or deviation or 

to prevent such violation or deviations in the future. If at any time, the provisions of the Decree 

are included in Title V Permits, consistent with the requirements for such inclusion in the 

Decree, then the deviation reports required under applicable Title V regulations shall be deemed 

to satisfy all the requirements of this Paragraph.

105. Each Settling Defendant report shall be signed by Settling Defendant’s 

Environmental Manager or his or her equivalent, 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 

of the person(s) who manage the system, or the person(s) directly responsible for gathering 

the information, I hereby certify under penalty of law that, to the best of my knowledge and 

belief, this information is true, accurate, and complete. I understand that there are significant 

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

106. Settling Defendant shall submit each plan, report, or other submission required by 

this Decree to EPA whenever such a document is required to be submitted for review or approval 

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

provide written comments explaining the bases for declining such approval. Within sixty (60) 

days of receiving written comments from EPA, Settling Defendant shall either: (a) revise the 

XII. REVIEW AND APPROVAL OF SUBMITTALS
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submittal consistent with the written comments and provide the revised submittal to EPA; or (b) 

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

Section XV (Dispute Resolution) of this Consent Decree. 

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

submittal pursuant to dispute resolution, Settling Defendant shall implement the approved 

submittal in accordance with the schedule specified therein or another EPA-approved schedule. 

108. For any failure by Settling Defendant to comply with the terms of this Consent 

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

Resolution), Settling Defendant shall pay, within thirty (30) days after receipt of written demand 

to Settling Defendant by the United States or the State of Louisiana, the following stipulated 

penalties to the United States and the State of Louisiana:

XIII. STIPULATED PENALTIES

Consent Decree Violation Stipulated Penalty

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

VIII (Civil Penalty) of this Consent Decree

$10,000 per day

b. Failure to comply with any applicable 30-Day Rolling 

Average Emission Rate for NOx, where the violation is less 

than 5% in excess of the limits set forth in this Consent 

Decree

$2,500 per day per violation 

c. Failure to comply with any applicable 30-Day Rolling 

Average Emission Rate for NOx, where the violation is 

equal to or greater than 5% but less than 10% in excess of 

the limits set forth in this Consent Decree

$5,000 per day per violation 

d. Failure to comply with any applicable 30-Day Rolling 

Average Emission Rate for NOx, where the violation is 

equal to or greater than 10% in excess of the limits set forth 

in this Consent Decree

$10,000 per day per violation 

e. Failure to comply with any applicable 30-Day Rolling 

Average Emission Rate for SO2 where the violation is less 

than 5% in excess of the limits set forth in this Consent 

Decree

$2,500 per day per violation
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f. Failure to comply with any applicable 30-Day Rolling 

Average Emission Rate for SO2 where the violation is equal 

to or greater than 5% but less than 10% in excess of the 

limits set forth in this Consent Decree

$5,000 per day per violation

g. Failure to comply with any applicable 30-Day Rolling 

Average Emission Rate for SO2 where the violation is equal 

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

Consent Decree

$10,000 per day per violation

h. Failure to comply with any applicable PM Emission 

Rate, where the violation is less than 5% in excess of the 

lb/mmBTU limit

$2,500 per Operating Day per 

violation

i. Failure to comply with any applicable PM Emission Rate, 

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

than 10% in excess of the lb/mmBTU limit

$5,000 per Operating Day per 

violation

j. Failure to comply with any applicable PM Emission Rate, 

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

of the lb/mmBTU limit

$10,000 per Operating Day per 

violation

k. Failure to Repower, Refuel, Retire, or Retrofit any Big 

Cajun II as required by this Consent Decree 

$10,000 per Day for the first 30 

Days, 37,500 per Day for each 

Day thereafter

l. Failure to comply with the Plant-Wide Annual Tonnage 

Limitations for NOx 

$5,000 per ton for the first 100 

tons; $10,000 per ton for each 

additional ton over 100 tons, 

plus the Surrender, pursuant to 

the procedures set forth in 

Section IV.F, of NOx

Allowances in an amount equal 

to two times the number of tons 

by which the limitation was 

exceeded 

m. Failure to comply with the Plant-Wide Annual Tonnage 

Limitations for SO2 

$5,000 per ton for the first 100 

tons; $10,000 per ton for each 

additional ton over 100 tons, 

plus the Surrender, pursuant to 

the procedures set forth in 

Section V.F, of SO2 Allowances 

in an amount equal to two times 

the number of tons by which the 

limitation was exceeded 

n. Failure to install, commence operation, or continue 

operation of the NOx, SO2 or PM pollution control devices 

on any Unit as required under this Consent Decree

$10,000 per day per violation 

during the first 30 days, $32,500 

per day per violation thereafter

o. Failure to conduct a stack test for PM and as required by 

this Consent Decree

$1,000 per Day per violation
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p. Failure to install or operate CEMS as required in this 

Consent Decree 

$1,000 per day per violation

q. Failure to apply for any permit required by Section XVI 

(Permits)

$1,000 per day per violation

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

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

other submittals required by this Consent Decree

$750 per day per violation 

during the first ten days, $1,000 

per day per violation thereafter

s. Failure to Surrender NOx Allowances as required by this 

Consent Decree

(a) $32,500 per day plus (b) 

$7,500 per NOx Allowance not 

Surrendered, and $5,000 per 

allowance for each allowance 

used, sold, or transferred in 

violation of this Consent Decree

t. Selling, trading, or transferring NOx Allowances except as 

permitted by this Consent Decree.

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

u. Failure to Surrender SO2 Allowances as required by this 

Consent Decree 

(a) $32,500 per day plus (b) 

$1,000 per SO2 Allowance not 

Surrendered, and $5,000 per 

allowance for each allowance 

used, sold, or transferred in 

violation of this Consent Decree

v. Selling, trading, or transferring SO2 Allowances except as 

permitted by this Consent Decree

the Surrender of SO2 

Allowances in an amount equal 

to four times the number of SO2 

Allowances used, sold, or 

transferred in violation of this 

Consent Decree

w. Failure to demonstrate the third-party Surrender of an 

SO2 Allowance in accordance with this Consent Decree 

$2,500 per day per violation

x. Failure to optimize the existing ESPs and baghouses as 

required by this Consent Decree

$1,000 per Day per violation

y. Failure to undertake and complete the Environmental 

Mitigation Project in compliance with Section VIII 

(Environmental Mitigation Projects) of this Consent Decree

$1,000 per day per violation 

during the first 30 days, $5,000 

per day per violation thereafter

z. Failure to comply with the sulfur content requirement 

required by this Consent Decree for Units 1 and 3. 

$10,000 per day.

aa. Any other violation of this Consent Decree $1,000 per day per violation

 
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109. Violations of any limit based on a 30-Day Rolling Average constitutes thirty (30) 

days of violation but where such a violation (for the same pollutant and from the same Unit or 

source) recurs within periods less than thirty (30) days, Settling Defendant shall not be obligated 

to pay a daily stipulated penalty, for any day of the recurrence for which a stipulated penalty has 

already been paid. 

110. 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, whichever is applicable. 

Nothing in this Consent Decree shall prevent the simultaneous accrual of separate stipulated 

penalties for separate violations of this Consent Decree.

111. Settling Defendant shall pay all stipulated penalties to the United States and 

LDEQ within thirty (30) days of receipt of written demand to Settling Defendant from the United 

States or LDEQ, and shall continue to make such payments every thirty (30) days thereafter until 

the violation(s) no longer continues, unless Settling Defendant elects within twenty (20) days of 

receipt of written demand to Settling Defendant from the United States or LDEQ to dispute the 

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

Resolution) of this Consent Decree. 

112. Stipulated penalties shall continue to accrue as provided in accordance with 

Paragraph 110 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 until the following: 
-35-

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

Settling Defendant shall, within sixty (60) days of receipt of the Court’s decision or order, pay all 

accrued stipulated penalties determined by the Court to be owing, together with interest accrued 

on such penalties determined by the Court to be owing, except as provided in Subparagraph c, 

below; 

c. If the Court’s decision is appealed by any Party, Settling Defendant shall, within 

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

penalties determined to be owing, together with interest accrued on such stipulated penalties 

determined to be owing by the appellate court.

Notwithstanding any other provision of this Consent Decree, either the United States or LDEQ, 

or both, may in the unreviewable exercise of their respective discretion, reduce or waive 

stipulated penalties otherwise due to that Party under this Consent Decree, and the accrued 

stipulated penalties agreed by the Plaintiffs and Settling Defendant, or determined by the 

Plaintiffs through Dispute Resolution, to be owing may be less than the stipulated penalty 

amounts set forth in Paragraph 108. The United States and LDEQ shall divide equally any 

stipulated penalties paid, agreed to, or awarded under this Consent Decree. 
-36-

113. All monetary stipulated penalties shall be paid in the manner set forth in Section 

IX (Civil Penalty) of this Consent Decree. All allowance Surrender penalties shall comply with 

the allowance Surrender procedures set forth in this Consent Decree. 

114. Should Settling Defendant fail to pay stipulated penalties in compliance with the 

terms of this Consent Decree, the United States and LDEQ shall be entitled to collect interest on 

such penalties, as provided for in 28 U.S.C. § 1961. 

115. The stipulated penalties provided for in this Consent Decree shall be in addition to 

any other rights, remedies, or sanctions available to the United States and LDEQ by reason of 

Settling Defendant’s failure to comply with any requirement of this Consent Decree or 

applicable law, except that for any violation of the Act for which this Consent Decree provides 

for payment of a stipulated penalty, Settling Defendant shall be allowed a credit for stipulated 

penalties paid against any statutory penalties also imposed for such violation. 

116. Affirmative Defense as to Stipulated Penalties for Excess Emissions Occurring 

During Malfunctions

a. the excess emissions were caused by a sudden, unavoidable breakdown of 

technology, beyond Settling Defendant’s control; 

: If any of the Units at Big Cajun II exceed an applicable 30-Day Rolling 

Average Emission Rate for NOx or SO2 set forth in this Consent Decree due to Malfunction, 

Settling Defendant, bearing the burden of proof, has an affirmative defense to, and shall not be 

subject to, stipulated penalties under this Consent Decree, if Settling Defendant has complied 

with the reporting requirements of Paragraphs 121 and 122 and has demonstrated all of the 

following: 
-37-

b. the excess emissions (1) did not stem from any activity or event that could 

have been foreseen and avoided, or planned for, and (2) could not have been 

avoided by better operation and maintenance practices; 

c. to the maximum extent practicable, the air pollution control equipment 

and processes were maintained and operated in a manner consistent with good 

practice for minimizing emissions;

d. repairs were made in an expeditious fashion when Settling Defendant 

knew or should have known that an applicable 30-Day Rolling Average Emission 

Rate was being or would be exceeded. Off-shift labor and overtime must have 

been utilized, to the extent practicable, to ensure that such repairs were made as 

expeditiously as practicable; 

e. the amount and duration of the excess emissions (including any bypass) 

were minimized to the maximum extent practicable during periods of such 

emissions;

f. all reasonably possible steps were taken to minimize the impact of the 

excess emissions on ambient air quality; 

 g. all emission monitoring systems were kept in operation if at all possible;

h. Settling Defendant’s actions in response to the excess emissions were 

documented by properly signed, contemporaneous operating logs, or other 

relevant evidence;

i. the excess emissions were not part of a recurring pattern indicative of 

inadequate design, operation, or maintenance; and 
-38-

 j. Settling Defendant properly and promptly notified Plaintiffs as required by 

 this Consent Decree.

117. To assert an affirmative defense for Malfunction under Paragraph 116, Settling 

Defendant shall submit all data demonstrating the actual emissions for the Day the Malfunction 

occurs and the 29-Day period following the Day the Malfunction occurs. Settling Defendant 

may, if it elects, submit emissions data for the same 30-Day period but that excludes the excess 

emissions. 

118. Affirmative Defense as to Stipulated Penalties for Excess Emissions Occurring 

During Startup and Shutdown

a. the periods of excess emissions that occurred during startup and shutdown 

were short and infrequent and could not have been prevented through careful 

planning and design consistent with good engineering, operation, and 

maintenance practices and manufacturers’ specifications and recommendations;

: If any of the Units at Big Cajun II exceed an applicable 30-Day 

Rolling Average Emission Rate for NOx or SO2 set forth in this Consent Decree due to startup or 

shutdown, Settling Defendant, bearing the burden of proof, has an affirmative defense to, and 

shall not be subject to, stipulated penalties under this Consent Decree, if Settling Defendant has 

complied with the reporting requirements of Paragraphs 121 and 122 and has demonstrated all of 

the following: 

b. the excess emissions were not part of a recurring pattern indicative of 

inadequate design, operation, or maintenance; 
-39-

c. if the excess emissions were caused by a bypass (an intentional diversion 

of control equipment), then the bypass was unavoidable to prevent loss of life, 

personal injury, or severe property damage;

d. at all time, the facility was operated in a manner consistent with good 

practice for minimizing emissions;

e. the frequency and duration of operation in startup or shutdown mode was 

minimized to the maximum extent practicable and consistent with good 

engineering, operation, and maintenance practices and manufacturers’ 

specifications and recommendations; 

f. all reasonably possible steps were taken to minimize the impact of the 

excess emissions on ambient air quality;

 g. All emissions monitoring systems were kept in operation if at all possible; 

h. Settling Defendant’s actions during the period of excess emissions were 

documented by properly signed, contemporaneous operating logs, or other 

relevant evidence; and

 i. Settling Defendant properly and promptly notified EPA as required by this 

 Consent Decree

119. To assert an affirmative defense for startup or shutdown under Paragraph 118, 

Settling Defendant shall submit all data demonstrating the actual emissions for the Day the 

excess emissions from startup or shutdown occurs and the 29-Day period following the Day the 

excess emissions from startup or shutdown occurs. Settling Defendant may, if it elects, submit 

emissions data for the same 30-Day period but that excludes the excess emissions.
-40-

120. If excess emissions occur due to a Malfunction during routine startup and 

shutdown, then those instances shall be treated as other Malfunctions subject to Paragraph 116. 

121. For an affirmative defense under Paragraphs 116 and 118, Settling Defendant, 

bearing the burden of proof, shall demonstrate, through submission of the data and information 

under the reporting provisions of this Section, that all reasonable and practicable measures within 

Settling Defendant’s control were implemented to prevent the occurrence of the excess 

emissions.

122. Settling Defendant shall provide notice to EPA and LDEQ in writing of Settling 

Defendant’s intent to assert an affirmative defense for Malfunction, startup, or shutdown under 

Paragraphs 116 and 122, in Settling Defendant’s semi-annual progress reports as required by 

Paragraph 103. This notice shall be submitted to EPA pursuant to the provisions of Section XIII 

(Notices). The notice shall contain: 

 a. The identity of each stack or other emission point where the excess 

emissions occurred; 

 b. The magnitude of the excess emissions expressed in lb/mmBTU and the 

operating data and calculations used in determining the magnitude of the excess 

emissions;

 c. The time and duration of the excess emissions; 

 d. The identity of the equipment from which the excess emissions emanated;

 e. The nature and cause of the excess emissions;
-41-

 f. The steps taken, if the excess emissions were the result of a Malfunction, 

to remedy the Malfunction and the steps taken or planned to prevent the 

recurrence of the Malfunction;

 g. The steps that were or are being taken to limit the excess emissions; and

 h. If applicable, a list of the steps taken to comply with permit conditions 

governing Unit operation during periods of startup, shutdown, and/or Malfunction. 

123. A Malfunction, startup, or shutdown shall not constitute a Force Majeure Event 

unless the Malfunction, startup, or shutdown meets the definition of a Force Majeure Event, as 

provided in Section XIV (Force Majeure). 

124. The affirmative defense provided herein is only an affirmative defense to 

stipulated penalties for violations of this Consent Decree, and not a defense to any civil or 

administrative action for injunctive relief.

125. 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 Settling Defendant, 

its contractors, or any entity controlled by Settling Defendant that delays compliance with any 

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

Decree despite Settling Defendant’s best efforts to fulfill the obligation. “Best efforts to fulfill 

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

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

the delay or violation and any adverse environmental effect is minimized to the greatest extent 

possible. 

XIV. FORCE MAJEURE
-42-

126. Notice of Force Majeure Events

127.

. 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 Settling Defendant intends to assert a claim of Force Majeure, Settling 

Defendant shall notify the Plaintiffs in writing as soon as practicable, but in no event later than 

fourteen (14) business days following the date Settling Defendant 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, Settling Defendant 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 Settling Defendant to prevent or 

minimize the delay or violation, the schedule by which Settling Defendant proposes to 

implement those measures, and Settling Defendant’s rationale for attributing a delay or violation 

to a Force Majeure Event. Settling Defendant shall adopt all reasonable measures to avoid or 

minimize such delays or violations. Settling Defendant shall be deemed to know of any 

circumstance which Settling Defendant, its contractors, or any entity controlled by Settling 

Defendant knew or should have known. 

Failure to Give Notice

128.

. If Settling Defendant fails to comply with the notice 

requirements of this Section, Plaintiffs may void Settling Defendant’s claim for Force Majeure as 

to the specific event for which Settling Defendant has failed to comply with such notice 

requirement.

Plaintiffs’ Response. Plaintiffs shall notify Settling Defendant in writing 

regarding Settling Defendant’s claim of Force Majeure as soon as reasonably practicable. If 

Plaintiffs agree that a delay in performance has been or will be caused by a Force Majeure Event, 

Plaintiffs and Settling Defendant shall stipulate to an extension of deadline(s) for performance of 
-43-

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) of this Consent Decree. 

129. Disagreement

130.

. If Plaintiffs do not accept Settling Defendant’s claim of Force 

Majeure, or if Plaintiffs and Settling Defendant 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) of this Consent Decree. 

Burden of Proof

131.

. In any dispute regarding Force Majeure, Settling Defendant 

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

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

Settling Defendant shall also bear the burden of proving that Settling Defendant gave the notice 

required by this Section 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.

Events Excluded

132.

. Unanticipated or increased costs or expenses associated with 

the performance of Settling Defendant's obligations under this Consent Decree shall not 

constitute a Force Majeure Event. 

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

circumstances related to an event and Settling Defendant’s response to such circumstances, the 

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

the meaning of this Section: construction, labor, or equipment delays; Malfunction of a Unit or 

emission control device; acts of God; acts of war or terrorism; and orders by a government 
-44-

official, government agency, other regulatory authority, or a regional transmission organization, 

acting under and authorized by applicable law, that directs Settling Defendant to supply 

electricity in response to a state-wide or regional emergency. Depending upon the circumstances 

and Settling Defendant’s response to such circumstances, failure of a permitting authority to 

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

failure of the permitting authority to act is beyond the control of Settling Defendant and Settling 

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

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

information by the permitting authority in a timely fashion; and accepting lawful permit terms 

and conditions after expeditiously exhausting any legal rights to appeal terms and conditions 

imposed by the permitting authority.

133. 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 Plaintiffs 

and Settling Defendant 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 

States or approved by the Court. Settling Defendant shall be liable for stipulated penalties for its 

failure thereafter to complete the work in accordance with the extended or modified schedule 

(provided that Settling Defendant shall not be precluded from making a further claim of Force 

Majeure with regard to meeting any such extended or modified schedule). 

XV. DISPUTE RESOLUTION
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134. 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 Party.

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

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

shall describe the nature of the dispute and shall state the noticing Party’s position with regard to 

such dispute. The Party receiving such a notice shall acknowledge receipt of the notice, and the 

Parties in dispute shall expeditiously schedule a meeting to discuss the dispute informally not 

later than fourteen (14) days following receipt of such notice unless otherwise agreed to by the 

parties in writing.

136. 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 30-day informal negotiations 

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

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

negotiation period, the Plaintiffs shall provide Settling Defendant with a written summary of 

their position regarding the dispute. The written position provided by Plaintiff shall be 

considered binding unless, within forty-five (45) calendar days thereafter, Settling Defendant 
-46-

seeks judicial resolution of the dispute by filing a petition with this Court. Plaintiffs may 

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

138. The time periods set out in this Section may be shortened or lengthened upon 

motion to the Court of one of the Parties to the dispute, explaining the party’s basis for seeking 

such a scheduling modification. 

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

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

to reach agreement.

140. As part of the resolution of any dispute under this Section, in appropriate 

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

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

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

Defendant shall be liable for stipulated penalties for its failure thereafter to complete the work in 

accordance with the extended or modified schedule, provided that Settling Defendant 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. 

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

resolving such disputes. In their initial filings with the Court, the disputing Parties shall state 

their respective positions as to the applicable standard of law for resolving the particular dispute. 

XVI. PERMITS
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142. Unless expressly stated otherwise in this Consent Decree, in any instance where

otherwise applicable law or this Consent Decree requires Settling Defendant to secure a permit to 

authorize construction or operation of any device contemplated herein, including all 

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

shall make such application in a timely manner. Settling Defendant shall provide Notice to 

Plaintiffs under Section XVIII (Notices), for each unit that the Settling Defendant submits an 

application for any permit described in this Paragraph.

143. Notwithstanding the previous Paragraph, nothing in this Consent Decree shall be 

construed to require Settling Defendant to apply for or obtain a PSD or Nonattainment NSR 

permit for physical changes in, or changes in the method of operation of Big Cajun II that would 

give rise to claims resolved by Section X (Resolution of Certain Civil Claims of the Plaintiffs) of 

this Consent Decree.

144. When permits are required as described in this Section, Settling Defendant shall 

complete and submit applications for such permits to the appropriate authorities to allow time for 

all legally required processing and review of the permit request, including requests for additional 

information by the permitting authorities. Any failure by Settling Defendant to submit a timely 

permit application for Big Cajun II shall bar any use by Settling Defendant of Section XIV 

(Force Majeure) of this Consent Decree, where a Force Majeure claim is based on permitting 

delays.

145. Notwithstanding the reference to Title V permits in this Consent Decree, the 

enforcement of such permits shall be in accordance with their own terms and the Act. The Title 

V permits shall not be enforceable under this Consent Decree, although any term or limit 

established by or under this Consent Decree shall be enforceable under this Consent Decree 
-48-

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

of Section XXVI (Conditional Termination of Enforcement Under Decree) of this Consent 

Decree.

146. Within one hundred eighty (180) days after entry of this Consent Decree, Settling 

Defendant shall amend any applicable Title V permit application, or apply for amendments of its 

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, required emission rates, the Plant-Wide Annual Tonnage 

Limitations, the requirement pertaining to the use and Surrender of SO2 and NOx Allowances, 

and the requirements pertaining to Refueling Big Cajun II Unit 2 and Repowering, Refueling, 

Retiring or Retrofitting Big Cajun II Unit 1.

147. Within one (1) year from the written election for Big Cajun II Unit 1 to be made 

pursuant to Paragraph 63 of this Consent Decree, Settling Defendant shall either apply to 

permanently include the requirements and limitations enumerated in this Consent Decree into a 

federally enforceable permit or request a site-specific amendment to the Louisiana SIP, such that 

the requirements and limitations become and remain “applicable requirements” as that term is 

defined in 40 C.F.R. § 70.2. The permit shall require compliance with the following: (a) any 

applicable Emission Rate, (b) the Plant-Wide Annual Tonnage Limitations for SO2 and NOx, (c) 

the Allowance Surrender requirements set forth in this Consent Decree, and (d) the requirements 

pertaining to Refueling Big Cajun II Unit 2 and Repowering, Refueling, Retiring or Retrofitting 

Big Cajun II Unit 1. 
-49-

148. Settling Defendant shall provide the Plaintiffs with a copy of each application to 

amend its Title V permit for Big Cajun II, 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. 

149. Prior to conditional termination of enforcement through this Consent Decree, 

Settling Defendant shall obtain enforceable provisions in its Title V permit for Big Cajun II that 

incorporates all Unit-specific, plant-specific, and system-specific performance, operational, 

maintenance, and control technology requirements established by this Consent Decree including, 

but not limited to, (a) Emission Rates, (b) Plant-Wide Annual Tonnage Limitations, (c) the 

requirements pertaining to the Surrender of SO2 and NOx Allowances, and (d) the requirements 

pertaining to Refueling Big Cajun II Unit 2 and Repowering, Refueling, Retiring or Retrofitting 

Big Cajun II Unit 1. 

150. If Settling Defendant sells or transfers to an entity unrelated to Settling Defendant 

(“Third Party Purchaser”) part or all of its Ownership Interest in Big Cajun II, Settling Defendant 

shall comply with the requirements of Section XIX (Sales or Transfers of Ownership Interests) 

with regard to that Unit prior to any such sale or transfer unless, following any such sale or 

transfer, Settling Defendant remains the holder of the Title V permit for such facility.

151. Any authorized representative of the United States or LDEQ, including their 

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

entry upon the premises of Big Cajun II at any reasonable time for the purpose of: 

XVII. INFORMATION COLLECTION AND RETENTION

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

 b. verifying any data or information submitted to the United States in accordance 

with the terms of this Consent Decree; 
-50-

c. obtaining samples and, upon request, splits of any samples taken by Settling 

Defendant or its representatives, contractors, or consultants; and

 d. assessing Settling Defendant’s compliance with this Consent Decree. 

101. Settling Defendant shall retain, and instruct its contractors and agents to preserve, all nonidentical copies of all records and documents (including records and documents in electronic 

form) now in its or its contractors’ or agents’ possession or control, and that directly relate to 

Settling Defendant’s performance of its obligations under this Consent Decree until December 

31, 2021. This record retention requirement shall apply regardless of any corporate document 

retention policy to the contrary. 

152. All information and documents submitted by Settling Defendant pursuant to this 

Consent Decree shall be subject to any requests under applicable law providing public disclosure 

of documents unless (a) the information and documents are subject to legal privileges or 

protection or (b) Settling Defendant claims and substantiates in accordance with 40 C.F.R. Part 2 

that the information and documents contain confidential business information. 

153. Nothing in this Consent Decree shall limit the authority of the EPA or LDEQ to 

conduct tests and inspections at Settling Defendant’s facilities under Section 114 of the Act, 42 

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

154. 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: 

XVIII. NOTICES
-51-

As to the United States of America

Chief, Environmental Enforcement Section 

: 

Environment and Natural Resources Division 

U.S. Department of Justice 

P.O. Box 7611, Ben Franklin Station 

Washington, D.C. 20044-7611 

DJ# 90-5-2-1-06837 

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

Associate Director of the Air Enforcement Branch 

U.S. EPA- Region 6 (6EN-A)

1445 Ross Avenue 

Dallas, TX 75202 

Cheryl Nolan

As to LDEQ

Administrator, Enforcement Division

Assistant Secretary 

Louisiana Department of Environmental Quality 

P. O. Box 4312 

Baton Rouge, Louisiana 70821-4312 

And

Dwana King

Office of the Secretary, Legal Division

Louisiana Department of Environmental Quality

P.O. Box 4302 

Baton Rouge, Louisiana, 70821-4302 

As to Louisiana Generating: 

Attn: General Counsel 
-52-

Louisiana Generating LLC

112 Telly Street 

New Roads, LA 70760 

And

William Bumpers

Baker Botts L.L.P. 

The Warner

1299 Pennsylvania Avenue, N.W. 

Washington, DC 20004 

155. All notifications, communications or submissions made pursuant to this Section 

shall be sent either by: (a) overnight mail or overnight delivery service, or (b) certified or 

registered mail, return receipt requested. 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. 

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

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

address.

157. If Settling Defendant proposes to sell or transfer an Ownership Interest to another 

entity (a “Third Party Purchaser”), Settling Defendant shall advise the Third Party Purchaser in 

writing of the existence of this Consent Decree prior to such sale or transfer, and shall send a 

XIX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS
-53-

copy of such written notification to the Plaintiffs pursuant to Section XIII (Notices) of this 

Consent Decree at least sixty (60) days before such proposed sale or transfer. 

158. No sale or transfer of an Ownership Interest shall take place before the Third 

Party Purchaser and 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 to this Consent Decree and jointly and severally liable with Settling Defendant 

for all the requirements of this Decree that may be applicable to the transferred or purchased 

Ownership Interests.

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

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

requirements of this Consent Decree are met. This Consent Decree shall not be construed to 

prohibit a contractual allocation – as between Settling Defendant and any Third Party Purchaser 

of Ownership Interests – of the burdens of compliance with this Decree, provided that both 

Settling Defendant and such Third Party Purchaser shall remain jointly and severally liable to 

Plaintiffs for the obligations of the Decree applicable to the transferred or purchased Ownership 

Interests.

160. If Plaintiffs agree, Plaintiffs, Settling Defendant, and the Third Party Purchaser 

that has become a party to this Consent Decree pursuant to Paragraph 158, may execute a 

modification that relieves Settling Defendant of its liability under this Consent Decree for, and 

makes the Third Party Purchaser liable for, all obligations and liabilities applicable to the 

purchased or transferred Ownership Interests. Notwithstanding the foregoing, however, Settling 

Defendant 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 
-54-

obligations set forth in Sections VIII (Environmental Mitigation Projects) and IX (Civil Penalty). 

Settling Defendant may propose and the Plaintiffs may agree to restrict the scope of the joint and 

several liability of any purchaser or transferee for any obligations of this Consent Decree that are 

not specific to the transferred or purchased Ownership Interests, to the extent such obligations 

may be adequately separated in an enforceable manner. 

161. The effective date of this Consent Decree shall be the Date of Entry.

XX. EFFECTIVE DATE

162. The Court shall retain jurisdiction of this case after entry of this Consent Decree 

to enforce compliance with the terms and conditions of this Consent Decree and to take any 

action necessary or appropriate for its interpretation, construction, execution, modification, or 

adjudication of disputes. During the term of this Consent Decree, any Party to this Consent 

Decree may apply to the Court for any relief necessary to construe or effectuate this Consent 

Decree.

XXI. RETENTION OF JURISDICTION

163. The terms of this Consent Decree may be modified only by a subsequent written 

agreement signed by the Plaintiffs and Settling Defendant. Where the modification constitutes a 

material change to any term of this Decree, it shall be effective only upon approval by the Court. 

XXII. MODIFICATION

XXIII. GENERAL PROVISIONS
-55-

164. When this Consent Decree specifies that Settling Defendant shall achieve and 

maintain a 30-Day Rolling Average Emission Rate, the Parties expressly recognize that 

compliance with such 30-Day Rolling Average Emission Rate shall commence immediately 

upon the date specified, and that compliance as of such specified date (e.g., December 30) shall 

be determined based on data from the 29 prior Unit Operating Days (e.g., December 1-29). 

165. 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 emission rates set forth herein do not relieve the Settling Defendant from any 

obligation to comply with other state and federal requirements under the Clean Air Act, 

including the Settling Defendant’s obligation to satisfy any state modeling requirements set forth 

in the Louisiana State Implementation Plan.

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

167. 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 Defendant 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 affect the validity of Section X (Resolution of 

Certain Civil Claims of the United States).

168. Nothing in this Consent Decree shall relieve Settling Defendant of its obligation 

to comply with all applicable federal, state, and local laws and regulations, including, but not 

limited to, the Clean Water Act and the National Pollutant Discharge Elimination System 
-56-

(NPDES) implementing regulations, National Ambient Air Quality Standards, the National 

Emission Standards for Hazardous Air Pollutants From Coal and Oil-Fired Electric Utility Steam 

Generating Units (Utility MACT), and Standards of Performance for Fossil-Fuel-Fired Electric 

Utility, Industrial-commercial-Institutional, and Small Industrial Commercial-Institutional Steam 

Generating Units (Utility NSPS). Nothing in this Consent Decree shall be construed to provide 

any relief from the emission limits or deadlines for the installation of pollution controls or the 

implementation of other pollution control-related measures specified in these regulations.

169. Subject to the provisions in Section X (Resolution of Certain Civil Claims), 

nothing contained in this Consent Decree shall be construed to prevent or limit the rights of the 

Plaintiffs to obtain penalties or injunctive relief under the Act or other federal, state, or local 

statutes, regulations, or permits. 

170. 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. 8314 (Feb. 24, 1997)) 

concerning the use of data for any purpose under the Act. 

171. Each limit and/or other requirement established by or under this Decree is a 

separate, independent requirement. 

172. 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 0.100 is not met if the actual 

Emission Rate is 0.101. Settling Defendant shall round the fourth significant digit to the nearest 

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

depending upon whether the limit is expressed to three or two significant digits. For example, if 
-57-

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

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

as 0.101, and shall not be in compliance with an Emission Rate of 0.100. Settling Defendant 

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

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

this Consent Decree as against any third parties.

174. 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 Decree or the settlement it represents, nor shall they be used in 

construing the terms of this Consent Decree. 

175. Each Party to this action shall bear its own costs and attorneys' fees. 

176. Each undersigned representative of Settling Defendant and LDEQ, and the 

Assistant Attorney General for the Environment and Natural Resources Division of the United 

States Department of Justice, 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.

XXIV. SIGNATORIES AND SERVICE

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

signature pages shall be given full force and effect. 
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178. The Parties agree and acknowledge that final approval by the United States and 

entry of this Consent Decree is subject to the procedures of 28 C.F.R. § 50.7, which provides for 

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 Defendant 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 

Defendant, in writing, that the United States no longer supports entry of the Consent Decree. 

Further, the parties agree and acknowledge that final approval by the Louisiana Department of 

Environmental Quality, and entry of this Consent Decree is subject to the requirements of La. 

R.S. 30:2050.7, which provides for public notice of this Consent Decree in newspapers of 

general circulation and the official journals of parishes in which the Louisiana Generating 

facilities are located, an opportunity for public comment, consideration of any comments, and 

concurrence by the State Attorney General. LDEQ reserves the right to withdraw or withhold 

consent if the comments regarding this Consent Decree disclose facts or considerations which 

indicate that this Consent Decree is inappropriate, improper or inadequate. 

XXV. PUBLIC COMMENT

179.

XXVI. CONDITIONAL TERMINATION UNDER DECREE

Termination as to Completed Tasks. As soon as Settling Defendant completes a 

construction project or any other requirement of this Consent Decree that is not ongoing or 

recurring, Settling Defendant may, by motion to this Court, seek termination of the provision or 

provisions of this Consent Decree that imposed the requirement. 
-59-

180. Conditional Termination of Enforcement Through the Consent Decree

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

pollution controls as required by this Consent Decree for at least one (1) year, and has Refueled 

Big Cajun II Unit 2 and Retrofit, Retired, Repowered or Refueled Big Cajun II Unit 1; and 

. After 

Settling Defendant:

 b. has obtained all the final permits and/or site-specific SIP amendments (1) as required 

by Section XVI (Permits) of this Consent Decree, and (2) that include as federally enforceable 

permit terms, all Unit-specific, plant-specific, and system-specific performance, operational, 

maintenance, and control technology requirements established by this Consent Decree; 

then Settling Defendant may so certify these facts to the Plaintiffs and this Court. If the Plaintiffs 

do not object in writing with specific reasons within forty-five (45) days of receipt of Settling 

Defendant’s certification, then, for any Consent Decree violations that occur after the filing of 

notice, the Plaintiffs shall pursue enforcement of the requirements through the applicable permits 

and/or other enforcement authorities and not through this Consent Decree. 

181. Resort to Enforcement under this Consent Decree. Notwithstanding Paragraph 

180, if enforcement of a provision in this Consent Decree cannot be pursued by the United States 

under the applicable permit(s) issued pursuant to the Clean Air Act or its implementing 

regulations (“CAA Permit”), or if a Consent Decree requirement was intended to be part of a 

CAA 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.

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

Decree shall constitute a final judgment among the Plaintiffs and Settling Defendant.

XXVII. FINAL JUDGMENT
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SO ORDERED, THIS _____ DAY OF ________________, 2012. 

 

__________________________________ 

 HONORABLE JAMES J. BRADY

 UNITED STATES DISTRICT COURT JUDGE
Signature Page for United States of America and the State of Louisiana v. Louisiana Generating

LLC Consent Decree

FOR THE UNITED STATES DEPARTMENT OF JUSTICE

Respectfully submitted,

I ACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources

Division

United States Department of Justice

W. Benjamin Fisherow

Chief

Richard M. Gladstein

Senior Counsel

James A. Lofton

Justin A. Savage

Elias L. Quinn

Anna Cross

Andrew Hanson

Jason A. Dunn

Attorneys

Environmental Enforcement Section

Environment and Natural Resources

Division

P.O. Box 7611

Washington, DC 20044-7611

(202) 514-1111

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Signature Page for United States ofAmerica and the State of Louisiana v. Louisiana Generating

LLC Consent Decree

FOR THE UNITED STATES DEPARTMENT OF JUSTICE

Respectfully submitted,

~ i ~ ~ 

~ ~.

Jo . Gaupp, BN 14976

's' tant Unf d States Attorney

Florida Street, Suite 208

Baton Rouge, Louisiana 70801

Telephone: (225) 389-0443

-62-
Signature. Page for United States of Am~Nica and the State of Louisiana v. Louisiana Generating

LLC Consent Decree

FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

submitted,

A GILES

Administrator

Enforcement and

Compliance Assurance

United States Environmental

Protection Agency

S SAN SHINKMAN

Director, Office of Civil Enforcement

United States Enviro~nental

Director, A6r~Enforcement Division

United States Environmental

Protection Agency

SEEMA KAKADE

MELANIE SHEPHERDSON

Attorney-Advisors

United States Environmental

Protection Agency

1200 Pennsylvania Ave, N.W. (2242A)

Washington, DC 20460

-63-
Signature Page for United States ofAmerica and the State of Louisiana v. Louisiana Generating

LLC Consent Decree

FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

Respectfully submitted,

BLEVINS

director, Compliance Assurance and

Enforcement Division

United States Environmental

Protection Agency, Region 6

ANDREA CAR~I~LO

Assistant Regional Counsel

U.S. EPA, Region 6

1445 Ross Avenue

Dallas, Texas 75202

'l.Z~
Signature Page for United States of America and the State of Louisiana v. Louisiana Generating

LLC Consent Decree, subject to the public notice and comment requirements.

FOR THE LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY

Respectfully submitted,

Cheryl S. Nolan

Assistant Secretary

Office of Environmental Compliance

Louisiana Department of Environmental Quality

P.O. Box 4312

Baton Rouge, Louisiana 70821-4312

Dwana C. King (LA Bar oll# 20590)

Attorney

Office of the Secretary, Legal Division

Louisiana Department of Environmental Quality

P.O. Box 4302

Baton Rouge, Louisiana 70821-4302

Telephone No. (225) 219-3987
Signature Page for United States of Americo and the State of Louisiana v. Louisiana Generating

LLC Consent Decree

FOR LOUISIANA GENERATING LLC

V

Lduisiana Generating LLC

112 Telly Street

New Roads, LA 70760

..
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APPENDIX A

ENVIRONMENTAL MITIGATION PROJECTS

In compliance with and in addition to the requirements in Section VIII (Environmental 

Mitigation Projects) of the Consent Decree, LaGen shall comply with the requirements of this 

Appendix to ensure that the benefits of the $10,500,000 in total Project Dollars are achieved. 

LaGen shall spend no less than $9,000,000 on United States Environmental Mitigation Projects 

and no less than $1,500,000 on State of Louisiana Environmental Mitigation Projects consistent 

with the requirements of this Appendix. Nothing in the Consent Decree or in this Appendix shall 

require LaGen to spend any more than a total of $10,500,000 on Environmental Mitigation 

Projects.

UNITED STATES ENVIRONMENTAL MITIGATION PROJECTS

I.

A.

Land and Ecological Restoration ($1 million)

National Park Service Mitigation: Within 45 Days from the Date of Entry of this 

Consent Decree, LaGen shall pay $500,000 to the National Park Service in accordance with 16 

U.S.C. § 19jj for the restoration of land, watersheds, vegetation, and forests using techniques 

designed to improve ecosystem health and mitigate harmful effects from air pollution. Projects 

will focus on the Jean Lafitte National Historical Park and Preserve (southeast of Baton Rouge), 

the Vicksburg National Military Park, and/or the Natchez Trace Parkway. 

B. Payment of the amount specified in the preceding Paragraph shall be made to the 

Natural Resources Damage and Assessment Fund managed by the United States Department of 

the Interior. Instructions for transferring funds will be provided to LaGen by the National Park 

Service. Notwithstanding Section I.A of this Appendix, payment of funds is not due until ten 

(10) days after receipt of payment instructions. Upon payment of the required funds into the 

Natural Resource Damage and Assessment Fund, LaGen shall have no further responsibilities 

regarding the implementation of any project selected by the National Park Service in connection 

with this provision. 

 C. United States Forest Service Mitigation: Within 45 Days from the Date of Entry 

of this Consent Decree, LaGen shall pay $500,000 to the United States Forest Service in 

accordance with 16 U.S.C. § 579c, for the improvement, protection, or rehabilitation of lands 

under the administration of the United States Forest Service. Projects will focus on the Kisatchie 

National Forest (northwest of Baton Rouge) or other United States Forest Service lands in the 

surrounding region. 

D. Payment of the amount specified in the preceding Paragraph shall be made to the 

Forest Service pursuant to payment instructions provided to LaGen. Notwithstanding Section 

I.C of this Appendix, payment of funds by LaGen is not due until ten (10) days after receipt of 

payment instructions. Upon payment of the required funds, LaGen shall have no further 

responsibilities regarding the implementation of any project selected by the Forest Service in 

connection with this provision. 
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II.

A. Within 120 Days of the Date of Entry, as further described below, LaGen shall 

submit proposed project(s) plan(s) to EPA for review and approval pursuant to Section XII of the 

Consent Decree (Review and Approval of Submittals) for completing the remaining $8,000,000 

in United States Environmental Mitigation Projects over a period of not more than 5 years from 

the date of plan approval. The Project Dollars shall be spent on projects chosen from Sections 

III, IV, and V of this Appendix. LaGen also may elect to spend Project Dollars on projects 

identified in Section VI of this Appendix. EPA reserves the right to disapprove any of the 

Project plans should the Agency determine based on an analysis of the plans submitted by LaGen 

and all the potential environmental impacts that the Project is not environmentally beneficial. If 

LaGen opts not to perform one of the Projects, it will not have any obligations for such Project 

pursuant to this Consent Decree, including performance, reporting, or closure requirements for 

that Project, provided that LaGen is otherwise in compliance with the Environmental Mitigation 

Project requirements of this Consent Decree. If LaGen subsequently opts not to perform a 

Project for which it has submitted a plan that has been approved by EPA then it will indicate 

withdrawal from the Project in its next semi-annual Environmental Mitigation Plan report 

pursuant to Paragraph 97 of the Consent Decree. 

Overall Schedule and Budget for Remaining United States Environmental 

Mitigation Projects

B. LaGen may, at its election, consolidate the plans required by this Appendix into a 

single plan. 

 C. The Parties agree that LaGen is entitled to spread its payments for Environmental 

Mitigation Projects over the five-year period commencing upon the date of plan approval. 

LaGen is not, however, precluded from accelerating payments to better effectuate a proposed 

mitigation plan, provided that LaGen shall not be entitled to any reduction in the nominal amount 

of the required payments by virtue of the early expenditures. 

D. All proposed Project plans shall include the following: 

1. A plan for implementing the Project;

2. A summary-level budget for the Project;

3. A time-line for implementation of the Project; and

4. A description of the anticipated environmental benefits of the Project 

including an estimate of emission reductions (e.g., SO2, NOx, PM, CO2) 

expected to be realized.

E. Upon approval of the plan(s) required by this Appendix by EPA, LaGen shall 

complete the approved Projects according to the approved plan(s). Nothing in this Consent 

Decree shall be interpreted to prohibit LaGen from completing the Projects ahead of schedule.

F. Commencing with the first progress report due pursuant to Section XI (Periodic 

Reporting) of the Consent Decree, and continuing biannually thereafter until completion of the 
-69-

Project(s), LaGen will include in the progress report information describing the progress of the 

Project and the Project Dollars expended on the Project. 

G. In accordance with the requirements of Paragraph 98 of the Consent Decree, 

within 60 Days following the completion of each Project, LaGen shall submit to EPA for 

approval of Project closure, a Project completion report that documents: 

1. The date the Project was completed;

2. The results and documentation of implementation of the Project, including 

the estimated emission reductions or other environmental benefits 

achieved;

3. The Project Dollars incurred by LaGen in implementing the Project; and

4. Certification by a Responsible Official in accordance with Paragraph 105 

of the Consent Decree that the Project has been completed in full 

satisfaction of the requirements of the Consent Decree and this Appendix. 

H. If EPA concludes based on the Project completion report or subsequent 

information provided by LaGen that the Project has been performed and completed in 

accordance with the Consent Decree, then EPA will approve completion of the Project for 

purposes of the Consent Decree. 

III.

A. Within 120 days of the Date of Entry, LaGen shall submit a plan to EPA for 

review and approval for the mitigation of adverse impacts on the False River associated with 

nitrogen (“False River Mitigation Project”). LaGen shall spend a total of $1 million in Project 

Dollars on the False River Mitigation Project. 

Nitrogen Impact Mitigation in False River ($1 million)

B. LaGen’s proposed plan shall: 

1. Describe proposed Project(s) that reduce nitrogen loading in the False 

River or otherwise mitigate the adverse effects of nitrogen in the False 

River. Projects that may be approved include, by way of illustration, 

creation of forested stream buffers on agricultural land or other land cover 

to establish a “buffer zone” to filter runoff before it enters the waterway or 

installation of fencing to keep livestock out of the adjoining waterway. 

2. Describe generally the expected environmental benefit of the proposed 

False River Mitigation Project, including co-benefits that would result 

from reducing nitrogen runoff such as reducing phosphorous runoff and 

preventing algal blooms. The key criteria for selection of components of 

the Project are the magnitude of the expected ecological/environmental 

benefit(s) in relation to the cost and the relative permanence of the 
-70-

expected benefit(s). Expected loadings benefits should be quantified to 

the extent practicable. 

3. Describe the expected cost of each element of the False River Mitigation 

Project, including the fair market value of any interests in land to be 

acquired. 

4. Identify any person or entity other than LaGen that will be involved in any 

aspect of the False River Mitigation Project. LaGen shall describe the 

third-party’s role in the action and the basis for asserting that such entity is 

able and suited to perform the intended role. For purposes of this Section 

of the Appendix, third-parties shall only include non-profits; federal, state, 

and local agencies; or universities. Any proposed third-party must be 

legally authorized to perform the proposed action or to receive Project 

Dollars. 

5. Include a schedule for completing and funding each portion of the Project. 

C. Performance: Upon approval of the plan for False River Mitigation by EPA, 

LaGen shall complete the Project according to the approved plan and schedule. 

IV.

A. Within 120 days from the Date of Entry of this Consent Decree, LaGen shall 

submit to EPA for review and approval pursuant to Section XII (Review and Approval of 

Submittals) of this Consent Decree a plan for the reduction of pollutants through the enhanced 

use of electric vehicles in South Louisiana. In its plan, LaGen shall propose enhancements to the 

electric vehicle charging infrastructure in South Louisiana in an amount not to exceed $4 million 

in Project Dollars to be expended within five years of the date of plan approval. 

Electric Vehicle Infrastructure Enhancement (Up to $4 million)

B. LaGen shall undertake enhancements to the electric vehicle charging 

infrastructure by funding creation of one or more charging stations for electric vehicles in the 

South Louisiana area. Battery powered and some hybrid vehicles need plug-in infrastructure to 

recharge the batteries. Establishment of electric vehicle charging stations in South Louisiana 

could expand the useful driving range of electric vehicles in the local metropolitan areas as well 

as encourage South Louisiana drivers to purchase electric vehicles for local and commuting use. 

Locations for such charging stations would be targeted for areas where vehicles could be left for 

several hours to fully charge the electric vehicle’s battery system.

C. In undertaking this Project, LaGen may partner with third party organizations to 

handle funding and selection of locations in South Louisiana. Locations would be sought to 

maximize the number of vehicles that could utilize the chargers while striving to expand into 

South Louisiana the network of electric vehicle charging stations currently in the region. 

Potential sites could consist of locations that provide public access, including parking lots at 

mass transit facilities, large industrial facilities or similar employers, or other locations where 

charging will encourage electric vehicle usage. 
-71-

D. Emission reductions: Overall emissions reductions would depend upon the 

number of vehicles utilizing the facilities and would be based upon the type of vehicle the 

electric vehicle replaces in the general geographic area, the emissions characteristics and the 

annual vehicle miles traveled (“VMT”). For the term of this project LaGen would commit to 

effectively supply the vehicle charging station with zero emission renewable energy sources 

through the use of renewable energy credits (“RECs”). Therefore the usage would be considered 

emission free. LaGen will report the expected and achieved environmental benefits. 

E. Upon EPA’s approval of the plan, LaGen shall complete the Projects described in 

this Section according to the approved plan and schedule. 

V.

A. Within 120 days from the Date of Entry of this Consent Decree, LaGen shall 

submit to EPA for review and approval pursuant to Section XII (Review and Approval of 

Submittals) of this Consent Decree a plan for the reduction of pollutants through the installation 

of photovoltaic panels and associated equipment consistent with the specifications listed below. 

In its plan, LaGen shall propose Solar Photovoltaic (“PV”) Installations in an amount not to 

exceed $5 million in Project Dollars to be expended within five years of the date of plan 

approval. 

Solar Photovoltaic (PV) Installation Projects (Up to $5 million)

B. LaGen shall describe in the plans submitted to EPA for review and approval, how 

LaGen shall maintain the emissions avoided or reduced for the Projects it implements as part of 

the Solar PV Projects.

 C. The plan required to be submitted pursuant to this Section of this Appendix, shall 

also satisfy the following criteria: 

1. Describe how the proposed Projects in the plan are consistent with the 

requirements of this Section and the Consent Decree, and how the Projects 

will result in the emission reductions projected to be reduced pursuant to 

this Section. 

2. Include a budget and schedule for completing each Solar PV Project on a 

phased schedule, and the supporting methodologies and calculations for 

the budget. 

3. Describe the methodology and include any calculations that LaGen 

proposes to use in order to document the emission reductions associated 

with any proposed Project to be implemented as part of this Section. 

D. Upon EPA’s approval of the plan, LaGen shall complete the Solar PV Project 

according to the approved plan and schedule. 

E. Solar Photovoltaic (PV) Installations: LaGen may install solar PV at local 

schools, government-owned facilities, or facilities owned by nonprofit groups. 
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 1. A PV Project will, at a minimum, consist of:

(a) The installation of solar panels at a single location with 

unobstructed solar access, an installed capacity of at least 10 

kilowatts direct current, and annual generation which does not 

exceed the three year historical annual average electricity 

consumption of the building the project serves; 

(b) An inverter, appropriately sized for the capacity of the solar panels 

installed at the location;

(c) The appropriate solar panel mounting equipment for the particular 

school, government-owned building, or building owned by 

nonprofit groups selected, i.e., roof mount, carport mount or 

ground mount; 

(d) Wiring, conduit, and associated switchgear and metering 

equipment required for interconnecting the solar generator to the 

host building and equipment required by the local utility for net 

metering; and

(e) Appropriate monitoring equipment supported by kiosk delivered 

educational software to enable building occupants and/or staff to 

monitor the total and hourly energy output of the system (kilowatt 

hours), environmental benefits delivered (pounds CO2 avoided), 

hourly ambient temperature, irradiance (W/M2), as well as

accumulative annual irradiance and benefits delivered. 

2. The PV Project will be connected to the customer side of the meter and 

ownership of the system will be conveyed to the building owner at the 

site;

3. All related environmental benefits will be retained by the system owner, 

including associated Renewable Energy Credits or Renewable Resource 

Credits (collectively RECs);

4. LaGen will include in its bid proposals the requirement that each PV 

System include a manufacturer parts warranty and a Project Service 

Contract, as described in Subsection IV.E.5, below; 

5. The plan will also include the requirement for: (a) a manufacturer parts 

warranty for the solar panels installed for 25 years and inverters installed 

for 10 years; and (b) funding of an escrow account which will provide 

annual distributions adequate for the host building to contract operation 

and maintenance service for 25 years from the date of installation 

including but not limited to, annual system checkups and solar module 
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cleaning, and normal Project component replacements, including 

installation of new system components as needed to maintain the Project 

through the termination of the contract term. LaGen may propose to 

purchase the Project Service Contract for the benefit of the entity that 

owns the building where the PV Project is installed (Service Contract 

Beneficiary) and to have the option of funding the cost of the Project 

Service Contract by depositing funds in an escrow account for use by such 

Service Contract Beneficiary solely for purposes of maintaining the PV 

Systems through the termination of the contract term; and

6. In addition, LaGen’s plan will: 

(a) Include a schedule and budget for completing each phase of each 

Solar PV Project including installation and funding of the Project 

Service Contract for maintenance costs for 25 years following the 

approval of the plan; 

(b) Describe the process that LaGen will use to notify the school 

districts, government buildings and not for profit building owners 

that they are eligible to participate in the Solar PV Project and 

solicit their participation in the Solar PV Project;

(c) Describe the process and criteria LaGen will use to select the 

schools, government buildings and/or not for profit buildings 

where the systems will be installed, including base electricity 

usage, solar access availability, and other relevant criteria;

(d) Identify any person or entity, other than LaGen, that will be 

involved in the Solar PV Projects. This does not include 

contractors or installers who would complete the siting analysis 

and/or installation of the PV systems but does include any 

proposed affiliate or third party who would have a coordination or 

project management role in the Solar PV Project;

(e) Identify the expected capacity (kilowatts-dc) and energy output of 

each system; and

(f) Provide that LaGen shall biannually report the actual kilowatthours generated each year in the progress report required by 

Paragraph 97 of the Consent Decree.

7. In addition to the information required to be included in the report 

pursuant to Section I.G, above, LaGen shall include in that report the 

identity of the buildings where the PV systems are installed, the total 

capacity (kilowatts) of each system, components installed, total cost, and 

expected energy output and environmental benefits. 
-74-

8. Potential Projects: The following projects are examples of Solar PV 

Projects contemplated under this Section V if implemented consistent with 

the requirements set forth above. 

(a) Installation and implementation of a Solar PV Project at a school in 

New Orleans serving a minority/low income population. 

(b) Installation and implementation of a Solar PV Project at a large 

government-owned building in South Louisiana serving an 

environmental justice community.

(c) Implementation of green technology and use of Solar PV for 

lighting of a bridge connecting environmental justice communities.

(d) Implementation of solar technology at government-owned 

buildings and parks in the New Roads community adjacent to the 

Big Cajun II facility.

VI.

A. LaGen may spend Project Dollars up to an amount not to exceed $500,000 on 

Energy Efficiency Projects for the reduction or avoidance of criteria pollutants. 

Additional United States Environmental Mitigation Project (Up to $500,000)

B. If LaGen elects to perform an Energy Efficiency Project, LaGen shall submit a 

plan to EPA for review and approval pursuant to Section XII of the Consent Decree (Review and 

Approval of Submittals). LaGen shall describe in the plan submitted to EPA how LaGen shall 

achieve and maintain the emission reductions associated with the Energy Efficiency Projects. 

C. The plan required to be submitted pursuant to this Section of this Appendix shall 

also satisfy the following criteria: 

1. Describe how the proposed Projects in the plan are consistent with the 

requirements of this Section and the Consent Decree, and how the Projects 

will result in the emission reductions projected to be reduced pursuant to 

this Section. 

2. Include a budget and schedule for completing the Energy Efficiency 

Projects and the supporting methodologies and calculations for the budget. 

3. Describe the methodology and include any calculations that LaGen 

proposes to use in order to document the emission reductions associated 

with any proposed Project to be implemented as part of this Section. 

E. Upon EPA's approval of the plan, LaGen shall complete the projects according to 

the plan and schedule. 
-75-

F. For purposes of this Section VI, Energy Efficiency Projects include but are not 

limited to: 

1. Voltage Optimization (Transmission Loss Reduction): LaGen may invest 

in one or more Projects to improve the end-to-end efficiency of the power 

delivery system through optimization of system voltages or other similar 

approaches. An example project would deploy advanced metering and 

control technology to provide real-time measurement and optimization of 

system voltages to reduce transmission line losses, and reduce consumer 

energy consumption. By optimizing distribution feeder voltages to the 

lower portion of the American National Standards Institute service range, 

energy savings are estimated to be 2-3% of the total energy delivered. 

2. Residential Energy Efficiency: LaGen may provide “Extreme Energy 

Makeovers” for communities of homes or residences located in Louisiana. 

This Project would retrofit a community of residences, such as lowincome housing, with the most cost-effective energy-reduction packages 

on actual homes and monitor the results, with a goal to achieve 25% 

energy use reduction. 

3. Commercial or Industrial Custom and Prescriptive Efficiency Assistance: 

LaGen may provide incentives for commercial and/or industrial end-users 

to invest in energy efficiency improvements to such systems as lighting, 

heating and cooling, and other technologies (e.g., refrigeration, food 

service, office equipment, etc.). LaGen may fund energy audits and expert 

consulting services to collaborate with businesses to develop energy 

efficiency improvement plans aimed at making commercial facilities (e.g., 

schools, hospitals, office and government buildings, etc.) more energy 

efficient. LaGen may offer custom incentives for site specific 

improvements resulting in calculated or directly measured energy and 

demand reductions and will offer a menu of prescriptive incentives for 

specified, pre-approved types of efficiency upgrades to commercial and/or 

industrial building electric systems and equipment. Incentives will be 

structured to help commercial businesses shorten payback periods and 

move proposed projects to implementation. 

STATE OF LOUISIANA ENVIRONMENTAL MITIGATION PROJECTS

VII.

A. LaGen shall fund environmental mitigation projects submitted by the State of 

Louisiana consistent with the provisions of this Section VII. These projects are not subject to the 

requirements set forth in Section II above. 

Mitigation Projects to be Conducted by the State of Louisiana ($1.5 million)

B. The State of Louisiana shall submit to LaGen projects for funding in a total 

amount not to exceed $1.5 million over the period of five (5) years following the Date of Entry 

of this Consent Decree, beginning as early as July 1, 2013. 
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C. LaGen shall pay the amounts designated by the State in accordance with the 

projects submitted for funding within seventy-five (75) days after being notified in writing by the 

State. LaGen shall not be required to pay more than $500,000 in a single calendar year unless 

mutually agreed with the State.

D. The State agrees to use money funded by LaGen to implement projects that 

pertain to energy efficiency, pollution reduction and/or pollution mitigation or restoration-related 

activities. Such projects may include, but are not limited by, the following:

1. Retrofitting land and marine vehicles (e.g., automobiles, off-road and on-road 

construction and other vehicles, trains, or ferries) and transportation terminals and ports, 

with pollution control devices, such as particulate matter traps, computer chip reflashing, 

and battery hybrid technology; 

2. Truck-stop and marine port electrification;

3. Purchase and installation of photo-voltaic cells on buildings;

4. Projects to conserve energy use in new and existing buildings, including appliance 

efficiency improvement projects, weatherization projects, and projects intended to meet 

EPA’s Green Building guidelines and/or the Leadership in Energy and Environmental 

Design (LEED) Green Building Rating System;

5. “Buy back” programs for dirty old motors (e.g., automobile, lawnmowers, landscape 

equipment); and 

6. Programs to remove and/or replace oil-fired home heating equipment to allow use of 

ultra-low sulfur oil, and outdoor wood-fired boilers.