west virginia department of environmental protection

Appendix E

Federal Consent Decrees

and

State Consent Orders

Promoting a healthy environment.

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Table of Contents

Federal Consent Decrees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 5

AEP Consent Decree. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 7

VEPCO Consent Decree. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 111

State Consent Orders .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 229

Harrison Consent Order.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 231

Pleasants Consent Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 235

Clarification Letter.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 239

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Federal Consent Decrees

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_____________________________________ 

 

 

 

 

 

 

 

_____________________________________ 

 

 

 

 

 

 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

UNITED STATES OF AMERICA ) 

) 

Plaintiff, )

 ) 

and )

 ) 

STATE OF NEW YORK, ET AL., ) 

) 

Plaintiff-Intervenors, ) 

) 

v. ) 

) 

) 

AMERICAN ELECTRIC POWER SERVICE ) 

) 

CORP., ET AL., ) 

) 

Defendants. ) 

) 

_____________________________________) 

UNITED STATES OF AMERICA ) 

) 

Plaintiff, )

 ) 

) 

v. ) 

) 

) 

AMERICAN ELECTRIC POWER SERVICE ) 

CORP., ET AL., ) 

) 

) 

Defendants. ) 

) 

_____________________________________) 

JUDGE EDMUND A. SARGUS, JR. 

Magistrate Judge Terence P. Kemp

Civil Action No C2-99-1250 

(Consolidated with C2-99-1182) 

JUDGE GREGORY L. FROST 

Magistrate Judge Norah McCann King 

Civil Action No C2-05-360 

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_____________________________________ 

) 

OHIO CITIZEN ACTION, ET AL., ) 

) 

Plaintiffs, )

 ) 

v. ) JUDGE GREGORY L. FROST 

) Magistrate Judge Norah McCann King 

) 

AMERICAN ELECTRIC POWER SERVICE ) 

CORP., ET AL., ) Civil Action No. C2-04-1098 

) 

Defendants. ) 

) 

CONSENT DECREE
 

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TABLE OF CONTENTS
 

I. JURISDICTION AND VENUE..................................................................................................4 

II. APPLICABILITY ......................................................................................................................5 

III. DEFINITIONS..........................................................................................................................5 

IV. NOx EMISSION REDUCTIONS AND CONTROLS ...........................................................19 

A. Eastern System-Wide Annual Tonnage Limitations for NOx................................19 

B. NOx Emission Limitations and Control Requirements..........................................20 

C. General Provisions for Use and Surrender of NOx Allowances ............................22 

D. Use of Excess NOx Allowances.............................................................................23 

E. Super-Compliant NOx Allowances........................................................................26 

F. Method for Surrender of Excess NOx Allowances ................................................26 

G. Reporting Requirements for NOx Allowances.......................................................28 

H. General NOx Provisions.........................................................................................28 

V. SO2 EMISSION REDUCTIONS AND CONTROLS .............................................................28 

A. Eastern System-Wide Annual Tonnage Limitations for SO2 ................................28 

B. SO2 Emission Limitations and Control Requirements ..........................................29 

C. Use and Surrender of SO2 Allowances ..................................................................32 

D. Method for Surrender of Excess SO2 Allowances .................................................33 

E. Super-Compliant SO2 Allowances.......................................................35 

F. Reporting Requirements for SO2 Allowances..........................................35 

G. General SO2 Provisions ...................................................................35 

VI. PM EMISSION REDUCTIONS AND CONTROLS..............................................35 

A. Optimization of Existing ESPs ..............................................................................35 

B. PM Emission Rate and Testing..............................................................................36 

C. PM Emissions Monitoring .....................................................................................37 

D. Installation and Operation of PM CEMS ...............................................38 

E. PM Reporting.........................................................................................................40 

F. General PM Provisions ..........................................................................................40 

VII. PROHIBITION ON NETTING CREDITS OR OFFSETS FROM REQUIRED 

CONTROLS ......................................................................................................................41 

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VIII. ENVIRONMENTAL MITIGATION PROJECTS..............................................................41 

A. Requirements for Projects Described in Appendix A ($36 million) .....................42 

B. Mitigation Projects to be Conducted by the States ($24 million)..........................43 

IX. CIVIL PENALTY ...................................................................................................................45 

X. RESOLUTION OF CIVIL CLAIMS AGAINST DEFENDANTS .........................................46 

A. Resolution of the United States’ Civil Claims.......................................................46 

B. Pursuit by the United States of Civil Claims Otherwise Resolved by 

Subsection A ..........................................................................................................48 

C. Resolution of Past Claims of the States and Citizen Plaintiffs and 

Reservation of Rights.............................................................................................51 

XI. PERIODIC REPORTING..................................................................................................52 

XII. REVIEW AND APPROVAL OF SUBMITTALS ............................................................54 

XIII. STIPULATED PENALTIES .............................................................................................55 

XIV. FORCE MAJEURE ...........................................................................................................61 

XV. DISPUTE RESOLUTION .................................................................................................64 

XVI. PERMITS...........................................................................................................................66 

XVII. INFORMATION COLLECTION AND RETENTION ....................................................69 

XVIII. NOTICES..........................................................................................................................70 

XIX. SALES OR TRANSFERS OF OPERATIONAL OR OWNERSHIP INTERESTS .........74 

XX. EFFECTIVE DATE...........................................................................................................76 

XXI. RETENTION OF JURISDICTION...................................................................................76 

XXII. MODIFICATION ..............................................................................................................77 

XXIII. GENERAL PROVISIONS.................................................................................................77 

XXIV. SIGNATORIES AND SERVICE .....................................................................................79 

XXV. PUBLIC COMMENT .........................................................................................................80 

XXVI. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER DECREE ...............80 

XXVII. FINAL JUDGMENT........................................................................................................82
 

Appendix A: Environmental Mitigation Projects 

Appendix B: Reporting Requirements 

Appendix C: Monitoring Strategy and Calculation of 30-Day Rolling Average 

 Removal Efficiency for Conesville Units 5 and 6
 

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WHEREAS, the following complaints have been filed against American Electric Power 

Service Corporation, Indiana Michigan Power Company, Ohio Power Company, Appalachian 

Power Company, Cardinal Operating Company, and Columbus Southern Power Company in the 

above-captioned cases, United States, et al. v. American Electric Power Service Corp., et al., 

Civil Action Nos. C2-99-1182 and C2-99-1250 (“AEP I”) and United States, et al. v. American 

Electric Power Service Corp., et al., Civil Action Nos. C2-04-1098 and C2-05-360 (“AEP II”): 

(a) the United States of America (“United States”), on behalf of the United States 

Environmental Protection Agency (“EPA”), filed initial complaints on November 3, 1999 and 

April 8, 2005, and filed amended complaints on March 3, 2000 and September 17, 2004, 

pursuant to Sections 113(b), 165, and 167 of the Clean Air Act (the “Act”), 42 U.S.C. §§ 7413, 

7475, and 7477; 

(b) the States of New York, Connecticut, New Jersey, Vermont, New Hampshire, 

Maryland, and Rhode Island, and the Commonwealth of Massachusetts, after their motion to 

intervene was granted, filed initial complaints on December 14, 1999 and November 18, 2004, 

and filed amended complaints on April 5, 2000, September 24, 2002, and September 17, 2004, 

pursuant to Section 304 of the Act, 42 U.S.C. § 7604; and 

(c) Ohio Citizen Action, Citizens Action Coalition of Indiana, Hoosier 

Environmental Council, Valley Watch, Inc., Ohio Valley Environmental Coalition, West 

Virginia Environmental Council, Clean Air Council, Izaak Walton League of America, United 

States Public Interest Research Group, National Wildlife Federation, Indiana Wildlife 

Federation, League of Ohio Sportsmen, Sierra Club, and Natural Resources Defense Council, 

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Inc. filed an initial complaint on November 19, 1999, and filed amended complaints on January 

1, 2000 and September 16, 2004, pursuant to Section 304 of the Act, 42 U.S.C. § 7604; 

WHEREAS, the complaints filed against Defendants in AEP I and AEP II sought 

injunctive relief and the assessment of civil penalties for alleged violations of, inter alia, the: 

(a) Prevention of Significant Deterioration and Nonattainment New Source 

Review provisions in Part C and D of Subchapter I of the Act, 42 U.S.C. §§ 7470-

7492, 7501-7515; and 

(b) federally-enforceable state implementation plans developed by Indiana, 

Ohio, Virginia, and West Virginia; 

WHEREAS, EPA issued notices of violation (“NOVs”) to Defendants with respect to 

such allegations on November 2, 1999, November 22, 1999, and June 18, 2004; 

WHEREAS, EPA provided Defendants and the States of Indiana, Ohio, and West 

Virginia, and the Commonwealth of Virginia, with actual notice pertaining to Defendants’ 

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

§ 7413(a)(1) and (b); 

WHEREAS, in their complaints, the United States, the States, and Citizen Plaintiffs 

(collectively, the “Plaintiffs”) alleged, inter alia, that Defendants made major modifications to 

major emitting facilities, and failed to obtain the necessary permits and install the controls 

necessary under the Act to reduce sulfur dioxide, nitrogen oxides, and/or particulate matter 

emissions, and further alleged that such emissions damage human health and the environment; 

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

against Defendants under Sections 113, 165, and 167 of the Act, 42 U.S.C. §§ 7413, 7475, and 

7477, and 28 U.S.C. § 1355; 

WHEREAS, Defendants have denied and continue to deny the violations alleged in the 

complaints and NOVs, maintain that they have been and remain in compliance with the Act and 

are not liable for civil penalties or injunctive relief, and state that they are agreeing to the 

obligations imposed by this Consent Decree solely to avoid the costs and uncertainties of 

litigation and to improve the environment; 

WHEREAS, Defendants have installed and operated SCR technology on several Units in 

the AEP Eastern System, as those terms are defined herein, during the five (5) month ozone 

season to achieve emission reductions in compliance with the NOx SIP Call; 

WHEREAS, the Plaintiffs and Defendants anticipate that this Consent Decree, including 

the installation and operation of pollution control technology and other measures adopted 

pursuant to this Consent Decree, will achieve significant reductions of emissions from the AEP 

Eastern System and thereby significantly improve air quality; 

WHEREAS, the liability phase of AEP I was tried on July 6-7, 2005, and July 11-12, 

2005, and no decision has been rendered; 

WHEREAS, the Parties have agreed, and the Court by entering this Consent Decree 

finds, that this Consent Decree has been negotiated in good faith and at arm’s length; that this 

settlement is fair, reasonable, and in the public interest, and consistent with the goals of the Act; 

and that entry of this Consent Decree without further litigation is the most appropriate means of 

resolving this matter; 

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NOW, THEREFORE, without any admission by Defendants, and without adjudication of 

the violations alleged in the complaints or the NOVs, it is hereby ORDERED, ADJUDGED, 

AND DECREED as follows: 

I. JURISDICTION AND VENUE 

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

Parties consenting hereto, pursuant to 28 U.S.C. §§ 1331, 1345, 1355, and 1367, Sections 113, 

167, and 304 of the Act, 42 U.S.C. §§ 7413, 7477, and 7604. Solely for the purposes of this 

Consent Decree, venue is proper under Section 113(b) of the Act, 42 U.S.C. § 7413(b), and 

under 28 U.S.C. § 1391(b) and (c). Solely for the purposes of this Consent Decree and the 

underlying complaints, and for no other purpose, Defendants waive all objections and defenses 

that they may have to the Court’s jurisdiction over this action, to the Court’s jurisdiction over 

Defendants, and to venue in this District. Defendants shall not challenge the terms of this 

Consent Decree or this Court’s jurisdiction to enter and enforce this Consent Decree. Solely for 

the purposes of the complaints filed by the Plaintiffs in this matter and resolved by the Consent 

Decree, for the purposes of entry and enforcement of this Consent Decree, and for no other 

purpose, Defendants waive any defense or objection based on standing. Except as expressly 

provided for herein, this Consent Decree shall not create any rights in or obligations of any party 

other than the Plaintiffs and Defendants. Except as provided in Section XXV (Public Comment) 

of this Consent Decree, the Parties consent to entry of this Consent Decree without further 

notice. To facilitate entry of this Consent Decree, upon the Date of Lodging of this Consent 

Decree the Parties shall file a Joint Motion to Consolidate AEP I and AEP II so that AEP II is 

consolidated into AEP I. 

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II. APPLICABILITY
 

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

upon and inure to the benefit of Plaintiffs and Defendants, and their respective successors and 

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

3. Defendants shall be responsible for providing 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, Defendants shall be responsible for ensuring that all work is performed in 

accordance with the requirements of this Consent Decree. For this reason, in any action to 

enforce this Consent Decree, Defendants shall not assert as a defense the failure of their officers, 

directors, employees, servants, agents, or contractors to take actions necessary to comply with 

this Consent Decree, unless Defendants establish that such failure resulted from a Force Majeure 

Event, as defined in Paragraph 158 of this Consent Decree. 

III. DEFINITIONS 

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. 

4. A “1-hour Average NOx Emission Rate” for a re-powered gas-fired, electric 

generating unit means, and shall be expressed as, the average concentration in parts per million 

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(“ppm”) by dry volume, corrected to 15% O2, as averaged over one (1) hour. In determining the 

1-Hour Average NOx Emission Rate, Defendants shall use CEMS in accordance with applicable 

reference methods specified in 40 C.F.R. Part 60 to calculate the emissions for each 15-minute 

interval within each clock hour, except as provided in this Paragraph. Compliance with the 1-

Hour Average NOx Emission Rate shall be shown by averaging all 15-minute CEMS interval 

readings within a clock hour, except that any 15-minute CEMS interval that contains any part of 

a startup or shutdown shall not be included in the calculation of that 1-Hour average. A 

minimum of two 15-minute CEMS interval readings within a clock hour, not including startup or 

shutdown intervals, is required to determine compliance with the 1-Hour average NOx Emission 

Rate. All emissions recorded by CEMS shall be reported in 1-Hour averages. 

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

expressed as, a lb/mmBTU and 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 the previous twenty-nine (29) Operating Days; and third, 

divide the total number of pounds of the pollutant emitted during the thirty (30) 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 of startup, shutdown, and 

Malfunction within an Operating Day, except as follows: 

a. Emissions and BTU inputs that occur during a period of Malfunction shall 

be excluded from the calculation of the 30-Day Rolling Average Emission 

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Rate if Defendants provide notice of the Malfunction to EPA in 

accordance with Paragraph 159 in Section XIV (Force Majeure) of this 

Consent Decree; 

b. Emissions of NOx and BTU inputs that occur during the fifth and 

subsequent Cold Start Up Period(s) that occur at a given Unit during any 

30-day period shall be excluded from the calculation of the 30-Day 

Rolling Average Emission Rate if inclusion of such emissions would 

result in a violation of any applicable 30-Day Rolling Average Emission 

Rate and Defendants have installed, operated, and maintained the SCR in 

question in accordance with manufacturers’ specifications and good 

engineering practices. A “Cold Start Up Period” occurs whenever there 

has been no fire in the boiler of a Unit (no combustion of any Fossil Fuel) 

for a period of six (6) hours or more. The NOx emissions to be excluded 

during the fifth and subsequent Cold Start Up Period(s) shall be the lesser 

of (i) those NOx emissions emitted during the eight (8) hour period 

commencing when the Unit is synchronized with a utility electric 

distribution system and concluding eight (8) hours later, or (ii) those NOx 

emissions emitted prior to the time that the flue gas has achieved the 

minimum SCR operational temperature specified by the catalyst 

manufacturer; and 

c. For SO2, shall include all emissions and BTUs commencing from the time 

the Unit is synchronized with a utility electric distribution system through 

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the time that the Unit ceases to combust fossil fuel and the fire is out in the 

boiler. 

6. A “30-Day Rolling Average Removal Efficiency” means, for SO2, at a Unit other 

than Conesville Unit 5 and Conesville Unit 6, the percent reduction in the mass of SO2 achieved 

by a Unit’s FGD system over a 30-Operating Day period and shall be calculated as follows: step 

one, sum the total pounds of SO2 emitted as measured at the outlet of the FGD system for the 

Unit during the current Operating Day and the previous twenty-nine (29) Operating Days as 

measured at the outlet of the FGD system for that Unit; step two, sum the total pounds of SO2 

delivered to the inlet of the FGD system for the Unit during the current Operating Day and the 

previous twenty-nine (29) Operating Days as measured at the inlet to the FGD system for that 

Unit; step three, subtract the outlet SO2 emissions calculated in step one from the inlet SO2 

emissions calculated in step two; step four, divide the remainder calculated in step three by the 

inlet SO2 emissions calculated in step two; and step five, multiply the quotient calculated in step 

four by 100 to express as a percentage of removal efficiency. A new 30-day Rolling Average 

Removal Efficiency shall be calculated for each new Operating Day, and shall include all 

emissions that occur during all periods within each Operating Day except that emissions that 

occur during a period of Malfunction may be excluded from the calculation if Defendants 

provide Notice of the Malfunction to Plaintiffs in accordance with Section XIV (Force Majeure) 

and it is determined to be a Force Majeure Event pursuant to that Section. 

7. “AEP Eastern System” means, solely for purposes of this Consent Decree, the 

following coal-fired, electric steam generating Units (with the nominal nameplate net capacity of 

each Unit): 

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a. Amos Unit 1 (800 MW), Amos Unit 2 (800 MW), and Amos Unit 3 (1300 

MW) located in St. Albans, West Virginia; 

b.	 Big Sandy Unit 1 (260 MW) and Big Sandy Unit 2 (800 MW) located in 

Louisa, Kentucky; 

c.	 Cardinal Unit 1 (600 MW), Cardinal Unit 2 (600 MW), and Cardinal Unit 

3 (630 MW) located in Brilliant, Ohio; 

d.	 Clinch River Unit 1 (235 MW), Clinch River Unit 2 (235 MW), and 

Clinch River Unit 3 (235 MW) located in Carbo, Virginia; 

e.	 Conesville Unit 1 (125 MW), Conesville Unit 2 (125 MW), Conesville 

Unit 3 (165 MW), Conesville Unit 4 (780 MW), Conesville Unit 5 (375 

MW), and Conesville Unit 6 (375 MW) located in Conesville, Ohio; 

f.	 Gavin Unit 1 (1300 MW) and Gavin Unit 2 (1300 MW) located in 

Cheshire, Ohio; 

g.	 Glen Lyn Unit 5 (95 MW) and Glen Lyn Unit 6 (240 MW) located in Glen 

Lyn, Virginia; 

h.	 Kammer Unit 1 (210 MW), Kammer Unit 2 (210 MW), and Kammer Unit 

3 (210 MW) located in Moundsville, West Virginia; 

i.	 Kanawha River Unit 1 (200 MW) and Kanawha River Unit 2 (200 MW) 

located in Glasgow, West Virginia; 

j.	 Mitchell Unit 1 (800 MW) and Mitchell Unit 2 (800 MW) located in 

Moundsville, West Virginia; 

k.	 Mountaineer Unit 1 (1300 MW) located in New Haven, West Virginia; 

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l.	 Muskingum River Unit 1 (205 MW), Muskingum River Unit 2 (205 MW), 

Muskingum River Unit 3 (215 MW), Muskingum River Unit 4 (215 MW), 

and Muskingum River Unit 5 (585 MW) located in Beverly, Ohio; 

m.	 Picway Unit 9 (100 MW) located in Lockbourne, Ohio; 

n.	 Rockport Unit 1 (1300 MW) and Rockport Unit 2 (1300 MW) located in 

Rockport, Indiana; 

o.	 Sporn Unit 1 (150 MW), Sporn Unit 2 (150 MW), Sporn Unit 3 (150 

MW), Sporn Unit 4 (150), and Sporn Unit 5 (450 MW) located in New 

Haven, West Virginia; and 

p.	 Tanners Creek Unit 1 (145 MW), Tanners Creek Unit 2 (145 MW), 

Tanners Creek Unit 3 (205 MW), and Tanners Creek Unit 4 (500 MW) 

located in Lawrenceburg, Indiana. 

8. “Boiler Island” means: a Unit’s (a) fuel combustion system (including bunker, 

coal pulverizers, crusher, stoker, and fuel burners); (b) combustion air system; (c) steam 

generating system (firebox, boiler tubes, and walls); and (d) draft system (excluding the stack), 

all as further described in “Interpretation of Reconstruction,” by John B. Rasnic, U.S. EPA 

(November 25, 1986) and attachments thereto. 

9. “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. 

10. “Citizen Plaintiffs” means, collectively, Ohio Citizen Action, Citizens Action 

Coalition of Indiana, Hoosier Environmental Council, Ohio Valley Environmental Coalition, 

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West Virginia Environmental Council, Clean Air Council, Izaak Walton League of America, 

United States Public Interest Research Group, National Wildlife Federation, Indiana Wildlife 

Federation, League of Ohio Sportsmen, Sierra Club, and Natural Resources Defense Council, 

Inc. 

11. “Clean Air Act” or “Act” means the federal Clean Air Act, 42 U.S.C. §§ 7401-

7671q, and its implementing regulations. 

12. “Clean Air Interstate Rule” or “CAIR” means the regulations promulgated by 

EPA on May 12, 2005, at 70 Fed. Reg. 25,161, which are entitled, “Rule to Reduce Interstate 

Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid 

Rain Program; Revisions to NOx SIP Call; Final Rule,” and any subsequent amendments to that 

regulation, and any applicable, federally-approved state implementation plan or the federal 

implementation plan to implement CAIR. 

13. “Consent Decree” or “Decree” means this Consent Decree and the appendices 

attached hereto, which are incorporated into this Consent Decree. 

14. “Continuously Operate” or “Continuous Operation” means that when an SCR, 

FGD, ESP, or Other NOx Pollution Controls are used at a Unit, except during a Malfunction, 

they shall be operated at all times such Unit is in operation, consistent with the technological 

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

such equipment and the Unit so as to minimize emissions to the greatest extent practicable. 

15. “Date of Entry” means the date this Consent Decree is approved or signed by the 

United States District Court Judge; provided, however, that if the Parties’ Joint Motion to 

Consolidate, as specified in Paragraph 1, is denied or not decided, then the “Date of Entry” 

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means the date that the last of the two United States District Court Judges hearing these cases 

approves or signs this Consent Decree. 

16. “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 Southern District of Ohio. 

17. “Day” means, unless otherwise specified, calendar day. 

18. “Defendants” or “AEP” means American Electric Power Service Corporation, 

Kentucky Power Company d/b/a American Electric Power, Indiana Michigan Power Company 

d/b/a American Electric Power, Ohio Power Company d/b/a American Electric Power, Cardinal 

Operating Company and its owners (Ohio Power and Buckeye Power, Inc.), Appalachian Power 

Company d/b/a American Electric Power, and Columbus Southern Power Company d/b/a 

American Electric Power. 

19. “Eastern System-Wide Annual Tonnage Limitation” means the limitations, as 

specified in this Consent Decree, on the number of tons of the air pollutants that may be emitted 

from the AEP Eastern System during the relevant calendar year (i.e., January 1 through 

December 31), and shall include all emissions of the air pollutants emitted during all periods of 

startup, shutdown, and Malfunction, except that emissions that occur during a period of 

Malfunction may be excluded from the calculation if Defendants provide Notice of the 

Malfunction to Plaintiffs in accordance with Section XIV (Force Majeure) and it is determined to 

be a Force Majeure Event pursuant to that Section. 

20. “Emission Rate” means the number of pounds of pollutant emitted per million 

BTU of heat input (“lb/mmBTU”), measured in accordance with this Consent Decree. 

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

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22. “ESP” means electrostatic precipitator, a pollution control device for the 

reduction of PM. 

23. “Environmental Mitigation Project” means a project funded or implemented by 

Defendants as a remedial measure to mitigate alleged damage to human health or the 

environment, including National Parks or Wilderness Areas, claimed to have been caused by the 

alleged violations described in the complaints or to compensate Plaintiffs for costs necessitated 

as a result of the alleged damages. 

24. “Existing Unit” means a Unit that commenced operation prior to the Date of 

Lodging of this Consent Decree. 

25. “Flue Gas Desulfurization System,” or “FGD,” means a pollution control device 

with one or more absorber vessels that employs flue gas desulfurization technology for the 

reduction of SO2. 

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

petroleum oil, or natural gas. 

27. An “Improved Unit” for NOx means an AEP Eastern System Unit equipped with 

an SCR or scheduled under this Consent Decree to be equipped with an SCR, or required to be 

Retired, Retrofitted, or Re-powered. A Unit may be an Improved Unit for one pollutant without 

being an Improved Unit for another. Any Other Unit in the AEP Eastern System can become an 

Improved Unit for NOx if it is equipped with an SCR and the requirement to Continuously 

Operate such SCR is incorporated into a federally-enforceable non-Title V permit or site-specific 

amendment to the state implementation plan and the Title V Permit applicable to that Unit. 

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28. An “Improved Unit” for SO2 means an AEP Eastern System Unit equipped with 

an FGD or scheduled under this Consent Decree to be equipped with an FGD, or required to be 

Retired, Retrofitted, or Re-powered. A Unit may be an Improved Unit for one pollutant without 

being an Improved Unit for another. Any Other Unit in the AEP Eastern System can become an 

Improved Unit for SO2 if it is equipped with an FGD and the requirement to Continuously 

Operate such FGD is incorporated into a federally-enforceable non-Title V permit or sitespecific amendment to the state implementation plan and the Title V Permit applicable to that 

Unit. 

29. “KW” means kilowatt or one thousand watts. 

30. “lb/mmBTU” means one pound per million British thermal units. 

31. “Malfunction” means any sudden, infrequent, and not reasonably preventable 

failure of air pollution control equipment, process equipment, or a process to operate in a normal 

or usual manner. Failures that are caused in part by poor maintenance or careless operation are 

not Malfunctions. 

32. “MW” means a megawatt or one million watts. 

33. “NSR Permit” means a preconstruction permit issued by the permitting authority 

pursuant to Parts C or D of Subchapter I of the Clean Air Act. 

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

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

35. “New and Newly Permitted Unit” means a Unit that commenced operation after 

the Date of Lodging of this Consent Decree, and that has been issued a final NSR Permit for SO2 

and NOx that includes applicable Best Available Control Technology (“BACT”) and/or Lowest 

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Achievable Emission Rate (“LAER”) limitations, as those terms are respectively defined at 42 

U.S.C. §§ 7479(3), 7501(3). 

36. “Nonattainment NSR” means the nonattainment area New Source Review 

program within the meaning of Part D of Subchapter I of the Act, 42 U.S.C. §§ 7501-7515, and 

its regulations, 40 C.F.R. Part 51. 

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

this Consent Decree. 

38. “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 that 

has been established under the Clean Air Act or a state implementation plan. 

39. “NOx CAIR Allocations” means the number of NOx Allowances allocated to the 

AEP Eastern System Units pursuant to the Clean Air Interstate Rule, excluding any NOx 

Allowances awarded by Indiana, Kentucky, Ohio, West Virginia, and Virginia to an AEP 

Eastern System Unit from the “compliance supplement pool,” as that phrase is defined at 40 

C.F.R. § 96.143, in a federally-approved state implementation plan, or federal implementation 

plan to implement CAIR. 

40. “Operating Day” means any day on which a Unit fires Fossil Fuel. 

41. “Other NOx Pollution Controls” means the measures identified in the table in 

Paragraph 69 that will achieve reductions in NOx emissions at the Units specified therein. 

42. “Other SO2 Measures” means the measures identified in Paragraph 90 that will 

achieve reductions in SO2 emissions at the Units specified therein. 

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43. “Other Unit” means any Unit of the AEP Eastern System that is not an Improved 

Unit for the pollutant in question. 

44. “Operational or Ownership Interest” means part or all of Defendants’ legal or 

equitable operational or ownership interests in any Unit in the AEP Eastern System. 

45. “Parties” means the United States, the States, the Citizen Plaintiffs, and 

Defendants. “Party” means one of the Parties. 

46. “Plaintiffs” means the United States, the States, and the Citizen Plaintiffs. 

47. “Plant-Wide Annual Rolling Tonnage Limitation for SO2 at Clinch River” means 

the sum of the tons of SO2 emitted during all periods of operation from the Clinch River plant, 

including, without limitation, all SO2 emitted during periods of startup, shutdown, and 

Malfunction, in the most recent month and the previous eleven (11) months. A new Annual 

Rolling Average Tonnage Limitation for years 2010 through 2014, and for 2015 and continuing 

thereafter, shall be calculated in accordance with Paragraph 88. 

48. “Plant-Wide Annual Tonnage Limitation for SO2 at Kammer” means the sum of 

the tons of SO2 emitted during all periods of operation from the Kammer plant, including, 

without limitation, all SO2 emitted during periods of startup, shutdown, and Malfunction, during 

the relevant calendar year (i.e., January 1 through December 31). A new Plant-Wide Annual 

Tonnage Limitation shall be calculated for each new calendar year. 

49. “PM” means particulate matter, as measured in accordance with the provisions of 

this Consent Decree. 

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50. “PM CEMS” or “PM Continuous Emission Monitoring System” means the 

equipment that samples, analyzes, measures, and provides, by readings taken at frequent 

intervals, an electronic or paper record of PM emissions. 

51. “PM Emission Rate” means the number of pounds of PM emitted per million 

BTU of heat input (lb/mmBTU), as measured in annual stack tests in accordance with EPA 

Method 5, 5B, or 17, 40 C.F.R. Part 60, including Appendix A. 

52. “Project Dollars” means Defendants’ 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 Defendants’ 

direct payments for such projects, or Defendants’ external costs for contractors, vendors, and 

equipment. 

53. “PSD” means Prevention of Significant Deterioration within the meaning of Part 

C of Subchapter I of the Clean Air Act, 42 U.S.C. §§ 7470-7492, and its regulations, 40 C.F.R. 

Part 52. 

54. “Re-power” means either (1) the replacement of an existing pulverized coal 

boiler through the construction of a new circulating fluidized bed (“CFB”) boiler or other 

technology of equivalent environmental performance that at a minimum achieves and maintains 

a 30-Day Rolling Average Emission Rate not greater than 0.100 lb/mmBTU or a 30-Day Rolling 

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

Average Emission Rate not greater than 0.070 lb/mmBTU for NOx; or (2) the modification of 

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such Unit, or removal and replacement of Unit components, such that the modified or replaced 

Unit generates electricity through the use of new combined cycle combustion turbine technology 

fueled by natural gas containing no more than 0.5 grains of sulfur per 100 standard cubic feet of 

natural gas, and at a minimum, achieves a 1-hour Average NOx Emission Rate not greater than 

2.0 ppm. 

55. “Retire” means that Defendants shall: (a) permanently shut down and cease to 

operate the Unit; and (b) comply with any state and/or federal requirements applicable to that 

Unit. Defendants shall amend any applicable permits so as to reflect the permanent shutdown 

status of such Unit. 

56. “Retrofit” means that the Unit must install and Continuously Operate both an 

SCR and an FGD. For the 600 MW listed in the table in Paragraph 68 and 87, “Retrofit” means 

that the Unit must meet a federally-enforceable 30-Day Rolling Average Emission Rate of 0.100 

lb/mmBTU for NOx and a 30-Day Rolling Average Emission Rate of 0.100 lb/mmBTU for SO2, 

measured in accordance with the requirements of this Consent Decree. 

57. “Selective Catalytic Reduction System” or “SCR” means a pollution control 

device that employs selective catalytic reduction technology for the reduction of NOx emissions. 

58. “Selective Non-Catalytic Reduction” means a pollution control device for the 

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

59. “SO2” means sulfur dioxide, as measured in accordance with the provisions of 

this Consent Decree. 

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60. “SO2 Allowance” means “allowance” as defined at 42 U.S.C. § 7651a(3): “an 

authorization, allocated to an affected unit by the Administrator of EPA under Subchapter IV of 

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

61. “SO2 Allocations” means the number of SO2 Allowances allocated to the AEP 

Eastern System Units. 

62. “Super-Compliant NOx Allowance” means an allowance attributable to reductions 

beyond the requirements of this Consent Decree as determined in accordance with Paragraph 80. 

63. “Super-Compliant SO2 Allowance” means an allowance attributable to reductions 

beyond the requirements of this Consent Decree as determined in accordance with Paragraph 98. 

64. “States” means the States of Connecticut, Maryland, New Hampshire, New 

Jersey, New York, Rhode Island, and Vermont, and the Commonwealth of Massachusetts. 

65. “Title V Permit” means the permit required for Defendants’ major sources under 

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

66. “Unit” means collectively, the coal pulverizer, 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. An electric steam generating station 

may comprise one or more Units. 

IV. NOx EMISSION REDUCTIONS AND CONTROLS 

A. Eastern System-Wide Annual Tonnage Limitations for NOx. 

67. Notwithstanding any other provisions of this Consent Decree, except Section XIV 

(Force Majeure), during each calendar year specified in the table below, all Units in the AEP 

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Eastern System, collectively, shall not emit NOx in excess of the following Eastern System-Wide 

Annual Tonnage Limitations: 

Calendar Year Eastern System-Wide Annual Tonnage 

Limitations for NOx 

2009 96,000 tons 

2010 92,500 tons 

2011 92,500 tons 

2012 85,000 tons 

2013 85,000 tons 

2014 85,000 tons 

2015 75,000 tons 

2016, and each year thereafter 72,000 tons 

B. NOx Emission Limitations and Control Requirements. 

68. No later than the dates set forth in the table below, Defendants shall install and 

Continuously Operate SCR on each Unit identified therein, or, if indicated in the table, Retire, 

Retrofit, or Re-power such Unit: 

Unit NOx Pollution Control Date 

Amos Unit 1 SCR January 1, 2008 

Amos Unit 2 SCR January 1, 2009 

Amos Unit 3 SCR January 1, 2008 

Big Sandy Unit 2 SCR January 1, 2009 

Cardinal Unit 1 SCR January 1, 2009 

Cardinal Unit 2 SCR January 1, 2009 

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Unit NOx Pollution Control Date 

Cardinal Unit 3 SCR January 1, 2009 

Conesville Unit 1 Retire, Retrofit, or Re-power Date of Entry of this 

Consent Decree 

Conesville Unit 2 Retire, Retrofit, or Re-power Date of Entry of this 

Consent Decree 

Conesville Unit 3 Retire, Retrofit, or Re-power December 31, 2012 

Conesville Unit 4 SCR December 31, 2010 

Gavin Unit 1 SCR January 1, 2009 

Gavin Unit 2 SCR January 1, 2009 

Mitchell Unit 1 SCR January 1, 2009 

Mitchell Unit 2 SCR January 1, 2009 

Mountaineer Unit 1 SCR January 1, 2008 

Muskingum River Units 1-4 Retire, Retrofit, or Re-power December 31, 2015 

Muskingum River Unit 5 SCR January 1, 2008 

Rockport Unit 1 SCR December 31, 2017 

Rockport Unit 2 SCR December 31, 2019 

Sporn Unit 5 Retire, Retrofit, or Re-power December 31, 2013 

A total of at least 600 MW from 

the following list of Units: Sporn 

Units 1-4, Clinch River Units 1-3, 

Tanners Creek Units 1-3, and/or 

Kammer Units 1-3 

Retire, Retrofit, or Re-power December 31, 2018 

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69. Other NOx Pollution Controls. No later than the dates set forth in the table below, 

Defendants shall Continuously Operate the Other NOx Pollution Controls on the Units identified 

therein: 

Unit Other NOx Pollution 

Controls 

Date 

Big Sandy Unit 1 Low NOx Burners Date of Entry 

Glen Lyn Units 5 and 6 Low NOx Burners Date of Entry 

Clinch River Units 1, 2, and 3 Low NOx Burners, and 

Selective Non-catalytic 

Reduction 

For Low NOx Burners, Date 

of Entry, and, for Selective 

Non-Catalytic Reduction, 

December 31, 2009 

Conesville Units 5 and 6 Low NOx Burners Date of Entry 

Kammer Units 1, 2, and 3 Overfire Air Date of Entry 

Kanawha River Units 1 and 2 Low NOx Burners Date of Entry 

Picway Unit 9 Low NOx Burners Date of Entry 

Tanners Creek Units 1, 2, and 3 Low NOx Burners Date of Entry 

Tanners Creek Unit 4 Overfire Air Date of Entry 

C. General Provisions for Use and Surrender of NOx Allowances. 

70. Except as may be necessary to comply with this Section and Section XIII 

(Stipulated Penalties), Defendants may not use NOx Allowances to comply with any requirement 

of this Consent Decree, including by claiming compliance with any emission limitation or 

Eastern System-Wide Annual Tonnage Limitation required by this Decree, by using, tendering, 

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or otherwise applying NOx Allowances to achieve compliance or offset any emissions above the 

limits specified in this Consent Decree. 

71. As required by this Section IV of this Consent Decree, Defendants shall surrender 

NOx Allowances that would otherwise be available for sale, trade, or transfer as a result of 

actions taken by Defendants to comply with the requirements of this Consent Decree. 

72. NOx Allowances allocated to the AEP Eastern System may be used by 

Defendants to meet their own federal and/or state Clean Air Act regulatory requirements for the 

Units included in the AEP Eastern System. Subject to Paragraph 70, nothing in this Consent 

Decree shall prevent Defendants from purchasing or otherwise obtaining NOx Allowances from 

another source for purposes of complying with their own federal and/or state Clean Air Act 

requirements to the extent otherwise allowed by law. 

73. The requirements in this Consent Decree pertaining to Defendants’ use and 

surrender 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. 

D. Use of Excess NOx Allowances. 

74. Calculation of Unrestricted and Restricted NOx Allowances. On an annual basis, 

beginning in 2009, Defendants shall calculate the difference between the NOx CAIR Allocations 

for the Units in the AEP Eastern System for that year and the annual Eastern System-Wide 

Tonnage Limitations for NOx for that calendar year. This difference represents the total Excess 

NOx Allowances for that calendar year. For purposes of this Consent Decree, for each year 

commencing in 2009 and ending in 2015, forty-two percent (42%) of the Excess NOx 

Allowances shall be Unrestricted Excess NOx Allowances and fifty-eight percent (58%) shall be 

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Restricted Excess NOx Allowances. Commencing in 2016, and continuing thereafter, all Excess 

NOx Allowances shall be Restricted Excess NOx Allowances. 

75. Use and Surrender of Unrestricted Excess NOx Allowances. For each calendar 

year commencing in 2009 and ending in 2015, Defendants may use Unrestricted Excess NOx 

Allowances in any manner authorized by law. No later than March 1, 2016, Defendants must 

surrender, or transfer to a non-profit third party selected by Defendants for surrender, all unused 

Unrestricted Excess NOx Allowances subject to surrender accumulated during the period from 

2009 through 2015. 

76. Use and Surrender of Restricted Excess NOx Allowances. Beginning in calendar 

year 2009, and for each calendar year thereafter, Defendants shall calculate the difference 

between the number of any Restricted Excess NOx Allowances and the number of NOx 

Allowances that is equal to the amount of actual NOx emissions from: (a) any New and Newly 

Permitted Unit as defined in this Consent Decree, and (b) the following five natural-gas plants 

but only up to a cumulative total of 1200 tons of NOx in any single year: Ceredo Generating 

Station located near Ceredo, West Virginia, with a nominal generating capacity of 505 

megawatts; Waterford Energy Center located in southeastern Ohio, with a nominal generating 

capacity of 821 megawatts; Darby Electric Generating Station located near Columbus, Ohio, 

with a nominal generating capacity of 480 megawatts; Lawrenceburg Generating Station located 

in Lawrenceburg, Indiana, with a generating capacity of 1,096 megawatts; and a natural gas-fired 

power plant under construction near Dresden, Ohio, with a nominal generating capacity of 580 

megawatts. This difference shall be the amount of Restricted Excess NOx Allowances 

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potentially subject to surrender in 2016. During calendar years 2009 through 2015, Defendants 

may accumulate Restricted Excess NOx Allowances potentially subject to surrender in 2016. 

77. NOx Allowances from Renewable Energy. Beginning in calendar year 2009, and 

for each calendar year thereafter, Defendants may subtract from the number of Restricted Excess 

NOx Allowances potentially subject to surrender, a number of allowances calculated in 

accordance with this Paragraph. To calculate such number, Defendants shall use the following 

method: multiply 0.0002 by the sum of (a) the actual annual generation in MWH/year generated 

from solar or wind power projects first owned or operated by Defendants after the Date of 

Lodging of this Consent Decree, and (b) the actual annual generation in MWH/year purchased 

by Defendants from solar or wind power projects in any year after the Date of Lodging of this 

Consent Decree. Such figure so calculated shall be subtracted from the number of Restricted 

Excess NOx Allowances potentially subject to surrender each year. The remainder shall be the 

Restricted Excess NOx Allowances subject to surrender. 

78. Defendants may, solely at their discretion, use Restricted Excess NOx Allowances 

at a New and Newly Permitted Unit for which Defendants have received a final NSR Permit 

from the permitting agency even if the NSR Permit has been appealed but not stayed during the 

permit appeal process. If Defendants use Restricted Excess NOx Allowances at such New and 

Newly Permitted Unit, and the emissions from such New and Newly Permitted Unit are greater 

than what such Unit is permitted to emit after final adjudication of the appeal process, 

Defendants shall, within thirty (30) days of such final adjudication, retire an amount of NOx 

Allowances equal to the number of tons of NOx actually emitted that exceeded the finally 

adjudicated permit limit. 

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79. No later than March 1, 2016, the total number of Restricted Excess NOx 

Allowances subject to surrender accumulated during 2009 through 2015 as calculated in 

accordance with Paragraphs 74, 76, and 77, shall be surrendered or transferred to a non-profit 

third party selected by Defendants for surrender, pursuant to Subsection F, below. Beginning in 

calendar year 2016, and for each calendar year thereafter, the total number of Restricted Excess 

NOx Allowances subject to surrender for that year calculated in accordance with Paragraph 74, 

76 and 77, shall be surrendered, or transferred to a non-profit third party selected by Defendants 

for surrender, by March 1 of the following calendar year. 

E. Super-Compliant NOx Allowances. 

80. In each calendar year beginning in 2009, and continuing thereafter, Defendants 

may use in any manner authorized by law any NOx Allowances made available in that year as a 

result of maintaining actual NOx emissions from the AEP Eastern System below the Eastern 

System-Wide Annual Tonnage Limitations for NOx under this Consent Decree for each calendar 

year. Defendants shall timely report the generation of such Super-Compliant NOx Allowances in 

accordance with Section XI (Periodic Reporting) and Appendix B of this Consent Decree. 

F. Method for Surrender of Excess NOx Allowances. 

81. For purposes of this Consent Decree, the “surrender” of Excess Restricted or 

Unrestricted Excess NOx Allowances subject to surrender means permanently surrendering to 

EPA NOx Allowances from the accounts administered by EPA so that such NOx Allowances can 

never be used thereafter to meet any compliance requirement under the Clean Air Act, a state 

implementation plan, or this Consent Decree. 

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82. For all Restricted or Unrestricted Excess NOx Allowances subject to surrender 

required to be surrendered to EPA in Paragraphs 79 and 75, above, Defendants or the third party 

recipient(s) (as the case may be) 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. As part of submitting these transfer requests, Defendants or the third 

party recipient(s) 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. 

83. If any NOx Allowances required to be surrendered under this Consent Decree are 

transferred directly to a non-profit third party, Defendants shall include a description of such 

transfer in the next report submitted to EPA as required by Section XI (Periodic Reporting) of 

this Consent Decree. Such report shall: (a) identify the non-profit third party recipient(s) of the 

NOx Allowances and list the serial numbers of the transferred NOx Allowances; and (b) include a 

certification by the third party recipient(s) stating that the recipient(s) will not sell, trade, or 

otherwise exchange any of the NOx Allowances and will not use any of the NOx Allowances to 

meet any obligation imposed by any environmental law. No later than the second periodic report 

due after the transfer of any NOx Allowances, Defendants shall include a statement that the third 

party recipient(s) surrendered the NOx Allowances for permanent surrender to EPA in 

accordance with the provisions of Paragraph 82 within one (1) year after Defendants transferred 

the NOx Allowances to them. Defendants shall not have complied with the NOx Allowance 

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surrender requirements of this Paragraph until all third party recipient(s) have actually 

surrendered the transferred NOx Allowances to EPA. 

G. Reporting Requirements for NOx Allowances. 

84. Defendants shall comply with the reporting requirements for NOx Allowances as 

described in Section XI (Periodic Reporting) and Appendix B. 

H. General NOx Provisions. 

85. To the extent a NOx Emission Rate is required under this Consent Decree, 

Defendants shall use CEMS in accordance with the reference methods specified in 40 C.F.R. 

Part 75 to determine such Emission Rate. 

V. SO2 EMISSION REDUCTIONS AND CONTROLS 

A. Eastern System-Wide Annual Tonnage Limitations for SO2. 

86. Notwithstanding any other provisions of this Consent Decree, except Section XIV 

(Force Majeure), during each calendar year specified in the table below, all Units in the AEP 

Eastern System, collectively, shall not emit SO2 in excess of the following Eastern System-Wide 

Annual Tonnage Limitations: 

Calendar Year Eastern System-Wide Annual Tonnage 

Limitations for SO2 

2010 450,000 tons 

2011 450,000 tons 

2012 420,000 tons 

2013 350,000 tons 

2014 340,000 tons 

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Calendar Year Eastern System-Wide Annual Tonnage 

Limitations for SO2 

2015 275,000 tons 

2016 260,000 tons 

2017 235,000 tons 

2018 184,000 tons 

2019, and each year thereafter 174,000 tons 

B. SO2 Emission Limitations and Control Requirements. 

87. No later than the dates set forth in the table below, Defendants shall install and 

Continuously Operate an FGD on each Unit identified therein, or, if indicated in the table, 

Retire, Retrofit, or Re-power such Unit: 

Unit SO2 Pollution Control Date 

Amos Units 1 and 3 FGD December 31, 2009 

Amos Unit 2 FGD December 31, 2010 

Big Sandy Unit 2 FGD December 31, 2015 

Cardinal Units 1 and 2 FGD December 31, 2008 

Cardinal Unit 3 FGD December 31, 2012 

Conesville Units 1 and 2 Retire, Retrofit, or Re-power Date of Entry 

Conesville Unit 3 Retire, Retrofit, or Re-power December 31, 2012 

Conesville Unit 4 FGD December 31, 2010 

Conesville Unit 5 Upgrade existing FGD and 

meet a 95% 30-day Rolling 

Average Removal Efficiency 

December 31, 2009 

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Unit SO2 Pollution Control Date 

Conesville Unit 6 Upgrade existing FGD and 

meet a 95% 30-day Rolling 

Average Removal Efficiency 

December 31, 2009 

Gavin Units 1 and 2 FGD Date of Entry 

Mitchell Units 1 and 2 FGD December 31, 2007 

Mountaineer Unit 1 FGD December 31, 2007 

Muskingum River Units 1-4 Retire, Retrofit, or Re-power December 31, 2015 

Muskingum River Unit 5 FGD December 31, 2015 

Rockport Unit 1 FGD December 31, 2017 

Rockport Unit 2 FGD December 31, 2019 

Sporn Unit 5 Retire, Retrofit, or Re-power December 31, 2013 

A total of at least 600 MW from 

the following list of Units: Sporn 

Units 1-4, Clinch River Units 1-3, 

Tanners Creek Units 1-3, and/or 

Kammer Units 1-3 

Retire, Retrofit, or Re-power December 31, 2018 

88. Plant-Wide Annual Rolling Average Tonnage Limitation for SO2 at Clinch River. 

Beginning on January 1, 2010, and continuing through December 31, 2014, Defendants shall 

limit their total annual SO2 emissions at the Clinch River plant to a Plant-Wide Annual Rolling 

Average Tonnage Limitation of 21,700 tons. Beginning on January 1, 2015, and continuing 

thereafter, Defendants shall limit their total annual SO2 emissions at the Clinch River plant to a 

Plant-Wide Annual Rolling Average Tonnage Limitation of 16,300 tons. For purposes of 

calculating the Plant-Wide Annual Rolling Average Tonnage Limitation that begins in 2010, 

Defendants shall use the period beginning January 1, 2010 through December 31, 2010 to 

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establish the initial annual period that is subject to the Plant-Wide Annual Rolling Average 

Tonnage Limitation for 2010 through 2014. Defendants shall then calculate a new Plant-Wide 

Annual Rolling Average Tonnage Limitation each month thereafter through December 31, 2014, 

by averaging the most recent month with the previous eleven (11) months. For purposes of 

calculating the Plant-Wide Annual Rolling Average Tonnage Limitation that begins in 2015, 

Defendants shall use the period beginning January 1, 2015 through December 31, 2015 to 

establish the initial annual period that is subject to the Plant-Wide Annual Average Rolling 

Tonnage Limitation for 2015. Defendants shall then calculate a new Plant-Wide Annual Rolling 

Average Tonnage Limitation each month thereafter by averaging the most recent month with the 

previous eleven (11) months. 

89. Plant-Wide Annual Tonnage Limitation for SO2 at Kammer. Beginning on 

January 1, 2010, and continuing annually thereafter, Defendants shall limit their total annual SO2 

emissions at the Kammer plant to a Plant-Wide Annual Tonnage Limitation of 35,000 tons. 

90. Other SO2 Measures. No later than the dates set forth in the table below, 

Defendants shall comply with the limit on coal sulfur content for such Units, at all times that the 

Units are in operation: 

Unit Other SO2 Measures Date 

Big Sandy Unit 1 Units can only burn coal with a 

sulfur content no greater than 

1.75 lb/mmBTU on an annual 

average basis 

Date of Entry 

Glen Lyn Units 5 and 6 Units can only burn coal with a 

sulfur content no greater than 

1.75 lb/mmBTU on an annual 

average basis. 

Date of Entry 

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Unit Other SO2 Measures Date 

Kanawha River Units 1 

and 2 

Units can only burn coal with a 

sulfur content no greater than 

1.75 lb/mmBTU on an annual 

average basis 

Date of Entry 

Tanners Creek Units 1, 2, 

and 3 

Units can only burn coal with a 

sulfur content no greater than 

1.2 lb/mmBTU on an annual 

average basis 

Date of Entry 

Tanners Creek Unit 4 Unit can only burn coal with a 

sulfur content no greater than 

1.2 % on an annual average 

basis 

Date of Entry 

C. Use and Surrender of SO2 Allowances. 

91. Defendants may use SO2 Allowances allocated to the AEP Eastern System by the 

Administrator of EPA under the Act, or by any state under its state implementation plan, to meet 

their own federal and/or state regulatory requirements for the Units included in the AEP Eastern 

System. Subject to Paragraph 92, nothing in this Consent Decree shall prevent Defendants from 

purchasing or otherwise obtaining SO2 Allowances from another source for purposes of 

complying with their own federal and/or state Clean Air Act requirements to the extent otherwise 

allowed by law. 

92. Except as may be necessary to comply with this Section and Section XIII 

(Stipulated Penalties), Defendants may not use any SO2 Allowances to comply with any 

requirement of this Consent Decree, including by claiming compliance with any emission 

limitation, Eastern System-Wide Annual Tonnage Limitations, Plant-Wide Annual Rolling 

Average Tonnage Limitation for SO2 at Clinch River, or Plant-Wide Annual Tonnage Limitation 

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for SO2 at Kammer required by this Consent Decree by using, tendering, or otherwise applying 

SO2 Allowances to achieve compliance or offset any emissions above the limits specified in this 

Consent Decree. 

93. On an annual basis beginning in 2010, and continuing thereafter, Defendants shall 

calculate the number of Excess SO2 Allowances by subtracting the number of SO2 Allowances 

equal to the annual Eastern System-Wide Tonnage Limitations for SO2 for each calendar year 

times the applicable allowance surrender ratio from the annual SO2 Allocations for all Units 

within the AEP Eastern System for the same calendar year. Defendants shall surrender, or 

transfer to a non-profit third party selected by Defendants for surrender, all Excess SO2 

Allowances that have been allocated to the AEP Eastern System for the specified calendar year 

by the Administrator of EPA under the Act or by any state under its state implementation plan. 

Defendants shall make the surrender of SO2 Allowances required by this Paragraph to EPA by 

March 1 of the immediately following calendar year. 

D. Method for Surrender of Excess SO2 Allowances. 

94. For purposes of this Subsection, the “surrender” of Excess SO2 Allowances 

means permanently surrendering allowances from the accounts administered by EPA so that 

such allowances can never be used thereafter to meet any compliance requirement under the 

Clean Air Act, a state implementation plan, or this Consent Decree. 

95. If any SO2 Allowances required to be surrendered under this Consent Decree are 

transferred directly to a non-profit third party, Defendants shall include a description of such 

transfer in the next report submitted to EPA pursuant to Section XI (Periodic Reporting) of this 

Consent Decree. Such report shall: (i) identify the non-profit third party recipient(s) of the SO2 

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Allowances and list the serial numbers of the transferred SO2 Allowances; and (ii) include a 

certification by the third party recipient(s) stating that the recipient(s) will not sell, trade, or 

otherwise exchange any of the allowances and will not use any of the SO2 Allowances to meet 

any obligation imposed by any environmental law. No later than the second periodic report due 

after the transfer of any SO2 Allowances, Defendants shall include a statement that the third 

party recipient(s) surrendered the SO2 Allowances for permanent surrender to EPA in 

accordance with the provisions of Paragraph 96 within one (1) year after Defendants transferred 

the SO2 Allowances to them. Defendants shall not have complied with the SO2 Allowance 

surrender requirements of this Paragraph until all third party recipient(s) have actually 

surrendered the transferred SO2 Allowances to EPA. 

96. For all SO2 Allowances surrendered to EPA, Defendants or the third party 

recipient(s) (as the case may be) 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. As part of submitting these transfer requests, Defendants or the third 

party recipient(s) 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. 

97. The requirements in this Consent Decree pertaining to Defendants’ surrender of 

SO2 Allowances are permanent injunctions not subject to any termination provision of this 

Decree. These provisions shall survive any termination of this Consent Decree in whole or in 

part. 

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 E. Super-Compliant SO2 Allowances. 

98. In each calendar year beginning in 2010, and continuing thereafter, Defendants 

may use in any manner authorized by law any SO2 Allowances made available in that year as a 

result of maintaining actual SO2 emissions from the AEP Eastern System below the Eastern 

System-Wide Annual Tonnage Limitations for SO2 under this Consent Decree for each calendar 

year. Defendants shall timely report the generation of such Super-Compliant SO2 Allowances in 

accordance with Section XI (Periodic Reporting) and Appendix B of this Consent Decree. 

F. Reporting Requirements for SO2 Allowances. 

99. Defendants shall comply with the reporting requirements for SO2 Allowances as 

described in Section XI (Periodic Reporting) and Appendix B. 

G. General SO2 Provisions. 

100. To the extent an Emission Rate or 30-Day Rolling Average Removal Efficiency 

for SO2 is required under this Consent Decree, Defendants shall use CEMS in accordance with 

the reference methods specified in 40 C.F.R. Part 75 to determine such Emission Rate. 

101. Notwithstanding Paragraphs 6 and 100, the 30-Day Rolling Average Removal 

Efficiency for SO2 at Conesville Unit 5 and Conesville Unit 6 shall be determined in accordance 

with Appendix C. 

VI. PM EMISSION REDUCTIONS AND CONTROLS 

A. Optimization of Existing ESPs. 

102. Beginning thirty (30) days after the Date of Entry, and continuing thereafter, 

Defendants shall Continuously Operate each ESP on Cardinal Unit 1, Cardinal Unit 2, and 

Muskingum River Unit 5 to maximize PM emission reductions at all times when the Unit is in 

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operation, provided that such operation of the ESP is consistent with the technological 

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

the ESP. Defendants 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. 

103. No later than the dates specified in the table below, Defendants shall 

Continuously Operate each Unit specified therein to achieve and maintain a PM Emission Rate 

no greater than 0.030 lb/mmBTU: 

Unit Date to Achieve and Maintain PM 

Emission Rate 

Cardinal Unit 1 December 31, 2009 

Cardinal Unit 2 December 31, 2009 

Muskingum River Unit 5 December 31, 2012 

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104. On or before the date established by this Consent Decree for Defendants to 

achieve and maintain 0.030 lb/mmBTU at Cardinal Unit 1, Cardinal Unit 2, and Muskingum 

River Unit 5, Defendants shall conduct a performance test for PM that demonstrates compliance 

with the PM Emission Rate required by this Consent Decree. Within forty-five (45) days of each 

such performance test, Defendants shall submit the results of the performance test to Plaintiffs 

pursuant to Section XVIII (Notices) of this Consent Decree. 

C. PM Emissions Monitoring. 

105. Beginning in calendar year 2010 for Cardinal Unit 1 and Cardinal Unit 2, and 

calendar year 2013 for Muskingum River Unit 5, and continuing in each calendar year thereafter, 

Defendants shall conduct a stack test for PM on each stack servicing Cardinal Unit 1, Cardinal 

Unit 2, and Muskingum River Unit 5. The annual stack test requirement imposed by this 

Paragraph may be satisfied by stack tests conducted by Defendants as required by their permits 

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

106. The reference methods and procedures for determining compliance with PM 

Emission Rates shall be those specified in 40 C.F.R. Part 60, Appendix A, Method 5, 5B, or 17, 

or an alternative method that is promulgated by EPA, requested for use herein by Defendants, 

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. § 60.48Da(b) and (e), or 

any federally-approved method contained in the Ohio State Implementation Plan. Defendants 

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 EPA within forty-five (45) 

days of completion of each test. 

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D. Installation and Operation of PM CEMS. 

107. Defendants 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. Defendants shall maintain, in 

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

lb/mmBTU. Defendants shall use reasonable efforts to keep each PM CEMS running and 

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

108. No later than December 31, 2011, Defendants 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, Defendants shall use the criteria set forth in 40 C.F.R. Part 60, Appendix B, 

Performance Specification 11, and Appendix F, Procedure 3. Following approval by EPA of the 

protocol, Defendants shall thereafter operate each PM CEMS in accordance with the approved 

protocol. 

109. No later than the dates specified below, Defendants shall install, certify, and 

operate PM CEMS on the stacks or common stacks for Cardinal Unit 1, Cardinal Unit 2, and a 

third Unit, as further described in Paragraph 110: 

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Stack Date to Commence Operation of PM 

CEMS 

Cardinal Unit 1 December 31, 2012 

Cardinal Unit 2 December 31, 2012 

Unit to be identified pursuant to Paragraph 

110 

December 31, 2012 

110. No later than December 31, 2011, Defendants shall identify, subject to Plaintiffs’ 

approval, the third Unit required by Paragraph 109. 

111. No later than ninety (90) days after Defendants begin operation of the PM CEMS, 

Defendants shall conduct tests of each PM CEMS to demonstrate compliance with the PM 

CEMS installation and certification plan submitted to and approved by EPA. 

112. Demonstration that PM CEMS are Infeasible. Defendants shall operate the PM 

CEMS for at least two (2) years on each of the Units specified in Paragraphs 109 and 110. After 

two (2) years of operation, Defendants may attempt to demonstrate that it is infeasible to 

continue operating PM CEMS. As part of such demonstration, Defendants shall submit an 

alternative PM monitoring plan for review and approval by EPA. The plan shall explain the 

basis for stopping operation of the PM CEMS and propose an alternative PM monitoring plan. If 

the United States disapproves the alternative PM monitoring plan, or if the United States rejects 

Defendants’ claim that it is infeasible to continue operating PM CEMS, such disagreement is 

subject to Section XV (Dispute Resolution). 

113. “Infeasible to Continue Operating PM CEMS” Standard. Operation of a PM 

CEMS shall be considered no longer feasible if: (a) the PM CEMS cannot be kept in proper 

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condition for sufficient periods of time to produce reliable, adequate, or useful data consistent 

with the QA/QC protocol, or (b) Defendants demonstrate that recurring, chronic, or unusual 

equipment adjustment or servicing needs in relation to other types of continuous emission 

monitors cannot be resolved through reasonable expenditures of resources. If EPA determines 

that Defendants have demonstrated pursuant to this Paragraph that operation is no longer 

feasible, Defendants shall be entitled to discontinue operation of and remove the PM CEMS. 

114. PM CEMS Operations Will Continue During Dispute Resolution or Proposals for 

Alternative Monitoring. Until EPA approves an alternative monitoring plan, or until the 

conclusion of any proceeding under Section XV (Dispute Resolution), Defendants shall continue 

to operate the PM CEMS. If EPA has not issued a decision regarding an alternative monitoring 

plan within 120 days, Defendants may initiate action under Section XV (Dispute Resolution). 

E. PM Reporting. 

115. Defendants shall comply with the reporting requirements for PM as described in 

Section XI (Periodic Reporting) and Appendix B. 

F. General PM Provisions. 

116. Although stack testing shall be used to determine compliance with the PM 

Emission Rate established by this Consent Decree, data from the PM CEMS shall be used, at a 

minimum, to monitor progress in reducing PM emissions. 

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VII. PROHIBITION ON NETTING CREDITS OR

 OFFSETS FROM REQUIRED CONTROLS 

117. Emission reductions that result from actions required to be taken by Defendants 

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. 

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

generated under this Consent Decree from being considered by a State 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. 

VIII. ENVIRONMENTAL MITIGATION PROJECTS 

119. Defendants shall implement the Environmental Mitigation Projects (“Projects”) 

described in Appendix A to this Consent Decree and fund the categories of Projects described in 

Subsection B, below, in compliance with the approved plans and schedules for such Projects and 

other terms of this Consent Decree. In funding and/or implementing all such Projects in 

Appendix A and Subsection B, Defendants shall expend moneys and/or implement Projects 

valued at no less than $36 million for the Projects identified in Appendix A and $24 million for 

the payments to the States to fund Projects within the categories set forth in Subsection B. 

Defendants shall fund and/or implement such Projects over a period of no later than five (5) 

years from the Date of Entry. Defendants may propose establishing one or more qualified 

settlement funds within the meaning of Treas. Reg. §1.468B-1 in conjunction with one or more 

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Mitigation Projects. Any such trust would be established pursuant to a trust agreement in a form 

to be mutually agreed upon by the affected Parties. Nothing in the foregoing is intended by the 

United States to be a determination or opinion regarding whether such trust would meet the 

requirements of Treas. Reg. §1.468B-1 or is otherwise appropriate. 

A. Requirements for Projects Described in Appendix A ($36 million). 

120. Defendants shall maintain, and present to EPA upon request, all documents to 

substantiate the Project Dollars expended to implement the Projects described in Appendix A, 

and shall provide these documents to EPA within thirty (30) days of a request for the documents. 

121. All plans and reports prepared by Defendants pursuant to the requirements of this 

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

from Defendants without charge. 

122. Defendants shall certify, as part of each plan submitted to EPA for any Project, 

that Defendants are not otherwise required by law to perform the Project described in the plan, 

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

and that Defendants will not use any Project, or portion thereof, to satisfy any obligations that it 

may have under other applicable requirements of law, including any applicable renewable 

portfolio standards. 

123. Defendants shall use good faith efforts to secure as much benefit as possible for 

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

Consent Decree. 

124. If Defendants elect (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 

Defendants, but not including Defendants’ agents or contractors, that person or instrumentality 

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

legal authority to conduct the Project for which Defendants contribute the funds. Regardless of 

whether Defendants elect (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, 

Defendants acknowledge that they will receive credit for the expenditure of such funds as Project 

Dollars only if Defendants demonstrate that the funds have been actually spent by either 

Defendants or by the person or instrumentality receiving them, and that such expenditures met 

all requirements of this Consent Decree. 

125. Defendants shall comply with the reporting requirements for Appendix A Projects 

as described in Section XI (Periodic Reporting) and Appendix B. 

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

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

shall submit to the United States a report that documents the date that the Project was completed, 

Defendants’ results of implementing the Project, including the emission reductions or other 

environmental benefits achieved, and the Project Dollars expended by Defendants in 

implementing the Project. 

B. Mitigation Projects to be Conducted by the States ($24 million). 

127. The States, by and through their respective Attorneys General, shall jointly 

submit to Defendants Projects within the categories identified in this Subsection B for funding in 

amounts not to exceed $4.8 million per calendar year for no less than five (5) years following the 

Date of Entry of this Consent Decree beginning as early as calendar year 2008. The funds for 

these Projects will be apportioned by and among the States, and Defendants shall not have 

approval rights for the Projects or the apportionment. Defendants shall pay proceeds as 

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designated by the States in accordance with the Projects submitted for funding each year within 

seventy-five (75) days after being notified in writing by the States. Notwithstanding the $4.8 

million and 5-year limitation above, if the total costs of the projects submitted in any one or 

more years are less than $4.8 million, the difference between that amount and $4.8 million will 

be available for funding by Defendants of new or previously submitted projects in the following 

years, except that all amounts not designated by the States within ten (10) years after the Date of 

Entry of this Consent Decree shall expire. 

128. Categories of Projects. The States agree to use money funded by Defendants to 

implement Projects that pertain to energy efficiency and/or pollution reduction. Such projects 

may include, but are not limited by, the following: 

a. Retrofitting land and marine vehicles (e.g., automobiles, off-road and onroad construction and other vehicles, trains, ferries) and transportation 

terminals and ports, with pollution control devices, such as particulate 

matter traps, computer chip reflashing, and battery hybrid technology; 

b. Truck-stop and marine port electrification; 

c. Purchase and installation of photo-voltaic cells on buildings; 

d. 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 (see 

http://www.epa.gov/greenbuilding/pubs/enviro-issues.htm) and/or the 

Leadership in Energy and Environmental Design (LEED) Green Building 

Rating System (see 

http://www.usgbc.org/DisplayPage.aspx?CategoryID=19), and projects to 

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collect information in rental markets to assist in design of efficiency and 

conservation programs; 

e. Construction associated with the production of energy from wind, solar, 

and biomass; 

f. “Buy back” programs for dirty old motors (e.g., automobile, lawnmowers, 

landscape equipment); 

g. Programs to remove and/or replace oil-fired home heating equipment to 

allow use of ultra-low sulfur oil, and outdoor wood-fired boilers; 

h. Purchase and retirement of SO2 and NOx allowances; and 

i. Funding program to improve modeling of mobile source sector. 

IX. CIVIL PENALTY 

129. Within thirty (30) days after the Date of Entry, Defendants shall pay to the United 

States a civil penalty in the amount of $15,000,000. The civil penalty shall be paid by Electronic 

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

EFT procedures, referencing USAO File Number 1999v01542 and DOJ Case Number 90-5-2-1-

06893 and the civil action case name and consolidated case numbers of this action. The costs of 

such EFT shall be Defendants’ responsibility. Payment shall be made in accordance with 

instructions provided to Defendants by the Financial Litigation Unit of the U.S. Attorney’s 

Office for the Southern District of Ohio. Any funds received after 2:00 p.m. EDT shall be 

credited on the next business day. At the time of payment, Defendants shall provide notice of 

payment, referencing the USAO File Number, the DOJ Case Number, and the civil action case 

name and consolidated case numbers, to the Department of Justice and to EPA in accordance 

with Section XVIII (Notices) of this Consent Decree. 

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130. Failure to timely pay the civil penalty shall subject Defendants to interest 

accruing from the date payment is due until the date payment is made at the rate prescribed by 28 

U.S.C. § 1961, and shall render Defendants liable for all charges, costs, fees, and penalties 

established by law for the benefit of a creditor or of the United States in securing payment. 

131. Payment made pursuant to this Section is a penalty within the meaning of Section 

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

for purposes of federal law. 

X. RESOLUTION OF CIVIL CLAIMS AGAINST DEFENDANTS 

A. Resolution of the United States’ Civil Claims. 

132. Claims Based on Modifications Occurring Before the Date of Lodging of this 

Consent Decree. Entry of this Decree shall resolve all civil claims of the United States against 

Defendants that arose from any modifications commenced at any AEP Eastern System Unit prior 

to the Date of Lodging of this Consent Decree, including but not limited to, those modifications 

alleged in the Notices of Violation and complaints filed in AEP I and AEP II, under any or all of: 

(a) Parts C 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 federallyapproved and enforceable Indiana State Implementation Plan, Kentucky State Implementation 

Plan, Ohio State Implementation Plan, Virginia State Implementation Plan, and West Virginia 

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 claims are based on Defendants’ 

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. 

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133. Claims Based on Modifications after the Date of Lodging of This Consent 

Decree. Entry of this Consent Decree also shall resolve all civil claims of the United States 

against Defendants that arise based on a modification commenced before December 31, 2018, or 

solely for Rockport Unit 2, before December 31, 2019, for all pollutants, except Particulate 

Matter, regulated under Parts C or D of Subchapter I of the Clean Air Act, and under regulations 

promulgated thereunder, as of the Date of Lodging of this Consent Decree, and: 

a. where such modification is commenced at any AEP Eastern System Unit 

after the Date of Lodging of this Consent Decree; or 

b. where such modification is one this Consent Decree expressly directs 

Defendants to undertake. 

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

under the Clean Air Act and under the regulations in effect as of the Date of Lodging of this 

Consent Decree, as alleged in the complaints in AEP I and AEP II. 

134. Reopener. The resolution of the United States’ civil claims against Defendants, 

as provided by this Subsection A, is subject to the provisions of Subsection B of this Section. 

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B. Pursuit by the United States of Civil Claims Otherwise Resolved by Subsection 

A. 

135. Bases for Pursuing Resolved Claims for the AEP Eastern System. If Defendants 

violate: (a) the Eastern System-Wide Annual Tonnage Limitations for NOx required pursuant to 

Paragraph 67; (b) the Eastern System-Wide Annual Tonnage Limitations for SO2 required 

pursuant to Paragraph 86; or (c) operate a Unit more than ninety (90) days past a date established 

in this Consent Decree without completing the required installation, upgrade, or commencing 

Continuous Operation of any emission control device required pursuant to Paragraphs 68, 69, 87, 

102, and 103 then the United States may pursue any claim at any AEP Eastern System Unit that 

is otherwise resolved under Subsection A (Resolution of United States’ Civil Claims), subject to 

(a) and (b) below. 

a. For any claims based on modifications undertaken at any Unit in the AEP 

Eastern System that is not an Improved Unit for the pollutant in question, 

claims may be pursued only where the modification(s) on which such 

claim is based was commenced within the five (5) years preceding the 

violation or failure specified in this Paragraph. 

b. For any claims based on modifications undertaken at an Improved Unit, 

claims may be pursued only where the modification(s) on which such 

claim is based was commenced: (1) after the Date of Lodging of this 

Consent Decree and (2) within the five (5) years preceding the violation or 

failure specified in this Paragraph. 

136. Additional Bases for Pursuing Resolved Claims for Modifications at an Improved 

Unit. Solely with respect to an Improved Unit, the United States may also pursue claims arising 

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from a modification (or collection of modifications) at an Improved Unit that has otherwise been 

resolved under Subsection A (Resolution of the United States’ Civil Claims) if the modification 

(or collection of modifications) at the Improved Unit on which such claim is based (a) was 

commenced after the Date of Lodging of this Consent Decree and (b) individually (or 

collectively) increased the maximum hourly emission rate of that Unit for NOx or SO2 (as 

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

137. Any Other Unit can become an Improved Unit for NOx if (a) it is equipped with 

an SCR, and (b) the operation of such SCR is incorporated into a federally-enforceable non-Title 

V permit or site-specific amendment to the state implementation plan and incorporated into a 

Title V permit applicable to that Unit. Any Other Unit can become an Improved Unit for SO2 if 

(a) it is equipped with an FGD, and (b) the operation of such FGD is incorporated into a 

federally-enforceable non-Title V permit or site-specific amendment to the state implementation 

plan and incorporated into a Title V permit applicable to that Unit. 

138. Additional Bases for Pursuing Resolved Claims for Modifications at Other Units. 

a. Solely with respect to Other Units, i.e., a Unit that is not an Improved Unit 

under the terms of this Consent Decree, the United States may also pursue claims arising from a 

modification (or collection of modifications) at an Other Unit that has otherwise been resolved 

under Subsection A (Resolution of the United States’ Civil Claims), if the modification (or 

collection of modifications) at the Other Unit on which the claim is based was commenced 

within the five (5) years preceding any of the following events: 

1. a modification (or collection of modifications) at such Other Unit 

commenced after the Date of Lodging of this Consent Decree increases the maximum hourly 

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emission rate for such Other Unit for the relevant pollutant (NOx or SO2) (as measured by 40 

C.F.R. § 60.14(b) and (h)); 

2. the aggregate of all Capital Expenditures made at such Other Unit 

exceed $125/KW on the Unit’s Boiler Island (based on the generating capacities identified in 

Paragraph 7) during the period from the Date of Entry of this Consent Decree through December 

31, 2015. (Capital Expenditures shall be measured in calendar year 2007 constant dollars, as 

adjusted by the McGraw-Hill Engineering News-Record Construction Cost Index); or 

3. a modification (or collection of modifications) at such Other Unit 

commenced after the Date of Lodging of this Consent Decree results in an emissions increase of 

NOx and/or SO2 at such Other Unit, and such increase: (i) presents, by itself, or in combination 

with other emissions or sources, “an imminent and substantial endangerment” within the 

meaning of Section 303 of the Act, 42 U.S.C. §7603; (ii) causes or contributes to violation of a 

NAAQS in any Air Quality Control Area that is in attainment with that NAAQS; (iii) causes or 

contributes to violation of a PSD increment; or (iv) causes or contributes to any adverse impact 

on any formally-recognized air quality and related values in any Class I area. The introduction 

of any new or changed NAAQS shall not, standing alone, provide the showing needed under 

Subparagraphs (3)(ii) or (3)(iii) of this Paragraph, to pursue any claim for a modification at an 

Other Unit resolved under Subparagraph A of this Section. 

b. Solely with respect to Other Units at the plant listed below, the United States may 

also pursue claims arising from a modification (or collection of modifications) at such Other 

Units commenced after the Date of Lodging of this Consent Decree if such modification (or 

collection of modifications) results in an emissions increase of SO2 at such Other Unit, and such 

increase causes the emissions at the plant at issue to exceed the Plant-Wide Annual Rolling 

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Average Tonnage Limitation for SO2 at Clinch River listed in the table below for year 2010-

2014 and/or 2015 and beyond: 

Plant Year SO2 Tons Limit 

Clinch River 2010 - 2014 21,700 

Clinch River 2015 and each year 

thereafter 

16,300 

C. Resolution of Past Claims of the States and Citizen Plaintiffs and Reservation of 

Rights. 

139. The States and Citizen Plaintiffs agree that this Consent Decree resolves all civil 

claims that have been alleged in their respective complaints or could have been alleged against 

Defendants prior to the Date of Lodging of this Consent Decree for violations of: (a) Parts C or 

D of Subchapter I of the Clean Air Act, 42 U.S.C. §§ 7470-7492, 7501-7515, and (b) Section 

111 of the Act, 42 U.S.C. § 7411, and 40 C.F.R § 60.14, at Units within the AEP Eastern 

System. 

140. The States and Citizen Plaintiffs expressly do not join in giving the Defendants 

the covenant provided by the United States through Paragraph 133 of this Consent Decree, do 

not release any claims under the Clean Air Act and its implementing regulations arising after the 

Date of Lodging of this Consent Decree, and reserve their rights, if any, to bring any actions 

against the Defendants pursuant to 42 U.S.C. § 7604 for any claims arising after the Date of 

Lodging of this Consent Decree. 

141. Notwithstanding Paragraph 140, the States and Citizen Plaintiffs release 

Defendants from any civil claim that may arise under the Clean Air Act for Defendants’ 

performance of activities that this Consent Decree expressly directs Defendants to undertake, 

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except to the extent that such activities would cause a significant increase in the emission of a 

criteria pollutant other than SO2, NOx, or PM. 

142. Retention of Authority Regarding NAAQS Exceedences. Nothing in this Consent 

Decree shall be construed to affect the authority of the United States or any state under 

applicable federal statutes or regulations and applicable state statutes or regulations to impose 

appropriate requirements or sanctions on any Unit in the AEP Eastern System, including, but not 

limited to, the Units at the Clinch River plant, if the United States or a state determines that 

emissions from any Unit in the AEP Eastern System result in violation of, or interfere with the 

attainment and maintenance of, any ambient air quality standard. 

XI. PERIODIC REPORTING 

143. Beginning on March 31, 2008, and continuing annually thereafter on March 31 

until termination of this Consent Decree, and in addition to any other express reporting 

requirement in this Consent Decree, Defendants shall submit to the Unites States, the States, and 

the Citizen Plaintiffs a progress report in compliance with Appendix B of this Consent Decree. 

144. In any periodic progress report submitted pursuant to this Section, Defendants 

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

requirements, provided that Defendants attach the Title V permit report, or the relevant portion 

thereof, and provide a specific reference to the provisions of the Title V permit report that are 

responsive to the information required in the periodic progress report. 

145. In addition to the progress reports required pursuant to this Section, Defendants 

shall provide a written report to the United States, the States, and the Citizen Plaintiffs of any 

violation of the requirements of this Consent Decree within fifteen (15) days of when Defendants 

knew or should have known of any such violation. In this report, Defendants shall explain the 

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cause or causes of the violation and all measures taken or to be taken by Defendants to prevent 

such violations in the future. 

146. Each report shall be signed by Defendants’ Vice President of Environmental 

Services or his or her equivalent or designee of at least the rank of Vice President, 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. 

147. If any SO2 or NOx Allowances are surrendered to any third party pursuant to this 

Consent Decree, the third party’s certification pursuant to Paragraphs 83 and 95 shall be signed 

by a managing officer of the third party and shall contain the following language: 

I certify under penalty of law that,_____________ [name of third party] 

will not sell, trade, or otherwise exchange any of the allowances and will not use 

any of the allowances to meet any obligation imposed by any environmental law. 

I understand that there are significant penalties for submitting false, inaccurate, or 

incomplete information to the United States. 

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XII. REVIEW AND APPROVAL OF SUBMITTALS
 

148. Defendants shall submit each plan, report, or other submission required by this 

Consent Decree to the Plaintiffs specified, whenever such a document is required to be submitted 

for review or approval pursuant to this Consent Decree. The Plaintiff(s) to whom the report is 

submitted, as required, may approve the submittal or decline to approve it and provide written 

comments explaining the bases for declining such approval as soon as reasonably practicable. 

Such Plaintiff(s) will endeavor to coordinate their comments into one document when explaining 

their bases for declining such approval. Within sixty (60) days of receiving written comments 

from any of the Plaintiff(s), Defendants shall either: (a) revise the submittal consistent with the 

written comments and provide the revised submittal to the Plaintiff(s); or (b) submit the matter 

for dispute resolution, including the period of informal negotiations, under Section XV (Dispute 

Resolution) of this Consent Decree. 

149. Upon receipt of Plaintiffs’ or Plaintiff’s (as the case may be) final approval of the 

submittal, or upon completion of the submittal pursuant to dispute resolution, Defendants shall 

implement the approved submittal in accordance with the schedule specified therein. 

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XIII. STIPULATED PENALTIES 

150. For any failure by Defendants to comply with the terms of this Consent Decree, 

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

Defendants shall pay, within thirty (30) days after receipt of written demand to Defendants by 

the United States, the following stipulated penalties to the United States: 

Consent Decree Violation Stipulated Penalty (Per Day, 

Per Violation, Unless 

Otherwise Specified) 

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

(Civil Penalty) of this Consent Decree 

$10,000 per day 

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

Average Emission Rate, 30-Day Rolling Average Removal 

Efficiency, Emission Rate for PM, or Other SO2 Measures 

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, 30-Day Rolling Average Removal 

Efficiency, Emission Rate for PM, or Other SO2 Measures 

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, 30-Day Rolling Average Removal 

Efficiency, Emission Rate for PM, or Other SO2 Measures 

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 

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Consent Decree Violation Stipulated Penalty (Per Day, 

Per Violation, Unless 

Otherwise Specified) 

e. Failure to comply with the Eastern System-Wide Annual 

Tonnage Limitation for SO2 

$5,000 per ton for the first 1000 

tons, and $10,000 per ton for 

each additional ton above 1000 

tons, plus the surrender, 

pursuant to the procedures set 

forth in Paragraphs 82 and 83, 

of NOx Allowances in an 

amount equal to two times the 

number of tons by which the 

limitation was exceeded 

f. Failure to comply with the Plant-Wide Annual Rolling 

Tonnage Limitation for SO2 at Clinch River 

$40,000 per ton, plus the 

surrender, pursuant to the 

procedures set forth in 

Paragraphs 95 and 96, of SO2 

Allowances in an amount equal 

to two times the number of tons 

by which the limitation was 

exceeded 

g. Failure to comply with the Eastern System-Wide Annual 

Tonnage Limitation for NOx 

$5,000 per ton for the first 1000 

tons, and $10,000 per ton for 

each additional ton above 1000 

tons, plus the surrender, 

pursuant to the procedures set 

forth in Paragraphs 82 and 83, 

of NOx Allowances in an 

amount equal to two times the 

number of tons by which the 

limitation was exceeded 

h. Failure to install, commence operation, or Continuously 

Operate a pollution control device required under this 

Consent Decree 

$10,000 per day per violation 

during the first 30 days, 

$32,500 per day per violation 

thereafter 

i. Failure to Retire, Retrofit, or Re-power a Unit by the date 

specified in this Consent Decree 

$10,000 per day per violation 

during the first 30 days, 

$32,500 per day per violation 

thereafter 

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Consent Decree Violation Stipulated Penalty (Per Day, 

Per Violation, Unless 

Otherwise Specified) 

j. Failure to install or operate CEMS as required in this 

Consent Decree 

$1,000 per day per violation 

k. Failure to conduct performance tests of PM emissions, 

as required in this Consent Decree 

$1,000 per day per violation 

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

(Permits) 

$1,000 per day per violation 

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

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

other submittals required in this Consent Decree 

$750 per day per violation 

during the first ten days, $1,000 

per day per violation thereafter 

n. Using NOx Allowances except as permitted by 

Paragraphs 75, 76, and 78 

The surrender of NOx 

Allowances in an amount equal 

to four times the number of 

NOx Allowances used in 

violation of this Consent 

Decree 

o. Failure to surrender NOx Allowances as required by 

Paragraphs 75 and 79 

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

$7,500 per NOx Allowance not 

surrendered 

p. Failure to surrender SO2 Allowances as required by 

Paragraph 93 

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

$1,000 per SO2 Allowance not 

surrendered 

q. Failure to demonstrate the third party surrender of an 

SO2 Allowance or NOx Allowance in accordance with 

Paragraphs 95-96 and 82-83. 

$2,500 per day per violation 

r. Failure to implement any of the Environmental 

Mitigation Projects described in Appendix A in compliance 

with Section VIII (Environmental Mitigation Projects) of 

this Consent Decree 

The difference between the cost 

of the Project, as identified in 

Appendix A, and the dollars 

Defendants spent to implement 

the Project 

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Consent Decree Violation Stipulated Penalty (Per Day, 

Per Violation, Unless 

Otherwise Specified) 

s. Failure to fund an Environmental Mitigation Project, as 

submitted by the States, 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 

t. Failure to Continuously Operate required Other NOx 

Pollution Controls required in Paragraph 69 

$10,000 per day during the first 

30 days, and $32,500 each day 

thereafter 

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

Limitation for SO2 at Kammer 

$40,000 per ton, plus the 

surrender, pursuant to the 

procedures set forth in 

Paragraphs 95 and 96 of SO2 

Allowances in an amount equal 

to two times the number of tons 

by which the limitation was 

exceeded 

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

151. Violation of an Emission Rate or 30-Day Rolling Average Removal Efficiency 

that is based on a 30-Day Rolling Average is a violation on every day on which the average is 

based. Where a violation of a 30-Day Rolling Average Emission Rate or 30-Day Rolling 

Average Removal Efficiency (for the same pollutant and from the same source) recurs within 

periods of less than thirty (30) days, Defendants shall not pay a daily stipulated penalty for any 

day of the recurrence for which a stipulated penalty has already been paid. 

152. 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. 

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153. Defendants shall pay all stipulated penalties to the United States within thirty (30) 

days of receipt of written demand to Defendants from the United States, and shall continue to 

make such payments every thirty (30) days thereafter until the violation(s) no longer continues, 

unless Defendants elect within twenty (20) days of receipt of written demand to Defendants from 

the United States to dispute the accrual of stipulated penalties in accordance with the provisions 

in Section XV (Dispute Resolution) of this Consent Decree. 

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

Paragraph 152 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: 

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, Defendants 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; 

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c. If the Court’s decision is appealed by any Party, Defendants 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, the accrued stipulated penalties 

agreed by the Plaintiffs and Defendants, or determined by the Plaintiffs through Dispute 

Resolution, to be owing may be less than the stipulated penalty amounts set forth in Paragraph 

150. 

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

Penalty) of this Consent Decree. 

156. Should Defendants fail to pay stipulated penalties in compliance with the terms of 

this Consent Decree, the United States shall be entitled to collect interest on such penalties, as 

provided for in 28 U.S.C. § 1961. 

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

to any other rights, remedies, or sanctions available to Plaintiffs by reason of Defendants’ failure 

to comply with any requirement of this Consent Decree or applicable law, except that for any 

violation of the Act for which this Consent Decree provides for payment of a stipulated penalty, 

Defendants shall be allowed a credit for stipulated penalties paid against any statutory penalties 

also imposed for such violation. 

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XIV. FORCE MAJEURE
 

158. For purposes of this Consent Decree, including, but not limited to, Paragraphs 67 

and 86, a “Force Majeure Event” shall mean an event that has been or will be caused by 

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

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

any provision of this Consent Decree despite Defendants’ best efforts to fulfill the obligation. 

“Best efforts to fulfill the obligation” include using best efforts to anticipate any potential Force 

Majeure Event and to address the effects of any such event (a) as it is occurring and (b) after it 

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

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

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

Decree, as to which Defendants intend to assert a claim of Force Majeure, Defendants shall 

notify the Plaintiffs in writing as soon as practicable, but in no event later than twenty-one (21) 

business days following the date Defendants 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, 

Defendants shall reference this Paragraph of this Consent Decree and describe the anticipated 

length of time that the delay or violation may persist, the cause or causes of the delay or 

violation, all measures taken or to be taken by Defendants to prevent or minimize the delay or 

violation, the schedule by which Defendants propose to implement those measures, and 

Defendants’ rationale for attributing a delay or violation to a Force Majeure Event. Defendants 

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

shall be deemed to know of any circumstance which Defendants or any entity controlled by 

Defendants knew or should have known. 

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160. Failure to Give Notice. If Defendants materially fail to comply with the notice 

requirements of this Section, the Plaintiffs may void Defendants’ claim for Force Majeure as to 

the specific event for which Defendants have failed to comply with such notice requirement. 

161. Plaintiffs’ Response. The Plaintiffs shall notify Defendants in writing regarding 

Defendants’ claim of Force Majeure as soon as reasonably practicable. If the Plaintiffs agree 

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

shall stipulate to an extension of deadline(s) for performance of the affected compliance 

requirement(s) by a period equal to the delay actually caused by the event, or the extent to which 

Defendants may be relieved of stipulated penalties or other remedies provided under the terms of 

this Consent Decree. Such agreement shall be reduced to writing, and signed by all Parties. If 

the agreement results in a material change to the terms of this Consent Decree, an appropriate 

modification shall be made pursuant to Section XXII (Modification). If such change is not 

material, no modification of this Consent Decree shall be required. 

162. Disagreement. If Plaintiffs do not accept Defendants’ claim of Force Majeure, or 

if the Plaintiffs and Defendants cannot agree on the length of the delay actually caused by the 

Force Majeure Event, or the extent of relief required to address 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. 

163. Burden of Proof. In any dispute regarding Force Majeure, Defendants 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. Defendants 

shall also bear the burden of proving that Defendants gave the notice required by this Section 

and the burden of proving the anticipated duration and extent of any delay(s) attributable to a 

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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. 

164. Events Excluded. Unanticipated or increased costs or expenses associated with 

the performance of Defendants’ obligations under this Consent Decree shall not constitute a 

Force Majeure Event. 

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

circumstances related to an event and Defendants’ response to such circumstances, the kinds of 

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

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

emission control device; unanticipated coal supply or pollution control reagent delivery 

interruptions; acts of God; acts of war or terrorism; and orders by a government official, 

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

under and authorized by applicable law, that directs Defendants to operate an AEP Eastern 

System Unit in response to a local or system-wide (state-wide or regional) emergency (which 

could include unanticipated required operation to avoid loss of load or unserved load). 

Depending upon the circumstances and Defendants’ response to such circumstances, failure of a 

permitting authority to issue a necessary permit in a timely fashion may constitute a Force 

Majeure Event where the failure of the permitting authority to act is beyond the control of 

Defendants and Defendants have taken all steps available to it to obtain the necessary permit, 

including, but not limited to: submitting a complete permit application; responding to requests 

for additional information by the permitting authority in a timely fashion; and accepting lawful 

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

conditions imposed by the permitting authority. 

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166. 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 Defendants 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 Plaintiffs or approved by 

the Court. Defendants shall be liable for stipulated penalties for their failure thereafter to 

complete the work in accordance with the extended or modified schedule (provided that 

Defendants 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 

167. The dispute resolution procedure provided by this Section shall be available to 

resolve all disputes arising under this Consent Decree, provided that the Party invoking such 

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

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

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

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

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

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

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

169. 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) days from the date of the first meeting 

among the disputing Parties’ representatives unless they agree in writing to shorten or extend 

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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). 

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

negotiation period, the Plaintiffs shall provide Defendants with a written summary of their 

position regarding the dispute. The written position provided by Plaintiffs shall be considered 

binding unless, within forty-five (45) days thereafter, Defendants seek judicial resolution of the 

dispute by filing a petition with this Court. The Plaintiffs may respond to the petition within 

forty-five (45) days of filing. In their initial filings with the Court under this Paragraph, the 

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

resolving the particular dispute. 

171. 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. 

172. 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. 

173. 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. Defendants shall 

be liable for stipulated penalties for their failure thereafter to complete the work in accordance 

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with the extended or modified schedule, provided that Defendants shall not be precluded from 

asserting that a Force Majeure Event has caused or may cause a delay in complying with the 

extended or modified schedule. 

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

resolving such disputes. In their initial filings with the Court under Paragraph 170, the disputing 

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

particular dispute. 

XVI. PERMITS 

175. Unless expressly stated otherwise in this Consent Decree, in any instance where 

otherwise applicable law or this Consent Decree requires Defendants 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, Defendants shall 

make such application in a timely manner. Defendants shall provide Notice to Plaintiffs under 

Section XVIII (Notices), for each Unit that Defendants submit an application for any permit 

described in this Paragraph 175. 

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

construed to require Defendants to apply for or obtain a PSD or Nonattainment NSR permit for 

physical changes in, or changes in the method of operation of, any AEP Eastern System Unit that 

would give rise to claims resolved by Paragraph 132 and 133, subject to Paragraphs 134 through 

138, or Paragraphs 139 and 141 of this Consent Decree. 

177. When permits are required as described in Paragraph 175, Defendants 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 

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information by the permitting authorities. Any failure by Defendants to submit a timely permit 

application for any Unit in the AEP Eastern System shall bar any use by Defendants of Section 

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

permitting delays. 

178. 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 

regardless of whether such term or limit 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. 

179. Within three (3) years from the Date of Entry of this Consent Decree, and in 

accordance with federal and/or state requirements for modifying or renewing a Title V permit, 

Defendants shall amend any applicable Title V permit application, or apply for amendments to 

their Title V permits, to include a schedule for any Unit-specific performance, operational, 

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

but not limited to, required emission rates or other limitations. For Units subject to a 

requirement to Retire, Retrofit, or Re-power, Defendants shall apply to modify, renew, or obtain 

any applicable Title V permit to include a schedule for any Unit-specific performance, operation, 

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

but not limited to, required emission rates or other limitations, within (12) twelve months of 

making such election to Retire, Retrofit, or Re-power. 

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180. Within one (1) year from commencement of operation of each pollution control 

device to be installed, upgraded, and/or operated under this Consent Decree, Defendants shall 

apply to include the requirements and limitations enumerated in this Consent Decree into 

federally-enforceable non-Title V permits and/or site-specific amendments to the applicable state 

implementation plans to reflect all new requirements applicable to each Unit in the AEP Eastern 

System, the Plant-Wide Annual Rolling Average Tonnage Limitation for SO2 at Clinch River, 

and the Plant-Wide Annual Tonnage Limitation for SO2 at Kammer. 

181. Defendants shall provide the United States with a copy of each application for a 

federally-enforceable non-Title V permit or amendment to a state implementation plan, as well 

as a copy of any permit proposed as a result of such application, to allow for timely participation 

in any public comment period. 

182. Prior to termination of this Consent Decree, Defendants shall obtain enforceable 

provisions in their Title V permits for the AEP Eastern System that incorporate (a) any Unitspecific requirements and limitations of this Consent Decree, such as performance, operational, 

maintenance, and control technology requirements, (b) the Plant-Wide Annual Rolling Average 

Tonnage Limitation for SO2 at Clinch River and the Plant-Wide Annual Tonnage Limitation for 

SO2 at Kammer, and (c) the Eastern System-Wide Annual Tonnage Limitations for SO2 and 

NOx. If Defendants do not obtain enforceable provisions for the Eastern System-Wide Annual 

Tonnage Limitations for SO2 and NOx in such Title V permits, then the requirements in 

Paragraphs 86 and 67 shall remain enforceable under this Consent Decree and shall not be 

subject to termination. 

183. If Defendants sell or transfer to an entity unrelated to Defendants (“Third-Party 

Purchaser”) part or all of Defendants’ Ownership Interest in a Unit in the AEP Eastern System, 

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Defendants shall comply with the requirements of Section XIX (Sales or Transfers of 

Operational or Ownership Interests) with regard to that Unit prior to any such sale or transfer 

unless, following any such sale or transfer, Defendants remain the holder of the Title V permit 

for such facility. 

XVII. INFORMATION COLLECTION AND RETENTION 

184. Any authorized representative of the United States, including attorneys, 

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

premises of any facility in the AEP Eastern System at any reasonable time for the purpose of: 

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; 

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

Defendants or their representatives, contractors, or consultants; and 

d. assessing Defendants’ compliance with this Consent Decree. 

185. Defendants shall retain, and instruct their contractors and agents to preserve, all 

non-identical copies of all records and documents (including records and documents in electronic 

form) now in their or their contractors’ or agents’ possession or control (with the exception of 

their contractors’ copies of field drawings and specifications), and that directly relate to 

Defendants’ performance of their obligations under this Consent Decree until six (6) years 

following completion of performance of such obligations. This record retention requirement 

shall apply regardless of any corporate document retention policy to the contrary. 

186. All information and documents submitted by Defendants pursuant to this Consent 

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

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

or (b) Defendants claim and substantiate in accordance with 40 C.F.R. Part 2 that the information 

and documents contain confidential business information. 

187. Nothing in this Consent Decree shall limit the authority of EPA to conduct tests 

and inspections at Defendants’ facilities under Section 114 of the Act, 42 U.S.C. § 7414, or any 

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

XVIII. NOTICES 

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

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

addressed as follows: 

As to the United States: 

Chief, Environmental Enforcement Section 

Environment and Natural Resources Division 

U.S. Department of Justice 

P.O. Box 7611, Ben Franklin Station 

Washington, DC 20044-7611 

DJ# 90-5-2-1-06893 

and 

Director, Air Enforcement Division 

Office of Enforcement and Compliance Assurance 

U.S. Environmental Protection Agency 

Ariel Rios Building [Mail Code 2242A] 

1200 Pennsylvania Avenue, N.W. 

Washington, DC 20460 

and 

Air Enforcement & Compliance Assurance Branch 

U.S. EPA Region V 

77 W. Jackson St. 

Mail Code AE17J 

Chicago, IL 60604 

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and 

Air Protection Division Director 

U.S. EPA Region III 

1650 Arch Street 

Philadelphia, PA 19103 

As to the State of Connecticut: 

Office of the Attorney General 

Environmental Department 

P.O. Box 120 

Hartford, Connecticut 

06141-0120 

As to the State of Maryland: 

Frank Courtright 

Program Manager 

Air Quality Compliance Program 

Maryland Department of the Environment 

1800 Washington Blvd. 

Baltimore, Maryland 21230 

fcourtright@mde.state.md.us 

As to the Commonwealth of Massachusetts: 

Frederick D. Augenstern, Assistant Attorney General 

Office of the Attorney General 

1 Ashburton Place, 18th floor 

Boston, Massachusetts 02108 

fred.augenstern@state.ma.us 

and 

Douglas Shallcross, Esquire 

Department of Environmental Protection 

Office of General Counsel 

1 Winter Street 

Boston, Massachusetts 02108 

Douglas.Shallcross@state.ma.us 

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As to the State of New Hampshire: 

Director, Air Resources Division 

New Hampshire Department of Environmental Services 

29 Hazen Dive 

Concord, New Hampshire 03302-0095 

As to the State of New Jersey: 

Kevin P. Auerbacher 

Section Chief 

Environmental Enforcement Section 

R.J. Hughes Justice Complex 

25 Market Street 

P.O. Box 093 

Trenton, New Jersey 08625-0093 

As to the State of New York: 

Robert Rosenthal 

Assistant Attorney General 

New York State Attorney General's Office 

The Capitol 

Albany, New York 12224 

As to the State of Rhode Island: 

Tricia K. Jedele 

Special Assistant Attorney General 

150 South Main Street 

Providence, RI 02903 

(401) 274-4400, Ext. 2400 

tjedele@riag.ri.gov 

As to the State of Vermont: 

Environmental Division 

Office of the Attorney General 

109 State Street 

Montpelier, Vermont 05609-1001 

and 

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Director 

Air Pollution Control Division 

Department of Environmental Conservation 

Agency of Natural Resources 

Building 3 South 

103 South Main Street 

Waterbury, Vermont 05671-0402 

As to the Citizen Plaintiffs: 

Nancy S. Marks 

Natural Resources Defense Council, Inc. 

40 West 20th Street 

New York, New York 10011 

(212) 727-4414 

nmarks@nrdc.org 

and 

Albert F. Ettinger 

Environmental Law and Policy Center 

35 East Wacker Dr. Suite 1300 

Chicago, Illinois 60601-2110 

(312) 673-6500 

aettinger@elpc.org 

As to Defendants: 

Vice President, Environmental Services 

American Electric Power Service Corporation 

1 Riverside Plaza 

Columbus, OH 43215 

jmmcmanus@aep.com 

and 

General Counsel 

American Electric Power 

1 Riverside Plaza 

Columbus, OH 43215 

jbkeane@aep.com 

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

shall be sent as follows: (a) by overnight mail or overnight delivery service to the United States; 

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and (b) by electronic mail to all Plaintiffs, if practicable, but if not practicable, then by overnight 

mail or overnight delivery service to the States and Citizen Plaintiffs. All notifications, 

communications, and transmissions sent by overnight delivery service shall be deemed submitted 

on the date they are delivered to the delivery service. 

190. 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. 

XIX. SALES OR TRANSFERS OF OPERATIONAL OR OWNERSHIP INTERESTS 

191. If Defendants propose to sell or transfer an Operational or Ownership Interest to 

an entity unrelated to Defendants (“Third Party”), they shall advise the Third Party in writing of 

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

written notification to the Plaintiffs pursuant to Section XVIII (Notices) of this Consent Decree 

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

192. No sale or transfer of an Operational or Ownership Interest shall take place before 

the Third Party and Plaintiffs have executed, and the Court has approved, a modification 

pursuant to Section XXII (Modification) of this Consent Decree making the Third Party a party 

to this Consent Decree and jointly and severally liable with Defendants for all the requirements 

of this Decree that may be applicable to the transferred or purchased Interests. 

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

between Defendants and any Third Party 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 Defendants and any Third Party – of the burdens of compliance with this Decree, 

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provided that both Defendants and such Third Party shall remain jointly and severally liable for 

the obligations of the Consent Decree applicable to the transferred or purchased Interests. 

194. If the Plaintiffs agree, the Plaintiffs, Defendants, and the Third Party that has 

become a party to this Consent Decree pursuant to Paragraph 192, may execute a modification 

that relieves Defendants of liability under this Consent Decree for, and makes the Third Party 

liable for, all obligations and liabilities applicable to the purchased or transferred Interests. 

Notwithstanding the foregoing, however, Defendants may not assign, and may not be released 

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

transferred Interests, including the obligations set forth in Section VIII (Environmental 

Mitigation Projects), Paragraphs 86 and 67, and Section IX (Civil Penalty). Defendants 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 Interests, to the extent such obligations may be adequately separated in 

an enforceable manner. 

195. Defendants may propose and Plaintiffs may agree to restrict the scope of joint and 

several liability of any purchaser or transferee for any AEP Eastern System obligations to the 

extent such obligations may be adequately separated in an enforceable manner using the methods 

provided by or approved under Section XVI (Permits). 

196. Paragraphs 191-195 of this Consent Decree do not apply if an Interest is sold or 

transferred solely as collateral security in order to consummate a financing arrangement (not 

including a sale-leaseback), so long as Defendants: (a) remain the operator (as that term is used 

and interpreted under the Clean Air Act) of the subject AEP Eastern System Unit(s); (b) remain 

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subject to and liable for all obligations and liabilities of this Consent Decree; and (c) supply 

Plaintiffs with the following certification within thirty (30) days of the sale or transfer: 

“Certification of Change in Ownership Interest Solely for Purpose of Consummating 

Financing. We, the Chief Executive Officer and General Counsel of American Electric 

Power (“AEP”), hereby jointly certify under Title 18 U.S.C. Section 1001, on our own 

behalf and on behalf of AEP, that any change in AEP’s Ownership Interest in any AEP 

Eastern System Unit that is caused by the sale or transfer as collateral security of such 

Ownership Interest in such Unit(s) pursuant to the financing agreement consummated on 

[insert applicable date] between AEP and [insert applicable entity]: a) is made solely for 

the purpose of providing collateral security in order to consummate a financing 

arrangement; b) does not impair AEP’s ability, legally or otherwise, to comply timely 

with all terms and provisions of the Consent Decree entered in United States, et al. v. 

American Electric Power Service Corp., et al., Civil Action No. C2-99-1250 (“AEP I”) 

and United States, et al. v. American Electric Power Service Corp., et al., Civil Action 

Nos. C2-04-1098 and C2-05-360 (“AEP II”); c) does not affect AEP’s operational control 

of any Unit covered by that Consent Decree in a manner that is inconsistent with AEP’s 

performance of its obligations under the Consent Decree; and d) in no way affects the 

status of AEP’s obligations or liabilities under that Consent Decree.” 

XX. EFFECTIVE DATE 

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

XXI. RETENTION OF JURISDICTION 

198. The Court shall retain jurisdiction of this case after the Date of 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. 

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XXII. MODIFICATION
 

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

agreement signed by the Plaintiffs and Defendants. Where the modification constitutes a 

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

XXIII. GENERAL PROVISIONS 

200. 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 limitations and requirements set forth herein do not relieve Defendants from 

any obligation to comply with other state and federal requirements under the Clean Air Act at 

any Units covered by this Consent Decree, including the Defendants’ obligation to satisfy any 

state modeling requirements set forth in a state implementation plan. 

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

202. In any subsequent administrative or judicial action initiated by any of the 

Plaintiffs for injunctive relief or civil penalties relating to the facilities covered by this Consent 

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

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

other defense based upon the contention that the claims raised by any of the Plaintiffs in the 

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

however, that nothing in this Paragraph affects the validity of Paragraphs Paragraph 132 and 

133, subject to Paragraphs 134 through 138, or Paragraphs 139 and 141. 

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

Decree shall relieve Defendants of their obligation to comply with all applicable federal, state, 

and local laws and regulations. Subject to the provisions in Section X (Resolution of Civil 

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Claims Against Defendants), 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. 

204. At any time prior to termination of this Consent Decree, Defendants may request 

approval from Plaintiffs to implement other control technology for SO2 or NOx than what is 

required by this Consent Decree. In seeking such approval, Defendants must demonstrate that 

such alternative control technology is capable of achieving pollution reductions equivalent to an 

FGD (for SO2) or SCR (for NOx) at the Units in the AEP Eastern System at which Defendants 

seek approval to implement such other control technology for SO2 or NOx. Approval of such a 

request is solely at the discretion of the Plaintiffs. 

205. 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 generated either by the reference 

methods specified herein or otherwise. 

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

is a separate, independent requirement. 

207. 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. Defendants shall round the fourth significant digit to the nearest third 

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

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

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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. Defendants shall report data to 

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

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

this Consent Decree as against any third parties. 

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

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

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

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

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

in construing the terms of this Consent Decree. 

210. Except for Citizen Plaintiffs, each Party to this action shall bear its own costs and 

attorneys’ fees. Defendants shall reimburse the Citizen Plaintiffs’ attorneys’ fees and costs, 

pursuant to 42 U.S.C. § 7604(d), and the agreement between counsel for Defendants and Citizen 

Plaintiffs within thirty (30) days of the Date of Entry of this Consent Decree. 

XXIV. SIGNATORIES AND SERVICE 

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

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

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

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

signature pages shall be given full force and effect. 

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

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

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

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

XXV. PUBLIC COMMENT 

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

the entry of this Consent Decree is subject to the procedures of 28 C.F.R. § 50.7, which provides 

for notice of 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 Defendants shall not oppose entry of this Consent Decree by this 

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

Defendants, in writing, that the United States no longer supports entry of the Consent Decree. 

XXVI. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER DECREE 

215. Termination as to Completed Tasks. As soon as Defendants complete a 

construction project or any other requirement of this Consent Decree that is not ongoing or 

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

provisions of this Consent Decree that imposed the requirement. 

216. 

Defendants: 

Conditional Termination of Enforcement Through the Consent Decree. After 

a. have successfully completed construction, and have maintained 

Continuous Operation, of all pollution controls as required by this Consent 

Decree; 

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b. have obtained final Title V permits (i) as required by the terms of this 

Consent Decree; (ii) that cover all Units in this Consent Decree; and (iii) 

that include as enforceable permit terms all of the Unit performance and 

other requirements specified in this Consent Decree; and 

c. certify that the date is later than December 31, 2022; 

then Defendants 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 Defendants’ 

certification, then, for any Consent Decree violations that occur after the filing of notice, the 

Plaintiffs shall pursue enforcement of the requirements contained in the Title V permit through 

the applicable Title V permit and not through this Consent Decree. 

217. Resort to Enforcement under this Consent Decree. Notwithstanding Paragraph 

216, if enforcement of a provision in this Consent Decree cannot be pursued by a Party under the 

applicable Title V permit, or if a Consent Decree requirement was intended to be part of a Title 

V Permit and did not become or remain part of such permit, then such requirement may be 

enforced under the terms of this Consent Decree at any time. 

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_________________________________________ 

_________________________________________ 

XXVII. FINAL JUDGMENT
 

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

Decree shall constitute a final judgment among the Parties. 

SO ORDERED, THIS _____ DAY OF ________________, 2007. 

HONORABLE EDMUND A. SARGUS, JR. 

UNITED STATES DISTRICT COURT JUDGE 

HONORABLE GREGORY L. FROST 

UNITED STATES DISTRICT COURT JUDGE 

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APPENDIX A
 

ENVIRONMENTAL MITIGATION PROJECTS 

In compliance with and in addition to the requirements in Section VIII of this Consent 

Decree (Environmental Mitigation Projects), Defendants shall comply with the requirements of 

this Appendix to ensure that the benefits of the $36 million in federally directed Environmental 

Mitigation Projects are achieved. 

I.	 National Parks Mitigation 

A.	 Within 45 days from the Date of Entry, Defendants shall pay to the National Park 

Service the sum of $2 million to be used in accordance with the Park System 

Resource Protection Act, 16 U.S.C. § 19jj, for the restoration of land, watersheds, 

vegetation, and forests using adaptive management techniques designed to 

improve ecosystem health and mitigate harmful effects from air pollution. This 

may include reforestation or restoration of native species and acquisition of 

equivalent resources and support for collaborative initiatives with state and local 

agencies and other stakeholders to develop plans to assure resource protection 

over the long-term. Projects will focus on one or more of the following Class I 

areas alleged in the underlying action to have been injured by emissions from 

Defendants facilities: Shenandoah National Park, Mammoth Cave National Park, 

and Great Smoky Mountains National Park. 

B.	 Payment of the amount specified in the preceding paragraph shall be made to the 

Natural Resource Damage and Assessment Fund managed by the United States 

Department of the Interior. Instructions for transferring funds will be provided to 

the Defendants by the National Park Service. Notwithstanding Section I.A of this 

Appendix, payment of funds by Defendants is not due until ten (10) days after 

receipt of payment instructions. 

C.	 Upon payment of the required funds into the Natural Resource Damage and 

Assessment Fund, Defendants shall have no further responsibilities regarding the 

implementation of any project selected by the National Park Service in 

connection with this provision of the Consent Decree. 

II. Overall Environmental Mitigation Project Schedule and Budget 

A.	 Within 120 days of the Date of Entry, as further described below, Defendants 

shall submit plans to EPA for review and approval for completing the remaining 

$34 million in federally directed Environmental Mitigation Projects specified in 

this Appendix over a period of not more than five (5) years from the Date of 

Entry. EPA will consult with the Citizen Plaintiffs, through their counsel, prior to 

approving or commenting on any proposed plan. The Parties agree that 

Defendants are entitled to spread their payments for Environmental Mitigation 

Projects evenly over the five-year period commencing upon the Date of Entry. 

Defendants are not, however, precluded from accelerating payments to better 

effectuate a proposed mitigation plan, provided however, Defendants shall not be 

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entitled to any reduction in the nominal amount of the required payments by 

virtue of the early expenditures. EPA may, but is not required to, approve a 

proposed Project budget that results in a back-loading of some expenditures. 

EPA shall determine prior to approval that all Projects are consistent with federal 

law. 

B.	 Defendants may, at their election, consolidate the plans required by this Appendix 

into a single plan. 

C.	 In addition to the requirements set forth below, Defendants shall submit within 

120 days of the Date of Entry, a summary-level budget and Project time-line that 

covers all of the Projects proposed. 

D.	 Beginning March 31, 2008, and continuing on March 31 of each year thereafter 

until completion of each Project (including any applicable periods of 

demonstration or testing), Defendants shall provide the United States and Citizen 

Plaintiffs with written reports detailing the progress of each Project, including 

Project Dollars. 

E.	 Within 60 days following the completion of each Project required under 

Appendix A, Defendants shall submit to the United States and Citizen Plaintiffs a 

report that documents the date that the Project was completed, the results of 

implementing the Project, including the emission reductions or other 

environmental benefits achieved, and the Project Dollars expended by Defendants 

in implementing the Project. 

F.	 Upon approval of the plans required by this Appendix by EPA, Defendants shall 

complete the Environmental Mitigation Projects according to the approved plans. 

Nothing in this Consent Decree shall be interpreted to prohibit Defendants from 

completing Environmental Mitigation Projects before the deadlines specified in 

the schedule of an approved plan. 

III.	 Acquisition and Restoration of Ecologically Significant Areas in Indiana, Kentucky, 

North Carolina, Ohio, Pennsylvania, Virginia, and West Virginia 

A.	 Within 120 days of the Date of Entry, and on each anniversary of the initial 

submission for the following four (4) years, Defendants shall submit a plan to 

EPA for review and approval, in consultation with the Citizen Plaintiffs, for 

acquisition and/or restoration of ecologically significant areas in Indiana, 

Kentucky, North Carolina, Ohio, Pennsylvania, Virginia, and West Virginia 

(“Land Acquisition and Restoration”). Defendants shall spend no less than a total 

of $10 million in Project Dollars on Land Acquisition and Restoration over the 

five year period provided under this Appendix for completion of federally 

directed Environmental Mitigation Projects. 

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B. Defendants’ proposed plan shall: 

1.	 Describe the proposed Land Acquisition and Restoration projects in 

sufficient detail to allow the reader to ascertain how each proposed action 

meets the requirements set out below. For purposes of this Appendix and 

Section VIII (Environmental Mitigation Projects) of this Consent Decree, 

land acquisition means purchase of interests in land, including fee 

ownership, easements, or other restrictions that run with the land that 

provide for perpetual protection of the acquired land. Restoration may 

include, by way of illustration, direct reforestation (particularly of tree 

species that may be affected by acidic deposition) and soil enhancement. 

Any restoration action must also incorporate the acquisition of an interest 

in the restored lands sufficient to ensure perpetual protection of the 

restored land. Any proposal for acquisition of land must identify fully all 

owners of the interests in the land. Every proposal for acquisition of land 

must identify the ultimate holder of the interests to be acquired and 

provide a basis for concluding that the proposed holder of title is 

appropriate for long-term protection of the ecological or environmental 

benefits sought to be achieved through the acquisition. 

2.	 Describe generally the ecological significance of the area to be acquired or 

restored. In particular, identify the environmental/ecological benefits 

expected as a result of the proposed action. In proposing areas for 

acquisition and restoration, Defendants shall focus on those areas that are 

in most need of conservation action or that promise the greatest 

conservation return on investment. 

3.	 Describe the expected cost of the Land Acquisition and Restoration, 

including the fair market value of any areas to be acquired. 

4.	 Identify any person or entity other than Defendants that will be involved 

in the land acquisition or restoration action. Defendants 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 by EPA, after consultation with the 

Citizen Plaintiffs, Defendants shall complete the Land Acquisition and 

Restoration project according to the approved plan and schedule. 

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IV. Nitrogen Impact Mitigation in the Chesapeake Bay 

A.	 Within 120 days of Date of Entry, Defendants shall submit a plan to EPA for 

review and approval, in consultation with the Citizen Plaintiffs, for the mitigation 

of adverse impacts on the Chesapeake Bay associated with nitrogen (“Chesapeake 

Bay Mitigation Project”). Defendants shall spend no less than a total of $3 

million in Project Dollars on the Chesapeake Bay Mitigation Project. 

B.	 Defendant’s proposed plan shall: 

1.	 Describe proposed Project(s) that reduce nitrogen loading in the 

Chesapeake Bay or otherwise mitigate the adverse effects of nitrogen in 

the Chesapeake Bay. 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 keep livestock out of the 

adjoining waterway and to filter runoff before it enters the waterway. 

2.	 Describe generally the expected environmental benefit of the proposed 

Chesapeake Bay Mitigation Project. 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 expected benefit(s). Expected loadings benefits should 

be quantified to the extent practicable. 

3.	 Describe the expected cost of each element of the Chesapeake Bay 

Mitigation Project, including the fair market value of any interests in land 

to be acquired. 

4.	 Identify any person or entity other than Defendants that will be involved 

in any aspect of the Chesapeake Bay Mitigation Project. Defendants 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 nonprofits; 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 Chesapeake Bay Mitigation by EPA, 

Defendants shall complete the Project according to the approved plan and 

schedule. 

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V. Mobile Source Emission Reduction Projects 

A.	 Within 120 days of the Date of Entry, Defendants shall submit a plan to EPA for 

review and approval, in consultation with the Citizen Plaintiffs, for the 

completion of Projects to reduce emissions from Defendants’ fleet of barge 

tugboats on the Ohio River, diesel trains at or near power plants, Defendants’ 

fleet of motor vehicles in certain eastern states, and/or truck stops in certain 

eastern states (“Mobile Source Projects”). Defendants shall spend no less than a 

total of $21 million in Project Dollars on one or more of the three Mobile Source 

Projects specified in this Section, in accordance with the plans for such Projects 

approved by EPA, after consultation with the Citizen Plaintiffs. The key criteria 

for selection of components of the Mobile Source Projects are the magnitude of 

the expected environmental benefit(s) in relation to the cost. 

B.	 Diesel Tug/Train Project 

1.	 Defendants are among the leading barge operators in the country, with 

operations on the Ohio River, the Mississippi River, and the Gulf Coast. 

Barges are propelled by tugboats, which generally use a type of marine 

diesel fuel known as No. 2 distillate fuel oil. Tugboats that switch to 

ultra-low sulfur diesel fuel (“ULSD”) reduce emissions of NOX, PM, 

volatile organic compounds (“VOCs”), and other air pollutants. All 

marine diesel fuel must be ULSD by June 1, 2012, pursuant to EPA’s 

Nonroad Diesel Rule (see “Control of Emissions of Air Pollution from 

Nonroad Diesel Engines and Fuels; Final Rule,” 69 Fed. Reg. 38,958 

(June 29, 2004)). Defendants also receive coal by diesel trains. 

2.	 As part of the plan for Mobile Source Projects, Defendants may elect to 

achieve accelerated emission reductions from their tugboat fleet on the 

Ohio River (“Ohio River Tug Fleet”) and/or their diesel powered trains 

used at or near their power plants, as one of the three possible mobile 

source Projects under this Consent Decree (“Diesel Tug/Train Project”). 

3.	 The Diesel Tug/Train Project shall require one or more of the following: 

a.	 The accelerated retrofitting or re-powering of Tugs with engines 

that require the use of ULSD. Selection of this Project is expressly 

conditioned upon identification of satisfactory technology and an 

agreement between EPA and Defendants on how to credit Project 

Dollars towards this project. 

b.	 The retrofitting or repowering of the marine engines in the Ohio 

River Tug Fleet with diesel oxidation catalysts (“DOCs”), diesel 

particulate filters (“DPFs”), or other equivalent advanced 

technologies that reduce emissions of PM and VOCs from marine 

engines in tugboats (collectively “DOC/DPFs”). Defendants shall 

only install DOCs/DPFs that have received applicable approvals or 

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verifications, if any, from the relevant regulatory agencies for 

reducing emissions from tugboat engines. Defendants must 

maintain any DOCs/DPFs installed as part of the Tug Project for 

the useful life of the equipment (as defined in the proposed Plan), 

even after the completion of the Tug Project. Project Dollars may 

be spent on DOCs/DPFs within 5 years of the Date of Entry, in 

accordance with the approved schedule for the mitigation projects 

in this Appendix. 

c.	 The accelerated use of ULSD for the Ohio River Tug Fleet, from 

the Date of Entry through January 1, 2012. Notwithstanding any 

other provision of this Consent Decree, including this Appendix, 

Defendants shall only receive credit for the incremental cost of 

ULSD as compared to the cost of the fuel Defendants would 

otherwise utilize. 

d.	 Emission reduction measures for diesel powered trains. Such 

measures may include retro-fitting with, or conversion to, Multiple 

Diesel Engine GenSets that are EPA Tier III Off-Road certified; 

Diesel Electric Hybrid; Anti-idling controls/strategies and Auto 

Shut-Off capabilities. Selection of this Project is expressly 

conditioned upon identification of satisfactory technology and an 

agreement between EPA and Defendants on how to credit Project 

Dollars towards this project. 

4.	 The proposed plan for the Diesel Tug/Train Project shall: 

a.	 Describe the expected cost of the project, including the costs for 

any equipment, material, labor costs, and the proposed method for 

accounting for the cost of each element of the Diesel Tug/Train 

Project, including the incremental cost of ULSD. 

b.	 Describe generally the expected environmental benefit of the 

project, including any expected fuel efficiency improvements and 

quantify emission reductions expected. 

c.	 Include a schedule for completing each portion of the Diesel 

Tug/Train Project. 

5.	 Performance - Upon approval of the Diesel Tug/Train Project plan by 

EPA, Defendants shall complete the project according to the approved 

plan and schedule. 

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C.	 Hybrid Vehicle Fleet Project 

1.	 AEP has a fleet of approximately 11,000 motor vehicles in the eleven 

states where it operates, including vehicles in Indiana, Ohio, Michigan, 

Virginia, West Virginia, and Kentucky. These motor vehicles are 

generally powered by conventional diesel or gasoline engines and include 

vehicles such as diesel “bucket” trucks. The use of hybrid engine 

technologies in Defendants’ motor vehicles, such as diesel-electric 

engines, will improve fuel efficiency and reduce emissions of NOX, PM, 

VOCs, and other air pollutants. 

2.	 As part of the plan for Mobile Source Projects, Defendants may elect to 

spend Project Dollars on the replacement of conventional motor vehicles 

in their fleet with newly manufactured Hybrid Vehicles (“Hybrid Vehicle 

Fleet Project”). 

3.	 The proposed plan for the Hybrid Vehicle Fleet Project shall: 

a.	 Propose the replacement of conventional gasoline or diesel 

powered motor vehicles (such as bucket trucks) with Hybrid 

Vehicles. For purposes of this subsection of this Appendix, 

“Hybrid Vehicle” means a vehicle that can generate and utilize 

electric power to reduce the vehicle’s consumption of fossil fuel. 

Any Hybrid Vehicle proposed for inclusion in the Hybrid Fleet 

Project shall meet all applicable engine standards, certifications, 

and/or verifications. 

b.	 Provide for Hybrid Vehicles replacement in that portion of 

Defendants’ fleet in Indiana, Ohio, Michigan, West Virginia, 

Virginia, and/or Kentucky. Notwithstanding any other provision 

of this Consent Decree, including this Appendix, Defendants shall 

only receive credit toward Project Dollars for the incremental cost 

of Hybrid Vehicles as compared to the cost of a newly 

manufactured, similar motor vehicle. 

c.	 Prioritize the replacement of diesel-powered vehicles in 

Defendants’ fleet. 

d.	 Provide a method to account for the costs of the Hybrid Vehicles, 

including the incremental costs of such vehicles as compared to 

conventional gasoline or diesel motor vehicles. 

e.	 Certify that Defendants will use the Hybrid Vehicles for their 

useful life (as defined in the proposed plan). 

f.	 Include a schedule for completing each portion of the Project. 

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g.	 Describe generally the expected environmental benefits of the 

Project, including any fuel efficiency improvements, and quantify 

emission reductions expected. 

4.	 Performance - Upon approval by EPA of the plan for the Hybrid Vehicle 

Fleet Project, after consultation with the Citizen Plaintiffs, Defendants 

shall complete the Project according to the approved plan. 

D.	 Truck Stop Electrification 

1.	 Long-haul truck drivers typically idle their engines at night at rest areas to 

supply heat or cooling in their sleeper cab compartments, and to maintain 

vehicle battery charge while electrical appliances such as televisions, 

computers, and microwaves are in use. Modifications to rest areas to 

provide parking spaces with electrical power, heat, and air conditioning 

will allow truck drivers to turn their engines off. Truck stop electrification 

reduces idling time and therefore reduces diesel fuel usage, and thus 

reduces emissions of PM, NOx, and VOCs. 

2.	 As part of the plan for Mobile Source Projects, Defendants may elect to 

achieve emission reductions by truck stop electrification, which shall 

include, where necessary, techniques and infrastructure needed to support 

such a program (“Truck Stop Electrification Project”). 

3.	 The proposed plan for the Truck Stop Electrification Project shall: 

a.	 Identify truck stops in one or more of the following States for 

Electrification: Ohio, Indiana, Kentucky, North Carolina, 

Pennsylvania, West Virginia, and Virginia. EPA may give 

preference to electrification Projects that are co-located, if 

possible, along the same transportation corridor. 

b.	 Describe the level of expected usage of the planned electrification 

facilities, air quality in the vicinity of the proposed Projects, 

proximity of the proposed Project to population centers, and 

whether the owner or some other entity is willing to pay for some 

portion of the work. 

c.	 Provide for the construction of truck stop electrification stations 

with established technologies and equipment. 

d.	 Account for hardware procurement and installation costs at the 

recipient truck stops. 

e.	 Include a schedule for completing each portion of the Project. 

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f. Describe generally the expected environmental benefits of the 

Project and quantify emission reductions expected. 

4.	 Performance - Upon approval of the plan for the Truck Stop 

Electrification Project by EPA, after consultation with the Citizen 

Plaintiffs, Defendants shall complete the Project according to the 

approved plan. 

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APPENDIX B 

REPORTING REQUIREMENTS
 

I. Annual Reporting Requirements 

In accordance with the dates specified below, for periods on and after the Date of 

Entry, Defendants shall submit annual reports to the United States, the States, and the 

Citizen Plaintiffs, electronically and in hard copy, as required by Paragraph 143 and 

certified as required by Paragraph 146. In such annual reports, Defendants shall include 

the following information: 

A. Eastern System-Wide Annual Tonnage Limitations for SO2 and NOx 

Beginning on March 31, 2010, for the Eastern System-Wide Annual Tonnage 

Limitations for NOx, and March 31, 2011, for the Eastern System-Wide Annual Tonnage 

Limitations for SO2, and annually thereafter, Defendants shall report the following 

information: (a) the total actual annual tons of the pollutant emitted from each Unit (or 

for Units vented to a common stack, from each combined stack) within the AEP Eastern 

System, as defined in Paragraph 7, during the prior calendar year; (b) the total actual 

annual tons of the pollutant emitted from the AEP Eastern System during the prior 

calendar year; (c) the difference, if any, between the applicable Eastern System-Wide 

Annual Tonnage Limitation for the pollutant in that calendar year and the amount 

reported in subparagraph (b); and (d) the annual average emission rate, expressed as a 

lb/mmBTU for NOx, for each Unit within the AEP Eastern System and for the entire AEP 

Eastern System during the prior calendar year. Data reported pursuant to this subsection 

shall be based upon the CEMS data submitted to the Clean Air Markets Division. 

B. Plant-Wide Annual Rolling Average Tonnage Limitation for SO2 at Clinch 

River 

Beginning on March 31, 2011, and continuing annually thereafter, Defendants 

shall report: (a) the actual tons of SO2 emitted from all Units at the Clinch River plant on 

an annual rolling average basis as defined in Paragraphs 47 and 88 for the prior calendar 

year; and (b) the applicable Plant-Wide Annual Rolling Average Tonnage Limitation for 

SO2 at the Clinch River plant for the prior calendar year. For calendar years other than 

2010 and 2015, Defendants shall also report the 12-month rolling average emissions for 

each month. 

C. Plant-Wide Tonnage Limitation for SO2 at Kammer 

Beginning on March 31, 2011, and continuing annually thereafter, Defendants 

shall report: (a) the actual tons of SO2 emitted from all Units at the Kammer plant as 

specified in Paragraph 48 for the prior calendar year; and (b) the Plant-Wide Tonnage 

Limitation for SO2 at the Kammer plant for that calendar year. 

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D. Reporting Requirements for Excess NOx Allowances 

1. Reporting Requirements for Unrestricted Excess NOx Allowances 

Beginning on March 31, 2010, and continuing annually through March 31, 2016, 

Defendants shall report the number of Unrestricted Excess NOx Allowances available 

each year between 2009 through 2015, and how or whether such allowances were used so 

that Defendants account for each Unrestricted Excess NOx Allowance for each year 

during 2009 through 2015. No later than March 31, 2016, Defendants shall report: (a) the 

cumulative number of unused Unrestricted Excess NOx Allowances subject to surrender 

pursuant to Paragraph 75 and calculated pursuant to Paragraph 74, and (b) the total 

number of unused Unrestricted Excess NOx Allowances that they surrendered. 

2. Reporting Requirements for Restricted Excess NOx Allowances 

a. Beginning on March 31, 2010, and continuing annually through March 31, 

2016, Defendants shall report: (a) the number of Restricted Excess NOx Allowances 

available each year between 2009 through 2015; (b) the actual emissions from any New 

and Newly Permitted Unit during each year; (c) the actual NOx emissions from the five 

natural gas plants listed in Paragraph 76 during each year; (d) the amount, if any, of 

Restricted Excess NOx Allowances that are not subject to surrender each year because of 

Defendants’ investment in renewable energy as defined in Paragraph 77 and the data 

supporting Defendants’ calculation; and (e) the difference between the cumulative total 

of Restricted Excess NOx Allowances available from each year and any prior year and the 

actual emissions reported under (b) and (c), above, for that year and any Restricted 

Excess NOx Allowances not subject to surrender reported under (d), above. No later than 

March 31, 2016, Defendants shall report: (a) the cumulative number of unused Restricted 

Excess NOx Allowances subject to surrender calculated pursuant to Paragraphs 76 and 

77, and (b) the total number of unused Restricted Excess NOx Allowances that they 

surrendered. 

b. No later than March 31, 2017, and continuing annually thereafter, Defendants 

shall report: (a) the number of Restricted Excess NOx Allowances available in the prior 

year; (b) the actual emissions from any New and Newly Permitted Unit during such year; 

(c) the actual emissions from the five natural gas plants listed in Paragraph 76 during 

such year; (d) the amount, if any, of Restricted Excess NOx Allowances that are not 

subject to surrender for such year because of Defendants’ investment in renewable energy 

as defined in Paragraph 77 and the data supporting Defendants’ calculation; (e) the 

number of Restricted Excess NOx Allowances subject to surrender for such year 

calculated pursuant to Paragraphs 76 and 77; and (f) the total number of unused 

Restricted Excess NOx Allowances that they surrendered for such year. 

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E. Reporting Requirements for Excess SO2 Allowances 

Beginning on March 31, 2011, and continuing annually thereafter, Defendants 

shall report: (a) the number of Excess SO2 Allowances subject to surrender calculated 

pursuant to Paragraph 93, and (b) the total number of Excess SO2 Allowances that they 

surrendered. 

F. Continuous Operation of Pollution Controls required by Paragraphs 68, 69, 87, 

and 102 

On March 31 of the year following Defendants’ obligation pursuant to this 

Consent Decree to commence Continuous Operation of an SCR, FGD, ESP, or 

Additional NOx Pollution Controls, Defendants shall report the date that they commenced 

Continuous Operation of each such pollution control as required by this Consent Decree. 

Beginning on March 31, 2008, and continuing annually thereafter, Defendants shall 

report, for any SCR, FGD, ESP, or Additional NOx Pollution Controls required to 

Continuously Operate during that year, the duration of any period during which that 

pollution control did not Continuously Operate, including the specific dates and times 

that such pollution control did not operate, the reason why Defendants did not 

Continuously Operate such pollution control, and the measures taken to reduce emissions 

of the pollutant controlled by such pollution control. 

G. Installation of SO2 and NOx Pollution Controls 

Beginning on March 31, 2008, and continuing annually thereafter, Defendants 

shall report on the progress of construction of NOx and SO2 pollution controls required by 

this Consent Decree including: (1) if construction is not underway, any available 

information concerning the construction schedule, including the dates of any major 

contracts executed during the prior calendar year, and any major components delivered 

during the prior calendar year; (2) if construction is underway, the estimated percent of 

installation as of the end of the prior calendar year, the current estimated construction 

completion date, and a brief description of completion of significant milestones during 

the prior calendar year, including a narrative description of the current construction status 

(e.g. foundations completed, absorber installation proceeding all material on-site, new 

stack erection completed, etc.); and (3) once construction is complete, the dates the 

equipment was placed in service and any acceptance testing was performed during the 

prior calendar year. 

H. Installation and Operation of PM CEMS 

Beginning on March 31, 2013, for Cardinal Units 1 and 2 and a third Unit 

identified pursuant to Paragraph 110, and continuing annually thereafter for all periods of 

operation of PM CEMS as required by this Consent Decree, Defendants shall report the 

data recorded by the PM CEMS, expressed in lb/mmBTU on a 3-hour rolling average 

basis in electronic format for the prior calendar year, in accordance with Paragraph 107. 

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I. Other SO2 Measures 

Commencing in the first annual report Defendants submit pursuant to Paragraph 

143, and continuing annually thereafter, Defendants shall submit all data necessary to 

determine Defendants’ compliance with the annual average coal content specified in the 

table in Paragraph 90. 

J. 1-Hour Average NOx Emission Rate and 30-Day Rolling Average Emission 

Rates for SO2 and NOx 

1. Beginning on March 31 of the year following Defendants’ obligation pursuant 

to this Consent Decree to first comply with an applicable 1-Hour Average NOx Emission 

Rate and/or 30-Day Rolling Average Emission Rate for SO2 and NOx, and continuing 

annually thereafter, Defendants shall report all 1-Hour Average Emission Rate results 

and/or 30-Day Rolling Average Emission Rate results to determine compliance with such 

emission rate, as defined in Paragraph 4 or 5, as appropriate. Defendants shall also 

report: (a) the date and time that the Unit initially combusts any fuel after shutdown; (b) 

the date and time after startup that the Unit is synchronized with a utility electric 

distribution system; (c) the date and time that the fire is extinguished in a Unit; and (d) 

for the fifth and subsequent Cold Start Up Period that occurs within any 30-Day period, 

the earlier of the date and time that is either (i) eight hours after the unit is synchronized 

with a utility electric distribution system, or (ii) the flue gas has reached the SCR 

operational temperature range specified by the catalyst manufacturer. 

2. Within the first report that identifies a 1-Hour Average NOx Emission Rate or 

30-Day Rolling Average Emission Rate for SO2 or NOx, Defendants shall include at least 

five (5) example calculations (including hourly CEMS data in electronic format for the 

calculation) used to determine the 1-Hour Average NOx Emission Rate and the 30-Day 

Rolling Average Emission Rate for SO2 or NOx for five (5) randomly selected days. If at 

any time Defendants change the methodology used in determining the 1-Hour Average 

NOx Emission Rate or the 30-Day Rolling Average Emission Rate for SO2 or NOx, 

Defendants shall explain the change and the reason for using the new methodology. 

K. 30-Day Rolling Average Removal Efficiency for SO2 

1. Beginning on March 31 of the year following Defendants’ obligation pursuant 

to this Consent Decree to first comply with a 30-Day Rolling Average Removal 

Efficiency, and continuing annually thereafter, Defendants shall report all 30-Day Rolling 

Average Removal Efficiency results to determine compliance with such removal 

efficiency as defined in Paragraph 6 or, for Conesville Units 5 and 6, as specified in 

Appendix C. 

2. Within the first report that identifies a 30-Day Rolling Average Removal 

Efficiency for SO2, Defendants shall include at least five (5) example calculations 

(including hourly CEMS data in electronic format for the calculation) used to determine 

the 30-Day Rolling Average Removal Efficiency for five (5) randomly selected days. If 

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at any time Defendants change the methodology used in determining the 30-Day Rolling 

Average Removal Efficiency, Defendants shall explain the change and the reason for 

using the new methodology. 

L. PM Emission Rates 

Beginning on March 31, 2010, for Cardinal Units 1 and 2, and beginning on 

March 31, 2013 for Muskingum River Unit 5, and continuing annually thereafter, 

Defendants shall report the PM Emission Rate as defined in Paragraph 51, for Cardinal 

Unit 1, Cardinal Unit 2, and Muskingum River Unit 5. For all such Units, Defendants 

shall attach a copy of the executive summary and results of any stack test performed 

during the calendar year covered by the annual report. 

M. Environmental Mitigation Projects 

1. Mitigation Projects to be Conducted by the States 

Defendants shall report the disbursement of funds as required in Paragraph 127 of 

the Consent Decree in the next annual progress report that Defendants submit pursuant to 

Paragraph 143 following such disbursement of funds. 

2. Appendix A Projects 

Beginning March 31, 2008, and continuing on March 31 of each year thereafter 

until completion of each Project (including any applicable periods of demonstration or 

testing), Defendants shall provide the United States and Citizen Plaintiffs with written 

reports detailing the progress of each Project, including Project Dollars. 

N. Other Unit becoming an Improved Unit 

If Defendants decide to make an Other Unit an Improved Unit, Defendants shall 

so state in the next annual progress report they submit pursuant to Paragraph 143 after 

making such decision, and comply with the reporting requirements specified in Section 

I.G of this Appendix and any other reporting or notice requirements in accordance with 

the Consent Decree. 

II. Deviation Reports 

Beginning March 31, 2008, and continuing annually thereafter, Defendants shall 

report a summary of all deviations from the requirements of the Consent Decree that 

occurred during the prior calendar year, identifying the date and time that the deviation 

occurred, the date and time the deviation was corrected, the cause and any corrective 

actions taken for each deviation, if necessary, and the date that the deviation was initially 

reported under Paragraph 145. In addition to any express requirements in Section I, 

above, or in the Consent Decree, such deviations required to be reported include, but are 

not limited to, the following requirements: the 1-Hour Average NOx Emission Rate, the 

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30-Day Rolling Average Emission Rates for SO2 and NOx, the 30-Day Rolling Average 

Removal Efficiency for SO2, and the PM Emission Rate. 

III. Submissions Pending Review 

In each annual report Defendants submit pursuant to Paragraph 143, Defendants 

shall include a list of all plans or submissions made pursuant to this Consent Decree 

during the calendar year covered by the annual report, the date(s) such plans or 

submissions were submitted to one or more Plaintiffs for review and/or approval, and 

shall identify which, if any, are still pending review and approval by Plaintiffs upon the 

date of submission of the annual report. 

IV. Other Information Necessary To Determine Compliance 

To the extent that information not expressly identified above is necessary to 

determine Defendants’ compliance with the requirements of this Consent Decree during a 

reporting period, and has not otherwise been submitted in accordance with the provisions 

of the Consent Decree, Defendants shall provide such information as part of the annual 

report required pursuant to Section XI of the Consent Decree. 

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APPENDIX C 

MONITORING STRATEGY AND CALCULATION OF
 

THE 30-DAY ROLLING AVERAGE REMOVAL EFFICIENCY 

FOR CONESVILLE UNITS 5 AND 6 

I. Monitoring Strategy 

1.	 The SO2 monitoring system for Conesville Units 5 & 6 will consist of two 

separate FGD inlet monitors in each of the two FGD inlet ducts for each Unit, 

and one FGD outlet monitor in the combined flow from the outlets of the FGD 

modules for each Unit, prior to the common stack. 

2.	 Due to space constraints and potential interferences, monitors are currently 

located in the inlet duct for one FGD module on each Unit and at the 

combined outlet from both FGD modules for each Unit prior to entering the 

stack using best engineering judgment. 

3.	 On or before December 31, 2008, Defendants shall submit a monitoring plan 

to EPA for approval that will propose where to site and install an additional 

inlet monitor in each of the unmonitored FGD inlet ducts for each Unit, and 

include a requirement that Defendants submit a complete certification 

application for the Conesville Units 5 & 6 monitoring system to EPA and the 

state permitting authority. 

4.	 The Monitoring Plan will incorporate the applicable procedures and quality 

assurance testing found in 40 C.F.R. Part 75, subject to the following: 

a.	 The PS-2 siting criteria will not be applied to these monitoring systems; 

however, the majority of the procedures in Section 8.1.3.2 of PS-2 will be 

followed. Sampling of at least nine (9) sampling points selected in 

accordance with PS-1 will be performed prior to the initial RATA. If the 

resultant SO2 emission rates for any single sampling point calculated in 

accordance with Equation 19.7 are all within 10% or 0.02 lb/mmBtu of the 

mean of all nine (9) sampling points, the alternative traverse point 

locations (0.4, 1.2, and 2.0 meters from the duct wall) will be 

representative and may be used for all subsequent RATAs. 

b.	 The required relative accuracy test audit will be performed in accordance 

with the procedures of 40 C.F.R. Part 75, except that the calculations will 

be performed on an SO2 emission rate basis (i.e., lb/mmBtu). 

c.	 The criteria for passing the relative accuracy test audit will be the same 

criteria that 40 C.F.R. Part 75 requires for relative accuracy or alternative 

performance specification as provided for NOx emission rates. 

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d.	 “Diluent capping” (i.e., 5% CO2) will be applied to the SO2 emission rate 

for any hours where the measured CO2 concentration rounds to zero. 

e.	 Results of quality assurance testing, data gathered by the inlet and outlet 

monitoring systems, and the resultant 30-day Rolling Average Removal 

Efficiencies for these monitoring systems are not required to be reported 

in the quarterly reports submitted to EPA’s Clean Air Markets Division 

for purposes of 40 C.F.R. Part 75. Results will be maintained at the 

facility and available for inspection, and the 30-day Rolling Average 

Removal Efficiency will be reported in accordance with the requirements 

of the Consent Decree and Appendix B. Equivalent data retention and 

reporting requirements will be incorporated into the applicable permits for 

these Units. 

f.	 Missing Data Substitution of 40 C.F.R Part 75 will not be implemented. 

g.	 Initial performance testing will be performed before the effective date of 

the 30-Day Rolling Average Removal Efficiency requirements, and the 

results will be reported to Plaintiffs as part of the annual report submitted 

in accordance with Appendix B. 

II. Calculation of 30-Day Rolling Average Removal Efficiency 

1. Removal efficiency shall be calculated by the equation: 

[SO2 emission rate Inlet – SO2 emission rate Outlet ] / SO2 emission rate Inlet * 100 

2. Inlet and outlet emission rates shall be calculated using the methodology 

specified in 40 C.F.R. Part 60 Appendix B – Method 19. Inlet emission 

rates will be based on the average of the valid recorded values calculated 

for each of the inlet FGD monitors at each Unit. Measurements are made 

on a wet basis, so Equation 19.7 will be utilized to determine the hourly 

SO2 emission rate at each location. To make the conversion between the 

measured wet SO2 and CO2 concentrations and an emission rate in pounds 

per million BTU, an electronic Data System will perform Equation 19.7 

using the SO2 ppm conversion factor from Table 19-1 of Method 19 and 

the Fc factor for the applicable fuel (currently bituminous coal) in Table 

19-2 of Method 19. The resulting equation will be: 

Emission rate (lb SO2/mmBtu) = 1.660 x 10-7 * SO2 (in ppm) * Fc * 100 / CO2 (in %) 

3. The electronic data system will calculate the hourly average SO2 and CO2 

concentration in accordance with 40 C.F.R. Part 75 quality control/quality 

assurance requirements and will compute and retain these SO2 emission 

rates for every operating hour meeting the minimum data capture 

requirements in accordance with 40 C.F.R. Part 75. Prior to the 

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calculation of the SO2 emission rate, hourly SO2 and CO2 concentrations 

will be rounded to the nearest tenth (i.e., 0.1 ppm or 0.1 % CO2) and the 

resulting SO2 emission rate will be rounded to the nearest thousandth (i.e., 

0.001 lb/mmBtu). 

4. From these hourly SO2 emission rates, SO2 removal efficiencies will be 

calculated for each hour when the Unit is firing fossil fuel, and the hourly 

SO2 and CO2 monitors meet the QA/QC requirements of Part 75. Hourly 

SO2 removal efficiencies will be computed by taking the hourly inlet SO2 

emission rate minus the outlet SO2 emission rate, dividing the result by 

inlet SO2 emission rate and multiplying by 100. The resulting removal 

efficiency will be rounded to the nearest tenth (i.e., 95.1%). Daily SO2 

removal efficiencies will be calculated by taking the sum of Hourly SO2 

removal efficiencies and dividing by the number of valid monitored hours 

for each Operating Day. The resulting daily removal efficiencies will be 

rounded to the nearest tenth (i.e., 95.1%). 

5. The 30-Day Rolling Average Removal Efficiency will be computed by 

taking the current Operating Day’s daily SO2 removal efficiency (as 

described in Paragraph 4 of this Appendix C) plus the previous 29 

Operating Days’ daily SO2 removal efficiency, and dividing the sum by 

30. In the event that a daily SO2 removal efficiency is not available for an 

Operating Day, Defendants shall exclude that Operating Day from the 

calculation of the 30-Day Rolling Average Removal Efficiency. The 

resulting 30-day Rolling Average Removal Efficiency will be rounded to 

the nearest tenth of a percent (i.e., a value of 95.04% rounds down to 

95.0%, and a value of 95.05% rounds up to 95.1%). 

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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF VIRGINIA 

_____________________________ 

) 

UNITED STATES OF AMERICA, ) 

STATE OF NEW YORK, ) 

STATE OF NEW JERSEY, ) 

STATE OF CONNECTICUT, ) 

COMMONWEALTH OF VIRGINIA) 

STATE OF WEST VIRGINIA ) 

Plaintiffs, 

v. 

VIRGINIA ELECTRIC AND 

POWER COMPANY, 

Defendant. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL ACTION NO. 

______________________________) 

CONSENT DECREE 

WHEREAS Plaintiff, the United States of America (“the United States”), on behalf of the 

United States Environmental Protection Agency (“EPA”), has filed a Complaint alleging that 

Defendant, Virginia Electric and Power Company (“VEPCO”), commenced construction of 

major modifications of major emitting facilities in violation of the Prevention of Significant 

Deterioration (“PSD”) requirements at Part C of the Clean Air Act (“Act”), 42 U.S.C. §§ 7470-

7492; 

WHEREAS on April 24, 2000, EPA issued a Notice of Violation (“NOV”) to VEPCO 

with respect to certain alleged violations of PSD; 

WHEREAS Plaintiff, the State of New York, filed a complaint against VEPCO on July 

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20, 2000, alleging violations of the Act at VEPCO’s Mount Storm Power Station located in 

northeastern West Virginia; 

WHEREAS Plaintiff, the State of Connecticut, has issued VEPCO a notice of intent to 

sue, alleging violations of the Act and also has filed a complaint alleging violations of the Act at 

certain VEPCO electric generating units; 

WHEREAS Plaintiff, the State of New Jersey, has issued to VEPCO a notice of intent to 

sue, alleging violations of the Act and also filed a complaint alleging violations of the Act at 

certain VEPCO electric generating units; 

WHEREAS Plaintiff the Commonwealth of Virginia is filing a Motion for Leave to 

Intervene and Complaint in Intervention alleging that VEPCO may have violated Virginia’s air 

pollution regulations found at 9 VAC 50-80-1700, et seq., “Permits for Major Stationary Sources 

and Major Modifications Locating in Prevention of Significant Deterioration Areas,” at one or 

more of its coal-fired generating units located in Virginia and that such violations may recur or 

other similar violations may occur in the future;; 

WHEREAS the Parties consent to intervention by the Commonwealth of Virginia; 

WHEREAS Plaintiff the Commonwealth of Virginia has a significant interest in this 

litigation by reason of its aforesaid Complaint as well as by reason of: (1) the fact that a 

significant portion of the relief provided by this Decree will involve facilities located within 

Virginia and regulated by the Commonwealth and no other State, and (2) the fact that such relief 

will directly impact the issuance to the affected facilities of permits under the Commonwealth’s 

program approved pursuant to Title V of the Clean Air Act; 

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WHEREAS, Section 10.1-1186.4 of the Code of Virginia specifically authorizes the 

Attorney General of Virginia to seek to intervene in pending federal enforcement actions such as 

this one brought by the United States through the Environmental Protection Agency. 

WHEREAS Plaintiff the State of West Virginia is filing a Motion for Leave to Intervene 

and Complaint in Intervention alleging that VEPCO may have violated West Virginia’s air 

pollution regulations found at 45CAR14, “Permits for Construction and Major Modification of 

Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration,” at one 

or more of its coal-fired generating units located in West Virginia and that such violations may 

recur or other similar violations may occur in the future; 

WHEREAS the Parties consent to intervention by the State of West Virginia; 

WHEREAS Plaintiff the State of West Virginia has a significant interest in this litigation 

by reason of its aforesaid Complaint as well as by reason of: (1) the fact that a significant portion 

of the relief provided by this Decree will involve facilities located within West Virginia and 

regulated by the State of West Virginia and no other State, and (2) the fact that such relief will 

directly impact the issuance to the affected facilities of permits under the West Virginia program 

approved pursuant to Title V of the Clean Air Act; 

WHEREAS, Section 22-1-6 (d)(3) of the West Virginia Code specifically authorizes the 

Secretary of the West Virginia Department of Environmental Protection to enforce the statutes or 

rules which the Department is charged with enforcing. 

WHEREAS VEPCO, a large electric utility, responded in a constructive way to 

Plaintiffs’ notices of intent to sue and the NOV and expended significant time and effort to 

develop and agree to the terms of settlement embodied in this Decree; 

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WHEREAS VEPCO asserts that installation and operation of the pollution controls 

required by this Decree will result in emission reductions beyond current regulatory 

requirements; 

WHEREAS the steam electric generating units at VEPCO’s Mount Storm Power Station 

qualified for alternative emission limitations under 40 CFR Section 76.10 because VEPCO 

demonstrated under the applicable standard that they were not capable of meeting the emissions 

limitations otherwise applicable under the Clean Air Act’s Acid Rain Nitrogen Oxides Emission 

Reduction Program; 

WHEREAS Plaintiffs and VEPCO disagree fundamentally over the nature and scope of 

modifications that may be made to steam electric generating units without implicating the New 

Source Review requirements (including PSD) under the Act and its regulations; 

WHEREAS nothing in this Decree resolves or is intended to resolve those disagreements; 

WHEREAS VEPCO has advised the United States and the Plaintiff States that VEPCO 

has entered into this Consent Decree in reliance on the expectation that EPA will continue to 

enforce the modification provisions of the Act’s New Source Review program in substantially 

the same manner as set forth in the complaints filed herein; 

WHEREAS VEPCO has been advised that the United States retains all of its discretion 

concerning whether and how to enforce the Clean Air Act against any person, nothing in this 

Consent Decree is intended to predict or impose enforcement activities on EPA or the United 

States, and that the obligations of VEPCO under this Consent Decree are not conditional on 

subsequent enforcement activities of the Federal government; 

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Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 114
WHEREAS the Plaintiffs allege that their Complaints state claims upon which the relief 

can be granted against VEPCO under Sections 113, 167, or 304 of the Act, 42 U.S.C. §§ 7413, 

7477, or 7604; 

WHEREAS VEPCO has not answered any of the Complaints in light of the settlement 

memorialized in this Decree; 

WHEREAS VEPCO has denied and continues to deny the violations alleged in the NOV 

and the Complaints; maintains that it has been and remains in compliance with the Act and is not 

liable for civil penalties or injunctive relief; and states that it is agreeing to the obligations 

imposed by this Decree solely to avoid the costs and uncertainties of litigation and to improve 

the environment; 

WHEREAS VEPCO intends to comply with any applicable Federal or State 

Implementation Plans that result from the NOx SIP Call (63 Fed. Reg. 57356 (1998)) separate 

and apart from the obligations imposed by this Decree, and such Federal or State Implementation 

Plans that may ultimately result from the NOx SIP Call are not intended to be enforceable under 

this Decree, and instead are enforceable in accordance with their own terms and the laws 

pertaining to them; 

WHEREAS the Plaintiffs and VEPCO agree that settlement of these actions is 

fair, reasonable, and in the best interest of the Parties and the public, and that entry of this 

Consent Decree without further litigation is the most appropriate means of resolving this matter; 

WHEREAS the Plaintiffs and VEPCO have consented to entry of this Decree without the 

trial or other litigation of any allegation in the complaints; 

NOW THEREFORE, without any admission of fact or law, and without any admission of 

5 

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 115
the violations alleged in the Complaints or NOV, it is hereby ORDERED, ADJUDGED, AND 

DECREED as follows: 

I. JURISDICTION AND VENUE 

1. Solely for purposes of entry and enforcement of this Decree, the parties agree that this 

Court has jurisdiction over the subject matter herein and over 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, and also pursuant to 42 U.S.C. §7604(a). 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). 

VEPCO 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 Plaintiffs and VEPCO. 

VEPCO consents to entry of this Decree without further notice. 

II. APPLICABILITY 

2. Scope. The provisions of this Consent Decree shall apply to and be binding upon – 

consistent with Section XXVIII (“Sale or Transfers of Ownership Interests”) – the Plaintiffs and 

VEPCO, including VEPCO’s officers, employees, and agents solely in their capacities as such. 

Unless otherwise specified, each requirement on VEPCO under this Consent Decree shall 

become effective thirty days after entry of this Decree. 

3. Notice to those Performing Decree-Mandated Work. VEPCO shall provide a copy of this 

6 

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 116
Decree to all vendors, suppliers, consultants, or contractors performing any of the work 

described in Sections IV through IX. Notwithstanding any retention of contractors, 

subcontractors or agents to perform any work required under this Consent Decree, VEPCO 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, VEPCO shall not assert as a 

defense the failure of its employees, servants, agents, or contractors to take actions necessary to 

comply with this Decree, unless VEPCO establishes that such failure is delayed or excused under 

Section XXVI (“Force Majeure”). 

III. DEFINITIONS 

4. Every term expressly defined by this Section shall have the meaning given that term 

herein. Every other term used in this Decree that is also a term used under the Act or the 

regulations implementing the Act shall mean in this Decree what such terms mean under the Act 

or those regulations. 

5. “30-Day Rolling Average Emission Rate” for a Unit means and is calculated by (A) 

summing the total pounds of the pollutant in question emitted from the Unit during an Operating 

Day and the previous twenty-nine (29) Operating Days; (B) summing the total heat input to the 

Unit in mmBTU during the Operating Day and during the previous twenty-nine (29) Operating 

Days; and (C) dividing the total number of pounds of pollutants emitted during the thirty (30) 

Operating Days by the total heat input during the thirty (30) Operating Days, and converting the 

resulting value to lbs/mmBTU. A new 30-Day Rolling Average Emission Rate shall be 

calculated for each new Operating Day. In calculating all 30-Day Rolling Average Emission 

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Rates VEPCO : 

A. shall include all emissions and BTUs commencing from the time the Unit is synchronized 

with a utility electric distribution system through the time that the Unit ceases to combust fossil 

fuel and the fire is out in the boiler, except as provided by Subparagraph B, C, or D; 

B. shall use the methodologies and procedures set forth in 40 C.F.R. Part 75; 

C. may exclude emissions of NOx and BTUs occurring during the fifth and subsequent Cold 

Start Up Period(s) that occur in any 30-Day period if inclusion of such emissions would result in 

a violation of any applicable 30-Day Rolling Average Emissions Rate, and if VEPCO has 

installed, operated and maintained the SCR in question in accordance with manufacturers’ 

specifications and good engineering practices. A “Cold Start Up Period” occurs whenever there 

has been no fire in the boiler of a Unit (no combustion of any fossil fuel) for a period of six hours 

or more. The emissions to be excluded during the fifth and subsequent Cold Start Up Period(s) 

shall be the less of (1) those NOx emissions emitted during the eight hour period commencing 

when the Unit is synchronized with a utility electric distribution system and concluding eight 

hours later or (2) those emitted prior to the time that the flue gas has achieved the SCR 

operational temperature as specified by the catalyst manufacturer; and 

D. may exclude NOx emissions and BTUs occurring during any period of malfunction (as 

defined at 40 C.F.R. 60.2) of the SCR. 

6. “30-Day Rolling Average Removal Efficiency” means the percent reduction in the SO2 

Emissions Rate achieved by a Unit’s FGD over a 30 Operating Day period, as further described 

by the terms of this Decree. 

7. “Air Quality Control Region” means a geographic area designated under Section 107(c) 

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of the Act, 42 U.S.C. § 7407(c). 

8. “Boiler Island” means a Unit’s (A) fuel combustion system (including bunker, coal 

pulverizers, crusher, stoker, and fuel burners); (B) combustion air system; (C) steam generating 

system (firebox, boiler tubes, and walls); and (D) draft system (excluding the stack), all as 

further described in “Interpretation of Reconstruction,” by John B. Rasnic U.S. EPA (November 

25, 1986) and attachments thereto. 

9. “Capital Expenditures” means all capital expenditures, as defined by Generally Accepted 

Accounting Principles (GAAP), as VEPCO applied GAAP to its Boiler Island expenditures for 

the calendar years 1995-2000. Excluded from “Capital Expenditure” is the cost of installing or 

upgrading pollution control devices and the cost of altering or replacing any portion of the Boiler 

Island if such alteration or replacement is required in accordance with good engineering practices 

to accomplish the installation or upgrading of a pollution control device to meet the requirements 

of this Decree. 

10. “CEMS” or “Continuous Emission Monitoring System,” for obligations involving NOx 

and SO2 under this Decree, shall mean “CEMS” as defined in 40 C.F.R. Section 72.2 and 

installed and maintained as required by 40 C.F.R. Part 75. 

11. “Clean Air Act” or “Act” means the Clean Air Act, 42 U.S.C. §§7401-7671q, and its 

implementing regulations. 

12. “Completed,” when used in connection with Sections XI through XVII (Resolution of 

Certain Civil Claims) and with respect to a change or modification, means the time when the 

Unit subject to the change or modification has been returned to service and is capable of 

generating electricity. 

9 

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 119
13. “Connecticut” means the State of Connecticut. 

14. “Consent Decree” or “Decree” means this Consent Decree and its Appendices A through 

C, which are incorporated by reference ( Appendix A -- “Coal-Fired Steam-Electric Generating 

Units Constituting the VEPCO System”; Appendix B -- “Consent Decree Reporting Form”; and 

Appendix C -- “Mitigation Projects that Shall be Completed Under this VEPCO Consent 

Decree”). 

15. “Defendant” means Virginia Electric and Power Company or VEPCO. 

16. “Emission Rate” means the number of pounds of pollutant emitted per million BTU of 

heat input (“lb/mmBTU”), measured as required by this Consent Decree. 

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

18. “ESP” means electrostatic precipitator, a pollution control device for the reduction of 

PM. 

19. “FGD” means a pollution control device that employs flue gas desulfurization technology 

to remove SO2 from flue gas. 

20. “Improved Unit” means, in the case of NOx, a VEPCO System Unit scheduled under 

this Decree to be equipped with SCR and, in the case of SO2, means a VEPCO System Unit 

scheduled under this Decree to be equipped with an FGD, or Possum Point Units 3 and 4 because 

of their conversion to natural gas, as listed in Appendix A of this Decree and any amendment 

thereto. A Unit may be an Improved Unit for one pollutant without being an Improved Unit for 

the other. 

21. “KW” means a kilowatt, which is one thousand Watts or one thousandth of a megawatt 

(MW). 

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Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 120
22. “lb/mmBTU” means the number of pounds of pollutant emitted per million British 

Thermal Units of heat input. 

23. “MW” means megawatt or one million Watts. 

24. “National Ambient Air Quality Standards” means national air quality standards 

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

25. “New York” means the State of New York. 

26. “New Jersey” means the State of New Jersey. 

27. “NOV” means the Notice of Violation issued by EPA to VEPCO, dated April 24, 2000. 

28. “NOx” means oxides of nitrogen, as further described by the terms of this Decree. 

29. “NSR” means New Source Review and refers generally to the Prevention of Significant 

Deterioration and Non-Attainment provisions of Parts C and D of Subchapter I of the Act. 

30. “Operating Day” for a coal-fired Unit means any calendar day on which such a Unit 

burns fossil fuel. 

31. “Other Unit” means any Unit of the VEPCO System that is not an Improved Unit for the 

pollutant in question. A Unit may be an Improved Unit for NOx and an Other Unit for SO2 and 

vice versa. 

32. “Ozone Season” means the five-month period from May 1 through September 30 of any 

year after 2004. For the year 2004, “Ozone Season” means the period from May 31, 2004, 

through September 30, 2004. 

33. “Paragraph” means a provision of this Decree preceded by an Arabic number. 

34. “Parties” means VEPCO, the United States, Virginia, West Virginia, New York, New 

Jersey, and Connecticut. 

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35. “Plaintiffs” means the United States, New York, New Jersey, Connecticut, Virginia, and 

West Virginia. 

36. “PM” means total particulate matter as further described by the terms of this Decree. 

37. “PM CEM” or “PM Continuous Emission Monitor” means equipment that samples, 

analyses, measures, and provides PM emissions data -- by readings taken at frequent intervals --

and makes an electronic or paper record of the PM emissions measured. 

38. “Pollution Control Upgrade Analysis” means the technical study, analysis, review, and 

selection of control technology recommendations (including an emission rate or removal 

efficiency) performed in connection with an application for a federal PSD permit, taking into 

account the characteristics of the existing facility. Except as otherwise provided in this Consent 

Decree, such study, analysis, review, and selection of recommendations shall be carried out in 

accordance with applicable federal and state regulations and guidance describing the process and 

analysis for determining Best Available Control Technology (BACT), as that term is defined in 

40 C.F.R. §52.21(b)(12), including, without limitation, the December 1, 1987 EPA 

Memorandum from J. Craig Potter, Assistant Administrator for Air and Radiation, regarding 

Improving New Source Review (NSR) Implementation. Nothing in this Decree shall be 

construed either to: (A) alter the force and effect of statements known as or characterized as 

“guidance” or (B) permit the process or result of a “Pollution Control Upgrade Analysis” to be 

considered BACT for any purpose under the Act. 

39. “ppm” means parts per million by dry volume, corrected to 15 percent O2. 

40. “Project Dollars” means VEPCO’s properly documented internal and external costs 

incurred in carrying out the dollar-limited projects identified in Section XXI (“Mitigation 

12 

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 122
Projects”) and Appendix C, as determined in accordance with Generally Accepted Accounting 

Principles (GAAP) (subject to review by the Plaintiffs), and provided that such costs comply 

with the Project Dollars and other requirements for such expenditures and payments set forth in 

Section XXI (“Mitigation Projects”) and Appendix C. 

41. “PSD” means Prevention of Significant Deterioration, as that term is understood under 

Part C of Subchapter I of the Clean Air Act, 42 U.S.C. §§ 7470 - 7492 and 40 C.F.R. Part 52. 

42. “PSD Increment” means the maximum allowable increase in a pollutant’s concentration 

over the baseline concentration within the meaning of Section 163 of the Act, 42 U.S.C. § 7473 

and 40 C.F.R. § 51.166(c). 

43. “SCR” means a pollution control device that employs selective catalytic reduction to 

remove NOx from flue gas. 

44. “Seasonal System-Wide Emission Rate” for a pollutant means the total pounds of the 

pollutant emitted by the VEPCO System during the period from May 1 through September 30 of 

each calendar year, divided by the total heat input (in mmBTU) to the VEPCO System during the 

period from May 1 through September 30 of the same calendar year. VEPCO shall calculate the 

Seasonal System-Wide Emission Rates from hourly CEMS data collected and analyzed in 

compliance with the 40 C.F.R. Part 75. 

45. “Section” means paragraphs of this Decree collected under a capitalized heading that is 

preceded by a Roman Numeral. 

46. “SO2" means sulfur dioxide, as described further by the terms of this Decree. 

47. “SO2 Allowance” means the same as the definition of “allowance” found at 42 U.S.C. 

Section 7651a(3): “an authorization, allocated to an affected unit, by the Administrator [of EPA] 

13

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 123
under [Subchapter IV of the Act] to emit, during or after a specified calendar year, one ton of 

sulfur dioxide.” 

48. “Subparagraph” means any subdivision of a Paragraph identified by any number or letter. 

49. “System-Wide Annual Emission Rate” for a pollutant shall mean the total pounds of the 

pollutant emitted by the VEPCO System during a calendar year, divided by the total heat input 

(in mmBTU) to the VEPCO System during the same calendar year. VEPCO shall calculate and 

analyze the System-Wide Annual Emission Rates from hourly CEM data collected in compliance 

with 40 C.F.R. Part 75. 

50. “Title V Permit” means each permit required under Subchapter V of the Clean Air Act, 

42 U.S.C. § 7661, et seq., for each electric generating plant that includes one or more Units that 

are part of the VEPCO System. 

51. “VEPCO System” means all the Units listed here and described further in Appendix A: 

Bremo Power Station Units 3 and 4 (in Fluvanna County, Virginia); Chesapeake Energy Center 

Units 1, 2, 3, and 4 (near Chesapeake, Virginia); Chesterfield Power Station Units 3, 4, 5, and 6 

(in Chesterfield County, Virginia); Clover Power Station Units 1 and 2 (in Halifax County, 

Virginia); Mount Storm Power Station Units 1, 2, and 3 (in northeastern West Virginia); North 

Branch Power Station Units 1A and 1B (in northeastern West Virginia); Possum Point Power 

Station Units 3 and 4 (in Northern Virginia, about twenty-five miles south of Washington, D.C.); 

and Yorktown Power Station Units 1 and 2 (in Yorktown, Virginia). 

52. “Virginia” means the Commonwealth of Virginia. 

53. “Watt” means a unit of power equal to one joule per second. 

54. “West Virginia” means the State of West Virginia. 

14 

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 124
55. “Unit” means a generator, the steam turbine that drives the generator, the boiler that 

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

turbine and boiler, and all ancillary equipment, including pollution control equipment or systems 

necessary for the production of electricity. 

IV. NOx EMISSION REDUCTIONS AND CONTROLS 

56. Unit-Specific SCR Installations and Performance Requirements. VEPCO shall install an 

SCR on each Unit listed below, no later than the date specified below and, commencing on that 

date and continuing thereafter, operate each SCR to meet a 30-Day Rolling Average Emission 

Rate for NOx of 0.100 lb/mmBTU for each listed Unit, except that VEPCO shall meet a 30-Day 

Rolling Average Emissions Rate of 0.110 lb/mmBTU for Mount Storm Units 1, 2 and 3: 

15

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 125
Units on Which VEPCO Shall Install an SCR 

ich VEPCO Must: 

tion of Fully 

R, and (B) Start 

eration that Meets 30-Day Rolling 

Average NOx Emission Rate 

Latest Date by wh 

(A) Complete Installa 

Operational SC 

Op 

Mount Storm Unit 1 Jan uary 1, 2008

Mount Storm Unit 2 January 1, 2008 

Mount Storm Unit 3 January 1, 2008 

Chesterfield Unit 4 January 1, 2013 

Chesterfield Unit 5 January 1, 2012 

Chesterfield Unit 6 January 1, 2011 

Chesapeake Energy Center Unit 3 January 1, 2013 

Chesapeake Energy Center Unit 4 January 1, 2013 

57. VEPCO also shall use best efforts to operate each SCR required under this Decree 

whenever VEPCO operates the Unit served by the SCR, in accordance with manufacturers’ 

specifications, good engineering practices, and VEPCO’s operational and maintenance needs. 

58. Year-Round Operation of SCRs. Beginning on January 1, 2008, and continuing 

thereafter, in accordance with the SCR installation schedule provided for in Paragraph 56 (Unit 

specific SCR Installation and Performance Requirements), every VEPCO System Unit served by 

an SCR required pursuant to Paragraph 56 shall operate year-round and achieve and maintain a 

NOx 30-Day Rolling Average Emission Rate of no more than 0.100 lb/mmBTU, except that 

16

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 126
Mount Storm Units 1, 2 and 3 shall achieve a NOx 30-Day Rolling Average Emission Rate of no 

more than 0.110 lb/mmBTU. 

59. VEPCO System: Interim Control of NOx Emissions: 2004 through 2007. Commencing 

in 2004 and ending on December 31, 2007, VEPCO shall control NOx emissions under the 

provisions of either Subparagraph (A) or (B) of this Paragraph. VEPCO may elect to comply 

with either Subparagraph in any calendar year and may change its election from year to year. 

VEPCO shall notify the Parties in writing on or before January 1 of each calendar year of 

whether it elects to comply with Subparagraph (A) or Subparagraph (B) for that year. If VEPCO 

fails to provide such notice by January 1 of any year, the last elected option for the prior calendar 

year shall be deemed to apply, and, if none, Subparagraph (B) shall be deemed to apply for such 

year. The requirements of this Paragraph shall terminate on December 31, 2007: 

(A) During the following three time periods, VEPCO shall control emissions of NOx 

by operating SCRs on VEPCO System Units of at least the mega-wattage capacities 

specified and shall achieve a 30-Day Rolling Average Emission Rate for NOx of no 

greater than 0.100 lb/mmBTU at each such Unit, except that Mount Storm Units 1, 2 and 

3 shall achieve a NOx 30-Day Rolling Average Emission Rate of no more than 0.110 

lb/mmBTU, as follows: 

(i) May 31, 2004, through April 30, 2005: Operate SCR on combined 

capacity of at least 375 MW on any combination of VEPCO System Units, 

but at least one Unit so controlled shall be at the Chesterfield Station. 

(ii) May 1, 2005, through April 30, 2006: Operate SCR on combined capacity 

of at least 875 MW on any combination of VEPCO System Units, but at 

17 

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 127
least one-half of the 875 MW so controlled shall be from a Unit or Units at 

the Chesterfield and/or Mt. Storm Stations. 

(iii) May 1, 2006, through December 31, 2007: Operate SCR on combined 

capacity of at least 1,450 MW on any combination of VEPCO System 

Units, but at least one-half of the 1,450 MW so controlled shall be from a 

Unit or Units at the Chesterfield and/or Mt. Storm Stations; or 

(B) During the Ozone Seasons of the years 2004 through 2007, actual NOx emissions 

from the VEPCO System shall not exceed a Seasonal System Wide Emission Rate 

greater than 0.150 lb/mmBTU. VEPCO’s compliance with this limit shall be achieved, in 

part, by operating an SCR at the Mt. Storm and Chesterfield Stations. 

60. VEPCO System NOx Limits 2003 and thereafter: Declining, System-Wide Tonnage 

Caps. Actual, total emissions of NOx from the VEPCO System in each calendar year, beginning 

in 2003 and continuing thereafter, shall not exceed the number of tons specified below: 

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Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 128
Calendar Year 

rmissible 

NOx Emissions (in 

Tons) from VEPCO 

System 

Total Pe 

2003 

2004 95,000 

2005 90,000 

2006 83,000 

2007 81,000 

2008 63,000 

2009 63,000 

2010 63,000 

2011 54,000 

2012 50,000 

2013 and each 30,250 

year thereafter 

104,000 

61. VEPCO System-Wide, Annual Average NOx Emission Rate. Commencing January 1, 

2013, and continuing thereafter, actual NOx emissions from the VEPCO System shall not exceed 

a System-Wide Annual Average Emission Rate of 0.150 lb/mmBTU. 

62. NOx Measurement and Calculation Procedures and Methods. In determining emission 

rates for NOx, VEPCO shall use those applicable monitoring or reference methods specified in 

40 C.F.R. Part 75. 

63. Evaluation of NOx Emission Limitations Based Upon Performance Testing. At any time 

after September 30, 2004, VEPCO may submit to the Plaintiffs a proposed revision to the 

applicable 30-Day Rolling Average Emissions Rate for NOx on any VEPCO System Unit 

19

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 129
equipped with SCR and subject to a 30-Day Rolling Average Emission Rate. To make a 

successful petition, VEPCO must demonstrate that it cannot consistently achieve the Decreemandated NOx emissions rate for the Unit in question, considering all relevant information, 

including but not limited to the past performance of the SCR, reasonable measures to achieve the 

designed level of performance of the SCR in question, the performance of other NOx controls 

installed at the unit, and the operational history of the Unit. VEPCO shall include in such 

proposal an alternative 30-Day Rolling Average Emissions Rate. VEPCO also shall retain a 

qualified contractor to assist in the performance and completion of the petition for an alternate 

30-Day Rolling Average Emissions Rate for NOx. VEPCO shall deliver with each submission 

all pertinent documents and data that support or were considered in preparing such submission. 

If the Plaintiffs disapprove the revised emission rate, such disagreement is subject to Section 

XXVII (“Dispute Resolution”). VEPCO shall make any submission for any Unit under this 

Paragraph no later than fifteen months after the compliance date specified for that unit in 

Paragraph 56 (“Unit-Specific SCR Installations and Performance Requirements”). 

V. SO2 EMISSION REDUCTIONS AND CONTROLS 

64. Installation and Construction of, and Improvements to, plus Removal Efficiencies 

Required on, FGDs Serving: Clover Units 1 and 2, Mount Storm Units 1, 2, and 3, and 

Chesterfield Units 5 and 6. VEPCO shall construct or improve -- as applicable -- FGDs for each 

Unit listed below, to meet or exceed the Removal Efficiencies for SO2 specified below, in 

accordance with the schedules set out below. VEPCO shall operate each FGD so that each Unit 

shall continuously meet or exceed the SO2 removal efficiency specified for it, as a 30-Day 

20 

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 130
Rolling Average Removal Efficiency, during the time periods described (Phases I and II): 

Plant Name an 

Unit Number 

d ratio 

se I 

a 

Efficiency 

re 

Du 

Pha 

Remov 

n of 

l 

Requi ment 

Minim 

a 

Average 

Remo 

Efficiency (%) 

Phase 

30-D 

I 

um 

y Rolling 

val 

Dur 

Pha 

em 

Efficiency 

q 

R 

Re 

ation of 

se II 

oval 

uirement 

Phase II 

Minimum 

30-Day Rolling 

Average 

Removal 

Efficiency (%) 

Clover Unit 1 -Day 

Rolling 

ge 

/ 2003 

hereafter 

Meet 30 

Avera 

09/01 

and t 

by 

95.0 Same as Phase I Same as Phase I 

Clover Unit 2 0-Day 

g 

age by 

/ 2003 

hereafter 

Meet 3 

Rollin 

Aver 

09/01 

and t 

95.0 Same as Phase I Same as Phase I 

Mt. Storm Unit 1 eet 30-Day 

g 

verage by 

/ 2003 

hrough 

/31/04 

M 

Rollin 

A 

09/01 

and t 

12 

93.0 Jan. 1, 2005, 

and there after

95.0 

Mt. Storm Unit 2 0 

olling 

age by 

/ 2003 

d through 

12/31/04 

Meet 3 

R 

Aver 

09/01 

an 

-Day 93.0 . 05, and 

thereafter 

Jan 1, 20 95.0 

Mt. Storm Unit 3 Meet 30-Day 

Rolling 

Average by 

09/01/ 2003 

and through 

12/31/04 

93.0 Jan. 1, 2005, and 

thereafter 

95.0 

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Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 131
Chesterfield Unit 5 , 2012, 

and thereafter 

Oct. 12 95.0 Same as Phase I Same a Phase I 

Chesterfield Unit 6 Jan. 1, 2010, 

and thereafter 

95.0 Same as Phase I Same as Phase I 

65. Chesterfield FGD Construction. This Decree does not require VEPCO to begin: (A) 

physical construction on or begin significant equipment procurement for the FGD for 

Chesterfield Unit 6 prior to July 1, 2008, or (B) physical construction on or significant 

equipment procurement for the FGD for Chesterfield Unit 5 before January 1, 2010. 

66. Option of Compliance with an Emission Rate after an FGD Demonstrates SO2 30-Day 

Rolling Average Removal Efficiency of at least 95.0%. Once a Unit (and its FGD) listed in 

Paragraph 64 demonstrates at least 95 percent removal efficiency for SO2 for at least 180 

consecutive days of operation without FGD bypass as specified in Paragraph 67 (omitting days 

on which the Unit did not combust fossil fuel) on a 30-Day Rolling Average basis, then VEPCO 

-- at its option and with written, prior notice to the Plaintiffs -- shall meet the following emission 

rate for SO2 rather than the 30-Day Rolling Average Removal Efficiency specified in Paragraph 

64: 

Eligible to Make 180-Day 

Demonstration 

Plant and Unit 

Maximum SO2 30-Day Rolling 

Average Emission Rate 

VEPCO shall meet in Lieu of 

95.0%, 30-Day Rolling 

Average Removal Efficiency 

Clover Unit 1 0.130 

Clover Unit 2 0.130 

Chesterfield Unit 5 0.130 

Chesterfield Unit 6 0.130 

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Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 132
Mount Storm U nit 1 0.150 

Mount Storm Unit 2 0.150 

Mount Storm Unit 3 0.150 

67. Interim Mitigation of Mount Storm SO2 Emissions While FGDs are Improved. 

Notwithstanding the requirement to meet a specific percent removal or emission rate at Mount 

Storm Units 1, 2, or 3, in limited circumstances, VEPCO may operate such Units without 

meeting required Removal Efficiencies or Emission Rates in the case of FGD scrubber outages 

or downtime of the FGD scrubber serving each such Unit, if such operation complies with the 

following requirements. For this Paragraph, FGD outage or downtime “day” shall consist of a 

24-hour block period commencing in the hour the FGD ceases to operate, and continuing in 

successive 24-hour periods until the hour the FGD is placed back into operation. Any period of 

less than 24 hours of FGD downtime shall count as a full “day”. For the FGD serving Unit 3, 

because it has two separately operating absorber vessels, outage or downtime may be measured 

in “1/2 day” (12-hour) increments – one for each absorber – but otherwise on the same basis as a 

“day” is counted for outage or downtime on the FGDs serving Units 1 and 2. 

(A) In any calendar year from 2003 through 2004 for Mount Storm Unit 3, and in any 

calendar year from 2003 through 2004 for Mount Storm Units 1 and 2, VEPCO may 

operate Mount Storm Units 1, 2, or 3 in the case of outage or downtime of the FGD 

serving such Unit, if all of the following conditions are satisfied: 

(i) VEPCO does not operate Mount Storm Units 1, 2, or 3 during FGD 

outages or downtime on more than thirty (30) “days”, or any part thereof, in any 

calendar year; in the case of Mount Storm Unit 3, operation during an outage or 

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downtime in either of the two FGD absorber vessels serving the Unit shall count 

as operation during a “1/2” day of FGD outage or downtime; 

(ii) All other available VEPCO System Units on-line at the Mount Storm 

Station and Clover Power Station are dispatched ahead of the Mount Storm Unit 

experiencing the FGD outage or downtime; 

(iii) For each of the first twenty (20) “days” in a calendar year, or part thereof, 

that a Unit operates under this Paragraph VEPCO surrenders to EPA (using the 

procedure Section VI, Paragraph 72) one SO2 Allowance, in addition to any 

surrender or possession of allowances required under Title IV or under any other 

provision of this Consent Decree, for each ton of SO2 actually emitted in excess 

of the SO2 emissions that would have occurred if coal containing 1.90 

lb/mmBTU sulfur had been burned; and 

(iv) For each “day”, or part thereof, that a Unit operates under this Paragraph 

beyond twenty (20) “days” in a calendar year, VEPCO shall surrender to EPA 

(using the procedure in Section VI, Paragraph 72) one SO2 Allowance, in addition 

to any surrender or possession of allowances required under Title IV or under any 

other provision of this Consent Decree, for each ton of SO2 actually emitted in 

excess of SO2 emissions that would have occurred if coal containing 1.70 

lb/mmBTU sulfur had been burned. 

(B) In any calendar year from 2005 through 2007, VEPCO may operate Mount Storm 

Units 1, 2, or 3 in the case of FGD outage or downtime, if all of the following conditions 

are satisfied: 

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(i) VEPCO does not operate Mount Storm Units 1 or 2 during FGD outages 

or downtime on more than thirty (30) “days”, or any part thereof, in any calendar 

year; and in the case of Mount Storm Unit 3, operation during an outage or 

downtime in either one of the two FGD absorber vessels serving the Unit shall 

count as operation during “1/2” day of FGD outage or downtime; 

(ii) All other available VEPCO System Units on-line at the Mount Storm

Station and Clover Power Station are dispatched ahead of the Mount Storm Unit 

experiencing the FGD outage or downtime; 

(iii) For each of the first ten (10) “days”, or part thereof, in a calendar year that 

a Unit operates under this Paragraph VEPCO surrenders to EPA (using the 

procedure in Section VI, Paragraph 72) one SO2 Allowance, in addition to any 

surrender or possession of allowances required under Title IV or under any other 

provision of this Consent Decree, for each ton of SO2 actually emitted in excess 

of the SO2 emissions that would have occurred if coal containing 1.90 lb/mmBTU 

sulfur had been burned; 

(iv) For each day that a Unit operates under this Paragraph from the eleventh 

through the twentieth “days”, or part thereof, in a calendar year, VEPCO shall 

surrender to EPA (using the procedure in Section VI, Paragraph 72) one SO2 

Allowance, in addition to any surrender or possession of allowances required 

under Title IV or under any other provision of this Consent Decree, for each of 

the tons of SO2 actually emitted that equal the mass emissions difference between 

actual emissions and those that would have occurred if coal containing 1.70 

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lb/mmBTU sulfur had been used.; and 

(v) For each day that a Unit operates under this Paragraph beyond twenty (20) 

“days”, or part thereof, in a calendar year, VEPCO shall surrender to EPA (using 

the procedure Section VI, Paragraph 72) one SO2 Allowance, in addition to any 

surrender or possession of allowances required under Title IV or under any other 

provision of this Consent Decree, for each ton of SO2 actually emitted in excess 

of SO2 emissions that would have occurred if coal containing 1.50 lb/mmBTU 

sulfur had been burned; 

(C) In any calendar year from 2008 through 2012, VEPCO may operate Mount Storm 

Units 1, 2, or 3 in the case of FGD outages or downtime, if all of the following conditions 

are satisfied: 

(i) VEPCO does not operate Mount Storm Units 1, 2, or 3 during FGD 

outages or downtime on more than ten (10) “days”, or part thereof, in any 

calendar year; in the case of Mount Storm Unit 3, operation during an outage or 

downtime in either of the two FGD absorber vessels serving the Unit shall count 

as “1/2” day of operation during an FGD outage or downtime; 

(ii) All other available VEPCO System Units on-line at the Mount Storm 

Station and Clover Station are dispatched ahead of the Mount Storm Unit 

experiencing the FGD outage or downtime; and 

(iii) VEPCO surrenders to EPA (using the procedure of Section VI, Paragraph 

72) one SO2 Allowance, in addition to any surrender or possession of allowances 

required under Title IV or under any other provision of this Consent Decree, for 

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each ton of SO2 actually emitted in excess of SO2 emissions that would have 

occurred if coal with 1.50 lb/mmBTU sulfur had been burned. 

68. Calculating 30-Day Rolling Average Removal Efficiency of a VEPCO System FGD. 

The SO2 30-Day Rolling Average Removal Efficiency for a VEPCO System FGD shall be 

obtained and calculated using SO2 CEMS data in compliance with 40 CFR Part 75 (from both 

the inlet and outlet of the control device) by subtracting the outlet 30-Day Rolling Average 

Emission Rate from the inlet 30-Day Rolling Average Emission Rate on each day the boiler 

operates, dividing that difference by the inlet 30-Day Rolling Average Emission Rate, and then 

multiplying by 100. A new 30-Day Rolling Average Removal Efficiency shall be calculated for 

each new Operating Day. In the case of FGDs serving Chesterfield Units 5 and 6 or Mount 

Storm Units 1, 2, or 3, if any flue gas emissions containing SO2 did not pass through the inlet of 

the Unit’s scrubber on a day when the Unit operated, VEPCO must account for, report on, and 

include any such emissions in calculating the FGD Removal Efficiency for that day and for 

every 30-Day Rolling Average of which that day is a part. 

69. Commencing within 30 days after lodging of this Decree, VEPCO shall use best efforts 

to operate each such FGD at all times the Unit the FGD serves is in operation, provided that such 

FGD system can be operated consistent with manufacturers’ specifications, good engineering 

practices and VEPCO’s operational and maintenance needs. In calculating a 30-Day Rolling 

Average Removal Efficiency or a 30-Day Rolling Average Emission Rate for a Mount Storm 

Unit, VEPCO need not include SO2 emitted by Unit while its FGD is shut down in compliance 

with Paragraph 67 (“Interim Mitigation of Mount Storm SO2 Emissions While FGDs are 

Improved”). 

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70. SO2 Measurement Methods. VEPCO shall conduct all emissions monitoring for SO2 in 

compliance with 40 C.F.R. Part 75. 

VI. ANNUAL SURRENDER OF SO2 ALLOWANCES 

71. Annual Surrender. On or before March 31 of every year beginning in 2013 and 

continuing thereafter, VEPCO shall surrender 45,000 SO2 Allowances. In each year, this 

surrender of SO2 Allowances may be made either directly to EPA or by first transferring the SO2 

Allowances to another person in the manner provided for by this Decree. 

72. Surrender Directly to EPA. If VEPCO elects to make an annual surrender directly to 

EPA, VEPCO shall, on or before March 31, 2013, and on or before March 31 of each year 

thereafter, submit SO2 Allowance transfer request forms to EPA’s Office of Air and Radiation’s 

Clean Air Markets Division directing the transfer of 45,000 SO2 Allowances held or controlled 

by VEPCO to the EPA Enforcement Surrender Account or to any other EPA Account to which 

the EPA may direct. As part of submitting these transfer requests, VEPCO shall irrevocably 

authorize the transfer of these Allowances and VEPCO shall also identify – by name of account 

and any applicable serial or other identification numbers or plant names – the source and location 

of the Allowances being surrendered, as well as any information required by the transfer request 

form. 

73. Alternate Method of Surrender. If VEPCO elects to make an annual surrender of SO2 

Allowances to a person other than EPA, VEPCO shall include a description of such transfer in 

the next report submitted to Plaintiffs pursuant to Section XIX (“Periodic Reporting”) of this 

Consent Decree. Such report shall: (A) provide the identity of the third-party recipient(s) of the 

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SO2 Allowances and a listing of the serial numbers of the transferred allowances; (B) include a 

certificate in compliance with Section XIX from the third-party recipient(s) stating that it (they) 

will not sell, trade, or otherwise exchange any of the allowances and will not use any of the 

allowances to meet any obligation imposed by any environmental law. No later than the next 

periodic report due 12 months after the first report of the transfer, VEPCO shall include in the 

Section XIX reports to Plaintiffs a statement that the third-party recipient(s) permanently 

surrendered the allowances to EPA within one year after VEPCO transferred the allowances to 

the third-party recipient(s). VEPCO shall not have finally complied with the allowance 

surrender requirements of this Paragraph until all third-party recipient(s) shall have actually 

surrendered the transferred allowances to EPA. 

74. Changes to Decree-Mandated SO2 Allowance Surrenders Beginning in 2013, and every 

year thereafter: 

(A) If changes in Title IV of the Act or it implementing regulations decrease the 

number of SO2 Allowances that are allocated to the VEPCO System Units for the year 

2013 or any year thereafter, or if other applicable law either: (A) awards fewer than 

127,363 SO2 Allowances to the VEPCO System or (B) directs non-reusable surrender of 

SO2 Allowances by VEPCO, then the number of SO2 Allowances that VEPCO must 

surrender in such a year under this Section shall decrease by the same amount; 

(B) If changes to Title IV of the Act or its implementing regulations result in (i) a 

reduction of SO2 Allowances to the VEPCO System and (ii) any amount of SO2 

Allowances being auctioned-off, and the national SO2 Allowance pool reflects a 

nationwide reduction in SO2 Allowances of less than 35.6% from the 2010 national pool, 

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then the number of SO2 Allowances that VEPCO must surrender in such year under this 

Section of this Decree shall decrease as follows: 

45,000 – (127,363 x the percent reduction of the National pool) 

Thus, if the national pool of SO2 Allowances is reduced by greater than 35.6% from the 

2010 national pool of SO2 allowances, then VEPCO is not required to surrender any SO2 

Allowances under this Decree. But in no event shall VEPCO keep in excess of 82,363 

SO2 Allowances allocated in any year after 2012 to the VEPCO System. 

(C) If changes to Title IV of the Act or its implementing regulations result in an 

increase of SO2 Allowances to VEPCO, then VEPCO’s annual obligation to surrender 

such Allowances under this Decree shall increase by the amount of such increase. 

75. Use of SO2 Allowances Related to VEPCO System Units Scheduled for FGDs under the 

Decree. For all SO2 Allowances allocated to Mount Storm Unit 1 on or after January 1, 2003, 

Mount Storm Unit 2 on or after January 1, 2003, Chesterfield Unit 5 on or after October 1, 2012, 

and Chesterfield Unit 6 on or after January 1, 2010, VEPCO may use such SO2 Allowances only 

to (A) meet the SO2 Allowance surrender requirements established for the VEPCO System under 

this Decree; (B) meet the limits imposed on VEPCO under Title IV of the Act; or (C) meet any 

federal or state future emission reduction programs that use or rely on Title IV SO2 Allowances 

for compliance, in whole or in part. However, if VEPCO operates a FGD serving Mount Storm 

Unit 1, Mount Storm Unit 2, Chesterfield Unit 5, or Chesterfield Unit 6 either: (A) earlier than 

required by a provision of this Decree or (B) at a 30-Day Rolling Average Removal Efficiency 

greater than, or a 30-Day Rolling Average Emissions Rate less than that required by this Decree, 

then VEPCO may use for any lawful purpose SO2 Allowances equal to the number of tons of 

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SO2 that VEPCO removed from the emission of those Units in excess of the SO2 tonnage 

reductions required by this Decree, so long as VEPCO timely reports such use under Section 

XIX. 

76. Other Limits on Use of SO2 Allowances. VEPCO may not use the same SO2 Allowance 

more than once. VEPCO may not use the SO2 Allowances surrendered under this Section for 

any other purpose, including, but not limited to, any sale or trade of such Allowances for use by 

any person other than VEPCO or by any Unit not part of the VEPCO System, except as provided 

by Paragraph 73 (“Alternate Method of Surrender”). Other than the limits stated in this Decree 

on use of SO2 Allowances or limits imposed by law, this Decree imposes no other limits on how 

VEPCO may use SO2 Allowances. 

77. No Entitlement Created. This Consent Decree does not entitle VEPCO to any allocation 

of SO2 Allowances under the Act. 

VII. PM EMISSION REDUCTIONS AND CONTROLS 

78. Use of Existing PM Pollution Control Equipment. Commencing within 30 days after 

lodging of this Decree, VEPCO shall operate each ESP and baghouse within the VEPCO System 

to maximize PM emission reductions through the procedures established in this Paragraph. 

VEPCO shall (A) commence operation no later than two hours after commencement of 

combustion of any amount of coal in the controlled System Unit, except that this requirement 

shall apply to Bremo Power Station Units 3 and 4 commencing two hours after cessation of oil 

injection to the boiler, and provided that, for all ESP-equipped Units, “combustion of any 

amount of coal” shall not include combustion of coal that is the result of clearing out a Unit’s 

coal mills as the Unit is returned to service; (B) fully energize each available portion of each 

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ESP, except those ESP fields that have been out of service since at least January 1, 2000, 

consistent with manufacturers’ specifications, the operational design of the Unit, and good 

engineering practices, and repair such fields that go out of service consistent with the 

requirements of this Paragraph; (C) maintain power levels delivered to the ESPs, consistent with 

manufacturers’ specifications, the operational design of the Unit, and good engineering practices; 

and (D) continuously operate each ESP and baghouse in compliance with manufacturers’ 

specifications, the operational design of the Unit, and good engineering practices. Whenever any 

element of any ESP that has been in service at any time since January 1, 2000 fails, does not 

perform in accordance with manufacturers’ specifications and good engineering practices, or 

does not operate in accordance with the standards set forth in this Paragraph, VEPCO shall use 

best efforts to repair the element no later than the next available Unit outage appropriate to the 

repair task. The requirements of this Paragraph do not apply to Possum Point Units 3 and 4 until 

January 1, 2004, and do not apply at all when those Units burn natural gas. 

79. ESP and Baghouse Optimization Studies and Recommendations. VEPCO shall complete 

an optimization study, in accordance with the schedule below, for each VEPCO System Unit 

served by an ESP or baghouse (except Possum Point Units 3 and 4, in light of their conversion to 

natural gas), which shall recommend: the best available maintenance, repair, and operating 

practices that will optimize ESP or baghouse availability and performance in accordance with 

manufacturers’ specifications, the operational design of the Unit, and good engineering practices. 

These studies shall consider any ESP elements not in service prior to January 1, 2000, to the 

extent changes to such elements may be required to meet a PM Emission Rate of 0.030 

lb/mmBTU. Any operating practices or procedures developed and approved under this 

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Paragraph shall become a part of the standard specified in (D) of Paragraph 78 (“Use of Existing 

PM Pollution Control Equipment”), above, and shall be implemented in compliance with that 

Paragraph. VEPCO shall retain a qualified contractor to assist in the performance and 

completion of each study. VEPCO shall submit each completed study to the United States for 

review and approval. (The United States will consult with the other Plaintiffs before completing 

such review). VEPCO shall implement the study’s recommendations within 90 days (or any 

longer time period approved by the United States) after receipt of approval by the United States. 

If VEPCO seeks more than 90 days to implement the recommendations contained in the study, 

then VEPCO shall include, as part of the study, the reasons why more than 90 days are necessary 

to implement the recommendations, e.g., the need to order or install parts or equipment, retain 

specialized expertise, or carry out training exercises. VEPCO shall maintain each ESP and 

baghouse as required by the study’s recommendations and shall supplement the ESP operational 

standard in (D) of Paragraph 78 to include any operational elements of the study and its 

recommendations. The schedule for completion and submission to the United States of the 

optimization studies shall be as follows: 

Number and Choice of VEPCO System 

Units on Which VEPCO Shall Complete and 

Submit Optimization Studies 

Number of Months After Lodging of the 

Decree that VEPCO Shall Submit 

Optimizations Studies to the U.S. 

Four Units (including at least one Unit at 

Mount Storm or Chesterfield) 

12 Months 

Three More Units (including at least two at any 

one or more of the following VEPCO stations – 

Mount Storm, Chesterfield, and Bremo, if not 

already done) 

24 Months 

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o located 

or more of the following VEPCO 

stations – Mount Storm, Chesterfield, and 

Two More Units (including at least tw 

at any one 

Bremo, if not already done) 

36 Months 

Two More Units 48 Months 

Two More Units 60 Months 

All Other Units 72 Months 

80. Alternative to Pollution Control Upgrade Analysis. Within 270 days after VEPCO 

receives the United States’ approval of the ESP optimization study for a VEPCO System Unit, 

VEPCO may elect to achieve for any Unit the objectives of, and thereby avoid, the Pollution 

Control Upgrade Analysis otherwise required by this Section by certifying to the United States, 

in writing, that: (A) the ESP shall continue to be operated and maintained in compliance with the 

approved optimization plan, pursuant to Paragraphs 78 and 79 of this Section, respectively, and 

(B) that the enforceable PM emission limit for this Unit shall be 0.030 lb/mmBTU, either 

commencing immediately or on and after the date required by this Decree for completion of 

FGD installations or improvements at that Unit (or after installation of any other FGD system 

VEPCO chooses to install at a Unit prior to 2013). Otherwise, VEPCO shall comply with 

Paragraph 82 (Pollution Control Upgrade Analysis, Construction of PM Controls, Compliance 

with New Emission Rate”), below. 

81. PM Emission Rate Determination. The methods specified in this Paragraph shall be the 

reference methods for determining PM Emission Rates along with any other method approved by 

EPA under its authority to establish or approve such methods. The PM Emission Rates 

established under Paragraph 80 of this Section shall not apply during periods of “startup” and 

“shutdown” or during periods of control equipment or Unit malfunction, if the malfunction meets 

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the requirements of the Force Majeure Section of this Consent Decree. Periods of “startup” shall 

not exceed two hours after any amount of coal is combusted (except that for Bremo Power 

Station Units 3 and 4, this two-hour period begins upon cessation of injection of oil into the 

boiler). Periods of “shutdown” shall only commence when the Unit ceases burning any amount 

of coal (or in the case of Bremo Power Station Units 3 and 4, when any oil is introduced into the 

boiler). Coal shall not be deemed to be combusted if it is burned as a result of clearing out a 

Unit’s coal mills as the Unit is returned to service. The reference methods for determining PM 

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

17, using annual stack tests. VEPCO shall calculate PM Emission rates from the annual stack 

tests in accordance with 40 C.F.R. 60.8(f) and 40 C.F.R. 60.48a(b). The annual stack-testing 

requirement of this Paragraph shall be conducted as described in Paragraph 95 and may be 

satisfied by: (A) any annual stack tests VEPCO may conduct pursuant to its permits or applicable 

regulations from the States of Virginia and West Virginia if such tests employ reference test 

methods allowed under this Decree, or (B) installation and operation of PM CEMs required 

under this Decree. 

82. Pollution Control Upgrade Analysis of PM, Construction of PM Controls, Compliance 

with New Emission Rate. For each VEPCO System Unit served by an ESP -- other than Possum 

Point Units 3 and 4 and those Units that meet the requirements of Paragraph 80 (“Alternative to 

Pollution Control Upgrade Analysis”) -- VEPCO shall complete a Pollution Control Upgrade 

Analysis and shall deliver the Analysis and supporting documentation to the United States for 

review and approval (after consultation with the other Plaintiffs). Notwithstanding the definition 

of Pollution Control Upgrade Analysis (Paragraph 38), VEPCO shall not be required to consider 

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in this Analysis: (A) the replacement of any existing ESP with a new ESP, scrubber, or 

baghouse, or (B) the installation of any supplemental pollution control device similar in cost to a 

replacement ESP, scrubber, or baghouse (on a total dollar-per-ton-of-pollution-removed basis). 

83. VEPCO shall retain a qualified contractor to assist in the performance and completion of 

each Pollution Control Upgrade Analysis. Within one year of the United States’ approval of the 

work and recommendation(s) made in the Analysis (or within a longer period of time properly 

sought by VEPCO and approved by the United States), VEPCO shall complete all 

recommendation(s). If VEPCO seeks more than one year from the date of the United States’ 

approval of the Analysis to complete the work and recommendations called for by the Analysis, 

VEPCO must state the amount of additional time required and the reasons why additional time is 

necessary. Thereafter, VEPCO shall operate each ESP in compliance with the work and 

recommendation(s), including compliance with the specified Emission Rate. The schedule for 

completion and submission to the United States of the Pollution Control Upgrade Analyses for 

each Unit subject to this Paragraph shall be 12 months after the United States approves the ESP 

optimization study for each Unit pursuant to Paragraph 79 (unless VEPCO has elected to use the 

alternative to the Pollution Control Upgrade Analysis under Paragraph 80 for the Unit). 

84. Performance Testing of Equipment Required by Pollution Control Upgrade Analysis. 

Between 6 and 12 months after VEPCO completes installation of the equipment called for by 

each approved Pollution Control Upgrade Analysis, VEPCO shall conduct a performance test 

demonstration to ensure that the approved PM emission limitation set forth in the Analysis can 

be consistently achieved in practice, including all requirements pertaining to proper operation 

and maintenance of control equipment. If the performance demonstration shows that the 

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approved control equipment cannot consistently meet the required PM emission limitation, 

VEPCO shall revise the Pollution Control Upgrade Analysis and resubmit it to the United States 

for review and approval of an alternative emissions limitation. 

85. Installation and Operation of PM CEMs. VEPCO shall install, calibrate, operate, and 

maintain PM CEMs, as specified below. Each PM CEM shall be comprised of a continuous 

particle mass monitor measuring particulate matter concentration, directly or indirectly, on an 

hourly average basis and a diluent monitor used to convert results to units of lb/mmBTU. 

VEPCO may select any type of PM CEMS that meets the requirements of this Consent Decree. 

VEPCO shall maintain, in an electronic database, the hourly average emission values of all PM 

CEMS in lb/mmBTU. During Unit startups, VEPCO shall begin operating the PM CEMs in 

accordance with the standards set out in Paragraph 78(A) (“Use of Existing PM Pollution 

Control Equipment”), and VEPCO shall thereafter use reasonable efforts to keep each PM CEM 

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

shall submit to EPA for review and approval a plan to install, calibrate and operate each PM 

CEM. VEPCO shall thereafter operate each PM CEM in accordance with the approved plan. 

86. Installation of PM CEMs – First Round (Three Units). On or before December 1, 2003, 

VEPCO shall designate which three VEPCO System Units will have PM CEMs installed, in 

accordance with this Paragraph. No later than 12 months after entry of this Decree (or a longer 

time period approved by the United States, not to exceed 18 months after entry of this Decree) 

VEPCO shall install, calibrate, and commence operation of the following: 

(A) PM CEMs in the stacks that service at least two of the following VEPCO System 

Units: Mount Storm Units 1, 2, and 3, and Clover Units 1 and 2; and 

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(B) at least one additional PM CEM at any other ESP-equipped Unit in the VEPCO 

System, as selected by VEPCO. 

If VEPCO seeks more than 12 months after entry of the Decree to complete installation and 

calibration of the PM CEMs, then VEPCO shall include a full explanation of the reasons why it 

requires more than 12 months after entry of the Decree to complete installation and calibration. 

87. Consultation Before the First Round of PM CEMs. Prior to installing any PM CEMs, 

VEPCO and the United States shall meet, consult, and agree to adequate mechanisms for treating 

potential emission limitation exceedances that may occur during installation and calibration 

periods of the PM CEMs that may exceed applicable PM emission limitations. VEPCO and the 

United States shall invite the States of Virginia and West Virginia to participate in these 

discussions. 

88. Option for Consultation Both Before and After Installation of the First or Second Round 

of PM CEMs. Either before the first or second round of PM CEMs installations, or after such 

PM CEMs are installed and producing data, or both, the United States and VEPCO shall meet, 

upon the request of either, to examine further the data that may or may not be generated by the 

PM CEMs. This issue should be addressed in light of the regulatory or permit-based mass 

emission limit set for the Unit before it was equipped with a PM CEM or any PM emission 

limitation established or to be established under this Section of the Decree, and the parties should 

take appropriate and acceptable actions to address any issues concerning periodic short term Unit 

process and control device upsets and/or averaging periods. In the event VEPCO or the United 

States call for such a meeting, the United States and VEPCO shall invite the States of Virginia 

and West Virginia to participate. 

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89. Demonstration that PM CEMs Are Infeasible. No earlier than 2 years after VEPCO has 

installed the first round of PM CEMs, VEPCO may attempt to demonstrate that it is infeasible to 

continue operating PM CEMs. As part of such demonstration, VEPCO shall submit an 

alternative PM monitoring plan for review and approval by the United States. The plan shall 

explain the basis for stopping operation of the PM CEMs and propose an alternative-monitoring 

plan. If the United States disapproves the alternative PM monitoring plan, or if the United States 

rejects VEPCO’s claim that it is infeasible to continue operating PM CEMs, such disagreement 

is subject to Section XXVII (“Dispute Resolution”). 

90. “Infeasible to Continue Operating PM CEMs” – Standard. Operation of a PM CEM shall 

be considered “infeasible” if, by way of example, the PM CEMS: (A) cannot be kept in proper 

condition for sufficient periods of time to produce reliable, adequate, or useful data; or (B) 

VEPCO demonstrates that recurring, chronic, or unusual equipment adjustment or servicing 

needs in relation to other types of continuous emission monitors cannot be resolved through 

reasonable expenditures of resources; or (C) chronic and difficult Unit operation issues cannot be 

resolved through reasonable expenditure of resources; or (D) the data produced by the CEM 

cannot be used to assess PM emissions from the Unit or performance of the Unit’s control 

devices. If the United States determines that VEPCO has demonstrated infeasibility pursuant to 

this Paragraph, VEPCO shall be entitled to discontinue operation of and remove the PM CEMs. 

91. PM CEM Operations Will Continue During Dispute Resolution or Proposals for 

Alternative Monitoring. Until the United States approves an alternative monitoring plan or until 

the conclusion of any proceeding under Section XXVII (“Dispute Resolution”), VEPCO shall 

continue operating the PM CEMs. If EPA has not issued a decision regarding an alternative 

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monitoring plan within 90 days VEPCO may initiate action under the Dispute Resolution 

provisions (Section XXVII) under this Consent Decree. 

92. Installation and Operation of PM CEMs – Second Round (6 Units). Unless VEPCO has 

been allowed to cease operation of the PM CEMs under Paragraph 89 (“Demonstration that PM 

CEMs Are Infeasible”), then VEPCO shall install, calibrate, and commence operation of PM 

CEMs that serve at least 6 more Units. In selecting the VEPCO System Units to receive PM 

CEMs under this second round, VEPCO must assure that Mount Storm Units 1, 2, and 3 and 

Clover Units 1 and 2 all receive PM CEMs if they have not already received PM CEMs under 

the first round. VEPCO may select the other VEPCO System Units to receive the required PM 

CEMs. The options for consultation regarding first round PM CEMs under Paragraphs 87 and 

88 shall also be available for second round PM CEMs. VEPCO shall install PM CEMs that 

serve two VEPCO System Units in each of the years 2007, 2008, and 2009 under this second 

round of PM CEMs. 

93. Common Stacks. Installation of a PM CEM on Mount Storm Units 1 and 2 or on 

Yorktown Units 1 and 2 shall count as installation of PM CEMs on 2 units in recognition of the 

common stack that serves these Units. VEPCO and the United States shall agree in writing on 

the method for apportioning emissions to the Units served by common stacks. 

94. Data Use. Data from PM CEMs shall be used by VEPCO, at minimum, to monitor 

progress in reducing PM emissions. Nothing in this Consent Decree is intended to or shall alter 

or waive any applicable law (including, but not limited to, any defense, entitlements, challenges, 

or clarifications related to the Credible Evidence Rule (62 Fed. Reg. 8314 (Feb. 27, 1997))) 

concerning the use of data for any purpose under the Act, generated either by the reference 

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methods specified herein or otherwise. 

95. Other Testing and Reporting Requirements. Commencing in 2004, VEPCO shall 

conduct a stack test for PM on each stack servicing each Unit in the VEPCO System (excluding 

Possum Point Units 3 and 4 in 2004, and in any subsequent year in which such Units have not 

burned coal). Such PM stack testing shall be conducted at least once per every four successive 

“QA Operating Quarters" (as defined in 40 C.F.R. § 72.2) and the results of such testing shall be 

submitted to the Plaintiffs as part of the periodic reporting under Section XIX (“Periodic 

Reporting”) and Appendix B. Following installation of each PM CEM, VEPCO shall include all 

data recorded by PM CEMs, including submission in electronic format, if available, in the 

reports required by Section XIX. 

VIII. POSSUM POINT UNITS 3 & 4: 

FUEL CONVERSION, INSTALLATION OF CONTROLS 

96. Fuel Conversion. VEPCO shall cease all combustion of coal at Possum Point Units 3 and 

4 prior to May 1, 2003, in preparation for the conversion of Possum Point Units 3 and 4 to 

operate on natural gas, and shall not operate these Units again until that fuel conversion is 

complete and the Units are firing natural gas. VEPCO shall continuously operate such 

equipment to control NOx emissions in compliance with State permitting requirements. VEPCO 

also shall limit the combined emissions from Possum Point Units 3 and 4 to 219 tons of NOx in 

any 365 days, rolled daily, and determined as follows: Add the total NOX emissions from 

Possum Point Units 3 and 4 on any given day, occurring after entry of this Decree, to the total 

NOX emissions from those two Units for the preceding 364 consecutive days occurring after 

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entry of the Decree; the sum of those emissions may never exceed 219 tons. If VEPCO exceeds 

this 219-ton limit, VEPCO shall install and operate SCR at BACT levels within 3 years of the 

exceedance at either Yorktown Unit 1 (173 MW), or Yorktown Unit 2 (183 MW), or Bremo Unit 

4 (170 MW). VEPCO may select which of these Units receives the SCR so long as the 

following are true for the Unit: 

(A) An SCR is not required under regulatory requirements for the Unit; 

(B) VEPCO had not planned to install an SCR on such Unit to help comply with any 

requirement as of the day of exceedance at Possum Point; and 

(C) The Unit is not required to meet an emission rate that would call for installation of 

SCR. 

If these conditions are not met for any of the three listed Units, then VEPCO shall install the 

required SCR at the next largest Unit (in MW) within the VEPCO System that meets the 

conditions of subparagraphs (A) through (C). 

97. Return to Combustion of Coal After Gas Conversion. If VEPCO uses coal rather than 

natural gas to operate Possum Point Units 3 or 4 on or after May 1, 2003, VEPCO shall install 

controls on such Unit(s) and meet the following requirements for NOx, SO2, and PM emissions, 

on or after May 1, 2003: 

(A) For NOx, the more stringent of: (i) a 30-Day Rolling Average Emission Rate of 

0.100 lb/mmBTU or (ii) the NOx emission rate that would be LAER at the time 

that VEPCO returns to firing Possum Point Units 3 or 4 with coal; 

(B) For SO2, a 30-Day Rolling Average Removal Efficiency of at least 95.0%; and 

(C) For PM, an Emission Rate of no more than 0.030 lb/mmBTU. 

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98. Measurements At Possum Point. The applicable methods and rules specified in other 

portions of this Decree for measuring emission rates and removal efficiencies for NOx, SO2, and 

PM also apply to the emission standards, as applicable, established under Paragraph 96 and 97 

(“Fuel Conversion” and “Return to Combustion of Coal After Gas Conversion”) for Possum 

Point Units 3 and 4. 

IX. INSTALLING ADDITIONAL CONTROLS ON VEPCO SYSTEM UNITS 

99. If, prior to November 1, 2004, this Consent Decree is modified to require that VEPCO: 

(A) Install additional NOx or SO2 pollution control devices on a VEPCO System Unit 

not scheduled for installation of such control device as part the original Decree; 

(B) Commence full-time (year-round) operation of such control device no later than 

January 1, 2008; and 

(C) Operate the control device and the Unit it serves in compliance with a 

performance standard of 0.100 lb/mmBTU 30-Day Rolling Average Emission Rate for 

NOx or a 95.0% 30-Day Rolling Average Removal Efficiency for SO2; 

then the modification of the Consent Decree shall also provide that such Unit be treated as an 

Improved Unit as to the pollutant that has been controlled in compliance with this Section. 

100. Reference Methods. The reference and monitoring methods specified in other portions of 

this Decree for measuring all emission rates and removal efficiencies for NOx, SO2, and PM also 

apply to the emission standards established under this Section. 

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X. PERMITS 

101. Timely Application for Permits. Unless expressly stated otherwise in this Consent 

Decree, in any instance where otherwise applicable law or this Consent Decree require VEPCO 

to secure a permit to authorize constructing or operating any device under this Consent Decree, 

VEPCO shall make such application in a timely manner. Such applications shall be completed 

and submitted to the appropriate authorities to allow sufficient time for all legally required 

processing and review of the permit request. Failure to comply with this provision shall allow 

Plaintiffs to bar any use by VEPCO of Section XXVI (“Force Majeure”) where a Force Majeure 

claim is based upon permitting delays. 

102. New Source Review Permits. This Consent Decree shall not be construed to require 

VEPCO to apply for or obtain a permit pursuant to the New Source Review requirements of 

Parts C and D of Title I of the Act for any work performed by VEPCO within the scope of the 

resolution of claims provisions of Sections XI through XVII (Resolution of Certain Civil 

Claims).103. Title V Permits . Whenever VEPCO applies for a Title V permit or a revision to 

such a permit, VEPCO shall send, at the same time, a copy of such application to each Plaintiff. 

Also, upon receiving a copy of any permit proposed for public comment as a result of such 

application, VEPCO shall promptly send a copy of such proposal to each Plaintiff, thereby 

allowing for timely participation in any public comment opportunity. 

104. Title V Permits Enforceable on Their Own Terms. Notwithstanding the reference to Title 

V permits in this Decree, the enforcement of such permits shall be in accordance with their own 

terms and the Act. The Title V permits shall not be directly enforceable under this Decree, 

though any term or limit established by or under this Decree shall be enforceable under this 

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Decree regardless of whether such term has or will become part of a Title V Permit, subject to 

the limits of Section XXX (“Conditional Termination of Enforcement, Continuation of Terms, 

and First Resort to Title V Permit”). 

105. Consent Decree Requirements To Be Proposed for Inclusion in Title V Permits. 

Whenever VEPCO applies for Title V Permit(s), or for amendment(s) to existing 

Title V Permit(s), for the purpose of including the requirements of this Decree in such 

permits, VEPCO shall include in such application all performance, operational, 

maintenance, and control technology requirements specified by or created under this 

Consent Decree, not only for particular Units in the VEPCO System but also for the 

VEPCO System itself – including, but not limited to, emission rates, removal 

efficiencies, allowance surrenders, limits on use of emission credits, and operation, 

maintenance and optimization requirements, unless otherwise limited by Sections XI 

through XVII. VEPCO shall notify all Plaintiffs of any applicable requirement within 

its Title V permit application that may be more stringent than the requirements of this 

Consent Decree. 

106. Methods to be Used in Applying for Title V Permit Provisions Applicable to the 

VEPCO System. VEPCO shall include provisions in any Title V permit 

application(s) submitted in accordance with Paragraph 105 (“Consent Decree 

Requirements To Be Proposed for Inclusion in Title V Permits”) that comply with 

this Consent Decree’s NOx VEPCO System Declining Tonnage Cap (Section IV, 

Paragraph 60), the VEPCO System-Wide Annual Average Emission Rate for NOx 

(Section IV, Paragraph 61), and the Annual Surrender of SO2 Allowances from the 

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VEPCO System (Section VI, Paragraphs 71). In making such application, VEPCO 

shall use either the provisions listed below or any other method agreed to in advance 

by written stipulation of all the Parties and filed with this Court: 

(A) For the VEPCO System declining NOx cap in Section IV, Paragraph 61 (“VEPCO 

System NOx Limits 2002 and thereafter: Declining, System-Wide Tonnage Caps”), each 

Unit in the VEPCO System shall be limited in perpetuity to a specified portion of the 

NOx annual emissions cap that ultimately descends to 30,250 tons, provided the total of 

the VEPCO System declining tonnage caps for NOx submitted for inclusion in the Title V 

permits shall be no greater for any year than the tonnage specified for each calendar year 

for the VEPCO System). The NOx emission tons shall be allocated to each Unit within 

the VEPCO System. No Unit shall exceed its allocation except that VEPCO can trade 

NOx emissions tons between Units within the VEPCO System in order to comply with 

any given Unit-specific allocation. Compliance with the NOx Annual System-Wide 

Annual Average Emissions cap shall be determined each year by whether each Unit holds 

a sufficient number of NOx emission tons allocated to it in the Title V permit, or acquired 

by it through trades with other Units in the VEPCO System, to cover the Unit’s actual, 

annual NOx emissions; and 

(B) For the System-Wide, Annual Average NOx Emissions Rate specified in Section 

IV, Paragraph 61, (“VEPCO System-Wide, Annual Average NOx Emission Rate”) 

VEPCO shall prepare a VEPCO System-Wide NOx emissions BTU-weighted averaging 

plan for all the Units in the VEPCO System, and in doing so, shall use all the appropriate 

methods and procedures specified at 40 C.F.R. § 76.11 in preparing such a plan. As part 

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of that plan, VEPCO shall prepare an “alternative contemporaneous allowable annual 

emissions limitation” (in lb/mmBTU) for each Unit in the VEPCO System, as described 

by 40 C.F.R. § 76.11. After this allocation and establishment of an “alternative 

contemporaneous allowable annual emissions limitation,” VEPCO’s compliance with 

Paragraph 61 (“VEPCO System-Wide, Annual Average NOx Emission Rate”) shall be 

determined in the manner described by 40 C.F.R. § 76.11, as applicable, and shall be 

based on whether each Unit meets the applicable “alternative contemporaneous allowable 

annual emissions limitation” for the NOx emissions BTU weighted averaging plan; 

provided, however, that if any Unit(s) does not meet such emissions limitation, such 

Unit(s) shall still be in compliance if VEPCO shows that all the Units in the emissions 

averaging plan, in aggregate, do not exceed the BTU-weighted NOx System-Wide 

Emissions Rate; and 

(C) For the Annual Surrender of SO2 Allowances required by Section VI, the annual 

SO2 Allowance surrender requirement of 45,000 SO2 Allowances shall either be divided 

up and allocated to specific Units of the VEPCO System or assigned to a single VEPCO 

System Unit – as VEPCO elects. 

XI. RESOLUTION OF CERTAIN CIVIL CLAIMS OF THE UNITED STATES. 

107. Claims Based on Modifications Occurring Before the Lodging of Decree. Entry of this 

Decree shall resolve all civil claims of the United States under either: (i) Parts C or D of 

Subchapter I of the Clean Air Act or (ii) 40 C.F.R. Section 60.14, that arose from any 

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modification commenced at any VEPCO System Unit prior to the date of lodging of this Decree, 

including but not limited to, those modifications alleged in the U.S. Complaint in this civil action 

or in the EPA NOV issued to VEPCO on April 24, 2000. 

108. Claims Based on Modifications after the Lodging of Decree. Entry of this Decree also 

shall resolve all civil claims of the United States for pollutants regulated under Parts C or D of 

Subchapter I of the Clean Air Act and regulations promulgated as of the date of the lodging of 

this Decree, where such claims are based on a modification completed before December 31, 

2015 and: 

A) commenced at any VEPCO System Unit after lodging of this Decree or 

B) that this Consent Decree expressly directs VEPCO to undertake. 

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

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

109. Reopener. The resolution of the civil claims of the United States provided by this Section 

is subject to the provisions of Section XII. 

XII. REOPENING OF U.S. CIVIL CLAIMS RESOLVED BY SECTION XI 

110. Bases for Pursuing Resolved Claims Across VEPCO System. If VEPCO: 

(A) Violates Paragraph 59(A) or (B) (VEPCO System-Wide, Interim Control of NOX 

Emissions, 2004 through 2007); or 

(B) Violates Paragraph 60 (VEPCO System-Wide NOX Tonnage Limits 2003 and 

thereafter: Declining, System-Wide Tonnage Caps); or 

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(C) Violates Paragraph 61 (VEPCO System-Wide Average NOX Emission Rate) in 

any calendar year (or ozone season, as applicable); or 

(D) Fails by more than ninety days to complete installation of and commence timely 

year-round operation of any SCR or FGD required by Paragraphs 56 or 64 or Sections 

VIII or IX; or 

(E) Fails to limit VEPCO System SO2 emissions to 203,693 tons or less in each 

calendar year starting with 2005 and thereafter; 

then the United States may pursue any claims at any VEPCO System Unit otherwise resolved 

under Section XI, where the modification(s) on which such claim is based was commenced, 

under way, or completed within five years preceding the violation or failure specified in items 

(A) through (E) above, unless such modification was undertaken at an Improved Unit and 

commenced prior to the date of lodging of this Consent Decree. 

111. Other Units. The resolution of claims of United States in Section XI shall not apply to 

claims arising from modifications at Other Units commenced less than five years prior to the 

occurrence of one or more of the following: 

(A) a modification or (collection of modifications) commenced after lodging of this 

Decree at such Other Unit, individually (or collectively) increase the maximum

hourly emission rate for such Unit for the relevant pollutant (NOx or SO2) as 

measured by 40 C.F.R. § 60.14(b) and (h); or 

(B) the aggregate of all Capital Expenditures made at such Other Unit exceed 

$125/KW on the Unit’s Boiler Island (based on the Maximum Dependable Capacity 

numbers in the North American Electric Reliability Council’s Generating Availability

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Database for the year 2002) during any of the following five-year periods: January 1, 

2001, through December 31, 2005; January 1, 2006, through December 31, 2010; 

January 1, 2011, through December 31, 2015. (Capital Expenditures shall be 

measured in calendar year 2000 constant dollars, as adjusted by the McGraw-Hill 

Engineering News-Record Construction Cost Index); or 

(C) modification(s) commenced after lodging of this Decree resulting in emissions 

increase(s) of the relevant pollutant that actually occurred from any such Other Unit, 

where such increase(s): 

(1) present by themselves or in combination with other emissions or sources 

“an imminent and substantial endangerment” within the meaning of Section 303 

of the Act, 42 U.S.C. § 7603; or 

(2) cause or contribute to violation of a National Ambient Air Quality 

Standard in any Air Quality Control Area that is in attainment with that NAAQS; 

or 

(3) cause or contribute to violation of a PSD increment; or 

(4) cause or contribute to any adverse impact on any formally recognized air 

quality and related values in any Class I area. 

112. Solely for purposes of Subparagraph 111(C ), above: (i) the determination of whether 

emissions increase(s) of the relevant pollutant actually occurred at the Unit must take into 

account any emissions changes relevant to the modeling domain that have occurred or will occur 

under this Decree at other VEPCO System Units; and (ii) an emissions increase shall not be 

deemed to have actually occurred unless annual emissions of the relevant pollutant from all 

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VEPCO System Units at the plant at which such Unit is located (and treating Mount Storm and 

North Branch as a single plant for this purpose) have exceeded such plant’s emissions of that 

pollutant after the lodging of this Consent Decree, as specified below: 

Plant SO2 Annual Emissions 

(tons) 

NOX Annual Emissions 

(tons) 

Bremo 13,463 4,755 

Chesapeake 35,923 10,657 

Chesterfield 75,330 15,858 

Clover Im proved 10,076 

Mt. Storm / North Branch 19,992 40,188 

Yorktown 26,755 5,066 

113. Introduction of any new or changed National Ambient Air Quality Standard shall not, 

standing alone, provide the showing needed under Subparagraph 111(C) (1)-(4) to pursue any 

claim resolved under Section XI. 

114. Fuel Limit. The resolution of claims provided by Section XI shall not apply to any 

modification commenced on a Unit within five years prior to the date on which VEPCO: 

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(A) fires such Unit with any fuel or fuel mix that is either prohibited by applicable 

state law or that is not otherwise authorized by the relevant state; or 

(B) increases the current (as of February 1, 2003) coal contracting bid specification 

or contract specifications that limit fuel sulfur content in securing coal for a Unit, as 

summarized in Appendix A. This Paragraph does not apply to VEPCO’s use of: (i) a 

fuel or fuel mix specifically called for by this Decree, if any, or (ii) any coal in any 

coal-fired Unit regardless of the fuel’s sulfur content, so long as such use occurs after 

the Unit is being served by an FGD or other control equipment that can maintain 

95.0% Removal Efficiency for SO2, on a 30-day, rolling average basis. 

115. Improved Units. The resolution of claims provided by Section XI shall not apply to a 

modification (or collection of modifications), if commenced after the lodging of this Decree at an 

Improved Unit, that individually (or collectively) increase the maximum hourly emission rate of 

that Unit for NOx or SO2 (as measured by 40 C.F.R. § 60.14 (b) and (h)) by more than ten 

percent (10%) of the maximum hourly emission rate for that Unit. 

XIII. RESOLUTION OF PAST CLAIMS OF NEW YORK, NEW JERSEY, AND 

CONNECTICUT 

116. The States of New York, New Jersey, and Connecticut agree that this Decree resolves all 

of the following civil claims that have been or could have been brought against VEPCO for 

violations at Units at Mount Storm, Chesterfield or Possum Point prior to the lodging of this 

Decree: 

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(A) The Prevention of Significant Deterioration or Non- Attainment provisions of 

Parts C and D of the Clean Air Act, 42 U.S.C. § 7401 et seq. and related state provisions; 

and(B) 40 C.F.R. § 60.1. 

XIV. RESOLUTION OF CIVIL CLAIMS OF THE COMMONWEALTH OF VIRGINIA. 

117. Claims Based on Modifications Occurring Before the Lodging of Decree. Subject to the 

specific limitations in this Section, entry of this Decree shall resolve all civil and administrative 

claims of the Commonwealth of Virginia that arose from any modification (physical change or 

change in the method of operation, including construction of any air pollution control project at 

any VEPCO System Unit) under applicable federal statutes (Section 7410 (a)(2)(C), Part C or D 

of Subchapter I of the Clean Air Act or 40 CFR Section 60.14) or applicable state regulations 

(Article 6 (9 VAC 5-80-1100 et seq.), Article 8 (9 VAC 5-80-1700 et seq.) or Article 9 (9 VAC 

5-80-2000 et seq.) of Part II of 9 VAC 5 Chapter 80, and provisions of 9 VAC 5, Chapter 50, that 

are equivalent to 40 C.F.R. § 60.14(a)), and, as to the state regulations, all applicable predecessor 

regulations. This Paragraph shall apply to any modification commenced at any VEPCO System 

Unit located in the Commonwealth prior to the date of lodging of this Decree. 

118. Claims Based on Modifications after the Lodging of Decree. Subject to the specific 

limitations in this Section, entry of this Decree shall also resolve all civil and administrative 

claims of the Commonwealth of Virginia arising from any modification (physical change or 

change in the method of operation, including construction of any air pollution control project at 

any VEPCO system Unit) under applicable federal statutes (Section 7410 (a)(2)(C), Part C or D 

of Subchapter I of the Clean Air Act) or applicable state regulations (Article 6 (9 VAC 5-80-

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1100 et seq.), Article 8 (9 VAC 5-80-1700 et seq.) or Article 9 (9 VAC 5-80-2000 et seq.) of Part 

II of 9 VAC 5 Chapter 80 and any successor regulations). This Paragraph shall apply to any 

modification at any VEPCO System Unit located in the Commonwealth commenced on or after 

lodging of this Decree that is completed before December 31, 2015, or are those that this 

Consent Decree expressly directs VEPCO to undertake. 

119. Reopener. The resolution of the civil claims of the Commonwealth of Virginia provided 

by this Section is subject to the provisions of Section XV. 

120. General. Each term used in Paragraph 118 that is also a term used under the Clean Air 

Act shall mean what such term means under the Act as it existed on the date of lodging of this 

Decree. 

121. Commonwealth's Authority Regarding NAAQS Exceedances. Nothing in this Section 

shall be construed to affect the Commonwealth's authority under applicable federal statutes and 

applicable state regulations to impose appropriate requirements or sanctions on any VEPCO 

System Unit when emissions from the plant at which such unit is located result in violation of, or 

interfere with the attainment and maintenance of, any ambient air quality standard, or the plant 

fails to operate in conformance with any applicable control strategy, including any emissions 

standards or emissions limitations. 

122. Nothing in this Section shall prevent the Commonwealth from issuing to any VEPCO 

System Unit a permit under either Article 5 (9 VAC 5-80-800 et seq.) or Article 6 (9 VAC 5-80-

1100 et seq.) for the purpose of preserving the terms and conditions of this Decree as applicable 

federal requirements upon the expiration of the Decree. 

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XV. REOPENING OF VIRGINIAS’ CLAIMS RESOLVED BY SECTION XIV 

123. Bases for Pursuing Resolved Claims Across VEPCO System. If VEPCO: 

(A) Violates Paragraph 59(A) or (B) (VEPCO System-Wide, Interim Control of NOx 

Emissions, 2004 through 2007); or 

(B) Violates Paragraph 60 (VEPCO System-Wide NOx Tonnage Limits 2003 and 

thereafter: Declining, System-Wide Tonnage Caps); or 

(C) Violates Paragraph 61 (VEPCO System-Wide Average NOx Emission Rate) in any 

calendar year (or ozone season, as applicable); or 

(D) Fails by more than ninety days to complete installation of and commence timely 

year-round operation of any SCR or FGD required by Paragraphs 56 or 64 or Sections 

VIII or IX; or 

(E) Fails to limit VEPCO System SO2 emissions to 203,693 tons or less in each calendar 

year starting with 2005 and thereafter; 

then the Commonwealth of Virginia may pursue any claims at any VEPCO System Unit located 

in the Commonwealth otherwise resolved under Section XIV, where the modification(s) on 

which such claim is based was commenced, under way, or completed within five years preceding 

the violation or failure specified above, unless such modification was undertaken at an Improved 

Unit and commenced prior to the date of lodging of this Consent Decree. 

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124. Other Units. The resolution of claims of the Commonwealth of Virginia in Section XIV 

shall not apply to claims arising from modifications at Other Units located in the Commonwealth 

commenced less than five years prior to the occurrence of one or more of the following: 

(A) One or more modifications at such Other Unit commenced after lodging of this 

Decree, individually or collectively, increase the maximum hourly emission rate for such 

Unit for the relevant pollutant (NOx or SO2) as measured by 40 C.F.R. § 60.14(b) and 

(h); or

(B) The aggregate of all Capital Expenditures made at such Other Unit is in excess of

$125/KW on the Unit’s Boiler Island (based on the Maximum Dependable Capacity 

numbers in the North American Electric Reliability Council’s Generating Availability

Database for the year 2002) during any of the following five-year periods: January 1, 

2001, through December 31, 2005; January 1, 2006, through December 31, 2010; January 

1, 2011, through December 31, 2015. (Capital Expenditures shall be measured in 

calendar year 2000 constant dollars, as adjusted by the McGraw-Hill Engineering NewsRecord Construction Cost Index); or 

(C) Modification(s) commenced after lodging of this Decree resulting in emissions 

increase(s) of the relevant pollutant that actually occurred from any such Other Unit, 

where such increase(s): 

(1) present by themselves or in combination with other sources “an imminent 

and substantial endangerment” within the meaning of Section 303 of the Act, 42 

U.S.C. § 7603; or 

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(2) cause or contribute to violation of a National Ambient Air Quality 

Standard in any Air Quality Control Area that is in attainment with that NAAQS; 

or 

(3) cause or contribute to violation of a PSD increment; or

(4) cause or contribute to any adverse impact on any formally recognized air 

quality and related values in any Class I area. 

Solely for purposes of this Subparagraph (C ), (1) determination of whether there is an emissions 

increase that actually occurred resulting from modification(s) at the Unit must take into account 

any emissions changes relevant to the modeling domain that have occurred or will occur under 

this Decree at other VEPCO System Units; and (2) no such increase from a Unit will be deemed 

to have occurred if annual emissions of the relevant pollutant from all VEPCO System Units at 

the plant at which such Unit is located (and treating Mount Storm and North Branch as a single 

plant for this purpose) do not exceed such plant’s emissions of that pollutant after lodging of this 

Consent Decree, as specified in Paragraph 112. Also, introduction of any new or changed 

National Ambient Air Quality Standard shall not, standing alone, provide the showing needed 

under this Subparagraph (C) (1)-(4) to pursue any claim resolved under Section XIV. 

125. Improved Units. The resolution of claims provided by Section XIV shall not apply to a 

modification (or collection of modifications), if commenced after lodging of this Decree, at an 

Improved Unit located in the Commonwealth that individually (or collectively) increase the 

maximum hourly emission rate of that Unit for NOx or SO2 (as measured by 40 C.F.R. § 60.14 

(b) and (h)) by more than ten percent (10%) of the maximum hourly emission rate for that Unit. 

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XVI. RESOLUTION OF CIVIL CLAIMS OF THE STATE OF WEST VIRGINIA 

126. Claims Based on Modifications Occurring Before the Lodging of Decree. Subject to the 

specific limitations in this Section, entry of this Decree shall resolve all civil claims of the State 

of West Virginia that arose under applicable federal statutes and regulations (Section 7410 

(a)(2)(C), Parts C or D of Subchapter I of the Clean Air Act or 40 CFR Section 60.14) or 

applicable state regulations (45CSR13, 45CSR14 and 45CSR19, as well as the provisions of 

45CSR16 that are equivalent to 40 CFR Section 60.14(a)) and, as to the state regulations, all 

applicable predecessor regulations, from any modification (physical change or change in the 

method of operation, including but not limited to construction of any air pollution control project 

at any VEPCO System Unit). This Paragraph shall apply to any modification at any VEPCO 

System Unit located in West Virginia commenced prior to the date of lodging of this Decree. 

127. Claims Based on Modifications after the Lodging of Decree. Subject to the specific 

limitations in this Section, entry of this Decree shall also resolve all civil claims of the State of 

West Virginia arising under applicable federal statutes (Section 7410 (a)(2)(C) and Parts C or D 

of Subchapter I of the Clean Air Act) or applicable state regulations (45CSR13, 45CSR14 and 

45CSR19 and any successor regulations from any modification (physical change or change in the 

method of operation, including but not limited to construction of any air pollution control project 

at any VEPCO system Unit. This Paragraph shall apply to any modification at any VEPCO 

System Unit located in West Virginia commenced on or after the date of lodging of this Decree 

that is completed before December 31, 2015, or is among those that this Consent Decree 

expressly directs VEPCO to undertake. 

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128. Reopener. The resolution of the civil claims of the State of West Virginia provided by 

this Section is subject to the provisions of Section XVII. 

129. General. Each term used in Paragraph 127 that is also a term used under the Clean Air 

Act shall mean what such term means under the Act as it existed on the date of lodging of this 

Decree. 

130. West Virginia's Authority Regarding NAAQS Exceedances. Nothing in this Decree shall 

be construed to affect West Virginia's authority under applicable federal statutes and applicable 

state statutes or regulations to impose appropriate requirements or sanctions on any VEPCO 

System Unit when emissions from the plant at which such unit is located result in violation of, or 

interfere with the attainment and maintenance of, any ambient air quality standard, or the plant 

fails to operate in conformance with any applicable control strategy, including any emissions 

standards or emissions limitations. 

131. Nothing in this Section shall prevent West Virginia from issuing to any VEPCO System

Unit a permit under either 45CSR13 or 45CSR14) for the purpose of preserving the terms and 

conditions of this Decree as applicable federal requirements upon the expiration of the Decree. 

XVII. REOPENING OF WEST VIRGINIA’S CLAIMS RESOLVED BY SECTION XVI. 

132. Bases for Pursuing Resolved Claims Across VEPCO System. If VEPCO: 

(A) Violates Paragraph 59(A) or (B) (VEPCO System-Wide, Interim Control of NOx 

Emissions, 2004 through 2007); or 

(B) Violates Paragraph 60 (VEPCO System-Wide NOx Tonnage Limits 2003 and 

thereafter: Declining, System-Wide Tonnage Caps); or 

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(C) Violates Paragraph 61 (VEPCO System-Wide Average NOx Emission Rate) in any 

calendar year (or ozone season, as applicable); or 

(D) Fails by more than ninety days to complete installation of and commence timely 

year-round operation of any SCR or FGD required by Paragraphs 56 or 64 or Sections 

VIII or IX; or 

(E) Fails to limit VEPCO System SO2 emissions to 203,693 tons or less in each calendar 

year starting with 2005 and thereafter; 

then the State of West Virginia may pursue any claims at any VEPCO System Unit located in the 

state otherwise resolved under Section AA, where the modification(s) on which such claim is 

based was commenced, under way, or completed within five years preceding the violation or 

failure specified above, unless such modification was undertaken at an Improved Unit and 

completed prior to the date of lodging of this Consent Decree. 

133. Other Units. The resolution of claims of the State of West Virginia in Section AA shall 

not apply to claims arising from modifications at Other Units located in West Virginia 

commenced less than five years prior to the occurrence of one or more of the following: 

(A) One or more modifications at such Other Unit, individually or collectively, increase 

the maximum hourly emission rate for such Unit for the relevant pollutant (NOx or SO2) 

as measured by 40 C.F.R. § 60.14(b) and (h); or 

(B) The aggregate of all Capital Expenditures made at such Other Unit is in excess of

$125/KW on the Unit’s Boiler Island (based on the Maximum Dependable Capacity 

numbers in the North American Electric Reliability Council’s Generating Availability

Database for the year 2002) during any of the following five-year periods: January 1, 

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2001, through December 31, 2005; January 1, 2006, through December 31, 2010; January 

1, 2011, through December 31, 2015. (Capital Expenditures shall be measured in 

calendar year 2000 constant dollars, as adjusted by the McGraw-Hill Engineering NewsRecord Construction Cost Index); or 

(C) Modification(s) resulting in emissions increase(s) of the relevant pollutant that 

actually occurred from any such Other Unit, where such increase(s): 

(1) present by themselves or in combination with other sources “an imminent 

and substantial endangerment” within the meaning of Section 303 of the 

Act, 42 U.S.C. § 7603; or 

(2) cause or contribute to violation of a National Ambient Air Quality 

Standard in any Air Quality Control Area that is in attainment with that 

NAAQS; or 

(3) cause or contribute to violation of a PSD increment; or 

(4) cause or contribute to any adverse impact on any formally recognized air 

quality and related values in any Class I area. 

Solely for purposes of this Subparagraph (C ), (i) determination of whether there is an emissions 

increase that actually occurred resulting from modification(s) at the Unit must take into account 

any emissions changes relevant to the modeling domain that have occurred or will occur under 

this Decree at other VEPCO System Units; and (ii) no such increase from a Unit will be deemed 

to have occurred if annual emissions of the relevant pollutant from all VEPCO System Units at 

the plant at which such Unit is located (and treating Mount Storm and North Branch as a single 

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plant for this purpose) do not exceed such plant’s emissions of that pollutant, as specified in 

Paragraph 112. Also, introduction of any new or changed National Ambient Air Quality 

Standard shall not, standing alone, provide the showing needed under this Subparagraph (C) (1)-

(4) to pursue any claim resolved under Section XVI. 

134. Improved Units. The resolution of claims provided by Section XVI shall not apply to a 

modification (or collection of modifications), if commenced after lodging of this Decree, at an 

Improved Unit located in West Virginia that individually (or collectively) increase the maximum 

hourly emission rate of that Unit for NOx or SO2 (as measured by 40 C.F.R. § 60.14 (b) and (h)) 

by more than ten percent (10%) of the maximum hourly emission rate for that Unit. 

XVIII. OTHER PROVISIONS ON ALLOWANCES AND CREDITS 

135. NOx Credits. For any and all actions taken by VEPCO to conform to the requirements of 

this Decree, VEPCO shall not use or sell any resulting NOx emission allowances or credits in any 

emission trading or marketing program of any kind; provided, however that: 

(A) NOx emission allowances or credits allocated to the VEPCO System by the 

Administrator of EPA under the Act, or by any State under its SIP in response to 

the EPA NOx SIP Call, or the EPA Section 126 Rulemaking, or any other similar 

emissions trading or marketing program of any kind, may be used by VEPCO and 

its parent company (Dominion Resources) or its subsidiaries or affiliates to meet 

their own federal and/or state Clean Air Act regulatory requirements for any air 

emissions source owned or operated, in whole or in part, by VEPCO or Dominion 

Resources, Inc. or its subsidiaries or affiliates and; 

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(B) VEPCO may trade in any federal or state program any NOx emissions allowances 

which are generated from VEPCO’s operating its SCRs, or equivalent control 

technology, at Chesterfield Units 4, 5, and 6; or Chesapeake Units 3 and 4; or any 

VEPCO System Unit on which SCR is installed under Section IX (Installing 

Additional Units on VEPCO System Units), either: 

(1) Earlier than required by this Decree or other applicable law; or 

(2) At time periods of the year not required by this Consent Decree or by 

applicable law; or 

(3)At a 30-Day Rolling Average Emission Rate that is more stringent than 

required by this Decree. 

(C) VEPCO may trade in any federal or state program NOx emissions allowances which 

are generated from VEPCO’s operating its SCRs, or equivalent control 

technology, at Mt. Storm Units 1, 2, and 3 as follows: 

(1) 100% of NOx allowances generated earlier than required by this Decree or 

other applicable law; or 

(2) 100% of NOx allowances generated at time periods of the year not required by 

this Consent Decree or by applicable law; or (3) 50% of NOx allowances 

generated by achieving a 30-Day Rolling Average Emission Rate more 

stringent than required by this Consent Decree. The remaining 50% of the 

NOx allowances generated may be used in accordance with Subparagraph 

A or be retired. 

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136. Netting Limits. Nothing in this Decree shall prevent VEPCO from claiming creditable 

contemporaneous emissions decreases from emission reductions effected by VEPCO prior to the 

June 30, 2001. For emission control actions taken by VEPCO to conform with the terms of this 

Consent Decree, including, but not limited to, improvements to ESPs and FGDs, installation of 

FGDs, installation of SCRs, and the fuel conversion of Possum Point Units 3 and 4, any emission 

reductions generated up to the level necessary to comply with the provisions of this Decree (and 

excluding simple control equipment operating requirements) shall not be considered as a 

creditable contemporaneous emission decrease for the purpose of obtaining a netting credit under 

the Act’s New Source Review program; provided, however, that nothing in this Decree shall be 

construed to prohibit VEPCO’s seeking such treatment for decreases in emissions resulting from 

VEPCO’s ceasing combustion of coal at Possum Point Unit 3 or Possum Point Unit 4, if: 

(A) Such decreases are used in VEPCO’s demonstrating whether the conversion of 

Possum Point Units 3 and 4 (plus the installation of up to two new units 540 MW 

(nominal) each, combined cycle electric generating units at Possum Point) would result in 

a net significant emissions increase; and 

(B) VEPCO either (i) installs and continuously operates LAER on Possum Point 

Units 3 or 4 or (ii) demonstrates that the use of natural gas will result in a net emissions 

decrease; and 

(C) VEPCO also complies with the NOx emissions cap and other requirements in 

Paragraph 96 for Possum Point Units 3 and 4 under this Decree and also installs SCR 

controls for NOx on the new combined cycle unit(s). 

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XIX. PERIODIC REPORTING 

137. Compliance Report. After entry of this Decree, VEPCO shall submit to Plaintiffs a 

periodic report, in compliance with Appendix B, within sixty (60) days after the end of each half 

of the calendar year (January through June and July through December). 

138. Deviations Report. In addition to the reports required by the previous paragraph, if 

VEPCO violates or deviates from any provision of this Consent Decree, VEPCO shall submit to 

Plaintiffs a report on the violation or deviation within ten (10) business days after VEPCO knew 

or should have known of the event. In the report, VEPCO shall explain the cause or causes of 

the violation or deviation and any measures taken or to be taken by VEPCO 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. 

139. VEPCO’s reports (Periodic and Deviations) shall be signed by VEPCO’s Vice President 

of Fossil and Hydro, or, in his or her absence, VEPCO’s Vice President of Technical Services, or 

higher ranking official, and shall contain the following certification: 

I certify under penalty of law that this information was prepared 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 directions and my inquiry of the person(s) who manage the system, 

or the person(s) directly responsible for gathering the information, the information 

submitted is, to the best of my knowledge and belief, true, accurate, and complete. 

I understand that there are significant penalties for making misrepresentations to 

or misleading the United States. 

140. If any allowances are surrendered to any third party pursuant to Section VI the third 

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party’s certification shall be signed by a managing officer of the third party’s and shall contain 

the following language: 

I certify under penalty of law that _____________ [name of third party] 

will not sell, trade, or otherwise exchange any of the allowances and will not use 

any of the allowances to meet any obligation imposed by any environmental law. 

I understand that there are significant penalties for making misrepresentations to 

or misleading the United States. 

XX. CIVIL PENALTY 

141. Within thirty (30) calendar days of entry of this Consent Decree, VEPCO shall pay to the 

United States a civil penalty of $5.3 million. The civil penalty shall be paid by Electronic Funds 

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

procedures, referencing the USAO File Number ____________ and DOJ Case Number 90-5-2-

1-07122 and the civil action case name and case number of this action. The costs of EFT shall 

be VEPCO’s responsibility. Payment shall be made in accordance with instructions provided by 

the Financial Litigation Unit of the U.S. Attorney’s Office for the Eastern District of Virginia. 

Any funds received after 11:00 a.m. (EST) shall be credited on the next business day. VEPCO 

shall provide notice of payment, referencing the USAO File Number, DOJ Case Number 90-5-2-

1-07122, and the civil action case name and case number, to the Department of Justice and to 

EPA, as provided in Section XXIX, Paragraph 187 (“Notice”). Failure to timely pay the civil 

penalty shall subject VEPCO 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 VEPCO 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. 

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 XXI. MITIGATION PROJECTS 

142. General. VEPCO shall submit for review and approval plans for the completion of the 

Mitigation Projects described in this Section, complying with the schedules and other terms of 

this Consent Decree and plans for such Projects approved under this Decree. In performing these 

Projects, VEPCO shall spend no less than $13.9 million Project Dollars. VEPCO shall make 

available the full amount of the Project Dollars required by this Paragraph within one year of 

entry of this Decree. VEPCO shall maintain for review by the Plaintiffs, upon request, all 

documents identifying Project Dollars spent by VEPCO. All plans and reports prepared by 

VEPCO or by other persons pursuant to the requirements of this Section of the Consent Decree 

shall be publicly available from VEPCO, without charge. No Project Dollars may be made 

available or expended to undertake an obligation already required by law. 

143. Good Faith. VEPCO 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 

Decree. 

144. Other Project Requirements. In addition to the requirements imposed for each Project 

specified in this Decree, including Appendix C and the approved plans, the following 

requirements shall apply. If VEPCO elects (where such election is allowed) to undertake a 

Project by contributing funds to another person or instrumentality to carry out the Project, 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 VEPCO contributes 

the funds. Regardless of whether VEPCO elects (where such election is allowed) to undertake 

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the Project itself or to do so by contributing funds to another person or instrumentality that will 

carry out the Project, VEPCO acknowledges that it shall receive credit for expenditure of such 

funds as Project Dollars only in accordance with the approved plans. Provided however, that 

when VEPCO elects to undertake a Project by providing funds to a State or any instrumentality 

thereof, VEPCO shall receive credit for any timely expenditure of funds upon transfer of such 

funds to such State or instrumentality thereof, as long as the VEPCO provides payment in 

accordance with Appendix C and the approved plan. VEPCO shall certify, as part of the 

proposed plan submitted to the Plaintiffs for any contemplated Project, that no person is required 

by any law, other than this Consent Decree, to perform the Project described in the proposed 

plan. Within sixty (60) days following the completion of each approved Project, VEPCO shall 

submit to the Plaintiffs a report that documents the date that all aspects of the project were 

implemented, VEPCO’s results in completing the project, including the emission reductions or 

other environmental or health benefits achieved, and the Project Dollars expended by VEPCO in 

implementing the Project. Based on consideration of these reports and the approved plans, and 

any other available, relevant information, the United States (after consultation with the other 

Plaintiffs) will advise VEPCO whether the Project has met the requirements of the Decree. 

VEPCO shall submit the required plans for, and complete, each Project, as approved by the 

United States, and by any other Plaintiff within whose territory a Project would be implemented, 

all as specified further in Appendix C to this Decree. 

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XXII. STIPULATED PENALTIES & ALLOWANCE OR CREDIT SURRENDERS 

145. Within thirty (30) days after written demand from the United States, and subject to the 

provisions of Sections XXVI (“Force Majeure”) and XXVII (“Dispute Resolution”), VEPCO 

shall pay the following stipulated penalties to the United States (and surrender the specified 

number of emission allowances or credits) for each failure by VEPCO to comply with the terms 

of this Consent Decree, as follows. 

146. For each violation of each limit, rate or removal efficiency that is measured on a 30-day 

Rolling Average or shorter averaging period imposed on NOx , SO2, and PM under Sections IV, 

V, VII, VIII (“Possum Point”), and IX (“Installing Additional Controls on VEPCO System 

Units”): 

(A) less than 5% in excess of the limit: $2,500 per day per violation; 

(B) equal to or greater than 5% in excess of the limit: $5,000 per day per 

violation; 

(C) equal to or greater than 10% in excess of the limit: $10,000 per day per 

violation. 

(D) For failure to meet any VEPCO System-Wide emissions requirement 

(Paragraph 59(A) and (B) “VEPCO System: Interim Control of NOX 

Emissions: 2004 through 2007; Paragraph 60”VEPCO System NOX Limits 

2003 and thereafter: Declining , System-Wide Tonnage Caps; and Paragraph 

61 VEPCO System –Wide, Annual Average NOX Emission Rate): $5,000 per 

ton for the first 100 tons resulting from the violation, and $10,000 per ton for 

each additional ton resulting from the violation. 

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147. Other Specific Failures. For failure to: 

(A) install timely and commence operation timely of SCR on each Unit (each 

SCR installation) specified in Section IV, Paragraph 56 (“Unit-Specific SCR 

Installations and Annual Performance Requirements”): (i) $10,000 per day, per 

violation, for the first 30 days; and (ii) $27,500 per day, per violation, thereafter. 

(B) complete any FGD improvements or installation needed to meet emission 

limits imposed under Section V, Paragraph 64 (“Construction, Upgrading, and 

Removal Efficiencies Required or on FGDs Serving Clover Units 1 and 2, Mount 

Storm Unites 1, 2, and 3, and Chesterfield Units 5 and 6"): (i) $ 10,000 per day, 

per violation, for the first 30 days; and (ii) $20,000 per day, per violation, 

thereafter. 

(C) surrender timely the annually-required 45,000 SO2 Allowances surrender 

under Section VI: $27,500 per day, per violation plus the surrender 100 additional 

SO2 Allowances per day per violation. 

(D) timely transfer the annually-required surrender of 45,000 SO2 Allowances by 

VEPCO to any third party under Section VI: $27,500 per day, per violation plus 

the surrender 100 additional SO2 Allowances per day per violation. 

(E) comply with any requirement in this Consent Decree regarding the use of any 

SO2 or NOx allowances or credits: surrender three times the allowances or credits 

handled in violation of the requirement. 

(F) complete timely the proper installation of all equipment called for under 

Section VII (PM Emission Reductions and Controls) or under any plan or 

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submission approved by EPA under Section VII: (i) $ 10,000 per day, per 

violation, for the first 30 days; and (ii) $20,000 per day, per violation, thereafter. 

(G) conduct a required stack test of PM emissions on each VEPCO System Unit 

where such test is required under Section VII: $1,000 per day, per violation. 

(H) Submit timely and complete reports called for under Section XIX (“Periodic 

Reporting”): $1,000 per day, per violation. 

(I) Complete any funding for any of the Projects described in Section XXI 

(Mitigation Projects): $1,000 per day, per violation for the first 30 days; and 

$5,000 per day, per violation thereafter. 

148. 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, VEPCO 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. 

XXIV. ACCESS, AND INFORMATION COLLECTION AND RETENTION 

149. Access, Inspection, Investigation. Any authorized representative of EPA, including 

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

premises of any facility in the VEPCO System at any reasonable time and for any reasonable 

purpose regarding monitoring compliance with the provisions of this Consent Decree, including 

inspecting plant equipment and inspecting and copying all records maintained by VEPCO 

required by this Consent Decree. VEPCO shall retain such records for a period of fifteen (15) 

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years from the date of entry of this Consent Decree. Nothing in this Consent Decree shall limit 

any information-gathering or inspection authority of EPA under the Act, including but not 

limited to Section 114 of the Act, 42 U.S.C. Section 7414. 

XXV. COORDINATION OF ENFORCEMENT & DISPUTE RESOLUTION 

150. United States - Enforcement and Dispute Resolution. The United States may enforce any 

and all requirements of this Decree and may invoke dispute resolution provisions of this Decree 

as to any requirement of this Decree to which dispute resolution applies and also may participate 

in adjudication of any claim of Force Majeure made by VEPCO or any other Party. 

151. VEPCO - Dispute Resolution. VEPCO may invoke the dispute resolution provisions of 

this Decree over any requirement of this Decree to which dispute resolution applies. 

152. States - Enforcement. Consistent with Section XXV, The State of New York, New 

Jersey, or Connecticut, or any combination of them, may enforce only the following 

requirements of this Decree: 

(A) those requirements imposed directly on a Unit at Mount Storm, Chesterfield, 

and Possum Point; 

(B) any or all of the following VEPCO System-Wide requirements: Section IV 

Paragraph 59 (“Interim NOx Emissions for VEPCO System”), Paragraph 60 

(“VEPCO System NOx Declining Tonnage Caps”) and Paragraph 61 (“NOx

System-Wide Average Emission Rate”] and Section VI, Paragraph 71 (Annual 

Surrender of SO2 Allowances); and 

(C) those requirements involving timely and proper performance of Decreemandated mitigation projects (Section XXI and Appendix C). 

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153. The Commonwealth of Virginia and the State of West Virginia may enforce all of the 

requirements of this Decree applicable to VEPCO units within their respective jurisdictions, 

including the system-wide cap. 

154. States - Dispute Resolution. The States of New York, New Jersey, Connecticut, Virginia, 

or West Virginia, or any combination of them, may invoke dispute resolution only over those 

Decree requirements that such State could enforce under this Decree and may participate as a 

plaintiff in any matter in which VEPCO asserts Force Majeure under this Decree only if the 

matter concerns a requirement which such State could have enforced under the terms of this 

Decree. Notwithstanding the preceding sentence, the States of New York, New Jersey, 

Connecticut, Virginia, or West Virginia, or any combination of them, may participate as a 

plaintiff in any matter in which VEPCO asserts force majeure under this Decree, to the extent 

that resolution of the legal issue(s) at stake in that matter would affect the ability of New York, 

New Jersey, Connecticut, Virginia, or West Virginia to enforce any of the requirements specified 

in Paragraphs 152 and 153_of this Section. 

155. Consultation Among Plaintiffs. Absent exigent circumstances, the United States, New 

York, New Jersey, Connecticut shall consult prior to enforcing a requirement under this Decree 

or prior to invoking Dispute Resolution (Section ) for any issue, which the given State could 

enforce under this Decree. Absent exigent circumstances, the United States, Virginia, and West 

Virginia shall consult prior to enforcing a requirement under this Decree or prior to invoking 

Dispute Resolution (Section XXVII) for any issue which the given State could enforce under this 

Decree. If such consultation reveals that, for any reason, the United States does not intend to 

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participate, in the first instance, in either the Decree enforcement or invocation of Dispute 

Resolution contemplated by New York, New Jersey, or Connecticut, Virginia, or West Virginia 

then the consultation required by this Section is not satisfied until after “Senior Management 

Level Officials” of United States consult with the “Senior Management Level Officials” of each 

Plaintiff intending to enforce a requirement under the Decree or to invoke dispute resolution 

under it. The United States shall undertake such consultation and shall complete it within 

twenty-eight (28) days after the consultation with the States and the United States demonstrates 

that the United States does not intend to participate in the activity contemplated by one or more 

of the States. Only for purposes of the consultation requirement of this Section, “Senior 

Management Level Official” means: 

(A) For the United States: Director of the Office of Regulatory Enforcement, U.S. EPA 

Office of Enforcement and Compliance Assurance, and Chief of the Environmental 

Enforcement Section, U.S. DOJ Environment & Natural Resources Division; 

(B) For New York: Chief of the Environmental Protection Bureau, Office of the 

Attorney General of the State of New York; 

(C) For New Jersey: Assistant Attorney General in Charge of Environmental Protection, 

Office of the Attorney General of the State of New Jersey; 

(D) For Connecticut: Director of the Environmental Department, Office of the Attorney 

General for the State of Connecticut; 

(E) For Virginia: Director of the Environmental Unit, Special Prosecutions Section, 

Public Safety and Law Enforcement Division, Office of the Attorney General of the 

Commonwealth of Virginia; and 

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(F) For West Virginia: Director of the Division of Air Quality, West Virginia 

Department of Environmental Protection 

156. Confirmation of Consultation. Contemporaneous with any filing to enforce the Decree or 

to invoke Dispute Resolution (Section XXVII), the moving Plaintiff shall serve on VEPCO a 

written statement noting that the consultation required by this Section has been completed, unless 

Plaintiff is relying on the “exigent circumstances” exception of this Section. If a Plaintiff 

invokes the “exigent circumstances” exception in lieu of completing this consultation process, 

that Plaintiff must then serve on VEPCO an explanation of the need for acting in advance of 

completing such consultation. “Exigent” is intended to have its normal meaning when used in 

this Section of the Decree, and reliance by a Plaintiff on this exception is subject to review by the 

Court. 

XXVI. FORCE MAJEURE 

157. General. If any event occurs which causes or may cause a delay in complying with any 

provision of this Consent Decree or causes VEPCO to be in violation of any provision of this 

Decree, VEPCO shall notify the Plaintiffs in writing as soon as practicable, but in no event 

later than ten (10) business days following the date VEPCO first knew, or within ten (10) 

business days following the date VEPCO should have known by the exercise of due 

diligence, that the event caused or may cause such delay or violation, whichever is earlier. In 

this notice, VEPCO shall reference this Paragraph of this Consent Decree and describe the 

anticipated length of time the delay or violation may persist, the cause or causes of the delay 

or violation, the measures taken or to be taken by VEPCO to prevent or minimize the delay 

or violation, and the schedule by which those measures will be implemented. VEPCO shall 

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adopt all reasonable measures to avoid or minimize such delays and prevent such violations. 

158. Failure of Notice. Failure by VEPCO to comply with the notice requirements of this 

Section shall render this Section voidable by the Plaintiffs authorized under Sections XXV 

(Coordination of Enforcement and Dispute Resolution) to enforce a Consent Decree requirement 

against which VEPCO could interpose the force majeure assertion in question. If voided, the 

provisions of this Section shall have no effect as to the particular event involved. 

159. Plaintiffs’ Response. The Plaintiffs authorized under Sections XXV (Coordination of 

Enforcement and Dispute Resolution) to enforce a Consent Decree requirement against which 

VEPCO could interpose the force majeure assertion in question shall notify VEPCO, in writing, 

regarding VEPCO’s claim of a delay in performance or violation within fifteen (15) business 

days after completion of procedures specified in Section XXV (“Enforcement Coordination”). If 

the Plaintiffs agree that the delay in performance or the violation has been or will be caused by 

circumstances beyond the control of VEPCO, including any entity controlled by VEPCO, and 

that VEPCO could not have prevented the delay through the exercise of due diligence, the parties 

shall stipulate to such relief as appropriate, which shall usually be an extension of the required 

deadline(s) for every requirement affected by the delay for a period equivalent to the delay 

actually caused by such circumstances. Such stipulation shall be filed as a modification to this 

Consent Decree in order to be effective. VEPCO shall not be liable for stipulated penalties for 

the period of any such delay. 

160. Disagreement. If the Plaintiffs authorized under Sections XXV (Coordination of 

Enforcement and Dispute Resolution) to enforce a Consent Decree requirement against which 

VEPCO could interpose the force majeure assertion in question, do not accept VEPCO’s claim 

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that a delay or violation has been or will be caused by a Force Majeure event, or do not accept 

VEPCO’s proposed remedy, to avoid the imposition of stipulated penalties VEPCO must submit 

the matter to this Court for resolution by filing a petition for determination. Once VEPCO has 

submitted the matter, the United States, and other Plaintiffs as provided in Paragraph 159, shall 

have fifteen (15) business days to file a response(s). If VEPCO submits the matter to this Court 

for resolution, and the Court determines that the delay in performance or violation has been or 

will be caused by circumstances beyond the control of VEPCO, including any entity controlled 

by VEPCO, and that VEPCO could not have prevented the delay or violation by the exercise of 

due diligence, VEPCO shall be excused as to that event(s) and delay (including stipulated 

penalties otherwise applicable), but only for the period of time equivalent to the delay caused by 

such circumstances. 

161. Burden of Proof. VEPCO shall bear the burden of proving that any delay in performance 

or violation of any requirement of this Consent Decree was caused by or will be caused by 

circumstances beyond its control, including any entity controlled by it, and that VEPCO could 

not have prevented the delay by the exercise of due diligence. VEPCO shall also bear the burden 

of proving the duration and extent of any delay(s) or violation(s) attributable to such 

circumstances. 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. 

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

performance of VEPCO's obligations under this Consent Decree shall not constitute 

circumstances beyond the control of VEPCO or serve as a basis for an extension of time under 

this Section. However, failure of a permitting authority to issue a necessary permit in a timely 

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fashion may constitute a Force Majeure event where the failure of the permitting authority to act 

is beyond the control of VEPCO, and VEPCO 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, 

accepting lawful permit terms and conditions, and prosecuting appeals of any allegedly unlawful 

terms and conditions imposed by the permitting authority in an expeditious fashion. 

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

circumstances related to an event and VEPCO’s response to such circumstances, the kinds of 

events listed below could qualify as Force Majeure events: construction, labor, or equipment 

delays; acts of God; Malfunction for PM as malfunction is defined in 40 C.F.R. 60.2; and orders 

by governmental officials, acting under and authorized by applicable law, that direct VEPCO to 

supply electricity in response to a legally declared, system-wide (or state-wide) emergency. 

164. Prohibited Inferences. Notwithstanding any other provision of this Consent Decree, this 

Court shall not draw any inferences nor establish any presumptions adverse to any party as a 

result of VEPCO delivering a notice pursuant to this Section or the parties' inability to reach 

agreement on a dispute under this Part. 

165. Extended Schedule. As part of the resolution of any matter submitted to this Court under 

this Section, the Parties by agreement with approval from this Court, or this Court by order, may, 

as allowed by law, extend 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 or violation. VEPCO 

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

with the extended schedule. 

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 XXVII. DISPUTE RESOLUTION 

167. Scope of Disputes Covered and Eligibility of Parties to Participate. The dispute resolution 

procedure provided by this Section shall be available to resolve all disputes arising under this 

Consent Decree, except as provided in Section XXVI (“Force Majeure”) or in this Section, 

provided that the Party making such application has made a good faith attempt to resolve the 

matter with the other Parties. Invocation and participation of this Section also shall be done in 

compliance with Section XXV (“Coordination of Enforcement and Dispute Resolution”). 

168. Invocation of Procedure. The dispute resolution procedure required herein shall be 

invoked by one Party to this Consent Decree giving written notice to another 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 shall expeditiously schedule a meeting to 

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

169. Informal Phase. Disputes submitted to dispute resolution under this Section shall, in the 

first instance, be the subject of informal negotiations among the parties. Such period of informal 

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

among the Parties’ representatives unless they agree to shorten or extend this period. 

170. Formal Phase. If the Parties are unable to reach agreement during the informal 

negotiation period, the Plaintiffs, shall provide VEPCO with a written summary of their position 

regarding the dispute. The written position provided by the Plaintiffs shall be considered binding 

unless, within thirty (30) calendar days thereafter, VEPCO files with this Court a petition that 

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describes the nature of the dispute and seeks resolution. The Plaintiffs may respond to the 

petition within forty-five (45) calendar days of filing. Where the nature of the dispute is such that 

a more timely resolution of the issue is required, the time periods set out in this Section may be 

shortened upon successful motion of one of the parties to the dispute. 

171. Prohibited Inference. This Court shall not draw any inferences nor establish any 

presumptions adverse to either party as a result of invocation of this Section or the parties'

inability to reach agreement. 

172. Alteration of Schedule. As part of the resolution of any dispute under this Section, in 

appropriate circumstances the parties may agree, or this Court may order if warranted by law, an 

extension or modification of the schedule for completion of work under this Consent Decree to 

account for the delay that occurred as a result of dispute resolution. VEPCO shall be liable for 

stipulated penalties for its failure thereafter to complete the work in accordance with the 

extended or modified schedule. 

173. Applicable Standard of Law. The Court shall decide all disputes pursuant to 

applicable principles of law for resolving such disputes; provided, however, that the parties 

reserve their rights to argue for what the applicable standard of law should be for resolving any 

particular dispute. Notwithstanding the preceding sentence of this Paragraph, as to disputes 

involving the submittal for review and approval under Section VII, the Court shall sustain the 

position of the United States as to disputes involving PM CEMs, any Pollution Control Upgrade 

Analysis, and optimization measures for PM that should be undertaken – unless VEPCO 

demonstrates that the position of the United States is arbitrary or capricious. 

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XXVIII. SALES OR TRANSFERS OF OWNERSHIP INTERESTS 

174. Joint and Several Liability By Transfer of Certain VEPCO Property. If VEPCO 

proposes to sell or transfer any of its real property or operations subject to this Consent Decree, 

VEPCO shall advise the purchaser or transferee in writing of the existence of this Consent 

Decree prior to such sale or transfer, and shall send a copy of such written notification to the 

Plaintiffs pursuant to Section XXIX, Paragraph 187 (“Notices”) at least sixty (60) days before 

such proposed sale or transfer. Before closing such purchase or transfer, a modification of this 

Consent Decree shall make the purchaser or transferee a party defendant to this Decree and 

jointly and severally liable with VEPCO for all the requirements of this Decree that may be 

applicable to the transferred or purchased property or operations, including joint and several 

liability with VEPCO for all Unit-specific requirements and all VEPCO System-Wide 

requirements, namely: VEPCO System-Wide Annual Average Emission Rate for NOx (Section 

IV), SO2 Allowance surrenders (Section VI), and VEPCO System NOx annual tonnage caps 

(Section IV) . 

175. Option for Alternative Request on System-Wide obligations. VEPCO may 

propose and the United States may agree to restrict the scope of joint and several liability of any 

purchaser or transferee for any VEPCO System-Wide obligations to the extent such obligations 

may be adequately separated in an enforceable manner using the methods provided by or 

approved under Section X (“Permits”). 

176. Option for Alternative Request on Particular VEPCO System Units. VEPCO also 

may propose, and the United States may agree to execute, a modification that transfers 

responsibility for completing Decree-required capital improvements from VEPCO to the 

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purchaser of property at which the capital improvement is required. 

177. Standard for Reviewing a VEPCO Request. Liability transfers sought by VEPCO 

under this Section of the Decree shall be granted by the United States (or by all the Plaintiffs, as 

applicable) if the relevant Plaintiffs agree that: 

(A) The purchaser or transferee has appropriately contracted with VEPCO to assume the 

obligations and liabilities applicable to the Unit; and 

(B) VEPCO and the purchaser or transferee have properly allocated any emission 

allowance, credit requirement, or other Decree-imposed obligation on the VEPCO 

System, which also implicates the Unit to be transferred. 

In the case of transfers of VEPCO System Units at Chesterfield and/or Mount Storm, VEPCO’s 

scope of liability for either VEPCO System-Wide requirements or for Decree-required capital 

improvement on Units at those plants shall not be transferred unless the States of New York, 

New Jersey, and Connecticut concur with the United States’ determination to accept liability of 

only the purchaser or transferee, as opposed to joint and several liability between VEPCO and 

the purchaser. 

178. No limit on contractual allocation of responsibility that does not affect rights of 

the Plaintiffs. This Section of the Decree shall not be construed to impede VEPCO and any 

purchaser or transferee of real property or operations subject to this Decree from contractually 

allocating as between themselves the burdens of compliance with this Decree, provided that both 

VEPCO and such purchaser or transferee shall remain jointly and severally liable to the Plaintiffs 

for those obligations of the Decree specified above, absent approval under this Section of a 

VEPCO request to allocate liability. 

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XXIX. GENERAL PROVISIONS 

179. Effect of Settlement. This Consent Decree is not a permit; compliance with its 

terms does not guarantee compliance with all applicable Federal, State, or Local laws or 

regulations. 

180. Criminal Liability. This Consent Decree does not apply to any claim(s) of alleged 

criminal liability, which are reserved, nor to any claims resolved and then reopened under the 

terms of this Decree. 

181. Limitation on Procedural Bars to Other Claims. In any subsequent administrative 

or judicial action initiated by Plaintiffs for injunctive relief or civil penalties relating to the 

facilities covered by this Consent Decree, VEPCO shall not assert any defense or claim based 

upon principles of waiver, res judicata, collateral estoppel, issue preclusion, claim splitting, or 

other defense based upon any 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 Sections XI through XVII 

(Resolution of Certain Civil Claims). 

182. Other Laws. Except as specifically provided by this Consent Decree, nothing in 

this Consent Decree shall relieve VEPCO of its obligation to comply with all applicable Federal, 

State, and Local laws and regulations. Subject to Sections XI through XVII, nothing contained 

in this Consent Decree shall be construed to prevent or limit the Plaintiffs’ rights to obtain 

penalties or injunctive relief under the Clean Air Act or other federal, state, or local statutes or 

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regulations. 

183. Third Parties. This Consent Decree does not limit, enlarge, or affect the rights of 

any party to this Consent Decree as against any third parties. 

184. Costs. Each party to this action shall bear its own costs and attorneys' fees. 

185. Public Documents. All information and documents submitted by VEPCO to the 

United States or the other Plaintiffs under this Consent Decree shall be subject to public 

inspection, unless subject to legal privileges or protection or identified and supported as business 

confidential, under applicable law. VEPCO may not seek such protection concerning submittals 

required by the Decree that concern mitigation projects (Section XXI). 

186. Public Comment. The parties agree and acknowledge that final approval by the 

United States and entry of this Consent Decree is subject to the policy statement reproduced at 

Title 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. 

187. Notice. Unless otherwise provided herein, notifications to or communications 

with the Plaintiffs or VEPCO shall be deemed submitted on the date they are postmarked and 

sent either by overnight mail, return receipt requested, or by certified or registered mail, return 

receipt requested. Except as otherwise provided herein, when written notification to or

communication with the Plaintiffs or VEPCO is required by the terms of this Consent Decree, it 

shall be addressed as follows: 

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For the United States of America: 

Chief 

Environmental Enforcement Section 

U.S. Department of Justice 

P.O. Box 7611, Ben Franklin Station 

Washington, D.C. 20044-7611 

DJ# 90-5-2-1-07122 

– 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 – 

Regional Administrator 

U.S. EPA Region III 

1650 Arch Street 

Philadelphia, PA 19106 

For Commonwealth of Virginia: 

Director

Virginia Department of Environmental Quality 

629 East Main Street 

P.O. Box 10009 

Richmond, VA 23240-0009 

For State of West Virginia: 

Director, Division of Air Quality 

Department of Environmental Protection 

7012 MacCorkle Avenue SE 

Charleston, WV 25304 

For State of New York: 

Bureau Chief 

Environmental Protection Bureau 

New York Attorney General's Office

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120 Broadway 

New York, New York 10271 

For State of New Jersey: 

Administrator 

Air and Environmental Quality Compliance and Enforcement 

P.O. Box 422 

401 East State Street, Floor 4 

Trenton, NJ 08625 

– and – 

Section Chief 

Environmental Enforcement 

Division of Law 

P.O. Box 093 

25 Market Street, 7th Floor 

Trenton, NJ 08625 

For State of Connecticut: 

Department Head 

Environmental Protection Department 

Connecticut Attoreny General’s Office 

55 Elm Street 

Hartford, CT 06106 

For VEPCO: 

Senior Vice President – Fossil and Hydro 

Dominion Energy – Dominion Generation 

5000 Dominion Boulevard 

Glenn Allen, VA 23060 

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. 

188. Procedure for Modification. There shall be no modification of this Decree unless 

such modification is in writing , is filed with the Court, and either: 

(a) bears the written approval of all of the Parties and is approved by the Court, or 

(b) is otherwise allowed by applicable law. 

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189. Continuing Jurisdiction. 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, or modification. During the term of this Consent Decree, any party may apply to the 

Court for any relief necessary to construe or effectuate this Consent Decree. 

190. Complete Agreement. 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. The parties acknowledge that there are no representations, 

agreements, or understandings relating to the settlement other than those expressly contained in 

this Consent Decree, including Appendices A (“Coal-Fired Steam-Electric Generating Units 

Constituting the VEPCO System”), B (“Consent Decree Reporting Form”), and C (“Mitigation 

Projects that Shall be Completed Under this VEPCO Consent Decree”). Appendices A through 

C are incorporated into and part of this Consent Decree 

191. Non-Severability Absent Re-Adoption by the Parties. If this Consent Decree, in 

whole or in part, is held invalid by a court vested with jurisdiction to make such a ruling, and if 

such ruling becomes a final judgment, then after entry of such final judgment, no Party shall be 

bound to any undertaking that would come due or have continued under this Decree after the 

date of that final judgment, and the Decree shall be void from the entry of such final judgment. 

At any time, upon consent of all the Parties, the Parties may preserve that portion of this Decree 

not held invalid by agreeing, in a writing submitted to this Court, to keep in force that portion of 

this Decree not held invalid. 

192. Citations to Law. Except as expressly provided otherwise by this Decree, 

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provisions of law expressly cited by this Decree shall be construed to mean the provision cited as 

it is defined under law. 

193. Meaning of Terms. Every term expressly defined by this Decree shall have the 

meaning given to that term by this Decree, and every other term used in this Decree that is a term 

used under the Act or the regulations implementing the Act shall mean in this Decree what such 

term means under the Act or those regulations. 

194. Calculating and Measuring Performance. Performance standards, emissions 

limits, and other quantitative standards set by or under this Decree must be met to the number of 

significant digits in which the standard or limit is expressed. Thus, for example, an Emissions 

Rate of 0.090 is not met if the actual Emissions Rate is 0.091. VEPCO shall round the fourth 

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

significant digit, depending upon whether the limit is expressed to two or three significant digits. 

Thus, for example, if an actual Emissions Rate is 0.0904, that shall be reported as 0.090, and 

shall be in compliance with an Emissions Rate of 0.090, and if an actual Emissions Rate is 

0.0905, that shall be reported as 0.091, and shall not be in compliance with an Emissions Rate of 

0.090. VEPCO shall collect and report data to the number of significant digits in which the 

standard or limit is expressed. As otherwise applicable and unless this Decree expressly directs 

otherwise, the calculation and measurement procedures established under 40 C.F.R. Parts 75 and 

76 apply to the measurement and calculation of NOx and SO2 under this Decree. 

195. Independent Requirements. Each limit and / or other requirement established by 

or under this Decree is a separate, independent requirement. 

196. Written Statements to be Sent to all Plaintiffs. Notwithstanding any other 

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provision of this Decree, VEPCO shall supply to all Parties to this Decree all notices, reports, 

applications, elections, and any other written statement that the Decree requires VEPCO to 

supply to any Party to the Decree. 

197. Applicable Law on Data Use Still Applies. Nothing in this Consent Decree alters 

or waives any applicable law (including, but not limited to, any defenses, entitlements, or 

clarifications related to the Credible Evidence Rule (62 Fed. Reg. 8314, Feb. 27, 1997)) 

concerning use of data for any purpose under the Act, generated by the reference methods 

specified herein or otherwise. 

XXX. CONDITIONAL TERMINATION OF ENFORCEMENT, CONTINUATION OF 

TERMS, AND FIRST RESORT TO TITLE V PERMIT 

198. Termination as to Completed Tasks. As soon as VEPCO completes any element 

of construction required by this Decree or completes any requirement that will not recur, VEPCO 

may seek termination of that portion of the Decree that dictated such requirement. 

199. Conditional Termination of Enforcement through Consent Decree. Once 

VEPCO: 

(A) believes it has successfully completed and commenced successful operation of all 

pollution controls (new and upgrades) required by Decree; 

(B) holds final, Title V Permits -- covering all Units in the VEPCO System -- that include 

as enforceable permit terms all of the performance and other requirements for the 

VEPCO System as required by Section X (“Permits”), and 

(C) certifies that the date is later than December 31, 2015; 

then VEPCO may file a notice with the Court of these facts. Unless within forty-five 

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(45) days after VEPCO files such a notice, any Plaintiff objects to the accuracy of that 

notice, enforcement based on Decree violations that occurred after the filing of the notice 

shall be through the applicable Title V Permit and not through this Decree. 

200. Resort to Enforcement under this Consent Decree. Notwithstanding paragraph 

199, if enforcement of a provision of this Decree cannot be pursued by a party under the 

applicable Title V permit, or if a Decree requirement was intended to be part of the Title V 

Permit and did not become or remain part of such permit, then such requirement may be 

enforced under the terms of this Decree at any time. 

SO ORDERED, THIS _________ DAY OF _______________, 2003. 

________________________________________ 

UNITED STATES DISTRICT COURT JUDGE 

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FOR THE UNITED STATES OF AMERICA:

THOMAS L. SANSONETTI 

Assistant Attorney General 

Environmental and Natural Resources Division 

United States Department of Justice

THOMAS A. MARIANI

Assistant Chief

Environmental Enforcement Section 

Environmental and Natural Resources Division 

United States Department of Justice 

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 JOHN PETER SUAREZ 

Assistant Administrator 

Office of Enforcement and Compliance Assurance 

United States Environmental Protection Agency 

BRUCE C. BUCKHEIT

Director, Air Enforcement Division

Office of Enforcement and Compliance Assurance 

United States Environmental Protection Agency 

RICHARD ALONSO

Attorney Advisor

Air Enforcement Division

Office of Enforcement and Compliance Assurance 

United States Environmental Protection Agency 

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 DONALD S. WELSH 

Regional Administrator 

Region 3 

United States Environmental Protection Agency 

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FOR THE STATE OF NEW YORK:

ELLIOT SPITZER 

Attorney General 

State of New York 

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 FOR THE STATE OF NEW JERSEY: 

PETER C. HARVEY 

Acting Attorney General of New Jersey 

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FOR THE STATE OF CONNECTICUT: 

RICHARD BLUMENTHAL 

Attorney General 

State of Connecticut 

CARMEL A. MOTHERWAY 

Assistant Attorney General 

State of Connecticut 

KIMBERLY P. MASSICOTTE 

Assistant Attorney General 

State of Connecticut 

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Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 206
FOR THE COMMONWEALTH OF 

VIRGINIA: 

________________________________

ROGER L. CHAFFE

Senior Assistant Attorney General 

Commonwealth of Virginia

________________________________

ROBERT G. BURNLEY 

Director

Department of Environmental Quality 

Commonwealth of Virginia 

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Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 207
FOR THE STATE OF WEST VIRGINIA: 

JOHN BENEDICT 

Director 

Division of Air Quality 

West Virginia Department of Environmental 

Protection 

ROLAND T. HUSON, III 

Senior Counsel 

Office of Legal Services

West Virginia Department of Environmental 

Protection 

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Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 208
FOR VIRGINIA ELECTRIC AND POWER 

COMPANY: 

EDWARD RIVAS

Sr. Vice President

Fossil and Hydro 

Virginia Electric and Power Company 

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APPENDIX A TO “VEPCO” CONSENT DECREE 

THE UNITS COMPRISING THE “VEPCO SYSTEM” IN 

UNITED STATES, ET AL. V. VIRGINIA ELECTRIC AND POWER CO.

Steam Electric Generating Unit: Plant Name, 

Unit Number, Unit Abbreviation, & Nominal 

Nameplate (“MW”) 

Improved 

Unit for SO2 

Under Decree 

Paragraph 64 

Improved 

Unit for NOx 

Under Decree 

Paragraph 56 

Optimization for PM 

Required under 

Decree Section VII 

Bremo Unit 3 

(“BR 3”) 69 MW 

NO NO YES 

Bremo Unit 4 

(“BR 4”) 185 MW 

NO NO YES 

Chesapeake Unit 1 

(“CEC 1”) 112 MW 

NO NO YES 

Chesapeake Unit 2 

(“CEC 2”) 112 MW 

NO NO YES 

Chesapeake Unit 3 

(“CEC 3”) 185 MW 

NO YES YES 

Chesapeake Unit 4 

(“CEC 4”) 239 MW 

NO YES YES 

Clover Unit 1 

(“CL 1”) 393 MW 

YES NO YES 

Clover Unit 2 

(“CL 2”) 393 MW 

YES NO YES 

Chesterfield Unit 3 

(“CH 3”) 112 MW 

NO NO YES 

Chesterfield Unit 4 

(“CH 4”) 187 MW 

NO YES YES 

Chesterfield Unit 5 

(“CH 5”) 359 MW 

YES YES YES 

Chesterfield Unit 6 

(“CH 6”) 694 MW 

YES YES YES 

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APPENDIX A (continued) 

Steam Electric Generating Unit: Plant Name, 

Unit Number, Unit Abbreviation, & Nominal 

Nameplate (“MW”) 

Improved 

Unit for SO2 

Under Decree 

Paragraph 64 

Improved 

Unit for NOx 

Under Decree 

Paragraph 56 

Optimization for PM 

Required under 

Decree Section VII 

Mt. Storm Unit 1 

(“MS 1”) 551 MW 

YES YES YES 

Mt. Storm Unit 2 

(“MS 2”) 551 MW 

YES YES YES 

Mt. Storm Unit 3 

(“MS 3”) 552 MW 

YES YES YES 

North Branch 

(“NB”) 92 MW 

NO NO YES 

Possum Point Unit 3 

(“PP 3”) 114 MW 

YES YES NO 

Possum Point Unit 4 

(“PP 4”) 239 MW 

YES YES NO 

Yorktown Unit 1 

(“YT 1”) 187 MW 

NO NO YES 

Yorktown Unit 2 

(“YT 2”) 187 MW 

NO NO YES 

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Appendix A: Coal Specifications for Sulfur 

Unit 

Fuel SO2 

Specification 

(lbs 

SO2/mmBtu) 

Fuel Sulfur 

Specification 

(lbs S/mmBtu) 

Fuel Sulfur 

Specification 

(% by weight) 

Bremo Unit 3 2.64 

Bremo Unit 4 2.64 

Chesapeake Unit 2.64 

Chesapeake Unit 2.64 

Chesapeake Unit 2.64 

Chesapeake Unit 2.64 

Chesterfield Unit 2.64 

Chesterfield Unit 2.64 

Chesterfield Unit 2.64 

Chesterfield Unit 2.64 

Clover Unit 1 N/A

Clover Unit 2 N/A

Mt. Storm Unit 1 1.9 

Mt. Storm Unit 2 1.9 

Mt. Storm Unit 3 1.9 

North Branch 4 

Possum Point N/A

Possum Point N/A

Yorktown Unit 1 2.64 

Yorktown Unit 2 2.64 

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APPENDIX B - REPORTING REQUIREMENTS 

VEPCO shall submit its semi-annual report as required by Paragraph 137 electronically 

and in hard copy form. Each semi-annual report shall be certified as required by Paragraph 139 

of this Consent Decree. The semi-annual report is in addition to all other notices and reporting 

obligations under the Consent Decree. VEPCO shall provide the following information in each 

of the required semi-annual reports: 

I. NOx Reporting Requirements 

A. Installation and Seasonal/Annual Operation of SCRs 

1. The progress of construction (such as, if construction is not underway, the 

construction schedule, dates of contract execution, major component delivery, 

and, if construction is underway, the estimated percent of installation and 

estimated construction completion date) and, once construction is complete, 

the date of final installation and of acceptance testing under the SCR contract, 

of SCR controls required under Paragraph 56 of the Consent Decree. 

2. Commencing when 30-Day Rolling Average Emission Rates become 

applicable, the 30-Day Rolling Average Emission Rate (lbs/mmBTU) as 

defined in Paragraph 5, for each operating day for each Unit utilizing SCRs 

required under Paragraph 56 of the Consent Decree. 

3. Within the first report that identifies a 30-Day Rolling Average Emission Rate 

(lbs/mmBTU) for each SCR, at least five (5) example calculations (including 

raw CEM data in electronic format for the calculation) used to determine the 

30-Day Rolling Average Emission Rate. If at any time VEPCO changes any 

aspect within the methodology used in determining the 30-Day Rolling 

Average Emission Rate, VEPCO shall explain the change and the reason for 

using the new methodology. 

4. All instances, and explain events, that cause deviations from any 30-Day 

Rolling Average Emission Rate in lbs/mmBTU required in Paragraph 56. 

VEPCO shall identify any corrective actions taken in response to such 

deviation. 

5. A description of the how VEPCO met the SCR performance efforts required 

in Paragraph 57 (Best Efforts). 

B. Interim Control of NOx Emissions 

1. In addition to the notice required under paragraph 59, within each semi-annual 

report covering activities in 2004 through 2007, identify the compliance 

option selected as between Paragraph 59(A) and 59(B) for that given year and 

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the date that the notification required in Paragraph 59 was submitted to the 

Plaintiffs, if any such notification is required under Paragraph 59. 

2. If VEPCO implements option (A) under Paragraph 59, report which Unit or 

Units will utilize year-round SCR control(s) and the amount of MW 

represented by the identified Units and report for each Unit controlled with 

year-round SCR the 30-Day Rolling Average Emission Rate (lbs/mmBTU) as 

defined in Paragraph 5 for each operating day. 

3. If VEPCO implements option (B) under Paragraph 59, the Seasonal SystemWide Emission Rate (lbs/mmBTU) as defined in Paragraph 44, within the first 

report that identifies a Seasonal System Wide Emission Rate, provide at least 

five (5) example calculations (including raw CEM data in electronic format 

for the calculations) used to determine the Seasonal System Wide Emission 

Rate. If at any time VEPCO changes any aspect within the methodology used 

in determining the Seasonal System-Wide Emission Rate, VEPCO shall 

explain the change and the reason for using the new methodology. 

C. Annual NOx System-Wide Requirements 

1. Within the last report for any given year for which a report is due, report the 

total NOx emissions from the VEPCO System, and for each VEPCO System 

Unit, for the calendar year covered by the report as tons per year. 

2. Within the last report for any given year for which a report is due, 

commencing in 2013, report the System Wide Annual Emission Rate and the 

underlying calculation for the VEPCO System for the previous calendar year 

(starting with the year 2013) as lbs/mmBTU. 

D. Miscellaneous NOx Provisions 

1. For each Unit in the “VEPCO System” that utilizes SCR control pursuant to a 

requirement of the Consent Decree, all NOx emissions (in tons) excluded from 

any NOx emission calculation, as permitted in Paragraph 5 and an explanation 

for excluding such emission, as specified in subparagraph 2, below. The 

requirement to report tons of emissions excluded, but no other provisions, 

shall expire on December 31, 2015. 

2. Commencing when any VEPCO System Unit becomes subject to a 30-Day 

Rolling Average Emissions Rate for NOx and utilizes an SCR pursuant to a 

requirement of the Consent Decree, VEPCO shall report: 

a. The date and time that the fire is extinguished; 

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b. The date and time that the Unit is restarted and the date and time that 

the Unit is synchronized with an utility electric distribution system 

after the restart; 

c. The NOx emissions emitted by the Unit prior to the time that the Unit 

was synchronized with an utility electric distribution system; 

d. On the fifth and subsequent Cold Start Up Periods that occur within 

any 30-Day period, the earlier of the date and time that (1) is eight 

hours after the Unit is synchronized with a utility electric distribution 

system, or (2) the flue gas has reached the SCR operational 

temperature as specified by the catalyst manufacturer; 

e. The NOx emissions emitted during the fifth and subsequent Cold Start 

Up Periods; 

f. Identification of the date, time and duration of any period when 

emissions are excluded due to a malfunction of the SCR, as provided 

by Paragraph 5, and supporting information regarding the malfunction, 

the cause, and corrective actions taken, and the amount of NOx 

emissions during the malfunction. 

E. Possum Point 

The tons of NOx from Possum Point Units 3 and 4 rolled daily as 

determined by Paragraph 96. 

II. SO2 Reporting Requirements 

A. SO2 Removal Efficiency Requirements 

1. The progress of construction and improvement (such as, if construction is not 

underway, the dates of contract execution, the estimated percent of 

installation, and major component delivery) and, once construction and 

improvement is complete, the date of final installation, improvement, and 

operation of FGDs required under Paragraph 64 of the Consent Decree, and of 

initial performance testing, if any. 

2. Commencing when any 30-Day Rolling Average Removal Efficiency for SO2 

becomes applicable for each FGD as defined in Paragraph 64, the 30-Day 

Rolling Average Removal Efficiency for SO2 for each operating day. 

3. Within the first report that identifies a 30-Day Rolling Average Removal 

Efficiency for each FGD, at least five (5) example calculations (including raw 

CEM data in electronic format for the calculations) used to determine the 30-

Day Rolling Average Removal Efficiency for SO2. If at any time VEPCO 

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changes any aspect within the methodology used in determining the 30-Day 

Rolling Average Removal Efficiency for SO2, VEPCO shall explain the 

change and the reason for using the new methodology. 

B. SO2 Emission Rate 

1. For Clover Units 1 & 2, Mt. Storm Units 1, 2, & 3 and Chesterfield Units 5 & 

6 upon qualifying for a 30-Day Rolling Average Emission Rate as provided in 

Paragraph 66 of the Consent Decree, the 30-Day Rolling Average Emission 

Rate (lbs/mmBTU), as defined in Paragraph 5, for each operating day for each 

Unit qualifying for the SO2 emission rate. 

2. Within the first report that identifies a 30-Day Rolling Average Emission 

Rate for each FGD, at least five (5) example calculations (including raw CEM 

data in electronic format for the calculations) used to determine the 30-Day 

Rolling Average Emission Rate. If at any time VEPCO changes any aspect 

within the methodology used in determining the 30-Day Rolling Average 

Emission Rate, VEPCO shall explain the change and the reason for using the 

new methodology. 

3. A description of the how VEPCO met the FGD performance efforts required 

in Paragraph 69 (Best Efforts). 

C. FGD Bypass Days at Mt. Storm (Consent Decree Paragraph 67) 

1. For each FGD outage or FGD downtime at Mt. Storm Units 1, 2 or 3, as 

allowed under Paragraph 67, the following information: 

a. The date and time the outage/downtime began; 

b. The date and time that the FGD that was offline was returned to 

operation and the duration of the FGD outage/downtime; 

c. A narrative explanation of corrective or maintenance actions taken by 

VEPCO; 

d. The total SO2 emitted from the Unit during the FGD 

outage/downtime; 

e. The total amount of SO2 emission, in tons, that would have been 

emitted at the Unit during the FGD outage/downtime had VEPCO 

burned coal with the sulfur content required by the Consent Decree, 

during the FGD outage/downtime; 

f. The amount of allowances to be surrendered and provide evidence that 

VEPCO surrendered to EPA the amount of SO2 Allowances required 

to be surrendered under Paragraph 67; 

g. Report that the Unit with the FGD outage/downtime was not 

dispatched ahead of the other Mount Storm Units or the Clover Power 

Station Units during the FGD outage/downtime and the dispatch order 

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for each Unit of the VEPCO System during the FGD 

outage/downtime; and 

h. By Unit, a year-to-date tabulation of the number and duration of FGD 

outages/downtime at Mt. Storm Units 1, 2, & 3, and the total amount 

of FGD outage/downtime permitted by the Consent Decree for that 

year. 

D. Miscellaneous SO2 Provisions 

1. Commencing when any VEPCO System Unit becomes subject to a 30-Day 

Rolling Average Removal Efficiency or Emission Rate requirement for SO2, 

for each Unit in the “VEPCO System” that utilizes FGD control pursuant to a 

requirement of the Consent Decree, when a Unit is taken out of service and 

the fire in the boiler is extinguished during the reporting period: 

a. The date and time that the fire is extinguished; 

b. The date and time the Unit is restarted; 

c. The date and time that the Unit is synchronized with an utility electric 

distribution system after the restart; and 

d. SO2 emissions emitted by the Unit prior to the time that the Unit was 

synchronized with a utility electric distribution system, ending on 

December 31, 2015. 

2. Within the last report for any given year, report the total SO2 emissions from 

the VEPCO System for the calendar year covered by the report as tons per 

year, and for each Unit in the VEPCO System, report the annual SO2 

emissions in tons per year for the calendar year covered by the report. 

E. Annual Surrender of SO2 Allowances 

1. Beginning in 2013, whether it made the annual SO2 allowance surrender 

required by the Consent Decree to the U.S. EPA and shall provide 

documentation verifying this surrender. 

2. If VEPCO surrenders the SO2 allowances to a third party, the following 

information: 

a. The identity of the third-party recipients(s) of the SO2 allowances and 

a listing of the serial numbers of the transferred allowances; 

b. A certification from the third-party recipient(s) that it (they) will not 

sell, trade or otherwise exchange any of the allowances and will not 

use any of the allowances to meet any obligation imposed by any law. 

c. Within 12 months after the first report of the transfer, VEPCO shall 

provide documentation that the third-party recipients(s) of the SO2 

allowances permanently surrendered the allowances to U.S. EPA 

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within one year after VEPCO transferred the allowances the thirdparty recipient(s). 

F. Super-compliance Trading of Allowances 

1. The amount of SO2 Allowances and NOx emission allowances or credits 

used or traded pursuant to Paragraph 75 and Section XVIII and the 

calculations or data justifying the generation of the used or traded 

allowances or credits. 

III. PM Requirements 

A. Use of PM Controls Existing at the Time the Decree was Entered and PM 

Emissions Rate 

1. Until a Unit is subject to a PM emissions rate pursuant to this Consent 

Decree, the following information for each Unit: 

a. The calendar days on which the ESP was not operating at any time that 

the Unit was in operation; 

b. If, in accordance with Paragraphs 78 and 79, an ESP or portion 

thereof fails, does not perform in accordance with the equipment 

manufacturer’s specifications or is shutdown by VEPCO, the calendar 

date of each such instance, the time that the failure or inadequate 

performance of the ESP began, all corrective actions undertaken by 

VEPCO and the calendar date and time that the ESP was restored to 

the mode of operation required by Paragraphs 78 and 79. VEPCO 

shall also report any additional corrective actions undertaken in 

response to the event. 

2. For each Unit in the VEPCO System at which a PM emission rate applies 

pursuant to this Consent Decree, the following information: 

a. The PM Emission Rate (lbs/mmBTU) for the Unit, determined under 

the Consent Decree; 

b. If, in accordance with Paragraphs 78 and 79, an ESP or portion thereof 

fails, or does not perform in accordance with the equipment 

manufacturer’s specifications, the calendar date of each such instance, 

the time that the failure or sub-par performance of the ESP began, all 

corrective actions undertaken by VEPCO and the calendar date and 

time that the ESP was restored to the mode of operation required by 

Paragraphs 78 and 79. VEPCO shall also report any additional 

corrective actions undertaken in response to the event. 

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3. Information required to be reported within the approved PM optimization 

plans. 

4. A description of the how VEPCO met the PM control device performance 

efforts required in Paragraph 78 (Best Efforts). 

B. PM CEMs 

1. For each PM CEM installed on a Unit in the VEPCO System: 

a. If the PM CEM was installed during the reporting period, the date of 

installation of the PM CEM; 

b. The dates that the PM CEM operated; 

c. If the PM CEM did not operate continuously throughout the quarter 

without interruption whenever the Unit it serves was operating, the 

date and time that the PM CEM was not operating, a description of the 

cause of the PM CEM’s outage, the steps taken by VEPCO to fix the 

PM CEM, any additional corrective actions undertaken by VEPCO in 

response to the event and the time and date that the PM CEM was 

returned to service. 

C. Performance Testing/Monitoring of PM Emission 

1. For each Unit in the VEPCO System: 

a. If the Unit was required to perform a stack test pursuant to the Consent 

Decree, the executive summary and results of the stack test; 

b. If the Unit has a PM CEM, the three-hour average emission rate for 

PM emissions (or such longer period as is specified in any applicable 

PM emissions limitation requirement), in lb/mmBtu. 

IV. Deviation Reporting 

A. In addition to reporting under Paragraph 137, a summary of all deviations that 

occurred during the reporting period and the date that the deviation was initially 

reported under Paragraph 138. 

B. Within each deviation report submitted under Paragraph 138, the following 

information: 

1. The Consent Decree requirement under which the deviation occurred, with a 

reference to the Consent Decree paragraph containing the requirement; 

2. The date and time that the deviation occurred; 

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3. The date and time that the deviation was corrected; 

4. The data, calculations or other information indicating that a deviation 

occurred; and 

5. A narrative description of the cause or suspected cause of the deviation, the 

steps taken by VEPCO to correct the deviation and any additional corrective 

actions taken by VEPCO in response to the deviation. 

V. Mitigation Project Reporting 

A. The progress such as the schedule for completion of the project dates of contract 

execution, and estimated percent of completion of the Mitigation Projects 

required in Section XXI of the Consent Decree. 

B. The amount of Project Dollars expended on Mitigation Projects. 

VI. VEPCO Submissions 

A list all plans or submissions and the date submitted to the Plaintiffs for the 

reporting period, and identify if any are pending the review and approval of the 

Plaintiff. 

VII. VEPCO Capital Projects 

A list of all Capital Expenditures performed throughout the VEPCO System on 

the Boiler Islands in order to determine meeting the threshold established in 

Paragraphs 111, 124, and 133. 

VIII. Additional Information 

Provide a response to any reasonable request by the Plaintiffs for any additional 

information regarding these reporting requirements or the obligations and 

requirements of this Consent Decree. 

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APPENDIX C – MITIGATION PROJECTS REQUIREMENTS 

In compliance with and in addition to the requirements in Section XXI of the Consent Decree, 

VEPCO shall comply with the requirements of this Appendix to ensure that the benefits of the 

environmental mitigation protects are achieved. No Party may submit a proposed plan for a 

mitigation project until after entry of the Consent Decree. 

I. Clean Diesel, Idle Reduction and School Bus Retrofit Project - To Be Conducted 

within the District of Columbia, Delaware, Maryland, Pennsylvania, Virginia and 

West Virginia and Resource Lands Project 

A. Within 90 days after entry of the Consent Decree, VEPCO shall submit a plan to 

EPA for review and approval for the completion of the Clean Diesel, Idle 

Reduction and School Bus Retrofit Project in which VEPCO shall spend no less 

than $2,500,000 Project Dollars to retrofit diesel engines with emission control 

equipment, replace diesel engines with cleaner engines, subsidize the use of clean 

diesel fuels or install equipment or implement strategies that will reduce engine 

idling in the above listed jurisdictions. 

B. The plan shall satisfy the following criteria: 

1. Involve fleets located in geographically diverse areas and/or fleets 

operated in nonattainment areas or areas at significant risk of 

nonattainment status within the listed states, taking into account other 

clean diesel projects called for under this Decree. 

2. Provide for the retrofit of high emitting, in service heavy-duty diesel 

engines with verified emissions control equipment. Retrofit technology 

may include but not be limited to oxidation catalysts and particulate 

matter filters that will reduce particulate matter and hydrocarbon 

emissions. 

3. Provide for the replacement of engines with those that meet the 2007 

engine standards and/or are equipped with verified emission control 

technology. 

4. Involve vehicles that are located in areas in which ultra low sulfur diesel 

fuel (ULSD) is already available or is scheduled to become available and 

where such fuel is required for retrofit technology. For affected 

municipalities, school districts or similar local government entities whose 

fleet will be retrofitted, the plan may provide for (a) the procurement of 

tanks or other infrastructure required enabling that fleet to obtain and use 

ULSD and (b) offsetting higher fuel costs from the requirement to use 

ULSD. 

5. Provide for the use of alternative diesel fuels that reduce emissions of 

particulate matter, nitrogen oxides and/or hydrocarbons including but not 

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limited to emulsions and biodiesel fuels. 

6. Provide for the installation of verified idle reduction technology and/or 

idle reduction strategies that effectively reduce emissions from idling 

engines through equipment such as electrification stations and/or 

implementation of outreach and education programs to implement policies 

that reduce idling time. 

7. Account for hardware and installation costs, and may provide also for 

incremental maintenance costs and/or costs of repairs on such hardware 

for a period of up to four years after installation. 

8. Limit recipients of retrofits to fleets that legally bind themselves to 

maintain any equipment installed in connection with the project during 

and after completion of the project. 

9. Establish minimum standards for any third-party with whom VEPCO 

might contact to carry out this program that include prior experience in 

arranging vehicle retrofits, ULSD purchases, anti-idling campaigns, etc. 

and a record of prior ability to interest and organize fleets, school districts, 

community groups, etc. to join a clean diesel program. 

10. A schedule for completing each portion of the project. 

C. Within 180 days after entry of the Consent Plans, VEPCO shall submit a plan to 

EPA for review and approval for the identification, acquisition, restoration, 

management and/or preservation of resource lands to mitigate or compensate for 

lost service uses possibly resulting from past power plant emissions in which 

VEPCO shall spend no less than $500,000. The proposed plan shall satisfy the 

following criteria: 

1. Provide a means for the identification of available resource lands which 

may be used to mitigate any past impacts of acid rain deposition or other 

possible effects of power plant emissions and assess the value of such 

lands in providing such benefits as contributing to carbon sequestration, 

restoring forest productivity and other relevant factors. 

2. Establish a process for carrying out the plan, including the identification 

of resources, staff and/or other entities charged with project execution, 

management and oversight during the terms of the Decree, and develop a 

related schedule for completing each portion of the project. 

3. Within 180 days after approval of the proposed selection process identify 

particular plots of land that are consistent with the specifications outlined. 

4. Submit the identified plots of land with recommended selection criteria 

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within a reasonable period of time. Develop legal options for acquiring, 

restoring and assuring the continued preservation of identified lands. 

D. Performance - Upon approval of plan by the United States, VEPCO shall 

complete the mitigation project according to the approved plan and schedule. 

II. Solar Photovoltaic (PV) Project – To Be Conducted in New York State 

A. New York shall propose to VEPCO and the U.S. a plan using $2.1 million to 

accomplish the installation of solar photovoltaics (“PVs”) on municipal buildings 

in New York. These building would then use the PV-generated energy, in part to 

help remove some demand for energy from the electrical grid during peak demand 

periods. The project will be administered through the New York State Energy 

Research and Development Authority=s (NYSERDA) Solar Photovoltaics 

program. 

B. New York’s proposed plan must: 

1. Describe how the work or project to be performed is consistent with 

requirements of Section II.A, above; 

a) Include a general schedule and budget (for $2.1 million) for 

completion of the work; including payment instructions for 

VEPCO’s submission of funds to the State, along with a 

requirement of periodic reports to all Parties on the progress of the 

work called for in the proposed plan through completion of the 

project; 

b) Describe generally the expected environmental benefit for project 

or work called for under the proposed plan; and 

c) Describe briefly how work or project described in the proposed 

plan meets the requirements of Section XXI of the Decree. 

C. VEPCO’s obligation for this project shall terminate once a plan exists for this 

project or work and VEPCO has transferred at least $2.1 million to New York to 

complete the project or work described in the plan. VEPCO shall transfer this 

sum as soon as possible after the proposed plan is developed but no later than 

December 31, 2003, unless untimely submission of the proposed plan or material 

deficiency in such plan requires payment after that date. 

D. If New York (or NSYERDA) is later unwilling or unable to perform the project 

specified here, then New York, in consultation with VEPCO, shall select an 

alternative project or projects designed to accomplish the same kinds of goals as 

intended for this project. After proceeding through this proposed plan process 

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for the alternative project, VEPCO shall fund such project or projects in the 

amount of $2.1 million. 

III. Mitigating Harm to Health Related to Air Pollution in New Jersey and New York: 

Public Transit -- Diesel Bus Catalyzed Particulate Filters 

A. New Jersey shall supply to VEPCO and the U.S. a plan to use $2.7 million to 

accomplish the installation of catalyzed particulate filters (CPFs) on late-model 

conventional diesel buses used to transport commuters from various locations in the 

State of New Jersey into New York City. Operating exclusively on ultra-low sulfur 

diesel fuel, these CPF-equipped buses will further significantly reduce harmful 

emissions of carbon monoxide, hydrocarbons, and particulate matter in both New 

Jersey and New York. The project will be administered by the New Jersey Transit 

Corporation. 

B. New Jersey’s proposed plan must: 

1. Describe how the work or project to be performed is consistent with requirements 

of Section III.A, above; 

2. Include a general schedule and budget (for $2.7 million) for completion of the 

work, including payment instructions for VEPCO’s submission of funds to the 

State, along with a requirement of periodic reports to all Parties on the progress of 

the work called for in the proposed plan through completion of the project; 

3. Describe generally the expected environmental benefit for project or work called 

for under the proposed plan; and 

4. Describe briefly how the work or project described in the proposed plan meets the 

requirements of Section XXI of the Decree. 

C. VEPCO’s obligation for this project shall terminate once a plan exists for this project 

or work and VEPCO has transferred at least $2.7 million to New Jersey to complete 

the project or work described in the plan. VEPCO shall transfer this sum as soon as 

possible after the proposed plan is developed but no later than December 31, 2003, 

unless untimely submission of the proposed plan or material deficiency in such plan 

requires payment after that date. 

IV. School Bus Retrofit Project – To be Conducted in the State of Connecticut 

A. The State of Connecticut will supply VEPCO and the U.S. a plan to use $1.1 million 

to purchase and install particulate filters for diesel school buses that operate in 

selected urban communities in that State. The proposed plan may include any 

combination of the following: (i) conversion of conventional diesel-powered, school 

buses to buses with particulate traps, (ii) procuring of ultra-low sulfur diesel fuel (and 

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necessary infrastructure) to power for up to three years buses converted in the manner 

described in (i), and/or (iii) install additional air pollution controls on such buses. 

The proposed plan will be limited to pollution control devices, fuels, and other 

measures needed to convert diesel buses to include CRT or other particulate traps and 

other controls (including support infrastructure). 

B. Connecticut’s proposed plan must: 

1. Describe how the work or project to be performed is consistent with 

requirements of Section IV.A, above; 

2. Include a general schedule and budget (for $1.1 million) for completion 

of the work, including payment instructions for VEPCO’s submission of 

funds to the State, along with a requirement of periodic reports to all 

Parties on the progress of the work called for in the proposed plan through 

completion of the project; 

3. Describe generally the expected environmental benefit for project or work 

called for under the proposed plan; and 

4. Describe briefly how the work or project described in the proposed plan 

meets the requirements of Section XXI of the Decree. 

C. VEPCO’s obligation for this project shall terminate once a plan exists for this project 

or work and VEPCO has transferred at least $1.1 million to Connecticut to complete 

the project or work described in the plan. VEPCO shall transfer this sum as soon as 

possible after the proposed plan is developed but no later than December 31, 2003, 

unless untimely submission of the proposed plan or material deficiency in such plan 

requires payment after that date. 

V. School Bus Retrofit Program to be Carried Out in Commonwealth of Virginia 

A. Commonwealth of Virginia shall supply to VEPCO and the U.S. a plan to use $2.0 

million to accomplish any combination of the following concerning in-service dieselpowered school buses in the Commonwealth: retrofitting buses with pollution control 

devices and techniques and infrastructure needed to support such retrofits, engine 

replacements that will reduce emissions of particulates or ozone precursors, and 

changeover to CNG fuel or low diesel fuel. These projects are to be carried out in 

areas either non in attainment with ambient air quality standards in the 

Commonwealth or at risk of being reclassified as nonattainment, such as Fairfax, 

Hampton Roads, and Virginia Beach 

B. Commonwealth’s proposed plan must: 

1. Describe how the work or project to be performed is consistent with 

requirements of Section V.A, above; 

2. Include a general schedule and budget (for $2.0 million) for completion of 

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the work, including payment instructions for VEPCO’s submission of funds to 

the Commonwealth, along with a requirement of periodic reports to all Parties 

on the progress of the work called for in the proposed plan through 

completion of the project; 

3. Describe generally the expected environmental benefit for project or work 

called for under the proposed plan; and 

4. Describe briefly how the work or project described in the proposed plan meets 

the requirements of Section XXI of the Decree. 

C. VEPCO’s obligation for this project shall terminate once a plan exists for this project 

or work and VEPCO has transferred at least $2.0 million to the Commonwealth to 

complete the project or work described in the plan. VEPCO shall transfer this sum as 

soon as possible after the proposed plan is developed but no later than December 31, 

2003, unless untimely submission of the proposed plan or material deficiency in such 

plan requires payment after that date 

VI. Protecting Forests and other Natural Resources in West Virginia’s Cheat Gorge / 

Big Sandy Area. 

A. The State of West Virginia will supply VEPCO and the U.S. a $2.0 million proposed 

plan for the purchase and maintenance of property and/or conservation easements that 

would preserve forests and other environmentally sensitive areas in and around the 

Cheat Gorge / Big Sandy area of the West Virginia, for the purposes of making or 

expanding a public wildlife management area in the State and thus preserving an 

important sources of carbon sequestration. The proposed plan also will include 

needed steps for securing and maintaining valid conservation easements under 

applicable law and for securing clear title, as applicable. 

B. West Virginia’s proposed plan must: 

1. Describe how the work or project to be performed is consistent with 

requirements of Section VI.A, above; 

2. Include a general schedule and budget (for $2.0 million) for completion of 

the work; including payment instructions for VEPCO’s submission of funds to 

the State or its designee, along with a requirement of periodic reports to all 

Parties on the Progress of the work called for in the proposed plan through 

completion of the project; 

3. Describe generally the expected environmental benefit for project or work 

called for under the proposed plan; and 

4. Describe briefly how work or project described in the proposed plan meets the 

requirements of Section XXI of the Decree. 

C. VEPCO’s obligation for this project shall terminate once a plan exists for this project 

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or work and VEPCO has transferred at least $2.0 million to West Virginia or its 

designee. VEPCO shall transfer this sum as soon as possible after the proposed plan 

is developed but no later than December 31, 2003, unless untimely submission of the 

proposed plan or material deficiency in such plan requires payment after that date. 

D. If West Virginia is unwilling or unable to perform the project specified here, West 

Virginia, in consultation with VEPCO, shall select an alternative project or projects 

designed to accomplish the same kinds of goals as intended for this project. After 

proceeding through this proposed plan process for this alternative project(s), VEPCO 

shall fund such project or projects in the amount of $2.0 million. 

VII. National Park Service Alternative-Fueled and Hybrid Vehicles Project. 

A. The National Park Service will supply VEPCO a plan for using $1.0 million in 

accordance with the Park System Resource Protection Act, 16 U.S.C Section 19jj, 

to improve air quality in and about the Shenandoah National Park, either by 

securing alternative-fueled vehicles for trial use in and around the Park (including 

necessary ancillary equipment such as a fueling station) or for implementing 

another project also intended to reduce damage to those resources caused by air 

pollution suffered by the Park. 

B. NPS’s proposed plan must: 

1. Describe how the work or project to be performed is consistent with 

requirements of Section VII.A, above; 

2. Include a general schedule and budget (for $1.0 million) for completion of 

the work; including payment instructions for VEPCO’s submission of funds to 

the Natural Resource Damage and Assessment Fund, along with a 

requirement of periodic reports to all Parties on the Progress of the work 

called for in the proposed plan through completion of the work. 

3. Describe generally the expected environmental benefit for project or work 

called for under the proposed plan; and 

4. Describe briefly how work or project described in the proposed plan meets 

the requirements of Section XXI of the Decree. 

C. VEPCO’s obligation for this project shall terminate once an approved plan exists 

for this project or work and VEPCO has transferred at least $1.0 million to the 

Natural Resource Damage and Assessment Fund. VEPCO shall transfer this sum 

as soon as possible after the proposed plan is approved but no later than 

December 31, 2003, unless untimely submission of the proposed plan or material 

deficiency in such plan requires payment after that date. 

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State Consent Orders

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Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 230
west virginia department of environmental protection 

Division of Air Quality 

601 5Th Street SE 

Charleston, WV 25304 

Phone: (304) 926-0475 

Fax: (304) 926-0479 

Joe Manchin 111, Governor 

Stephanie R. Timmermeyer, Cabinet Secretary 

www.wvdep.org 

CONSENT ORDER 

ISSUED UNDER THE 

AIR POLLUTION CONTROL ACT 

WEST VIRGINIA CODE, CHAPTER 22, ARTICLE 5, SECTION 4 

TO: ALLEGHENY ENERGY SUPPLY CO., LLC DATE: April 9,2008 

MONONGAHELA POWER CO. 

800 Cabin Hill Drive 

Greensburg, PA 1560 1 ORDER NO.: CO-SIP-C-2008-5 

FACILITY ID NO.: 033-0001 5 

INTRODUCTION 

This Consent Order is issued by the Director of the Division of Air Quality (hereinafter 

"Director"), under the authority of West Virginia Code, Chapter 22, Article 5 , Section 1 et seq. 

to Allegheny Energy Supply (hereinafter "Allegheny"). 

FINDINGS OF FACT 

In support of this Order, the Director hereby finds the following: 

1. Allegheny Energy Supply operates and jointly owns with Monongahela Power Co., the 

Harrison Power Station, an electric generating facility, located in Haywood, West 

Virginia. 

2. The facility is equipped with three (3) electric generating units, Units 1,2 and 3, each 

rated at 640 megawatts, and equipped with selective catalytic reduction (SCR) emission 

control technology. 

3. According to EPA, for states that are subject to the Clean Air Interstate Rule (CAIR) 

annual nitrogen oxide (NO,) emissions reduction requirements and fulfill those 

requirements entirely through electric generating unit (EGU) emission reductions, the 

Promoting a healthy environment. 

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 231
Allegheny Energy CO-SIP-C-2008-5 

Harrison Power Station (033-00015) 

Page 2 

Clean Air Fine Particle Implementation Rule [72FR20623,25APR2007] includes a 

presumption that compliance by EGU sources with an EPA-approved CAIR state 

implementation plan (SIP) or a CAIR federal implementation plan (FIP) satisfies the NO, 

Reasonably Available Control Measures (RACM) requirement, including the Reasonably 

Available Control Technology (RACT) requirement, for the fine particle national 

ambient air quality standard (PM2,5 NAAQS). However, that presumption only applies if 

such sources with existing selective catalytic reduction (SCR) emission control 

technology installed on their boilers operate that teclmology on a year-round basis, 

beginning in 2009. 

4. The State of West Virginia is subject to the CAIR annual NO, emissions reduction 

requirements and has implemented 45CSR39 - Control of Annual Nitrogen Oxide 

Emissions to Mitigate Interstate Transport of Fine Particulate Matter and Nitrogen 

Oxides - which fulfills the annual NO, reduction requirements entirely through EGU 

emission reductions. 

ORDER FOR COMPLIANCE 

Now, therefore, in accordance with Chapter 22, Article 5, Section 1 et seq. of the West 

Virginia Code, it is hereby agreed between the parties, and ORDERED by the Director: 

Allegheny shall operate the SCRs on Units 1,2 and 3 beginning January 1,2009, 

whenever the units are in operation, except for periods of required SCR maintenance. 

OTHER PROVISIONS 

1. Under this Order and conditioned upon the Findings of Fact set forth above, Allegheny: 

a) hereby waives its right to appeal this Order under the provisions of Chapter 22, 

Article 5, Section 1 of the Code of West Virginia; 

b) agrees to take all actions required by the terms and conditions of this Order and 

consents to and will not contest the Director's jurisdiction regarding this Order; 

c) reserves all rights and defenses available regarding liability or responsibility in 

any proceedings regarding Allegheny other than proceedings, administrative or 

civil, to enforce this Order. 

2. Compliance with the terms and conditions of this Order shall not in any way be construed 

as relieving Allegheny of the obligation to comply with any applicable law, permit, other 

order, or any other requirement otherwise applicable. Violations of the terms and 

conditions of this Order may subject Allegheny to additional penalties and injunctive 

relief in accordance with the applicable law. 

3. The provisions of this Order are severable and should a court or board of competent 

jurisdiction declare any provisions to be invalid or unenforceable, all other provisions 

shall remain in full force and effect. 

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 232
Allegheny Energy CO-SIP-(2-2008-5 

Harrison Power Station (033-00015) 

Page 3 

4. This Order is binding on Allegheny, its successors and assigns. 

5. This Order shall become effective immediately upon signing by both parties. 

Curtis Davis, Chief Operating Officer 

Allegheny Energy Service Corp. 

On behalf of AE Supply and Monongahela Power 

JO~A. ene edict, Director 

Division of Air Quality 

Date / 

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 233
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Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 234
west virginia department of environmental protection 

Division of Air Quality 

60 1 57"' Street SE 

Charleston, WV 25304 

Phone: (304) 926-0475 

Fax: (304) 926-0479 

Joe Manchin 111, Governor 

Stephanie R. Timmermeyer, Cabinet Secretary 

www.wvdep.org 

CONSENT ORDER 

ISSUED UNDER THE 

AIR POLLUTION CONTROL ACT 

WEST VIRGINIA CODE, CHAPTER 22, ARTICLE 5, SECTION 4 

TO: ALLEGHENY ENERGY SUPPLY CO., LLC DATE: April 9,2008 

MONONGAHELA POWER CO. 

800 Cabin Hill Drive 

Greensburg, PA 1560 1 ORDER NO.: CO-SIP-C-2008-6 

FACILITY ID NO. : 073-00005 

INTRODUCTION 

This Consent Order is issued by the Director of the Division of Air Quality (hereinafter 

"Director"), under the authority of West Virginia Code, Chapter 22, Article 5 , Section 1 et seq. 

to Allegheny Energy Supply (hereinafter "Allegheny"). 

FINDINGS OF FACT 

In support of this Order, the Director hereby finds the following: 

1. Allegheny Energy Supply operates and jointly owns with Monongahela Power Company, 

the Pleasants Power Station, an electric generating facility, located in Belmont, West 

Virginia. 

2. The facility is equipped with two (2) electric generating units, Units 1 and 2, each rated 

at 626 megawatts, and equipped with selective catalytic reduction (SCR) emission 

control technology. 

3. According to EPA, for states that are subject to the Clean Air Interstate Rule (CAIR) 

annual nitrogen oxide (NO,) emissions reduction requirements and fulfill those 

requirements entirely through electric generating unit (EGU) emission reductions, the 

Promoting a healthy environment. 

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 235
Allegheny Eneregy CO-SIP-C-2008-6 

Pleasants Power Station (073-00005) 

Page 2 

Clean Air Fine Particle Implementation Rule [72FR20623,25APR2007] includes a 

presumption that compliance by EGU sources with an EPA-approved CAIR state 

implementation plan (SIP) or a CAIR federal implementation plan (FIP) satisfies the NO, 

Reasonably Available Control Measures (RACM) requirement, including the Reasonably 

Available Control Technology (RACT) requirement, for the fine particle national 

ambient air quality standard (PM,,, NAAQS). However, this presumption only applies if 

such sources with existing selective catalytic reduction (SCR) emission control 

technology installed on their boilers operate that technology on a year-round basis, 

beginning in 2009. 

4. The State of West Virginia is subject to the CAIR annual NO, emissions reduction 

requirements and has implemented 45CSR39 - Control of Annual Nitrogen Oxide 

Emissions to Mitigate Interstate Transport of Fine Particulate Matter and Nitrogen 

Oxides - which fulfills the annual NO, reduction requirements entirely through EGU 

emission reductions. 

ORDER FOR COMPLIANCE 

Now, therefore, in accordance with Chapter 22, Article 5, Section 1 et seq. of the West 

Virginia Code, it is hereby agreed between the parties, and ORDERED by the Director: 

Allegheny shall operate the SCRs on Units 1 and 2 beginning January 1,2009, whenever 

the units are in operation, except for periods of required SCR maintenance. 

OTHER PROVISIONS 

1. Under this Order and conditioned upon the Findings of Fact set forth above, Allegheny: 

a) hereby waives its right to appeal this Order under the provisions of Chapter 22, 

Article 5, Section 1 of the Code of West Virginia; 

b) agrees to take all actions required by the terms and conditions of this Order and 

consents to and will not contest the Director's jurisdiction regarding this Order; 

c) reserves all rights and defenses available regarding liability or responsibility in 

any proceedings regarding Allegheny other than proceedings, administrative or 

civil, to enforce this Order. 

2. Compliance with the terms and conditions of this Order shall not in any way be construed 

as relieving Allegheny of the obligation to comply with any applicable law, permit, other 

order, or any other requirement otherwise applicable. Violations of the terms and 

conditions of this Order may subject Allegheny to additional penalties and injunctive 

relief in accordance with the applicable law. 

3. The provisions of this Order are severable and should a court or board of competent 

jurisdiction declare any provisions to be invalid or unenforceable, all other provisions 

shall remain in full force and effect. 

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 236
Allegheny Eneregy CO-SIP-C-2008-6 

Pleasants Power Station (073-00005) 

Page 3 

4. This Order is binding on Allegheny, its successors and assigns. 

5. This Order shall become effective immediately upon signing by both parties. 

Curtis Davis, Chief Operating Officer 

Allegheny Energy Service Corp. 

On behalf of AE Supply and Monongahela Power 

JOY Benedict, Director 

Division of Air Quality 

Date 

Date 

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 237
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Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 238
DAVID C. CANNON JR. 

Vice President, Environment, Health 8 Safety 

Mr. John A. Benedict 

Director 

Division of Air Quality 

West Virginia DEP 

601 57th Street, SE 

Charleston, WV 25304 

4 Allegheny Energy 800 Cabin Hill Drive 

Greensburg, PA 15601 

(724) 838-6709 

FAX (724) 830-51 42 

December 22, 2008 

Re: Consent Order No.: CO-SIP-C-2008-5 

Facility ID NO.: 033-00015 (Harrison Power Station) 

and 

Consent Order No. : CO-SIP-C-2008-6 

Facilitv ID NO.: 073-00005 (Pleasants Power Station) 

Dear John: 

Thank you for taking the time over the last several months to meet with me and 

other representatives of Allegheny Energy to discuss the above-referenced 

Consent Orders. In particular, we appreciate this opportunity to confirm the 

parties' intentions under the Consent Orders regarding the operational, 

maintenance and safety issues facing Allegheny Energy from year round 

operation of the SCRs at the Harrison and Pleasants Power Stations, 

commencing January 1, 2009. Further, Allegheny Energy can now outline for 

the Department our scheduled maintenance activities on the SCRs in 2009. 

For the purpose of this letter, we are assuming that the Clean Air Interstate 

Rule (CAIR) is not vacated by the DC Circuit but rather remanded to EPA with 

appropriate instructions. As Allegheny Energy advised the Department, should 

the en banc court vacate CAIR, the parties will need to discuss further what are 

Allegheny Energy's obligations under the Consent Orders. Even amidst this legal 

uncertainty, it is important to clarify how the operations and maintenance 

requirements for the SCRs will affect running those controls under our 

agreements. 

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 239
Mr. John A. Benedict 

December 22, 2008 

Page 2 

SCR Operating Requirements 

As we have advised, the original equipment manufacturers for the SCRs at 

Harrison and Pleasants have set forth minimum flue gas temperatures at which 

the SCRs may be safely and effectively operated. If the flue gas temperature 

drops below the minimum and ammonia continues to be injected into the SCR, 

the catalyst would suffer significant and permanent degradation, as well as 

create an unsafe work environment for our employees. Moreover, once the SCR 

is taken off line, the conversion of the urea to ammonia process requires 

between eight and twelve hours for reheating and reactivating. The flue gas 

temperature is based upon the load in the boiler which is based upon demand 

for electricity. Therefore, to the extent there is insufficient demand, the load in 

the boiler is reduced to the point where the flue gas temperature falls below the 

minimum temperature requirement and the SCR cannot function. Thereafter, 

the SCR cannot be restarted unless the unit demand going forward will create 

flue gas temperatures in excess of the minimum requirements for a period of 

time sufficient to complete the urea to ammonia process and then effectively, 

reliably and safely operate the SCR. The parties have discussed these 

scenarios, and Allegheny Energy and the Department have agreed that under 

the terms of the Consent Order, Allegheny is not required to operate the unit's 

SCR at the following times even though the unit is operating: 

when such unit's flue gas temperature drops below 613OF at any point 

along the catalyst layer; or 

for periods of up to twelve hours to allow for the reheating and 

reactivating of the urea to ammonia conversion process when the flue gas 

temperatures of the units at a facility have fallen below 613OF. 

SCR Maintenance 

Each of the SCRs at Harrison and Pleasants contains three layers of catalyst. As 

you know, the catalysts wear out over time and need to be regenerated and/or 

replaced. This will become more frequent with the extended operation of the 

SCRs. The layers of catalyst for the SCRs at Harrison units 2 and 3 were 

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 240
Mr. John A. Benedict 

December 22, 2008 

Page 3 

regenerated and/or replaced during the Fall of 2008. The SCR for Harrison Unit 

1 will be taken out of service in early February, 2009 for one of the catalyst 

layers to be replaced and two layers to be regenerated. The SCR then will be 

brought back in service when unit 1 returns from an extended outage in April, 

2009. The SCR for unit-1 at Pleasants will be taken out of service for 

approximately three weeks in the First Quarter of 2009 (currently scheduled to 

commence in January) for one of the catalyst layers to be replaced. The SCR 

for unit 2 at Pleasants will be taken out of service for approximately eight weeks 

in the Fall of 2009 for two of the catalyst layers to be replaced and one layer to 

be regenerated. More importantly, these replacement and regeneration projects 

will restore the SCRs to their maximum efficiency thus resulting in a higher net 

NOx removal during 2009. 

We appreciate the Department's cooperation with respect to the operation of the 

SCRs under the above-referenced Consent Orders and we look forward to 

continued open lines of communication in the future. Please feel free to call me 

with any thoughts or questions. 

Sincerely, 

1 

David C. Cannon Jr. 

Vice President 

Environment, Health & Safety 

Wheeling, WV 1997 PM2.5 Redesignation Request and Maintenance Plan Page E - 241