IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA

UNITED STATES OF AMERICA and ) STATE OF NORTH DAKOTA, ) ) Pl ai nt i ffs, ) ) v. ) Civil Action No: ) ) MINNKOTA POW E R COOPERATIVE, Inc. and ) SQUARE BUTTE ELECTRIC COOPERATIVE, ) ) Defendants. ) ) CONSENT DECREETABLE OF CONTENTS I

. J u r i s d i c t i o n a n dV e n u e .................................................... 3 II. Applicability

........................................................... 3 III. Def i nitions

............................................................. 4 IV. S O 2 E m i s s i o n R e d u c t i o n s a n dC o n tr o l s ...................................... 1 1 A. SO 2 E m i s s i o n C o n tr o l s ............................................ 1 1 B. Tonnage Lim its for SO2 Em issions

................................... 1 4 C. Surrender of SO 2 A l l o w a n c e s ....................................... 1 6 D. General SO 2 P r o v i s i o n s ............................................ 1 8 V. NO x E m i s s i o n R e d u c t i o n s a n dC o n tr o l s ..................................... 1 9 A. Phase I NO x E m i s s i o n R e d u c t i o n s a n dC o n tr o l s ......................... 1 9 B. Phase II NO x E m i s s i o n R e d u c t i o n s a n dC o n tr o l s ....................... 1 9 C. Use of NO x A l l o w a n c e s . ........................................... 2 1 D. General NO x P r o v i s i o n s ............................................ 2 2 V I

. P M E m i s s i o n R e d u c t i o n s a n dC o n tr o l s ...................................... 2 4 A

. O p t i m i z a t i o n o f P M E m i s s i o n C o n tr o l s ................................ 2 4 B

. C o mp l i a n c e w i th P M E m i s s i o n L i m i t s ................................ 2 4 C

. P M M o n i t o r i n g .................................................. 2 6 V I I

. P r o h i b i t i o n o n N e t t i n g C r e d i t s o rO f f

s e t s f r o m R e q u i r e dC o n tr o l s ................. 2 8 VIII. Additional Injunctive Relief

............................................. 3 0 I X

. C i v i l P e n a l t y ......................................................... 3 3 X

. R e s o l u t i o n o f C l a i m s .................................................... 3 5 -i

-X I

. P e r i o d i c R e p o r t i n g ...................................................... 3 7 XII. Review and Approval of Subm ittals

........................................ 3 8 XIII. Stipulated Penalties

..................................................... 4 0 X I V

. F o r c e M a j e u r e ......................................................... 4 4 X V

. D i s p u t e R e s o l u t i o n ...................................................... 4 9 X V I

. P e r m i t s ............................................................... 5 2 X V I I

. I n f o r m a t i o n C o l l e c t i o n a n dR e t e n t i o n ....................................... 5 4 XVIII. Notices

............................................................... 5 5 X I X

. S a l e s o r T r a n s f e r s o f O w n e r s h i p I n t e r e s t s .................................... 5 7 X X

. E f f

e c t i v e D a t e ......................................................... 5 8 X X I

. R e t e n t i o n o f J u r i s d i c t i o n ................................................. 5 9 X X I I

. M o d i f i c a t i o n ........................................................... 5 9 XXIII. General Provisions

...................................................... 5 9 X X I V

. S i g n a t o r i e s a n dS e r v i c e ................................................. 6 2 XXV. Public Com m e nt ........................................................ 6 2 XXVI. Conditional Term ination of Enforcem ent Under Consent Decree

................. 6 3 XXVII. Final Judgm ent ........................................................ 6 4

-ii

-W H EREAS, Plaintiffs, the United States of Am erica (“the United States”), on behalf of the United States Environm ental Protection Agen cy (“EPA”), and the State of North Dakota (“State”), have f iled a Comp laint f o r injunctive relief and civil penalties pursuant to Sections 113(b)(2) and 167 of the Clean Air Act (the “Act”), 42 U.S.C. §§ 7413(b)(2) and 7477, alleging that Defendants, Minnkota Power Coope rative (“Minnkota”) and Square Butte Electric Cooperative (“Square Butte”) have undertaken construction projects at m a jor em itting facilities in violation of the Prevention of Significant Deteri oration provisions of Part C of Subchapter I of the Act, 42 U.S.C. §§ 7470-7492, and in violation of the federally approved and enforceable North Dakota State Implem entation Plan; W H EREAS, in their Comp laint, the United States and the State (collectively, “the Plaintiffs”) allege, inter alia, that Minnkota and Square Butte (collectively, the “Settling Defendants”) failed to obtain the necessary perm its and install the controls necessary under the Act to reduce their sulfur dioxide (SO 2 ), nitrogen oxide (NO x ), and/or particulate m a tter (PM)

em issions; W H EREAS, the Comp laint alleges claim s upon which relief can be granted against the Settling Defendants under Sections 113 and 167 of the Act, 42 U.S.C. §§ 7413 and 7477; W H EREAS, the United States provided the Settling Def e ndants and the State with actual notice of alleged violations in accordance with Section 113(a)(1) of the Act, 42 U.S.C. § 7413(a)(1); W H EREAS, the Settling Def e ndants assert that there m a y be dif f i culty associated with the continuous operation of Flue Gas Desulfuri zation System s at the Milton R. Young Station during the extrem ely cold am bient air temp eratures at the plant in the winter m onths, and the

1Parties have considered these circum stances in reaching this agreem ent; W H EREAS, the Settling Def e ndants assert that it would be very dif f i cult to install and continuously operate certain NO x em ission controls at the cyclone-fired, lignite-burning Units at the Milton R. Young Station; W H EREAS, NDDH contemplates that, upon full implem entation of the controls and other requirem e nts of this Consent Decree, the Settling Def e ndants will have installed BACTlevel SO 2 controls for purposes of netting under this Decree; W H EREAS, the Parties have agreed that settlem e nt of this action is in the best interest of the Parties and in the public interest, and thatentry of this Consent Decree without further litigation is the m o st appropriate m eans of resolving this m a tter; W H EREAS, the Parties recognize, and the Court by entering this Consent Decree finds, that this Consent Decree has been negotiated in good faith and at arm ’ s length and that this Consent Decree is fair, reasonable, consistent with the goals of the Act, and in the public interest; W H EREAS, the Settling Defendants have cooperated in the resolution of this m a tter; W H EREAS, the Settling Def e ndants have denied and continue to deny the violations alleged in the Comp laint, and nothing herein shall constitute an adm i ssion of liability; and W H EREAS, the Parties have consented to en try of this Consent Decree without trial of any issues; NOW , THEREFORE, without any admi ssion of fact or law, it is hereby ORDERED, ADJUDGED, AND DECREED as follows:

2I. JURISDICTION AND VENUE 1. This Court has jurisdiction over this action, the subject m a tter herein, and the Parties consenting hereto, pursuant to 28 U.S.C. §§ 1331, 1345, 1355, and 1367, and pursuant to Sections 113 and 167 of the Act, 42 U.S.C. §§ 7413 and 7477. Venue is proper under Section 113(b) of the Act, 42 U.S.C. § 7413(b), and under 28 U.S.C. § 1391(b) and (c). Solely for the purposes of this Consent Decree and the underlying Com p laint, the Settling Defendants waive all objections and defenses that they m a y have to the Court’s jurisdiction over this action, to the Court’s jurisdiction over the Settling Def e ndants, and to venue in this District. The Settling Defendants shall not challenge the term s of this Consent Decree or this Court’s jurisdiction to enter and enforce this Consent Decree. For purposes of the Comp laint filed by the Plaintiffs in this m a tter and resolved by the Consent Decree, and for purposes of entry and enforcem ent of this Consent Decree, the Settling Defendants wa ive any defense or objection based on standing. Except as expressly provided for herein, this Consent Decree shall not create any rights in any party other than the Parties to this Consent Decree. Except as provided in Section XXV (Public Com m e nt) of this Consent Decree, the Parties c onsent to entry of this Consent Decree without further notice. II. APPLICABILITY 2. Except as set forth in Paragraph 3, the provisions of this Consent Decree shall, upon entry, apply to and be binding upon the Settling Defendants and their successors and assigns, and upon the Settling Defendants’ officers, em ployees and agents solely in their capacities as such. 3. Upon entry, the provisions of this Consent Decree that relate exclusively to Unit 1 at the Milton R. Young Station shall only apply to and be binding upon Minnkota, and its

3successors and assigns, and upon Minnkota’s officers, em ployees and agents solely in their capacities as such. 4. The Settling Defendants shall provide a copy of this Consent Decree to all vendors, suppliers, consultants, contractors, agents, and any other comp any or other organization retained to perform any of the work required by this C onsent Decree. Notwithstanding any retention of contractors, subcontractors, or agents to perf orm any work required under this Consent Decree, the Settling Defendants shall be responsible for ensuring that all work is perform e d in accordance with the requirem e nts of this Consent D ecree. In any action to enforce this Consent Decree, the Settling Def e ndants shall not assert as a def e nse the f a ilure of their of f i cers, directors, employees, servants, agents, or contractors to take actions necessary to comp ly with this Consent Decree, unless it is determ ined to be a Force Majeure Event and satisf i es the Force Majeure provisions of this Consent Decree. III. DEFINITIONS 5. A “30-day Rolling Average Em ission Rate” shall be determ ined by calculating an arithm e tic average of all hourly emission rates in lbs/MMBtu for the current Operating Day and the previous 29 Operating Days. A new 30- day Rolling Average Em ission Rate shall be calculated for each new Operating Day. Each 30-day Rolling Average Em ission Rate shall include all start-up, shutdown and Malfunction periods within each Operating Day. A Malfunction shall be excluded from this Em ission Rate, however, if it is determined to be a Force Majeure Event and satisfies the Force Majeure provisions of this Consent Decree. The reference m e thods for determining SO 2 and NO x Em ission Rates shall be those specified in 40 C.F.R. Part 75, Appendix F.

46. A “30-day Rolling Average Rem oval Efficiency” m eans the percent reduction in the

m a ss of a pollutant achieved by a Unit’s pollution control device over a 30-Operating Day period. This percentage shall be calculated by subtracting the Unit’s outlet 30-day Rolling Average Em ission Rate f r om the Unit’s inlet 30-day Rolling Average Em ission Rate, dividing that dif f

e rence by the Unit’s inlet 30-day Rolling Average Emission Rate, and then mu ltiplying by 100. A new 30-day Rolling Average Rem oval Efficiency shall be calculated for each new Operating Day, and shall include all start-up, shutdown and Malfunction periods with each Operating Day. A Malfunction shall be excluded fr om this Rem oval Efficiency, however, if it is determ ined to be a Force Majeure Event and satisfies the Force Majeure provisions of this Consent Decree. The reference m e thod for determ ining both the inlet and outlet 30-day Rolling Average Em ission Rate, for the purposes of calculating the SO 2 30-day Rolling Average Rem oval Efficiency, shall be that specified in 40 C.F.R. Part 75, Appendix F. 7. “CEMS” or “Continuous Em ission Monitoring System ,” m eans, for obligations involving NO x and SO 2 under this Consent Decree, the devices defined in 40 C.F.R. § 72.2, and installed and m a intained as required by 40 C.F.R. Part 75. 8. “Clean Air Act” or “Act” m eans the federal Clean Air Act, 42 U.S.C. §§7401-7671q, and its implem enting regulations. 9. “Consent Decree” m eans this Consent Decree. 10. “Em i ssion Rate” for a given pollutant m eans the num ber of pounds of that pollutant

em itted per m illion British therm a l units of heat input (lb/MMBtu), m easured in accordance with this Consent Decree. 11. “EPA” m eans the United States Environm ental Protection Agency.

512. “ESP” m eans electrostatic precipitator, a pollution control device for the reduction of PM. 13. “Flue Gas Desulfurization System ” or “FGD” m eans a pollution control device that

employs flue gas desulfurization technology, in cluding an absorber utilizing lim e, flyash, or lim estone slurry, for the reduction of sulfur dioxide em issions. 14. “Fossil Fuel” m eans any hydrocarbon fuel, including coal, petroleum coke, petroleum oil, or natural gas. 15. “lb/MMBtu” m eans one pound of a pollutant per m illion British therm a l units of heat input. 16. “Malfunction” m eans m a lfunction as that term is defined under 40 C.F.R. § 60.2 (July 1, 2004). 17. “MW ” m eans a m e gawatt or one m illion W a tts. 18. “Milton R. Young Station” m eans, for purposes of this Consent Decree only, the Settling Def e ndants’ electric generating Units near Center, North Dakota, which currently consist of two lignite-fired cyclone units. Unit 1 has a nom inal net rating of 235 MW

. Unit 2 has a nom inal net rating of 440 MW

. “Milton R. Young Station” also includes the Settling Defendants’ proposed Unit 3, with a proposed net rating of 600 MW

. The Settling Defendants anticipate subm itting a perm it to construct application on or before June 1, 2009. Subject to NDDH’s perm it to construct review process, the Unit 3 permit is anticipated to be issued by Decem ber 31, 2010, construction is expected to com m e nce on or before Decem b er 31, 2012, and operation is expected to com m e nce on or before Decem ber 31, 2015. 19. “NDDH” shall m ean the North Dakota Departm e nt of Health.

620. “Netting” shall m ean the process of determ ining whether a particular physical change or change in the m e thod of operation of a m a jor stationary source results in a net

em issions increase, as that term is defined at 40 C.F.R. § 52.21(b)(3)(i) and Chapter 33-15-15 of the North Dakota Adm i nistrative Code (Feb. 1, 2005). 21. “NO x ” m eans oxides of nitrogen, m easured in accordance with the provisions of this Consent Decree. 22. “NO x Allowance” m eans an authorization or credit to em it a specified am ount of NO x that is allocated or issued under an em issions trading or m arketable perm it program of any kind established under the Act or a State Implem entation Plan. The Parties acknowledge that at the tim e of lodging of this Consent Decree that no NO x Allowance program is applicable to Milton R. Young Station. 23. “NO x BACT Determ ination” shall m ean the conclusions m a de by the NDDH as a result of reviewing the NO x Top-Down BACT Analysis. Such determ ination shall be carried out in accordance with the applicable federal and state statutes, regulations, and guidance cited in the definition of “NO x Top-Down BACT Analysis,” below, and shall include the selection of control technology to be installed on Units 1 and 2 and 30-day Rolling Average Emission Rates applicable to Units 1 and 2 and to be continuously com p lied with by the Settling Defendants. 24. “NO x Top-Down BACT Analysis” shall m ean a study prepared by the Settling Defendants to identify the em ission lim its required by 42 U.S.C. § 7475(a)(4) and 40 C.F.R. § 52.21(j)(3), defined by 42 U.S.C. § 7479(3) a nd 40 C.F.R. §52.21(b)(12), and expressed as a 30-Day Rolling Average NO x Em ission Rate. The study shall be carried out in accordance with the provisions of Chapter B of EPA’s “New Source Review W o rkshop Manual—Prevention of

7Significant Deterioration and Nonattainm e nt Area Perm itting,” (Draft October 1990) (“EPA’s NSR Manual”). The study shall not include any other elem ents of PSD perm itting required by other chapters of EPA’s NSR Manual (notwithstanding any cross-reference in Chapter B to such other chapters), 40 C.F.R. § 52.21, or N.D. A DMIN . C ODE § 33-15-15-01.2. 25. “Over-fire Air” m eans a technology to reduce NO x f o rm ation in a Unit boiler by directing a portion of the air to be com busted through ports above the level of the cyclones in the furnace. 26. “Operating Day” m eans any calendar day on which a Unit fires fossil fuel. 27. “Parties” m eans the United States of Am erica, the State of North Dakota, and the Settling Def e ndants. “Party” m eans one of the f our nam e d “Parties.” 28. “Plant-W ide 12-Month Rolling Average Tonnage” m eans the sum of the tons of the pollutant in question emitted from the Milton R. Young Station in the m o st recent comp lete

m onth and the previous eleven (11) m onths

. A new Plant-W i de 12-Month Rolling Average Tonnage shall be calculated for each new comp lete m onth in accordance with the provisions of this Consent Decree. The calculation of each Plant-W i de 12-Month Rolling Average Tonnage shall include the pollutants emitted during periods of startup, shutdown, and Malfunction within each calendar m onth, unless the Malfunction event is also deem ed a “Force Majeure Event” as defined in Section XIV of this Consent Decree (Force Majeure), in which case such emissions shall be excluded. 29. “Plant-W ide Tonnage for One Calendar Year” m eans the sum of the tons of the pollutant in question emitted from the Milton R. Young Station in any 12-Month calendar year. A new Plant-W i de Tonnage for One Calendar Year shall be calculated for each new calendar

8year. The calculation of each Plant-W i de Tonnage for One Calendar Year shall include the pollutants em itted during periods of startup, shutdown, and Malfunction within each 12-Month calendar year, unless the Malfunction event is also deem ed a “Force Majeure Event” as defined in Section XIV of this Consent Decree (Force Majeure), in which case such em issions shall be excluded. 30. “Plant-W ide Tonnage for the Annual Average of Two Calendar Years” m eans the

sum of the tons of the pollutant in question emitted from the Milton R. Young Station in any two consecutive 12-m onth calendar years, divided by two. A new Plant-W i de Tonnage for the Annual Average of Two Calendar Years shall be calculated for each new com p lete 12-m onth calendar year. The calculation of each Plant-W i de Tonnage for the Annual Average of Two Calendar Years shall include the pollutants emitted during periods of startup, shutdown, and Malfunction within each 12-Month calendar year, unless the Malfunction event is also deem ed a “Force Majeure Event” as defined in Section XIV of this Consent Decree (Force Majeure), in which case such em issions shall be excluded. 31. “PM” m eans total particulate m a tter, m easured in accordance with the provisions of this Consent Decree. 32. “PM CEMS” or “PM Continuous Em ission Monitoring System ” m e ans, as specified in Section VI (PM Em ission Reduction and Controls) of this Consent Decree, the equipm ent that

samp les, analyzes, m easures, and provides, by readi ngs taken at frequent intervals, an electronic or paper record of PM em issions. 33. “PM Em ission Rate” m eans the average num ber of pounds of PM em itted per m illion British therm a l units of heat input (“lbs/MMBtu”) from the Unit stack, as m easured in an annual

9stack test from the Unit stack, in accordance with the reference m e thod set forth in 40 C.F.R. Part 60, Appendix A, Method 5 (filterable porti on only) or Method 17 (filterable portion only). 34. “Prevention of Significant Deterioration” or “PSD” m eans the prevention of significant deterioration of air quality program unde r Part C of Subchapter I of the Clean Air Act, 42 U.S.C. §§ 7470 - 7492, and 40 C.F.R. Part 52. 35. “Project Dollars” m eans the Settling Defendants’ expenditures and paym ents incurred or m a de in carrying out the Projects identif ied in Section VIII (Additional Injunctive Relief) of this Consent Decree to the extent that such expenditures or paym ents both: (a) comp ly with the requirem e nts set f o rth in Section VIII (Additional Injunctive Relief ) of this Consent Decree; and (b) constitute (i) the Settling Def e ndants’ direct paym ents f o r such projects, (ii) the Settling Defendants’ external costs for contract ors, vendors, and equipm ent, (iii) the Settling Defendants’ internal costs consisting of em ployee tim e, travel, or out-of-pocket expenses specifically attributable to these particular projects and docum ented in accordance with Generally Accepted Accounting Principles (“GAAP”), or (iv) the discounted present value of the cash paym ents m a de by the Settling Defendants under a contract with another entity to carry out the project. 36. “Rich Reagent Injection” m eans a technology that injects reagent, such as amm onia or urea, into a Unit boiler to react with and reduce NO x em issions. 37. “Selective Catalytic Reduction” m eans a pollution control device for reducing NO x em issions through the use of selective catalytic reduction technology. 38. “Selective Non-Catalytic Reduction” m eans a pollution control device for reducing NO x em issions through the use of selective non-catalytic reduction technology.

1039. “Settling Defendants” m eans Minnkota Power Cooperative, Inc., and Square Butte Electric Cooperative. 40. “SO 2 ” m eans sulfur dioxide, m easured in accordance with the provisions of this Consent Decree. 41. “SO 2 Allowance” m eans “allowance” of SO 2 as defined at 42 U.S.C. § 7651a(3): “an authorization, allocated to an affected Unit by the Admi nistrator of EPA under Subchapter IV of the Act, to em it, during or after a speci fied calendar year, one ton of sulfur dioxide.” 42. “Title V Perm it” m eans the perm it required of the Settling Defendants’ m a jor sources under Subchapter V of the Act, 42 U.S.C. §§ 7661-7661e. 43. “Unit” m eans, for the purposes of th is Consent Decree, collectively, the coal crusher, stationary equipm ent that feeds coal to the boiler, the boiler that produces steam for the steam turbine, the steam turbine, the generator, the equipm ent necessary to operate the generator, steam turbine and boiler, and all ancillary equipm ent, including pollution control equipm ent and system s necessary for the production of electricity. An electric utility steam generating station

m a y comp rise one or m o re Units. IV. SO 2 EMISSION REDUCTIONS AND CONTROLS A. SO 2 Emission Controls 1. NewFGD Installations at Milton R. Young Station Unit 1 44. No later than Decem ber 31, 2010, the Settling Defendants shall elect to install either a wet FGD or a dry FGD (or equivalent SO 2 control technology approved pursuant to Paragraph 46) at Unit 1, and shall notif y the Plaintif f

s in writing as to which option the Settling Def e ndants have elected for this Unit.

1145. Beginning no later than Decem ber 31, 2011, the Settling Defendants shall install and

com m e nce continuous operation of the FGD (or equivalent SO 2 control technology approved pursuant to Paragraph 46) elected above on Unit 1, and shall achieve and thereafter m a intain:

a. If the Settling Def e ndants elect to install a wet FGD, a 30-Day Rolling Average Rem oval Efficiency for SO 2 at Unit 1 of at least ninety-five percent (95% ), subject to the provisions of Paragraph 49; b. If the Settling Def e ndants elect to install a dry FGD, a 30-Day Rolling Average Rem oval Efficiency for SO 2 at Unit 1 of at least ninety percent (90%). 46. W ith prior written notice to and written approval from EPA and the State, the Settling Def e ndants m a y, in lieu of installing and operating an FGD at Unit 1, install and operate an alternative SO 2 control technology at this Unit that achieves and m a intains a 30-Day Rolling Average Rem oval Efficiency for SO 2 of at least ninety five percent (95%), unless Defendants dem onstrate, and Plaintiffs agree, that the a lternative control technology will provide significant additional mu lti-pollutant reductions, in which case Settling Def e ndant shall achieve and

m a intain a 30-Day Rolling Average Rem oval Efficiency for SO 2 of at least ninety percent (90%). 2. FGD Upgrades for Milton R. Young Station Unit 2 47. No later than Decem ber 31, 2010, the Settling Defendants shall design and upgrade the FGD on Unit 2. Beginning no later than this sam e date, the Settling Def e ndants shall also achieve and thereafter m a intain a 30-Day Rolling Average Rem oval Efficiency for SO 2 at Unit 2 of at least ninety percent (90%), subject to the provisions of Paragraph 49.

123. Continuous Operation of SO 2 Controls 48. The Settling Defendants shall continuously operate each FGD (or equivalent SO 2 control technology approved pursuant to Paragraph 46) covered under this Consent Decree at all tim es that the Unit it serves is in operation, consistent with the technological lim itations,

m a nufacturers’ specifications, and good engineeri ng and m a intenance practices for the FGDs, or equivalent technology, for m i nim i zing em issions to the extent practicable. The Settling Defendants need not operate an FGD system during periods of Malfunction of the FGD, or during periods of Malfunction of the Unit that have a significant adverse impact on the operation of

the FGD, provided that the Settling Def e ndants satisf y the requirem e nts f o r a Malf unction as set forth in Paragraph 138 (Malfunctions). As set forth in Paragraph 138, a Malfunction m a y also constitute a Force Majeure Event if it m eets the requirem e nts f o r a Force Majeure Event in Section XIV (Force Majeure) of this Consent Decree. 4. Maximiz i ng SO 2 Emission Reductions w h ile Minimiz i ng Ice Formation During Wintertime Operations of FGDs 49. In light of the potential for substantial and dangerous ice form ation on em ission stacks utilizing wet FGDs as a result of the particularly severe winter weather conditions in North Dakota, the Settling Defendants shall, by Decem ber 31, 2006, subm it to EPA and NDDH for review and approval an evaluation of tec hnologies and best m a nagem e nt practices for

m i nim i zing and elim inating ice form ation on the stacks while mi nim i zing any effect on em ission reductions at any Units served or to be served by a wet FGD. Such evaluation shall be perf orm e d by an independent contractor, and shall include an analysis of the f easibility, effectiveness, reliability, energy impacts, and econom ic costs of such technologies and best

m a nagem e nt practices. In their subm ittal, the Settling Def e ndants shall evaluate such 13technologies and best m a nagem e nt practices, and shall propose either available technologies, best m a nagem e nt practices, or both.

a. Upon EPA’s and NDDH’s approval of the Settling Defendants’ evaluation, EPA and NDDH shall provide the Settling Defendants with a written determ ination regarding an available technology and best

m a nagem e nt practices. W ithin 90 days after the installation or upgrade of a wet FGD pursuant to this Consent Decree, the Settling Def e ndants shall

com m e nce implem entation of EPA’s and NDDH’s determination, subject to the Dispute Resolution procedures set forth in Paragraphs 139 through 146 of this Consent Decree. b. The Settling Def e ndants shall include in the periodic comp liance reports required pursuant to Section XI (Periodic Reporting) of this Consent Decree, a sum m ary of the effectiveness of any technologies and best

m a nagem e nt practices in m i nim i zing and elim inating ice form ation on the stacks while m i nim i zing any effect on em ission reductions at any Units served by a wet FGD at the Milton R. Young Unit 2. B. Tonnage Limits for SO 2 Emissions 50. The Settling Defendants shall comp ly with the following SO 2 em ission lim itations for the Milton R. Young Station:

a. Beginning January 1, 2006, the Settling Defendants shall not em it m o re than 31,000 tons of SO 2 per year based on a Plant-W i de Tonnage for the Annual Average of Two Calendar Years;

14b. Beginning January 1, 2011, the Settling Defendants shall not em it m o re than 26,000 tons of SO 2 per year based on a Plant-W i de Tonnage for One Calendar Year;

c. Beginning January 1, 2012, and each year thereafter, the Settling Defendants shall not em it m o re than 11,500 tons of SO 2 per year based on a Plant-W i de Tonnage for the Annual Average of Two Calendar Years; and d. In the event that Milton R. Young Unit 3 is not operational by Decem b er 31, 2015, then beginning January 1, 2014, and each year thereafter, the Settling Defendants shall not emit m o re than 8,500 tons of SO 2 per year based on a Plant-W i de Tonnage for the Annual Average of Two Calendar Years. 51. Beginning on the date of entry of this Consent Decree, and prior to the Settling Defendants’ implem entation of EPA’s and NDDH’ s determ ination pursuant to Paragraph 49, above, the Settling Defendants shall continue to implem ent practices, to the extent practicable, to

m i nim i ze and elim inate ice form ation on the stacks while mi nim i zing any effect on em ission reductions at Milton R. Young Unit 2. 52. Notwithstanding the foregoing, the Settling Defendants m a y subm it to EPA and NDDH a petition for a higher SO 2 em issions lim itation than the 31,000 ton and 26,000 ton limits noted in Subparagraphs 50(a) and (b), above, if the Settling Defendants can dem onstrate that they are unable to comp ly with such lim itation given the energy dem a nds of their cooperative, and despite utilization of best m a nagem e nt practices and operation of the Milton R. Young Unit

152 FGD to m i nim i ze SO 2 em issions to the m a ximu m extent practicable. EPA’s and NDDH’s disapproval of any such petition shall be subject to the dispute resolution provisions in Section XV (Dispute Resolution) of this Consent Decree. 53. The Settling Defendants shall not use SO 2 Allowances or credits to comp ly with the SO 2 em issions lim itations set forth in Paragraph 50. C. Surrender of SO 2 Allow a nces 54. For purposes of this Subsection, the “surrender of allowances” m e ans perm anently surrendering allowances from the accounts adm i nistered by EPA for Units 1 and 2—and from Unit 3 to the extent that SO 2 Allowances are allocated by EPA to that Unit – so that such SO 2 Allowances can never be used to m eet any comp liance requirem e nt under the Clean Air Act, the North Dakota State Implem entation Plan, or this Consent Decree. 55. For each year specified below, the Settling Defendants shall surrender to EPA, or transfer to a non-profit third party selected by the Settling Defendants for surrender, SO 2 Allowances that have been allocated to the Milton R. Young Station for the specified calendar year: Calendar Year Amount 2012-2015 4,346 Allowances 2016-2018 8,693 Allowances 2019 12,170 Allowances 2020 and thereafter 14,886 Allowances if Milton R. Young Units 1, 2, and 3 (as proposed) are operational by Decem ber 31, 2015, and 17,886 Allowances if only Milton R. Young Units 1 and 2 are operational by Decem ber 31, 2015

16The Settling Defendants shall m ake such surrender a nnually, within forty-five (45) days of their receipt from EPA of the Annual Deduction Reports for SO 2 . Any surrender need not include the specific SO 2 Allowances that were allocated to the Settling Defendants, so long as the Settling Defendants surrender SO 2 Allowances that are from the sam e year or an earlier year and that are equal to the num ber required to be surrendered under this Paragraph. The requirem e nts in this Subsection (IV(C)) of the Consent Decree pertaining to the Settling Def e ndants’ use and retirem ent of SO 2 Allowances are perm anent injunctions not subject to any term ination provision of this Decree. 56. If any SO 2 Allowances are transferred directly to a non-profit third party, the Settling Def e ndants shall include a description of such transf er in the next report submitted to EPA and NDDH pursuant to Section XI (Periodic Reporting) of this Consent Decree. Such report shall: (i) provide the identity of the non-profit third-party recipient(s) of the SO 2 Allowances and a listing of the serial num bers of the transferred SO 2 Allowances; and (ii) include a certif ication by the third-party recipient(s) stating that the recipi ent(s) will not sell, trade, or otherwise exchange any of the allowances and will not use any of the SO 2 Allowances to m eet any obligation imposed by any environm ental law. No later than the third periodic report due after the transfer of any SO 2 Allowances, the Settling Def e ndants shall include a statem ent that the third-party recipient(s) surrendered the SO 2 Allowances for perm anent surrender to EPA in accordance with the provisions of Paragraphs 54 and 55 within one (1) year af ter the Settling Def e ndants transferred the SO 2 Allowances to them

. The Settling Def e ndants shall not have comp lied with the SO 2 Allowance surrender requirem e nts of this Paragraph until all third-party recipient(s) shall have actually surrendered the transferred SO 2 Allowances to EPA.

1757. For all SO 2 Allowances surrendered to EPA, the Settling Def e ndants or the third-party recipient(s) (as the case m a y be) shall first subm it an SO 2 Allowance transfer request form to EPA’s Office of Air and Radiation’s CleanAir Markets Division directing the transfer of such SO 2 Allowances to the EPA Enforcem ent Surrender Account or to any other EPA account that EPA m a y direct in writing. As part of subm itting these transfer requests, the Settling Defendants or the third-party recipient(s) shall irrevocably authorize the transfer of these SO 2 Allowances and identify – by nam e of account and any applicable serial or other identification

num bers or station nam e s – the source and location of the SO 2 Allowances being surrendered. D. General SO 2 Provisions 58. In determ ining Em ission Rates for SO 2 , the Settling Def e ndants shall use CEMS in accordance with those reference m e thods specified in 40 C.F.R. Part 75. 59. For the purpose of calculating the 30-Day Rolling Average Rem oval Efficiency, the outlet SO 2 Em ission Rate and the inlet SO 2 Em ission Rate shall be determined based on the data generated in accordance with 40 C.F.R. Part 75 (using SO 2 CEMS data from both the inlet and outlet of the control device). 60. If any Unit subject to this Consent Decree is constructed to allow any flue gas to by

pass the SO 2 pollution control equipm ent, the outlet 30-Day Rolling Average Emission Rate shall be determ ined from SO 2 CEMS located after the by-pass return, and the inlet 30-Day Rolling Average Em ission Rate shall be determ ined from SO 2 CEMS located before the by-pass.

18V. NOx EMISSION REDUCTIONS AND CONTROLS A. Phase I NO xEmissions Reductions and Controls 61. No later than Decem ber 31, 2007, the Settling Defendants shall install and

com m e nce continuous operation of Over-fire Air on Unit 2 at the Milton R. Young Station. 62. No later than Decem ber 31, 2009, the Settling Defendants shall install and

com m e nce continuous operation of Over-fire Air on Unit 1 at the Milton R. Young Station. 63. W ith prior written notice to and written approval from EPA and NDDH, the Settling Defendants m a y, in lieu of installing and operating the NO x controls required by Paragraphs 61 or 62, install and operate equivalent technology that will achieve a NO x em ission rate of no greater than 0.36 lb/MMBtu based on a 30-Day Rolling Average Emission Rate. B. Phase II NO xEmissions Reductions and Controls 64. The Phase II 30-Day Rolling Average NO x Em ission Rates shall be determ ined in accordance with the procedures set forth in this subsection. 65. W ithin six m onths after entry of this Consent Decree, the Settling Defendants shall subm it to NDDH for review and approval, and to EPA for review, a NO x Top-Down BACT Analysis for each existing coal-fired Unit at the Milton R. Young Station. The Settling Defendants’ NO x Top-Down BACT Analysis shall include all inform ation necessary for NDDH to m ake a BACT Determ ination, and any additional inform ation requested by EPA and NDDH. The Settling Def e ndants’ NO x Top-Down BACT Analysis shall include an evaluation of Selective Catalytic Reduction, Selective Non-Catalytic Reduction, Over-fire Air, and Rich Reagent Injection, as well as other NO x control technologies. This NO x Top-Down BACT Analysis is independent and separate f r om the Settling Def e ndants’ plans to install one or m o re 19technologies pursuant to Paragraphs 61 and 62. The Settling Defendants shall retain a qualified contractor to assist in the perform a nce and comp letion of each NO x Top-Down BACT Analysis. 66. NDDH shall review the Settling Defendants’ NO x Top-Down BACT Analysis, and shall develop its BACT Determination, in accordance with applicable federal and state statues, regulations, and guidance, including those cited in the definition of a NO x Top-Down BACT Analysis under this Consent Decree. After consultation with EPA, NDDH shall provide to the Parties its BACT Determ ination f o r NO x em issions from each existing coal-fired Unit at the Milton R. Young Station. NDDH’s BACT Determ ination shall include for each Unit the specific control technologies to be installed and a specific Phase II 30-Day Rolling Average NO x Em ission Rate lim itation ( lbs/MMBtu). NDDH’s BACT Determ ination shall also address specific NO x em ission lim itations during Unit startups. NDDH’s BACT Determ ination shall be subject to the Dispute Resolution procedures set forth in Paragraph 147 of this Consent Decree. 67. Beginning no later than Decem ber 31, 2010, the Settling Defendants shall achieve and m a intain the Phase II 30-Day Rolling Average NO x Em ission Rates established by NDDH through its NO x BACT Determ ination for Unit 2. Beginning no later than Decem ber 31, 2011, the Settling Def e ndants shall achieve and m a intain the Phase II 30-Day Rolling Average NO x Em ission Rates established by NDDH through its NO x BACT Determ ination f o r Unit 1. Such Phase II 30-Day Rolling Average NO x Em ission Rates shall not af f

ect the Settling Def e ndants’ obligation to also comp ly with the Phase I 30-Day Rolling Average NO x Em ission Rates set forth herein. C. Use of NO xAllow a nces 68. Except as provided in this Consent Decree, the Settling Defendants shall not sell or 20trade any surplus NO x Allowances allocated to Units 1, 2, and 3 at the Milton R. Young Station that would otherwise be available f o r sale or trade as a result of the actions taken by the Settling Defendants to comp ly with the requirem e nts of this Consent Decree. 69. The num ber of NO x Allowances that are surplus to the Settling Def e ndants’ NO x Allowance-holding requirem e nts shall be equal to the am ount by which the NO x Allowances allocated to the Settling Defendants’ Units 1, 2, and 3 at the Milton R. Young Station for a particular year are greater than the total am ount of NO x em issions from those sam e Units for the

sam e year. 70. Provided that the Settling Defendants are in comp liance with the NO x em ission lim itations of this Consent Decree, nothing in this Consent Decree shall preclude the Settling Defendants from selling or transferring NO x Allowances allocated to the Milton R. Young Station that becom e available for sale or trade as a result of:

a. activities that reduce NO x em issions from any Unit at the Milton R. Young Station prior to the date of entry of this Consent Decree; b. the installation and operation of any NO x pollution control technology or technique that is not otherwise required under this Consent Decree;

c. achievem e nt and m a intenance of NO x em ission rates below the emission lim its required by Section V (NO x Em issions Reductions and Controls); d. perm anent shutdown of any Unit at the Milton R. Young Stations not otherwise required by this Consent Decree; and

e. other em ission reduction m easures that are agreed to by the Parties and

m a de enforceable through m odifications of this Consent Decree; 21so long as the Settling Defendants tim ely report the generation of such surplus NO x Allowances in accordance with Section XI (P eriodic Reporting) of this Consent Decree. The Settling Def e ndants shall be allowed to sell or transf er NO x Allowances equal to the NO x em issions reductions achieved for any given year by any of the actions specified in Subparagraphs (b) through (e) only to the extent that the total NO x em issions from all Units at the Milton R. Young Station are below the emissions lim its required by this Consent Decree. 71. The Settling Defendants m a y not purchase or otherwise obtain NO x Allowances from another source for purposes of comp lying with the requirem e nts of this Consent Decree. However, nothing in this Consent Decree shall prevent the Settling Def e ndants f r om purchasing or otherwise obtaining NO x Allowances from another source for purposes of comp lying with state or federal Clean Air Act requirem e nts to the extent otherwise allowed by law. D. General NO xProvisions 72. In determ ining Em ission Rates for NO x , the Settling Def e ndants shall use CEMS in accordance with the reference m e thods specified in 40 C.F.R. Part 75. 73. At any tim e following the com m e ncem ent of operation of the specific NO x control technologies required by the NDDH’s NO x BACT Determ ination, the Settling Defendants m a y petition the Plaintif f

s to revise the applicable Phase II 30-Day Rolling Average Emission Rate for NO x . In their petition, the Settling Defendants shall dem onstrate and explain why they cannot consistently achieve and m a intain the 30-Day Rolling Average Emission NO x Rate required by the NDDH’s NO x BACT Determ ination for the Unit in question, considering all relevant inform ation. The Settling Defendants shall include in such petition a proposed 22alternative 30-Day Rolling Average Emission Rate f o r NO x . The Settling Def e ndants shall also retain a qualif ied contractor to assist in the preparation and comp letion of the petition f o r an alternative 30-Day Rolling Average Emission Rate f o r NO x . The Settling Def e ndants shall provide with each petition all pertinent docum ents and data. If the Plaintiffs disapprove the alternative 30-Day Rolling Average Emission Rate f o r NO x proposed by the Settling Defendants, such disapproval shall be subject to the provisions of Section XV (Dispute Resolution) of this Consent Decree. The Settling Defendants shall subm it any petition for any Unit under this Paragraph no later than six (6) m onths after the final comp liance date specified for that Unit in Paragraph 67. 74. The Settling Defendants shall continuously operate all NO x control technology installed on the Milton R. Young Units at all tim es that the Unit served is in operation, consistent with the technological lim itations, m a nufacturers’ specifications to the extent practicable, and good engineering and m a intenance practices for the NO x control technology. The Settling Defendants need not operate NO x control technology during periods of Malfunction of the NO x control technology, or during periods of Malfuncti on of the Unit that have a significant adverse impact on the operation of the NO x control technology, provided that the Settling Defendants satisfy the requirem e nts for Malfunction Events as set forth in Paragraph 138 (Malfunction Events). As set forth in Paragraph 138, a Malfunction m a y also constitute a Force Majeure Event if it m eets the requirem e nts for a Force Majeure Event in Section XIV (Force Majeure) of this Consent Decree. VI. PM EMISSION REDUCTIONS AND CONTROLS A. Optimiz a tion of PM Emission Controls 2375. W ithin ninety (90) days after entry of this Consent Decree and continuing thereafter, the Settling Defendants shall continuously operate each PM Control Device on the Milton R. Young Station Units to m a xim i ze PM em ission reductions, consistent with the operational and

m a intenance lim itations of the units. Specif i cally, the Settling Def e ndants shall, at a m i nimu m : (a) energize each section of the ESP for each Unit, regardless of whether that action is needed to

comp ly with opacity lim its; (b) m a intain the en ergy or power levels delivered to the ESP for each Unit to achieve the greatest possible rem oval of PM; (c) m ake best efforts to expeditiously repair and return to service transf orm e r-rectif ier sets when they f a il; (d) inspect f o r, and schedule for repair, any openings in ESP casings and ductwork to m i nim i ze air leakage; (e) optim ize for Unit 1 the plate-cleaning and discharge-electrode cleaning system s for the ESP by varying the cycle tim e, cycle frequency, rapper-vibrator intensity, and num ber of strikes per cleaning event; and (f) optim ize for Unit 2 the plate-cleaning system for the ESP by varying the cycle tim e and frequency of the cycle. B. Compliance w i th PM Emission Limits 76. W ithin one year of entry of the Cons ent Decree, and continuing annually thereafter, the Settling Defendants shall dem onstrate, in accordance with Paragraphs 80 and 81, that Unit 2 at the Milton R. Young Station can achieve and thereafter m a intain a PM Em ission Rate of no greater than 0.030 lb/MMBtu. 77. No later than one-hundred-eighty (180) days after the Settling Defendants install and

com m e nce continuous operation of the FGD (or equivalent SO 2 control technology approved pursuant to Paragraph 46) on Unit 1 at the Milton R. Young Station , and continuing annually thereaf ter, the Settling Def e ndants shall dem onstrate, in accordance with Paragraphs 80 and 81, 24that Unit 1 at the Milton R. Young Station can achieve and thereafter m a intain a PM Em ission Rate of:

a. No greater than 0.030 lb/MMBtu if the Settling Def e ndants install a wet FGD; and b. No greater than 0.015 lb/MMBtu if the Settling Def e ndants install a dry FGD. 78. The Settling Defendants shall continuously operate each ESP or baghouse at the Milton R. Young Station at all tim es that each Unit the ESP or baghouse serves is com busting Fossil Fuel, consistent with good engineering practices for PM control, to mi nim i ze PM

em issions to the extent practicable. The Settling Def e ndants need not operate an ESP or baghouse during periods of Malfunction of th e ESP or baghouse, or during periods of Malfunction of the Unit that have a significant adverse impact on the operation of the ESP or baghouse, provided that the Settling Defendants satisfy the requirem e nts for Malfunction Events as set forth in Paragraph 138 (Malfunction Events). As set forth in Paragraph 138, a Malfunction

m a y also constitute a Force Majeure Event if it m eets the requirem e nts f o r a Force Majeure Event in Section XIV (Force Majeure) of this Consent Decree. 79. W ithin 180 days after the Settling Defendants com p lete the installation of any equipm ent required by Paragraphs 76 and 77, the Settling Defendants shall conduct a perform a nce test dem onstration to ensure that the PM em ission lim itation set forth in Paragraphs 76 and 77 can be consistently achieved in practice, including all requirem e nts pertaining to proper operation and m a intenance of control equipm ent. If the perform a nce dem onstration shows that the control equipm ent cannot consistently m eet the required PM em ission lim itation, the Settling Defendants shall submit a report to EPA and NDDH proposing alternative emission 25lim its. C. PM Monitoring 1. PM Stack Tests 80. Beginning in calendar year 2006, and continuing annually thereafter, the Settling Defendants shall conduct PM perform a nce testing on Milton R. Young Station Units 1 and 2. Such annual perform a nce tests m a y be satisfied by stack tests conducted in a given year, in accordance with the Settling Defendants’ perm it from the State of North Dakota. 81. In determ ining the PM Em ission Rate, the Settling Defendants shall use the reference

m e thods specified in 40 C.F.R. Part 60, App. A, Method 5 (filterable portion only) or 40 C.F.R. Part 60, App. A, Method 17 (filterable portion only) , using stack tests, or alternative m e thods that are requested by the Settling Def e ndants and approved by EPA. The Settling Def e ndants shall also calculate the PM Emission Rates from annual stack tests in accordance with 40 C.F.R. § 60.8(f). In addition, the Settling Defendants shall submit the results of each PM stack test to NDDH and EPA within forty-five (45) days of comp letion of each test. 2. PM CEMS 82. The Settling Defendants shall install and operate PM CEMS in accordance with Paragraphs 82 through 88 on Unit 2 at the Milton R. Young Station. The PM CEMS shall

comp rise a continuous particle m a ss m onitor m easuring particulate m a tter concentration, directly or indirectly, on an hourly average basis and a diluent m onitor used to convert the concentration to units of lb/MMBtu. The Settling Def e ndants shall m a intain, in an electronic database, the hourly average em ission values of all PM CEMS in lb/MMBtu. The Settling Defendants shall use reasonable efforts to keep the PM CEMS running and producing data whenever Unit 2 is 26operating. 83. No later than six (6) m onths after entry of this Consent Decree, the Settling Defendants shall subm it to EPA and NDDH for review and approval pursuant to Section XII (Review and Approval of Subm ittals) of this Consent Decree a plan f o r the installation and certification of the PM CEMS for Milton R. Young Unit 2. 84. No later than one hundred twenty (120) days prior to the deadline to com m e nce operation of the PM CEMS, the Settling Defendants shall submit to EPA and NDDH for review and approval pursuant to Section XII (Review and Approval of Subm ittals) of this Consent Decree a proposed Quality Assurance/Quality Control (“QA/QC”) protocol that shall be followed in calibrating such PM CEMS. Following EPA and NDDH’s approval of the protocol, the Settling Defendants shall thereafter operate the PM CEMS in accordance with the approved protocol. 85. In developing both the plan for installation and certification of the PM CEMS and the QA/QC protocol, the Settling Def e ndants shall use the criteria set f o rth in EPA’s Am endm ents to Standards of Perform a nce for New Stationary Sources: Monitoring Requirem e nts, 69 Fed. Reg. 1786 (January 12, 2004). 86. The Settling Defendants shall install and com m e nce operation of PM CEMS on or before June 30, 2008. 87. By Decem ber 31, 2008, the Settling Defendants shall conduct tests and dem onstrate

comp liance with the PM CEMS installation and certif ication plan subm itted to and approved by EPA and NDDH in accordance with Paragraphs 83 and 84. 88. The Settling Defendants shall operate continuous opacity m onitors on Unit 1 and 27Unit 2 of the Milton R. Young Station at all tim es those units are in operation. However, if the Settling Defendants dem onstrate that either one of these continuous opacity m onitors cannot provide accurate opacity m easurem ent due to the form ation of liquid water droplets in the flue gas of a stack with a wet FGD, in accordance with Question 5.6, Part 75 of EPA' s Em ission Monitoring Policy Manual, then the Settling Defendants m a y subm it to EPA and NDDH for review and approval alternative opacity procedures and requirem e nts pursuant to the provisions of 40 C.F.R. § 60.13(i)(1). VII. PROHIBITION ON NETTING CREDITS OR OFFSETS FROM REQUIRED CONTROLS 89. Em ission reductions generated by the Settling Defendants to com p ly with the requirem e nts of this Consent Decree shall not be considered as a creditable emission decrease for the purpose of obtaining a netting credit under the Clean Air Act’s Nonattainm e nt NSR and PSD program s. Notwithstanding the preceding sentence, the Settling Defendants m a y use any

em ission decreases of NO x , SO 2 , and PM generated under this Consent Decree at Units 1 and 2 as creditable decreases for the purpose of obtaining netting credit for these pollutants at Unit 3 under the Clean Air Act’s Nonattainm e nt NSR and PSD program s, if:

a. The Settling Defendants subm it, as and addendum to its construction perm it application for Unit 3, an analysis that proposes emissions lim its for NO x , SO 2 , and PM that are equivalent to BACT as defined in the 42 U.S.C. § 7479(3), and NDDH issues a federally enforceable perm it for Unit 3 that includes em issions lim its that reflect BACT-equivalent level controls at the tim e of construction of the Unit, and that are at least as stringent as a 30-Day Rolling Average SO 2 28Rem oval Ef f i ciency of at least ninety-f ive percent 95% (if the Settling Def e ndants install a wet FGD on Unit 3) or 90% (if the Settling Def e ndants install a dry FGD on Unit 3), a 30-Day Rolling Average NO x Em ission Rate not greater than 0.100 lb/MMBtu, and an Em ission Rate for PM of no greater than 0.015 lbs/MMBtu, provided that, at any tim e following the com m e ncem ent of operation of this new Unit, the Settling Defendants m a y subm it to EPA and NDDH a written petition for a higher 30-Day Rolling Average NO x Em ission Rate if the Settling Defendants can dem onstrate that it cannot achieve such an emission rate on this new Unit; b. The Settling Def e ndants have been and rem a in in f u ll comp liance with the plantwide SO 2 tonnage lim itation set forth in Paragraph 50 of this Consent Decree and NDDH has issued a federally-enforceable perm it for Units 1, 2, and 3 that will lim it the Plant-W i de Annual Average of the Tonnage for Two Calendar Years for SO 2 at those units to 11,500 tons per year comm e ncing January 1, 2012; and

c. NDDH determines through air quality m odeling submitted by the Settling Defendants in accordance with NDDH m odeling protocols that the impact on either a PSD increm ent or on visibility in Class I Areas f r om the com b ined

em issions at Units 1, 2 and 3, after the pollution control upgrades and installations required by this Consent Decree are operational, will be less than the impact f r om the com b ined em issions at Units 1 and 2 before such controls are operational. 90. Decreases in actual em issions of NO x , SO 2 , and PM generated under this Consent Decree at Units 1 and 2 qualify as contemporaneous decreases under 40 C.F.R. § 52.21(b)(3)(ii) 29(July 1, 2005) for the purpose of obtaining netting credits for these pollutants at Unit 3, as long as the Settling Defendants com m e nce construction of Unit 3 on or before Decem ber 31, 2012. 91. Nothing in this Consent Decree is intended to affect the application of Section 33-15

- 15-01.2 of the North Dakota Adm i nistrative Code regarding the availability of extensions on the

com m e ncem ent of construction f o r newly perm itted f acilities. 92. Nothing in this Consent Decree is intended to preclude the em ission reductions generated under this Consent Decree from being considered by NDDH and EPA as creditable

em ission decreases f o r the purpose of attainm e nt dem onstrations subm itted pursuant to Section 110 of the Act, 42 U.S.C. § 7410, or in determ ining impacts on NAAQS or PSD increm ent. VIII. ADDITIONAL INJUNCTIVE RELIEF 93. The Settling Defendants shall implem ent the wind turbine project (“Project”) described in this Section in comp liance with the approved plans and schedules for such Project and other term s of this Consent Decree. The Settling Def e ndants shall subm it plans f o r the Project to the United States for review and approval pursuant to Section XII (Review and Approval of Subm ittals) of this Consent Decree in accordance with the schedules set forth in this Section. In implem enting the Project, the Settling Defendants shall spend no less than $5.0

m illion in funds (“Project Dollars”) pursuant to the schedule set forth in Paragraph 103. The Settling Defendants shall m a intain, and present to the United States, upon request, all docum ents to substantiate the Project Dollars expended and shall provide these docum ents to the United States and NDDH within thirty (30) days of a request by the United States or NDDH for the docum ents. 94. The Settling Defendants shall m ake all plans and reports prepared by the Settling 30Defendants pursuant to the requirem e nts of this Section of the Consent Decree publicly available without charge. 95. The Settling Defendants shall certify, as part of the plan subm itted to the United States f o r the Project that, as of the date of this Consent Decree, the Settling Def e ndants are not otherwise required by law to perf orm the Project described in the plan, that the Settling Defendants are unaware of any other person who is required by law to perform the Project, and that the Settling Def e ndants will not use the Project, or portion thereof, to satisf y any obligations that it m a y have under other applicable requirem e nts of law. 96. The Settling Defendants shall use good faith efforts to secure as mu ch benefit as possible for the Project Dollars expended, consistent with the applicable requirem e nts and lim its of this Consent Decree. 97. Regardless of whether the Settling Defendants elected (where such election is allowed) to undertake the Project by itself or to do so by contributing funds to another person or instrum e ntality that will carry out the Project, the Settling Defendants acknowledge that they will receive credit for the expenditure of suchfunds as Project Dollars only if the Settling Defendants dem onstrate that the funds have been actually spent by either the Settling Defendants or by the person or instrum e ntality receiving them (or, in the case of internal costs, have actually been incurred by the Settling Def e ndants), and that such expenditures m e t all requirem e nts of this Consent Decree. 98. The Settling Defendants shall receive full credit for their expenditures only to the extent that they do not receive an offsetting financial or econom ic benefit from such expenditures; in determining how m a ny Project Dollars have been spent by the Settling 31Defendants, the Settling Defendants shall debit any such offsetting financial or econom ic benefit received against any of the Settling Defendants’ expenditures for the Project. 99. W ithin sixty (60) days following the comp letion of the Project required under this Consent Decree, the Settling Def e ndants shall subm it to the United States a report that docum ents the date that the Project was comp leted, the Settling Def e ndants’ results of implem enting the Project, including the em ission reductions or other environm ental benefits achieved, and the Project Dollars expended by the Settling Def e ndants in implem enting the Project. 100. The Settling Defendants shall not financially benefit to a greater extent than any other m e m b er of the general public from the sale or transfer of technology obtained in the course of implem enting any Project. 101. Project Dollar credit given for the Project shall reflect the Settling Defendants’ net cost in implem enting the Project, and any economic benefit or incom e resulting from the Project shall be deducted from the Project Dollar credit given to the Project. 102. Beginning one (1) year after entry of this Consent Decree, the Settling Defendants shall provide the United States with semi -annual updates concerning the progress of the Project. 103. W ithin 180 days after entry of this Consent Decree, the Settling Defendants shall subm it a plan to EPA and the State for a Project to provide their m e m b ers with electricity generated f r om wind turbines. The Project shall require the Settling Def e ndants to either (a) by Decem ber 31, 2012, spend no less than $5,000,000 in Project Dollars to purchase and install its own wind turbines, or (b) by Decem ber 31, 2009, enter into a power purchase agreem ent with a provider of wind energy that requires the provider of wind energy to build new wind turbines by 32this sam e date in the Settling Def e ndants’ service territory with a capacity of approxim a tely 5 MW , and that obligates the Settling Def e ndants to purchase the entire electric output f r om the turbines for a period of no less than 15 years. The power purchase agreem ent shall have a discounted present value of cash outflows of no less than $5,000,000, based on a discount rate of 6.25%. IX. CIVIL PENALTY 104. W ithin thirty (30) calendar days afte r entry of this Consent Decree, the Settling Defendants shall pay to the United States a civil penalty in the am ount of $425,000. The civil penalty shall be paid by Electronic Funds Transfer (“EFT”) to the United States Departm e nt of Justice, in accordance with current EFT procedures, referencing USAO File Num b er 2006V0009 and DOJ Case Num b er 90-5-2-1-07717 and the civil action case nam e and case num ber of this action. The costs of such EFT shall be the Settling Defendants’ responsibility. Paym ent shall be

m a de in accordance with instructions provided to the Settling Defendants by the Financial Litigation Unit of the U.S. Attorney’s Office for the District of North Dakota. Any funds received after 2:00 p.m . EDT shall be credited on the next business day. At the tim e of paym ent, the Settling Def e ndants shall provide notice of paym ent, ref e rencing the USAO File Num b er, the DOJ Case Num b er, and the civil action case nam e and case num ber, to the Departm e nt of Justice and to EPA in accordance with Section XVIII (Notices) of this Consent Decree. 105. W ithin thirty (30) calendar days afte r entry of this Consent Decree, the Settling Defendants shall pay to the State a civil penalty in the am ount of $425,000

. Paym ent shall be

m a de in the form of a certified check or cashier’s check, and be payable to “North Dakota Departm e nt of Health” Paym ent shall be sent to the Director, Air Quality Division, North

33Dakota Departm e nt of Health, Bism ark, North Dakota 58506-5520

. To ensure proper credit, the check mu st reference United States, et al. v. Minnkota Power Cooperative, et al. , and the civil action case num ber. 106. Failure to tim ely pay the civil penalty shall subject the Settling Defendants to interest accruing from the date paym ent is due until the date paym ent is m a de at the rate prescribed by 28 U.S.C. § 1961, and shall render the Settling Defendants liable for all charges, costs, f ees, and penalties established by law f o r the benef it of a creditor or of the United States in securing paym ent. 107. Paym ents m a de pursuant to this Section are penalties within the m e aning of Section 162(f) of the Internal Revenue Code , 26 U.S.C. § 162(f), and are not tax-deductible expenditures for purposes of federal law. X. RESOLUTION OF CLAIMS A. Resolution of Plaintiffs’ Civil Claims 108. Claims Based on Modifications Occurring Before the Lodging of Consent Decree . Entry of this Consent Decree shall resolv e all civil claim s of the Plaintiffs under:

a. Parts C and D of Subchapter I of the Clean Air Act; b. Section 111 of the Clean Air Act and 40 C.F.R. Part 60;

c. Sections 502(a) and 504(a) of the Clean Air Act, but only to the extent that such claim s are based on the Settling Def e ndants’ f a ilure to obtain an operating perm it that reflects applicable requirem e nts imposed under Part C of Subchapter I of the Clean Air Act; and d. Chapters 33-15-12 and 33-15-15 of the North Dakota Adm i nistrative Code, as 34well as Chapters 33-15-01 and 33-15-14 as they relate to Chapters 33-15-12 and 33-15-15, and all relevant prior versions of these regulations; that arose from any m odification that com m e nced at the Milton R. Young Station prior to the date of lodging of this Consent Decree, including but not lim ited to m odifications alleged in the Comp laint filed by the Plaintiffs in this civil action. 109. Claims Based on Modifications After the Lodging of Consent Decree . Entry of this Decree also shall resolve all civil claim s of the Plaintiffs for pollutants regulated under:

a. Parts C and D of Subchapter I of the Clean Air Act, and under regulations promulgated thereunder as of the date of lodging of this Decree; and b. Chapter 33-15-15 of the North Dakota Admi nistrative Code, as well as Chapter 33-15-01 and 33-15-14 as they relate to Chapter 33-15-15; where such claim s are based on a m odification comp leted before Decem b er 31, 2015 and: i)

com m e nced at either Unit 1 or Unit 2 at the Milton R. Young Station after lodging of this Decree; or ii) that this Consent Decree expre ssly directs the Settling Defendants to undertake. The term “m odification” as used in this Paragraph shall have the m eaning that term is given under the Clean Air Act statute as it existed on the date of lodging of this Decree. 110. Reopener

. The resolution of the civil claim s of the United States provided by this Subsection is subject to the provisions of Section B of this Section. B. Pursuit of Plaintiffs’ Civil Claims Otherw ise Resolved 111. Bases for Pursuing Resolved Claims . If the Settling Def e ndants:

a. f a il by m o re than ninety (90) days (which m a y be extended by written agreem ent of the Parties) to comp lete installation or upgrade, and 35com m e nce operation, of any emission control device, unless that failure is excused under the Force Majeure provisions of this Consent Decree; or b. em it m o re SO 2 than allowed by the following tonnage lim itations: 1. 31,000 tons of SO 2 based on a Plant-W i de 12-Month Rolling Average Tonnage beginning January 1, 2006; 2. 26,000 tons of SO 2 based on a Plant-W i de 12-Month Rolling Average Tonnage beginning January 1, 2011; 3. 11,500 tons of SO 2 based on a Plant-W i de 12-Month Rolling Average Tonnage beginning January 1, 2012; and 4. 8,500 tons of SO 2 per year based on a Plant-W i de 12-Month Rolling Average Tonnage beginning January 1, 2014, in the event that Milton R. Young Unit 3 is not operational by Decem ber 31, 2015; then the Plaintiffs m a y pursue any claim that is otherwise covered by the covenant not to sue or to bring adm i nistrative action under Subsection A of this Section for any claim s based on

m odifications undertaken at a Unit where the m odi fication(s) on which such claim is based was

com m e nced after lodging of the Consent Decr ee and within the five years preceding the violation or failure specified in this Paragraph. 112. Additional Bases for Pursuing Resolved Claims for Modifications . The Plaintiffs m a y also pursue claim s arising from a m odification (or collection of m odifications) at a Unit that is otherwise covered by the covenant not to sue or to bring admi nistrative action under Subsection A of this Section, if the m odification (or collection of m odifications) at the Unit on 36which such claim s are based (a) was com m e nced after lodging of this Consent Decree, and (b) individually (or collectively) increased the m a ximu m hourly em ission rate of that Unit for NO x or SO 2 (as m easured by 40 C.F.R. § 60.14 (b) and (h)) by m o re than ten percent (10%). XI. PERIODIC REPORTING 113. Beginning thirty (30) days after the end of the first full calendar quarter following the entry of this Consent Decree, continuing on a sem i -annual basis until Decem ber 31, 2020, and in addition to any other express reporting requirem e nt in this Consent Decree, the Settling Defendants shall subm it to EPA and the State a progress report, containing

a. all inf o rm ation necessary to determ ine comp liance with this Consent Decree, including but not lim ited to inform ation required to be included in the reports pursuant to Paragraphs 49, 55, 56, 70, and 99 ; and b. all inform ation indicating that the installation and com m e ncem ent of operation for a pollution control device m a y be delayed, including the nature and cause of the delay, and any steps taken by the Settling Def e ndants to m itigate such delay. 114. In any periodic progress report subm itted pursuant to this Section, the Settling Defendants m a y incorporate by reference inform ation previously subm itted under their Title V perm itting requirem e nts, provided that the Settling Def e ndants attach the Title V perm it report (or pertinent portions of such report) and provide a specific reference to the provisions of the Title V perm it report that are responsive to the inform ation required in the periodic progress report. 115. In addition to the progress reports required pursuant to this Section, the Settling Def e ndants shall provide a written report to Plaintif f

s of any violation of the requirem e nts of this 37Consent Decree, including exceedances of the 30-Day Rolling Average Rem oval Efficiencies, 30-day Rolling Average Em ission Rates, PM Em ission Rates, and Plant-W i de Tonnage lim its within ten (10) business days of when the Settling Defendants knew or should have known of any such violation. In this report, the Settling Defendants shall explain the cause or causes of the violation and all m easures taken or to be taken by the Settling Def e ndants to prevent such violations in the future. Exceedances of the PM Emission Rates shall be reported within fortyfive (45) days of the comp letion of the stack test that dem onstrates such non-comp liance. In this report, the Settling Def e ndants shall explain the cause or causes of the violation and all m e asures taken or to be taken by the Settling Def e ndants to prevent such violations in the f u ture. 116. Each Settling Defendant’s report shall be signed by each of the Settling Def e ndant’s Environm ental Manager or, in his or her absence, the Settling Def e ndant’s Vice President of Generation, or higher ranking official , and shall contain the following certification: This inform ation was prepared either by m e or under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the inform ation subm itted. Based on my evaluation, or the direction and my inquiry of the person(s) who m a nage the system , or the person(s) directly responsible for gathering the inform ation, I hereby certify under penalty of law that, to the best of my knowledge and belief, this inform ation is true, accurate, and comp lete. I understand that there are signif i cant penalties f o r subm itting f a lse, inaccurate, or incomp lete inf o rm ation to the United States.

38XII. REVIEW AND APPROVAL OF SUBMITTALS 117. The Settling Defendants shall subm it each plan, report, or other subm ission to EPA and the State whenever such a docum ent is required to be submitted f o r review or approval pursuant to this Consent Decree. EPA and the State, to the extent that this Consent Decree provides f o r joint approval with the State, m a y approve the subm ittal or decline to approve it and provide written com m e nts. W ithin sixty (60) da ys of receiving written com m e nts from EPA, the Settling Def e ndants shall either: (a) revise the subm ittal consistent with the written com m e nts and provide the revised subm ittal for final approval to EPA and, if applicable, to the State; or (b) subm it the m a tter for dispute resolution, including the period of inform al negotiations, under Section XV (Dispute Resolution) of this Consent Decree. 118. Upon receipt of EPA’s final approval of the submittal, and the State’s final approval, if applicable, or upon com p letion of the subm ittal pursuant to dispute resolution, the Settling Defendants shall implem ent the approved subm ittal in accordance with the schedule specified therein. XIII. STIPULATED PENALTIES 119. For any f a ilure by the Settling Def e ndants to comp ly with the term s of this Consent Decree, and subject to the provisions of S ections XIV (Force Majeure) and XV (Dispute Resolution) of this Consent Decree, the Settling Def e ndants shall pay, within thirty (30) days after receipt of written dem a nd to the Settling Defendants by the United States, the following stipulated penalties to the United States : Consent Decree Violation S tipulated Penalty (Per day per violation, unless otherw ise specified) 39a. Failure to pay the civil penalty as specified in Section IX (Civil Penalty) of this Consent Decree $10,000 b. Failure to comp ly with any applicable NO x em ission rate resulting from the State’s BACT determ ination, 30-Day Rolling Average Rem oval Efficiency for SO 2 , or Em ission Rate for PM, where the violation is less than 5% in excess of the lim its set f o rth in this Consent Decree $2,500

c. Failure to comp ly with any applicable NO x em ission rate or rem oval efficiency resulting from the State’s BACT determ ination, 30-Day Rolling Average Rem oval Efficiency for SO 2 , or Em ission Rate for PM, where the violation is equal to or greater than 5% but less than 10% in excess of the lim its set f o rth in this Consent Decree $5,000

d. Failure to comp ly with any applicable NO x em ission rate or rem oval efficiency resulting from the State’s BACT determ ination, 30-Day Rolling Average Rem oval Efficiency for SO 2 , or Em ission Rate for PM, where the violation is equal to or greater than 10% in excess of the lim its set f o rth in this Consent Decree $10,000

e. Failure to comp ly with the Plant-W i de Tonnage Lim itations for One Calendar Year or the Plant-W i de Tonnage Lim itations for the Annual Average of Two Calendar Years $60,000 per ton per year for the first 100 tons over the lim it, and $120,000 per ton per year for each additional ton over the lim it f. Failure to install, upgrade, com m e nce operation, or continue operation of the NO x , SO 2 , and PM pollution control devices on any Unit $10,000 during the first 30 days, $27,000 thereafter

g. Failure to install or operate CEMS as required in Paragraphs 82 through 88 $1,000 h. Failure to conduct annual perform a nce tests of PM em issions, as required by Paragraphs 80 and 81 $1,000 i. Failure to apply for any perm it required by this Consent Decree $1,000

40j. Failure to tim ely subm it, m odify, or implem ent, as approved, the reports, plans, studies, analyses, protocols, or other subm ittals required by this Consent Decree $750 during the first ten days, $1,000 thereafter k. Using, selling, or transferring SO 2 Allowances, except as perm itted in this Consent Decree the surrender, pursuant to the procedures set forth in Paragraphs 55 through 57 of this Consent Decree, of SO 2 Allowances in an am ount equal to four tim es the num ber of SO 2 Allowances used, sold, or transferred in violation of this Consent Decree l. Using, selling or transferring NO x Allowances except as perm itted in Paragraphs 68 through 71 the surrender of NO x Allowances in an am ount equal to four tim es the num ber of NO x Allowances used, sold, or transferred in violation of this Consent Decree
m . Failure to surrender an SO 2 Allowance as required by Subsection B (Surrender of SO 2 Allowances) of Section IV ( SO 2 Em ission Reductions and Controls) (a) $27,500 plus (b) $1,000 per SO 2 Allowance

n. Failure to undertake and comp lete any of the Projects in comp liance with Section VIII (Additional Injunctive Relief ) of this Consent Decree $1,000 during the first 30 days, $5,000 thereafter

o. Any other violation of this Consent Decree $1,000

120. Notwithstanding the foregoing, the Settling Defendants shall not be liable for failure to comp ly with a 30-Day Rolling Average Rem oval Efficiency for SO 2 if the Settling Defendants are in full comp liance with the requirem e nts of Paragraph 49 of this Consent Decree, such exceedance is due to the Settling Defendants’ efforts to reduce ice form ation on a wet FGD stack by resorting to a partial bypass of their FGD, and the Settling Defendants m a intain a 30

- Day Rolling Average Rem oval Efficiency for SO 2 of no less than 83% during such periods of 41partial bypass. 121. Violation of an Em ission Rate or rem oval efficiency that is based on a 30-Day Rolling Average is a violation on every day on which the average is based. 122. W h ere a violation of a 30-Day Rolling Average Rem oval Efficiency (from the sam e source) recurs within periods of less than thirty (30) days, the Settling Def e ndants shall not pay a daily stipulated penalty for any day of the recurrence for which a stipulated penalty has already been paid. 123. All stipulated penalties shall begin to accrue on the day after the perform a nce is due or on the day a violation occurs, whichever is applicable, and shall continue to accrue until perform a nce is satisfactorily comp leted or until the violation ceases. Nothing in this Consent Decree shall prevent the simu ltaneous accrual of separate stipulated penalties for separate violations of this Consent Decree. 124. The Settling Defendants shall pay all stipulated penalties to the Plaintiffs within thirty (30) days of receipt of written dem a nd to the Settling Defendants from the United States, and shall continue to m ake such paym ents every thirty (30) days thereaf ter until the violation(s) no longer continues, unless the Settling Defendants elects within 20 days of receipt of written dem a nd to the Settling Defendants from the United States to dispute the accrual of stipulated penalties in accordance with the provisions in S ection XV (Dispute Resolution) of this Consent Decree. 125. Stipulated penalties shall continue to accrue as provided in Paragraph 119 during any dispute, with interest on accrued stipulated penalties payable and calculated at the rate established by the Secretary of the Treasury, pursuant to 28 U.S.C. § 1961, but need not be paid 42until the f o llowing:

a. If the dispute is resolved by agreem ent, 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 agreem ent or of the receipt of Plaintiffs’ decision; b. If the dispute is appealed to the Court and Plaintiffs prevail in whole or in part, the Settling Defendants shall, within sixty (60) days of receipt of the Court’s decision or order, pay all accrued stipulated penalties determ ined by the Court to be owing, together with accrued interest, except as provided in Subparagraph (c);

c. If the Court’s decision is appealed by any Party, the Settling Def e ndants shall, within fifteen (15) days of receipt of the final appellate court decision, pay all accrued stipulated penalties determ ined to be owing, together with accrued interest. For purposes of this Paragraph, the accrued stipulated penalties agreed by the Parties, or determ ined by the Plaintiffs through Dispute Resolution, to be owing m a y be less than the stipulated penalty am ounts set forth in Paragr aph 119. The Settling Defendants need not pay any stipulated penalties based on violations which they dispute and ultim ately prevail under the Dispute Resolution provisions of this Consent Decree. 126. All stipulated penalties shall be paid in the m a nner set forth in Section IX (Civil Penalty) of this Consent Decree. 127. Should the Settling Defendants fail to pay stipulated penalties in com p liance with 43the term s of this Consent Decree, the Plaintif f

s shall be entitled to collect interest on such penalties, as provided for in 28 U.S.C. § 1961. 128. The stipulated penalties provided for in this Consent Decree shall be in addition to any other rights, rem e dies, or sanctions available to any Plaintif f by reason of the Settling Defendants’ failure to comp ly with any requirem e nt of this Consent Decree or applicable law, except that for any violation of the Act for which this Consent Decree provides for paym ent of a stipulated penalty, the Settling Def e ndants shall be allowed a credit f o r stipulated penalties paid against any statutory penalties also imposed for such violation. XIV. FORCE MAJEURE 129. For purposes of this Consent Decree, a “Force Majeure Event” shall m ean an event that has been or will be caused by circum stances beyond the control of the Settling Defendants, their contractors, or any entity controlled by the Settling Def e ndants that delays comp liance with any provision of this Consent Decree or otherw ise causes a violation of any provision of this Consent Decree despite the Settling Defendants’ best efforts to fulfill the obligation. “Best ef

f

o rts to f u lf ill the obligation” include using best ef f

o rts 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 m i nim i zed to the greatest extent possible. 130. Notice of Force Majeure Events . If any event occurs or has occurred that m a y delay comp liance with or otherwise cause a violation of any obligation under this Consent Decree, as to which the Settling Def e ndants intends to assert a claim of Force Majeure, the Settling Defendants shall notify the United States and the State in writing as soon as practicable, but in no event later than f ourteen (14) business days f o llowing the date the Settling Def e ndants 44first knew, or by the exercise of due diligence should have known, that the event caused or m a y cause such delay or violation. In this notice, the Settling Defendants shall reference this Paragraph of this Consent Decree and describe the anticipated length of tim e that the delay or violation m a y persist, the cause or causes of the delay or violation, all m easures taken or to be taken by the Settling Defendants to prevent or mi nim i ze the delay or violation, the schedule by which the Settling Defendants proposes to im plem ent those m easures, and the Settling Def e ndants’ rationale f o r attributing a delay or violation to a Force Majeure Event. The Settling Defendants shall adopt all reasonable m easures to avoid or m i nim i ze such delays or violations. The Settling Defendants shall be deem ed to know of any circum stance which the Settling Defendants, their contractors, or any entity controlled by the Settling Defendants knew or should have known. 131. Failure to Give Notice

. If the Settling Def e ndants f a ils to comp ly with the notice requirem e nts in the preceding Paragraph, the Plai ntiffs m a y void the Settling Defendants’ claim f

o r Force Majeure as to the specif i c event f o r which the Settling Def e ndants have f a iled to

comp ly with such notice requirem e nt. 132. Plaintiffs’ Response . The Plaintif f

s shall notif y the Settling Def e ndants in writing regarding the Settling Def e ndants’ claim of Force Majeure within twenty (20) business days of receipt of the notice provided under Paragraph 130. If the Plaintiffs agree that a delay in perf orm a nce has been or will be caused by a Force Majeure Event, the Parties shall stipulate to an extension of deadline(s) for perform a nce of the affected comp liance requirem e nt(s) by a period equal to the delay actually caused by the event. In such circum stances, an appropriate

m odification shall be m a de pursuant to Section XXII (Modification) of this Consent Decree. 45133. Disagreement . If the Plaintiffs do not accept the Settling Defendants’ claim of Force Majeure, or if the Parties cannot agree on the length of the delay actually caused by the Force Majeure Event, the m a tter shall be resolved in accordance with Section XV (Dispute Resolution) of this Consent Decree. 134. Burden of Proof . In any dispute regarding Force Majeure, the Settling Def e ndants shall bear the burden of proving that any delay in perform a nce or any other violation of any requirem e nt of this Consent Decree was caused by or will be caused by a Force Majeure Event. The Settling Def e ndants shall also bear the burden of proving that the Settling Def e ndants gave the notice required by Paragraph 130 and the burden of proving the anticipated duration and extent of any delay(s) attributable to a Force Majeure Event. An extension of one comp liance date based on a particular event m a y, but will not necessarily, result in an extension of a subsequent comp liance date. 135. Events Excluded . Unanticipated or increased costs or expenses associated with the perform a nce of the Settling Defendants’ obligations under this Consent Decree shall not constitute a Force Majeure Event. 136. Potential Force Majeure Events

. The Parties agree that, depending upon the circum stances related to an event and the Settling Defendants’ response to such circum stances, the kinds of events listed below are am ong those that could qualify as Force Majeure Events within the m eaning of this Section: construc tion, labor, or equipm ent delays; Malfunction of a Unit or em ission control device; acts of God; acts of war or terrorism ; and orders by a governm e nt official, governm e nt agency, or other regulatory body acting under and authorized by applicable law that directs the Settling Defendants to supply electricity in response to a 46system -wide (state-wide or regional) em ergency. Depending upon the circum stances and the Settling Defendants’ response to such circum stances, failure of a permitting authority to issue a necessary perm it in a tim ely f a shion m a y constitute a Force Majeure Event where the f a ilure of the perm itting authority to act is beyond the control of the Settling Defendants and the Settling Defendants have taken all steps available to it to obtain the necessary perm it, including, but not lim ited to: subm itting a comp lete perm it application; responding to requests for additional inform ation by the perm itting authority in a tim ely fashion; and accepting lawful perm it term s and conditions after expeditiously exhausting any legal rights to appeal term s and conditions imposed by the perm itting authority, provided that the Settling Def e ndants shall not be precluded from asserting that a new Force Majeure Event has caused or m a y cause a new or additional delay in comp lying with the extended or m odified schedule. 137. As part of the resolution of any m a tter subm itted to this Court under Section XV (Dispute Resolution) of this Consent Decree regarding a claim of Force Majeure, the Parties by agreem ent, or this Court by order, m a y in appropriate circum stances extend or m odify the schedule for comp letion of work under this Consent Decree to account for the delay in the work that occurred as a result of any delay agreed to by the United States and the State or approved by the Court. The Settling Def e ndants shall be liable f o r stipulated penalties f o r their f a ilure thereafter to comp lete the work in accordance with the extended or m odified schedule. 138. Malfunctions. The Settling Defendants shall notify EPA and NDDH in writing of each Malfunction impacting a pollution control technology required by this Consent Decree as soon as practicable, but in no event later than fourteen (14) business days following the date that the Settling Defendants first knew, or by the exercise of due diligence should have known, of the 47Malfunction. The Settling Defendants shall be deem ed to know of any circum stance which the Settling Def e ndants, their contractors, or any entity controlled by the Settling Def e ndants knew or should have known. In this notice, the Settling Defendants shall describe the anticipated length of tim e that the Malfunction m a y persist, the cause or causes of the Malfunction, all

m easures taken or to be taken by the Settling Def e ndants to m i nim i ze the duration of the Malfunction, and the schedule by which the Settling Defendants proposes to im plem ent those

m easures. The Settling Defendants shall adopt all reasonable m easures to m i nim i ze the duration of such Malfunctions and, consistent with 40 C.F.R. § 60.11(d), shall, to the extent practicable,

m a intain and operate any affected Unit and associated air pollution control equipm ent in a

m a nner consistent with good air pollution control practice for m i nim i zing em issions. A Malfunction, as defined in Paragraph 16 of this Consent Decree, does not constitute a Force Majeure Event unless the Malfunction also m eets the definition of a Force Majeure Event, as provided in this Section. Conversely, a period of Malfunction m a y be excluded by the Settling Defendants from the calculations of em ission ra tes and rem oval efficiencies, as allowed under this Paragraph, if the Malfunction constitutes a Force Majeure event. XV. DISPUTE RESOLUTION 139. The dispute resolution procedure provided by this Section shall be available to resolve all disputes arising under this Consent Decree, provided that the Party invoking such procedure has first m a de a good faith attemp t to resolve the m a tter with the other Parties. 140. The dispute resolution procedure required herein shall be invoked by one Party giving written notice to the other Parties advising of a dispute pursuant to this Section. The notice shall describe the nature of the dispute and shall state the noticing Party’s position with 48regard to such dispute. The Parties receiving such a notice shall acknowledge receipt of the notice, and the Parties in dispute shall expeditiously schedule a m eeting to discuss the dispute inform ally not later than fourteen (14) days following receipt of such notice. 141. Disputes subm itted to dispute resolution under this Section shall, in the first instance, be the subject of inform al negotiations am ong the disputing Parties. Such period of inform al negotiations shall not extend beyond thirty (30) calendar days from the date of the first

m eeting am ong the disputing Parties’ representatives unless they agree in writing to shorten or extend this period. During the inform al negotiations period, the disputing Parties m a y also subm it their dispute to a mu tually-agreed-upon alternative dispute resolution (“ADR”) forum if the Parties agree that the ADR activities can be comp leted within the 30-day inf o rm al negotiations period (or such longer period as the Parties m a y agree to in writing). 142. If the disputing Parties are unable to reach agreem ent during the inform al negotiation period, the Plaintiffs shall provide the Settling Defendants with a written sum m ary of their position regarding the dispute. The written position provided by the Plaintif f

s shall be considered binding unless, within f o rty-f i ve (45) calendar days thereaf ter, the Settling Def e ndants seeks judicial resolution of the dispute by f iling a petition with this Court. The Plaintiffs m a y respond to the petition within forty-five (45) calendar days of filing. 143. W h ere the nature of the dispute is such that a m o re tim ely resolution of the issue is required, the tim e periods set out in this Section m a y be shortened upon m o tion of one of the Parties to the dispute. 144. This Court shall not draw any inferences nor establish any presumptions adverse to any disputing Party as a result of invocation of this Section or the disputing Parties’ inability to 49reach agreem ent. 145. As part of the resolution of any dispute under this Section, in appropriate circum stances the disputing Parties m a y agree, or this Court m a y order, an extension or

m odification of the schedule for the com p letion of the activities required under this Consent Decree to account for the delay that occurred as a result of dispute resolution. The Settling Def e ndants shall be liable f o r stipulated penalties f o r their f a ilure thereaf ter to comp lete the work in accordance with the extended or m odified schedule, provided that the Settling Defendants shall not be precluded from asserting that a Force Majeure Event has caused or m a y cause a delay in comp lying with the extended or m odified schedule. 146. The Court shall decide all disputes pursuant to applicable principles of law for resolving such disputes. In their initial filings with the Court under Paragraph 142, the disputing Parties shall state their respective positions as to the applicable standard of law f o r resolving the particular dispute. 147. This Paragraph shall govern all disputes under this Consent Decree between any Party regarding the BACT Determ ination provided by NDDH under Section V(B) of this Consent Decree. The Settling Def e ndants hereby waive their rights to challenge or dispute NDDH’s BACT Determ ination other than through this Paragraph, which shall constitute the sole

m eans by which the Settling Defendants m a y dispute such determ ination.

a. If any Party does not agree, in whole or in part, with NDDH’s BACT Determ ination or with the 30-Day Rolling Average NO x Em ission Rate established by NDDH as part of its BACT Determ ination, it shall notify the other Parties within thirty (30) days of receipt of the BACT Determination. The notice 50shall describe the particular reas on(s) for disagreeing with NDDH’s BACT Determ ination. The disputing Party shall bear the burden of proof throughout the dispute resolution process. The Parties to the dispute shall endeavor to resolve the dispute inform ally for up to thirty (30) days following issuance of such notice.

b. If the Parties to the dispute do not reach an agreem ent during this inform al dispute resolution process, each disputing Party shall provide the other Parties with a written sum m ary of its position within thirty (30) calendar days af ter the end of the inf o rm al process. The written position(s) provided by the State shall be considered binding unless, within forty-five (45) calendar days thereafter, a Party f iles with this Court a petition which describes the nature of the dispute and seeks judicial resolution. The other Parties to the dispute shall respond to the petition(s) within forty-five (45) calendar days of each such filing.

c. The Court shall sustain the decision by NDDH unless the Party disputing the BACT Determ ination dem onstrates that it is not supported by the state adm i nistrative record and not reasonable in light of applicable statutory and regulatory provisions. XVI. PERMITS 148. Unless expressly stated otherwise in this Consent Decree (e.g. Paragraph 109), in any instance where otherwise applicable law or this Consent Decree requires the Settling Defendants to secure a permit to authorize cons truction or operation of any device, including all preconstruction, construction, and operating perm its required under state law, the Settling 51Defendants shall m ake such application in a tim ely m a nner. The United States and NDDH will use their best ef f

o rts to expeditiously review all perm it applications subm itted by the Settling Defendants in order to m eet the requirem e nts of this Consent Decree. 149. W h en perm its are required, the Settling Defendants shall com p lete and subm it applications f o r such perm its to the appropriate authorities to allow suf f i cient tim e f o r all legally required processing and review of the permit request, including requests for additional inf o rm ation by the perm itting authorities. Any f a ilure by the Settling Def e ndants to subm it a tim ely perm it application for any Unit at the Milton R. Young Station shall bar any use by the Settling Def e ndants of Section XIV (Force Majeure) of this Consent Decree, where a Force Majeure claim is based on perm itting delays. 150. Notwithstanding the reference to the Title V perm it in this Consent Decree, the enforcem ent of the perm it shall be in accordance with its own term s and the Act. The Title V perm it shall not be enforceable under this Consent Decree, although any term or lim it established by or under this Consent Decree shall be enforceable under this Consent Decree regardless of whether such term has or will becom e part of a Title V perm it, subject to the term s of Section XXVI (Conditional Term ination of Enforcem ent Unde r Consent Decree) of this Consent Decree. 151. W ithin ninety (90) days after entry of this Consent Decree, the Settling Defendants shall am end any applicable Title V permit application, or apply for am endm ents of their Title V perm it, to include a schedule for all unit-specific and plant-specific perform a nce, operational,

m a intenance, and control technology requirem e nts established by this Consent Decree including, but not lim ited to, em ission rates, rem oval efficiencies, tonnage lim itations, and the requirem e nts pertaining to the surrender of SO 2 Allowances. 52152. W ithin one (1) year from the com m e ncem ent of operation of each pollution control device to be installed or upgraded on a Unit under this Consent Decree , the Settling Defendants shall apply to include the requirem e nts and lim itations enum erated in this Consent Decree in either a federally enforceable perm it (other than a Title V perm it) or am endm ents to the North Dakota State Implem entations Plan (“SIP”). The perm it or SIP am endm ent shall require comp liance with the following: (a) any applicable 30-Day Rolling Average Em ission Rate or 30-Day Rolling Average Rem oval Efficiency, (b) the allowance surrender requirem e nts set forth in this Consent Decree, and (c) any applicable Tonnage lim itations set forth in this Consent Decree. 153. The Settling Defendants shall provide the United States with a copy of each application for a federally enforceable perm it or SIP am endm ent, as well as a copy of any perm it proposed as a result of such application, to allow for tim ely participation in any public comm e nt opportunity. The Settling Defendants and the NDDH agree to incorporate the SO 2 lim itations in Subparagraphs 50(c) (and Subparagraph 50(d), if applicable) as federally-enforceable lim its for the Settling Defendants in future permitting proceedings. 154. If the Settling Defendants sell or transfer to an entity unrelated to the Settling Defendants (“Third Party Purchaser”) part or all of an ownership interest in a Unit (“Ownership Interest”) covered under this Consent Decree, the Settling Defendants shall com p ly with the requirem e nts of Paragraphs 148 through 153 with regard to that Unit prior to any such sale or transf er unless, f o llowing any such sale or transf er, the Settling Def e ndants rem a ins the holder of the perm it f o r such f acility.

53XVII. INFORMATION COLLECTION AND RETENTION 155. Any authorized representative of the Plaintiffs, including their attorneys, contractors, and consultants, upon presentation of credentials, shall have a right of entry upon the prem ises of any facility covered under this Consent Decree at any reasonable tim e for the purpose of:

a. m onitoring the progress of activities required under this Consent Decree; b. verifying any data or inform ation subm itted to the Plaintiffs in accordance with the term s of this Consent Decree;

c. obtaining samp les and, upon request, splits of any samp les taken by the Settling Defendants or their representatives, contractors, or consultants; and d. assessing the Settling Def e ndants’ comp liance with this Consent Decree. 156. The Settling Defendants shall retain, and instruct their contractors and agents to preserve, all non-identical copies of all records and docum ents (including records and docum ents in electronic form ) now in their or their contr actors’ or agents’ possession or control, and that directly relate to the Settling Defendants’ perform a nce of their obligations under this Consent Decree, until Decem ber 31, 2020. This record retention requirem e nt shall apply regardless of any corporate docum ent retention policy to the contrary. 157. All inform ation and docum ents subm itted by the Settling Defendants pursuant to this Consent Decree shall be subject to public disclosure based on requests under applicable law providing for such disclosure unless (a) the inform ation and docum ents are subject to legal privileges or protection or (b) the Settling Defendants claim and substantiate in accordance with 40 C.F.R. Part 2 that the inform ation and docum ents contain confidential business inform ation. 54158. Nothing in this Consent Decree shall lim it the authority of the Plaintiffs to conduct tests and inspections at facilities covered under this Consent Decree under Section 114 of the Act, 42 U.S.C. § 7414, or any other applicable federal or state laws, regulations or perm its. XVIII. NOTICES 159. Unless otherwise provided herein, whenever notifications, submissions, or

com munications are required by this Consent Decree, they shall be m a de in writing and addressed as follows: As to the United States of Am erica: Chief, Environm ental Enf o rcem ent Section Environm ent and Natural Resources Division U.S. Departm e nt of Justice P.O. Box 7611, Ben Franklin Station W a shington, D.C. 20044-7611 DOJ# 90-5-2-1-07717 and Director, Air Enforcem ent Division Office of Enforcem ent and Comp liance Assurance U.S. Environm ental Protection Agency Ariel Rios Building [2242A] 1200 Pennsylvania Avenue, N.W

. W a shington, DC 20460 and U. S. EPA, Region 8 Director, Office of Enforcem ent, Comp liance, and Environm ental Justice 999 18 thStreet, Suite 300 Denver, Colorado 80202-2466 As to the State of North Dakota : Director, Air Quality Division North Dakota Departm e nt of Health 55Bism ark, North Dakota 58506-5520 As to the Settling Def e ndants : David Sogard, General Counsel John Graves, Environm ental Manager 1822 State Mill Road P.O. Box 13200 Grand Forks, ND 58208-3200 160. All notifications, com munications or subm issions m a de pursuant to this Section shall be sent either by: (a) overnight m a il or delivery service; (b) certified or registered m a il, return receipt requested; or (c) electronic transm ission, unless the recipient is not able to review the transm ission in electronic form

. All notifications, com munications and transm issions (a) sent by overnight, certif ied or registered m a il shall be deem ed subm itted on the date they are postm arked, or (b) sent by overnight delivery service shall be deem ed subm itted on the date they are delivered to the delivery service. All notifications, communications, and submissions m a de by electronic m eans shall be electronically signed and certif ied, and shall be deem ed subm itted on the date that the Settling Defendants receive written acknowledgm ent of receipt of such transm ission. 161. Any Party m a y change either the notice recipient or the address for providing notices to it by serving the other Parties with a notice setting forth such new notice recipient or address. XIX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS 162. If the Settling Defendants propose to sell or transfer part or all of their ownership interest in any of their real property or operations subject to this Consent Decree (“Ownership Interest”) to an entity unrelated to the Settling Def e ndants (“Third Party Purchaser”), they shall 56advise the Third Party Purchaser in writing of th e existence of this Consent Decree prior to such sale or transfer, and shall send a copy of such written notification to the Plaintiffs pursuant to Section XVIII (Notices) at least sixty (60) days before such proposed sale or transfer. 163. No sale or transfer of an Ownership Interest shall take place before the Third Party Purchaser and the Plaintiffs have executed, a nd the Court has approved, a m odification pursuant to Section XXII (Modification) of this Consent Decree m aking the Third Party Purchaser a party def e ndant to this Consent Decree and jointly and severally liable with the Settling Def e ndants f o r all the requirem e nts of this Consent Decree th at m a y be applicable to the transferred or purchased Ownership Interests, except as provided in Paragraph 165, below. 164. This Consent Decree shall not be construed to im pede the transfer of any Ownership Interests between the Settling Defendants and any Third Party Purchaser as long the requirem e nts of this Consent Decree are m e t. In addition, this Consent Decree shall not be construed to prohibit a contractual allocation–as between the Settling Defendants and any Third Party Purchaser of Ownership Interests–of the bur dens of comp liance with this Decree, provided that both the Settling Def e ndants and such Third Party Purchaser shall rem a in jointly and severally liable to the Plaintif f

s f o r the obligations of the Decree applicable to the transf erred or purchased Ownership Interests, except as provided in Paragraph 165. 165. If the Plaintiffs agree, the United States, the State, the Settling Defendants and the Third Party Purchaser that has becom e a party defendant to this Consent Decree pursuant to Paragraph 163 m a y execute a m odification that re lieves Minnkota and/or Square Butte of their liability under this Consent Decree for, and m akes the Third Party Purchaser liable for, all obligations and liabilities applicable to the purchased or transf erred Ownership Interests. 57Notwithstanding the foregoing, however, the Settling Defendants m a y not assign, and m a y not be released from , any obligation under this Consent Decree that is not specific to the purchased or transferred Ownership Interests, including the obligations set forth in Sections VIII (Additional Injunctive Relief) and IX (Civil Penalty). The Settling Defendants m a y propose and the Plaintif f

s m a y agree to restrict the scope of joint and several liability of any purchaser or transferee for any obligations of this Consent Decree that are not specific to the purchased or transferred Ownership Interests to the extent such obligations m a y be adequately separated in an enforceable m a nner. XX. EFFECTIVE DATE 166. The effective date of this Consent Decree shall be the date upon which this Consent Decree is entered by the Court. XXI. RETENTION OF JURISDICTION 167. Continuing Jurisdiction . The Court shall retain jurisdiction of this case af ter entry of this Consent Decree to enforce comp liance w ith the term s and conditions of this Consent Decree and to take any action necessary or appropriate for its interpretation, construction, execution, m odification, or adjudication of disputes. During the term of this Consent Decree, any Party to this Consent Decree m a y apply to the Court for any relief necessary to construe or effectuate this Consent Decree.

58XXII. MODIFICATION 168. The term s of this Consent Decree m a y be m odified only by a subsequent written agreem ent signed by all Parties. W h ere the m odif i cation constitutes a m a terial change to any term of this Consent Decree, it shall be effective only upon approval by the Court. XXIII. GENERAL PROVISIONS 169. This Consent Decree is not a perm it. Comp liance with the term s of this Consent Decree does not guarantee comp liance with all applicable federal, state, or local laws or regulations. The rem oval efficiencies and emission rates set forth herein do not relieve the Settling Def e ndants f r om any obligation to comp ly with other state and f e deral requirem e nts under the Clean Air Act, including the Settling Defendants’ obligations to satisfy any state

m odeling requirem e nts set forth in the North Dakota State Im plem entation Plan. Unless otherwise indicated herein, citations to statutes or regulations herein shall m ean the version of the statutes or regulations in force as of July 1, 2005. 170. This Consent Decree does not apply to any claim ( s) of alleged crim inal liability. 171. In any subsequent adm i nistrative or j udicial action initiated by the Plaintiffs for injunctive relief or civil penalties relating to the f acilities covered by this Consent Decree, the Settling Defendants shall not assert any defens e 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 claim s raised by the Plaintiffs in the subsequent proceeding were brought, or should have been brought, in the instant case; provided, however, that nothing in this Paragraph is intended to, or shall, affect the validity of Section X (Resolution of Claim s ) of this Consent Decree. 59172. Except as specifically provided by this Consent Decree, nothing in this Consent Decree shall relieve the Settling Def e ndants of their obligations to comp ly with all applicable federal, state, and local laws and regulations. Nothing contained in this Consent Decree shall be construed to prevent or lim it the rights of the Plaintif f

s to obtain penalties, injunctive relief or other relief under the Act or other federal, state, or local statutes, regulations, or perm its. 173. Every term expressly defined by this Consent Decree shall have the m eaning 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 implem enting the Act shall m ean in this Consent Decree what such term m e ans under the Act or those implem enting regulations. 174. Nothing in this Consent Decree is intended to, or shall, alter or waive any applicable law (including but not limited to any def e nses, entitlem e nts, challenges, or clarifications related to the Credible Evidence Rule, 62 Fed. Reg. 8315 (Feb. 27, 1997)) concerning the use of data for any purpose under the Act, generated either by the reference

m e thods specified herein or otherwise. 175. Each lim it and/or other requirem e nt established by or under this Consent Decree is a separate, independent requirem e nt. 176. Perform a nce standards, em issions lim its, and other quantitative standards set by or under this Consent Decree mu st be m e t to the num ber of significant digits in which the standard or lim it is expressed. For example, an Em ission Rate of 0.100 is not m e t if the actual Em ission Rate is 0.101. The Settling Defendants shall round the fourth significant digit to the nearest third significant digit, or the third significant digit to the nearest second significant digit, depending 60upon whether the lim it is expressed to three or two significant digits. For example, if an actual Em ission Rate is 0.1004, that shall be reported as 0.100, and shall be in comp liance with an Em ission Rate of 0.100, and if an actual Em ission Rate is 0.1005, that shall be reported as 0.101, and shall not be in comp liance with an Em ission Rate of 0.100. The Settling Defendants shall report data to the num ber of significant digits in which the standard or lim it is expressed. 177. This Consent Decree does not lim it, enlarge or affect the rights of any Party to this Consent Decree as against any third parties. 178. This Consent Decree constitutes the final, com p lete and exclusive agreem ent and understanding am ong the Parties with respect to the settlem e nt em bodied in this Consent Decree, and supersedes all prior agreem ents and understandings am ong the Parties related to the subject

m a tter herein. No docum ent, representation, inducem ent, agreem ent, understanding, or promise constitutes any part of this Consent Decree or the settlem e nt it represents, nor shall they be used in construing the term s of this Consent Decree. 179. The United States and the Settling Defendants shall bear their own costs and attorneys’ fees. XXIV. SIGNATORIES AND SERVICE 180. Each undersigned representative of the Parties certifies that he or she is fully authorized to enter into the term s and conditi ons of this Consent Decree and to execute and legally bind to this docum ent the Party he or she represents. 181. This Consent Decree m a y be signed in counterparts, and such counterpart signature pages shall be given full force and effect. 182. Each Party hereby agrees to accept service of process by m a il with respect to all 61m a tters arising under or relating to this Consent Decree and to waive the form al service requirem e nts set forth in Rule 4 of the Federal Rules of Civil Procedure and any applicable Local Rules of this Court including, but not lim ited to, service of a sum m ons. XXV. PUBLIC COMMENT 183. The Parties agree and acknowledge that final approval by the United States and entry of this Consent Decree is subject to the procedures of 28 C.F.R. § 50.7, which provides for notice of the lodging of this Consent Decree inthe Federal Register, an opportunity for public

com m e nt, and the right of the United States to withdraw or withhold consent if the com m e nts disclose facts or considerations which indicate that the Consent Decree is inappropriate, improper or inadequate. The Settling Defendants shall not oppose entry of this Consent Decree by this Court or challenge any provision of this Consent Decree unless the United States has notified the Settling Defendants, in writing, that the United States no longer supports entry of the Consent Decree. XXVI. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER CONSENT DECREE 184. Termination as to Completed Tasks. As soon as the Settling Defendants

comp lete a construction project or any other requirem e nt of this Consent Decree that is not ongoing or recurring, the Settling Defendants m a y, by m o tion to this Court, seek term ination of the provision or provisions of this Consent Decree that im posed the requirem e nt. 185. Conditional Termination of Enforcement Through the Consent Decree. After the Settling Def e ndants:

a. have successfully comp leted construction, and have m a intained operation, of all

62pollution controls as required by this Consent Decree; b. have obtained a f i nal Title V perm it (I) as required by the term s of this Consent Decree; (ii) that cover all units in this Consent Decree; and (iii) that include as enforceable perm it term s all of the Unit perform a nce and other requirem e nts specified in Section XVI (Perm its) of this Consent Decree; and

c. certified that the date is later than Decem ber 31, 2015; then the Settling Def e ndants m a y so certif y these f acts to the Plaintif f

s and this Court. If the Plaintiffs do not object in writing with specific reas ons within forty-five (45) days of receipt of the Settling Defendants’ certification, then, for any Consent Decree violations that occur after the f iling of notice, the Plaintif f

s shall pursue enforcem ent of the requirem e nts contained in the Title V perm it through the applicable Title V permit and not through this Consent Decree. 186. Resort to Enforcement under this Consent Decree. Notwithstanding Paragraph 187, if enforcem ent of a provision in this Consent Decree cannot be pursued by a Party under the applicable Title V permit, or if a Consent Decree requirem e nt was intended to be part of a Title V Perm it and did not becom e or rem a in part of such perm it, then such requirem e nt

m a y be enforced under the term s of this Consent Decree at any tim e, unless and until the Settling Defendants have secured a source-specific revision to the North Dakota State Im plem entation Plan to reflect the em ission lim itations, em issions m onitoring, and allowance surrender requirem e nts set forth in this Consent Decree.

63_________________________________________ XXVII. FINAL JUDGMENT 187. Upon approval and entry of this Consen t Decree by the Court, this Consent Decree shall constitute a final judgm ent in the above-captioned m a tter between the Plaintiffs and the Settling Def e ndants. SO ORDERED, THIS _____ DAY OF ________________, 2006.

UNITED STATES DISTRICT COURT JUDGE

64FOR THE UNITED STATES OF AMERICA:

SUE ELLEN W OOLDRIDGE Assistant Attorney General Environm ental and Natural Resources Division United States Departm e nt of Justice

MATTHEWW

. MORRISON Senior Counsel Environm ental Enforcem ent Section Environm ental and Natural Resources Division United States Departm e nt of Justice

65GRANTA Y. NAKAYAMA Assistant Adm i nistrator Office of Enforcem ent and Comp liance Assurance United States Environm ental Protection Agency

ADAM M. KUSHNER Director, Air Enforcem ent Division Office of Enforcem ent and Comp liance Assurance United States Environm ental Protection Agency

JEFFREY A. KODISH Attorney Advisor Air Enforcem ent Division Office of Enforcem ent and Comp liance Assurance United States Environm ental Protection Agency

66_________________________________

_______________________________ CAROL RUSHIN Assistant Regional Adm i nistrator Office of Enforcem ent, Comp liance and Environm ental Justice

BRENDA MORRIS Enforcem ent Attorney U.S. Environm ental Protection Agency Region 8

67______________________________

__________________________________________ FOR THE STATE OF NORTH DAKOTA:

TERRY L. DW ELLE, MD, MPHTM State Health Officer North Dakota Dep’t of Health

W AYNE STENEHJEM Attorney General Attorney for North Dakota

68FOR DEFENDANT MINNKOTA POWER COOPERATIVE, INC.:

DAVID LOER President& CEO

69FOR DEFENDANT SQUARE BUTTE ELECTRIC COOPERATIVE:

DAVID LOER General Manager

70