UNITED STATES DISTRICT COURT
 EASTERN DISTRICT OF KENTUCKY
 CENTRAL DIVISION
 LEXINGTON
 

UNITED STATES OF AMERICA )

)

Plaintiff, )

)
 v.	 ) Civil Action No. 04-34-KSF 

)

EAST KENTUCKY POWER )

COOPERATIVE, INC., )

)

Defendant.	 )

)

)
 

CONSENT DECREE 
TABLE OF CONTENTS
 

I. JURISDICTION AND VENUE ............................................. 2 
 

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

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

IV.	 ELECTION TO EITHER INSTALL EMISSION CONTROLS AT COOPER 2 OR
 

RETIRE OR RE-POWER DALE 3 AND 4 .................................. 13 
 

V. NOx EMISSION REDUCTIONS AND CONTROLS ............................ 14 
 

A. NOx Emission Controls .............................................. 14 
 

B. System-Wide NOx Emission Limits .................................... 15 
 

C. Use of NOx Allowances .............................................. 16 
 

D. General NOx Provisions .............................................. 17 
 

VI. SO2 EMISSION REDUCTIONS AND CONTROLS ............................ 18 
 

A. SO2 Emission Controls ............................................... 18 
 

B. System-Wide SO2 Emission Limits ..................................... 19 
 

C. Surrender of SO2 Allowances ......................................... 20 
 

D. Fuel Limitations .................................................... 23 
 

E. General SO2 Provisions .............................................. 23 
 

VII. PM AND MERCURY EMISSION REDUCTIONS AND CONTROLS ............. 23 
 

A. Optimization of PM Emission Controls .................................. 23 
 

B. Upgrade of Existing PM Emission Controls .............................. 24 
 

C. PM and Mercury Monitoring .......................................... 26 
 

D. General PM Provisions .............................................. 32 
 

VIII. PROHIBITION ON NETTING CREDITS OR OFFSETS FROM REQUIRED
 

CONTROLS .......................................................... 32 
 

IX. ENVIRONMENTAL PROJECTS ........................................... 33 
 

X. CIVIL PENALTY ....................................................... 34 
 

XI. RESOLUTION OF CLAIMS .............................................. 35 
 

A. RESOLUTION OF U.S. CIVIL CLAIMS ............................... 35 
 

B. PURSUIT OF U.S. CIVIL CLAIMS OTHERWISE RESOLVED ............. 37 
 
XII. PERIODIC REPORTING .............................................. 40 
 

XIII. REVIEW AND APPROVAL OF SUBMITTALS ........................... 42

 XIV. STIPULATED PENALTIES ............................................ 42 
 

XV. FORCE MAJEURE ................................................... 47

 XVI. DISPUTE RESOLUTION .............................................. 51

 XVII. PERMITS ........................................................... 52

 XVIII. INFORMATION COLLECTION AND RETENTION ....................... 55

 XIX. NOTICES ........................................................... 56 
 

XX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS .................... 58

 XXI. EFFECTIVE DATE ................................................... 59

 XXII. RETENTION OF JURISDICTION ....................................... 59

 XXIII. MODIFICATION .................................................... 60

 XXIV. GENERAL PROVISIONS ............................................. 60

 XXV. SIGNATORIES AND SERVICE ........................................ 62

 XXVI. PUBLIC COMMENT ................................................. 63

 XXVII. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER DECREE ..... 63

 XXVIII. FINAL JUDGMENT .................................................. 64 
 

APPENDIX A – ENVIRONMENTAL PROJECTS REQUIREMENTS
 

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

States Environmental Protection Agency (“EPA”), filed a Complaint against East Kentucky 

Power Cooperative, Inc. (“EKPC”) pursuant to Sections 113(b) and 167 of the Clean Air Act 

(the “Act"), 42 U.S.C. §§ 7413(b) and 7477, for injunctive relief and civil penalties for alleged 

violations of: 

(a) the Prevention of Significant Deterioration provisions in Part C of 

Subchapter I of the Act, 42 U.S.C. §§ 7470-92; 

(b) the New Source Performance Standards (“NSPS”) 42 U.S.C. § 7411; 

(c) Title V of the Act, 42 U.S.C. § 7661 et seq.; 

(d) the federally-enforceable State Implementation Plan (“SIP”) developed by 

the Commonwealth of Kentucky; and 

WHEREAS, in its Complaint, Plaintiff alleges, inter alia, that EKPC failed to obtain the 

necessary permits and install the controls necessary under the Act to reduce its sulfur dioxide, 

nitrogen oxides, and/or particulate matter emissions, and that EKPC violated various operating 

permit conditions; 

WHEREAS, the Complaint alleges claims upon which relief can be granted against 

EKPC under Sections 113 and 167 of the Act, 42 U.S.C. §§ 7413 and 7477, and 28 U.S.C. 

§ 1355; 

WHEREAS, EKPC, a rural electric cooperative based in Winchester, Kentucky, has 

answered the Complaint filed by the United States; 

WHEREAS EKPC has denied and continues to deny the violations alleged in the NOVs 

and the Complaint; maintains that it has been and remains in compliance with the Act and is not 

liable for civil penalties or injunctive relief; and states that it is agreeing to the obligations 

1
 
imposed by this Decree solely to avoid the costs and uncertainties of litigation and to improve 

the environment; 

WHEREAS, EPA provided EKPC and the Commonwealth of Kentucky with actual 

notices of violations pertaining to EKPC’s alleged violations, in accordance with Section 

113(a)(1) and (b) of the Act, 42 U.S.C. § 7413(a)(1) and (b); 

WHEREAS, the Parties anticipate that the installation and operation of pollution control 

equipment pursuant to this Consent Decree will achieve significant reductions in SO2, NOx and 

PM emissions and thereby improve air quality; 

WHEREAS, the United States and EKPC have agreed, and the Court by entering this 

Consent Decree finds: that this Consent Decree has been negotiated in good faith and at arms 

length; that this settlement is fair, reasonable, consistent with the goals of the Act, in the best 

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

further litigation is the most appropriate means of resolving this matter; 

and 

WHEREAS, the United States and EKPC have consented to entry of this Consent Decree 

without trial of any issue; 

NOW, THEREFORE, without any admission of fact or law, and without any admission 

of the violations alleged in the Complaint, notices of violations and otherwise; it is hereby 

ORDERED, ADJUDGED, AND DECREED as follows: 

I. JURISDICTION AND VENUE 

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

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

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

2
 
42 U.S.C. § 7413(b), and under 28 U.S.C. § 1391(b) and (c). Solely for the purposes of this 

Consent Decree and the underlying Complaint, EKPC waives all objections and defenses that it 

may have to the Court’s jurisdiction over this action, to the Court’s jurisdiction over EKPC, and 

to venue in this District. EKPC shall not challenge the terms of this Consent Decree or this 

Court’s jurisdiction to enter and enforce this Consent Decree. For purposes of the Complaint 

filed by the United States in this matter and resolved by the Consent Decree, and for purposes of 

entry and enforcement of this Consent Decree, EKPC waives 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 United States and EKPC. Except as provided in Section XXVI 

(Public Comment) of this Consent Decree, the Parties consent to entry of this Consent Decree 

without further notice. 

II. APPLICABILITY 

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

upon the United States and EKPC, its successors and assigns, and EKPC’s officers, employees, 

and agents solely in their capacities as such. 

3. EKPC shall provide a copy of this Consent Decree to all vendors, suppliers, 

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

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

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

EKPC shall be responsible for ensuring that all work is performed in accordance with the 

requirements of this Consent Decree. In any action to enforce this Consent Decree, EKPC shall 

not assert as a defense the failure of its officers, directors, employees, servants, agents, or 

contractors to take actions necessary to comply with this Consent Decree, unless EKPC 

establishes that such failure resulted from a Force Majeure Event, as defined in Paragraph 143 of 

this Consent Decree. 

3
 
III. DEFINITIONS
 

4. A “1-Hour Average NOx Emission Rate” for a gas-fired, electric generating unit 

shall be expressed as the average concentration in parts per million (“ppm”) by dry volume, 

corrected to 15% O2, as averaged over one (1) hour. In determining the 1-Hour Average NOx 

Emission Rate, EKPC shall use CEMS in accordance with the applicable reference methods 

specified in 40 C.F.R. Part 60 to calculate emissions for each 15 minute interval within each 

clock hour, except as provided in this Paragraph. Compliance with the 1-Hour Average NOx 

Emission Rate shall be shown by averaging all 15-minute CEMS interval readings within a clock 

hour, except that any 15-minute CEMS interval that contains any part of a Start-up or Shut 

Down shall not be included in the calculation of that one-hour average. A minimum of two 15-

minute CEMS interval readings within a clock hour, not including Start-up or Shut-Down 

intervals, is required to determine compliance with the 1-Hour Average NOx Emission Rate. All 

emissions recorded by CEMS shall be reported in one hour averages. 

5. A “30-Day Rolling Average Emission Rate” for a Unit or “Combined 30-Day 

Rolling Average Emission Rate” for the Spurlock Plant shall be expressed as lb/mmBTU and 

calculated in accordance with the following procedure: first, sum the total pounds of the 

pollutant in question emitted from the Unit (in the case of a 30-Day Rolling Average Emission 

Rate) or the Spurlock Plant (in the case of a Combined 30-Day Rolling Average Emission Rate) 

during an Operating Day and the previous twenty-nine (29) Operating Days; second, sum the 

total heat input to the Unit (in the case of a 30-Day Rolling Average Emission Rate) or the 

Spurlock Plant (in the case of a Combined 30-Day Rolling Average Emission Rate) in mmBTU 

during the Operating Day and the previous twenty-nine (29) Operating Days; and third, divide 

the total number of pounds of the pollutant emitted during the thirty (30) Operating Days by the 

total heat input during the thirty (30) Operating Days. A new 30-Day Rolling Average Emission 

Rate shall be calculated for each new Operating Day. A new Combined 30-Day Rolling 

4
 
Average Emission Rate shall be calculated for each new Operating Day during which both 

Spurlock 1 and Spurlock 2 fire Fossil Fuel. Each 30-Day Rolling Average Emission Rate and 

Combined 30-Day Rolling Average Emission Rate shall include all emissions that occur during 

all periods of start-up, shutdown and Malfunction within an Operating Day, except as follows: 

a.	 For emissions of NOx from Spurlock 1 only, EKPC shall include all emissions 

commencing from the time Spurlock 1 is synchronized with a utility electric 

distribution system through the time that Spurlock 1 ceases to combust fossil fuel 

and the fire is out in the boiler; 

b.	 Emissions of NOx that occur during the fifth and subsequent Cold Start Up 

Period(s) that occur in any 30-day period shall be excluded from the calculation 

of the 30-Day Rolling Average Emission Rate and Combined 30-Day Rolling 

Average Emission Rate if inclusion of such emissions would result in a violation 

of any applicable 30-Day Rolling Average Emission Rate or Combined 30-Day 

Rolling Average Emission Rate, and if EKPC has installed, operated and 

maintained the SCR in question in accordance with manufacturers’ specifications 

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

has been no fire in the boiler of a Unit (no combustion of any fossil fuel) for a 

period of six hours or more. The emissions to be excluded during the fifth and 

subsequent Cold Start Up Period(s) shall be the less of (1) those NOx emissions 

emitted during the eight hour period commencing when the Unit is synchronized 

with a utility electric distribution system and concluding eight hours later or (2) 

those emitted prior to the time that the flue gas has achieved the minimum SCR 

operational temperature as specified by the catalyst manufacturer; 

c.	 For Cold Start Up Periods that occur at Spurlock 1 prior to April 1, 2008, 

emissions of NOx that occur during the first and second Cold Start Up Period(s) 

5
 
that occur in any 30-day period shall also be excluded from the calculation of the 

30-Day Rolling Average Emission Rate and Combined 30-Day Rolling Average 

Emission Rate under the same terms and conditions as provided in Subparagraph 

b; and 

d.	 Emissions that occur during a period of Malfunction shall be excluded from the 

calculation of the 30-Day Rolling Average Emission Rate and Combined 30-Day 

Rolling Average Emission Rate if EKPC provides notice of the Malfunction to 

EPA and takes all reasonable measures to minimize the duration of such 

Malfunction and prevent the recurrence of such Malfunctions in the future, in 

accordance with Paragraph 152 (Malfunction Events) of this Consent Decree. 

6. “30-Day Rolling Average SO2 Removal Efficiency” means the percent reduction 

in the mass of SO2 achieved by a Unit’s pollution control device over a 30-Operating Day 

period. This percent reduction shall be calculated by subtracting the outlet 30-Day Rolling 

Average Emission Rate from the inlet 30-Day Rolling Average Emission Rate, dividing that 

difference by the inlet 30-Day Rolling Average Emission Rate, and then multiplying by 100. In 

the event the 30-Day Rolling Average SO2 Removal Efficiency does not meet the requirements 

of this consent decree, a 30-Day Rolling Average SO2 emission rate of 0.100 lb/mmBTU or less 

shall satisfy the removal efficiency requirement. A new 30-Day Rolling Average SO2 Removal 

Efficiency shall be calculated for each new Operating Day. EKPC may exclude Malfunctions 

from the calculation of a 30-Day Rolling Average SO2 Removal Efficiency only to the extent 

that such Malfunctions have been excluded from the underlying 30-Day Rolling Average 

Emission Rates. 

6
 
7. “Boiler Island” means a Unit’s (A) fuel combustion system (including bunker, 

coal pulverizers, crusher, stoker, and fuel burners); (B) combustion air system; (C) steam 

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

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

(November 25, 1986) and attachments thereto. 

8. “Capital Expenditure” means all capital expenditures, as defined by Generally 

Accepted Accounting Principles (“GAAP”), excluding the cost of installing or upgrading 

pollution control devices. 

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

involving NOx and SO2 under this Consent Decree, the devices defined in 40 C.F.R. § 72.2 and 

installed and maintained as required by 40 C.F.R. Part 75. 

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

7671q, and its implementing regulations. 

11. “Consent Decree” or “Decree” means this Consent Decree and the Appendix 

hereto, which is incorporated into this Consent Decree. 

12. “Cooper Plant” means the John Sherman Cooper Power Station located near 

Somerset, Kentucky, consisting of the following coal-fired Units: Unit 1 (124 MW) (“Cooper 1”) 

and Unit 2 (240 MW) (“Cooper 2”). 

13. “Dale Plant” means Unit 3 (80 MW) (“Dale 3”) and Unit 4 (80 MW) (“Dale 4”) 

(and shall exclude Units 1 and 2) of the William C. Dale Power Station, located near Winchester, 

Kentucky. 

7
 
14. “EKPC System” means, collectively, the Spurlock Plant, Cooper Plant, and Dale 

Plant. 

15. “EKPC System Unit” means a unit included in the EKPC System. 

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

BTU of heat input (“lb/mmBTU”) or the average concentration of pollutant in parts per million 

by dry volume (“ppm”) corrected to 15% O2, measured in accordance with this Consent Decree. 

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

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

that employs flue gas desulfurization technology for the reduction of sulfur dioxide. 

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

petroleum oil, or natural gas. 

20. “Improved Unit” means, in the case of NOx, an EKPC System Unit scheduled to 

begin year-round operation of SCR technology pursuant to Paragraph 52, or, following EKPC’s 

election pursuant to Paragraph 50, scheduled to be retired or equipped with SCR (or equivalent 

NOx control technology approved pursuant to Paragraph 54). In the case of SO2, “Improved 

Unit” means an EKPC System Unit scheduled to be equipped with an FGD pursuant to 

Paragraph 64 (or equivalent SO2 control technology approved pursuant to Paragraph 66) or, 

following EKPC’s election pursuant to Paragraph 50, scheduled to be retired or equipped with 

FGD (or equivalent SO2 control technology approved pursuant to Paragraph 66). Following 

EKPC’s election pursuant to Paragraph 50, either, but not both, of (1) Cooper Unit 2, or (2) Dale 

Units 3 and 4, may be considered “Improved Units.” Neither (1) Cooper Unit 2 nor (2) Dale 

8
 
Units 3 and 4 shall be considered an "Improved Unit" unless and until an election is made 

pursuant to Paragraph 50. 

21. “lb/mmBTU” means one pound of a pollutant per million British thermal units of 

heat input. 

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

23. “MCR” means maximum continuous rating. 

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

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

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

26. “New Units” means the following coal-fired circulating fluidized bed (“CFB”) 

Units that commenced operation after the filing of the Complaint in this action and/or commence 

operation after entry of this Consent Decree and are owned all or in part by EKPC: Spurlock 

Unit 3 (305 MW), Spurlock Unit 4 (315 MW), Smith Unit 1 (315 MW) and Smith Unit 2 (315 

MW). 

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

this Consent Decree. 

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

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

29. “NSPS” means New Source Performance Standards within the meaning of Part A 

of Subchapter I, of the Clean Air Act, 42 U.S.C. § 7411, 40 C.F.R. Part 60. 

9
 
30. “Operating Day” means any calendar day on which a Unit fires Fossil Fuel. 

31. “Other Unit” means any EKPC System Unit that is not an Improved Unit for the 

pollutant in question. 

32. “Ownership Interest” means all or part of EKPC's legal or equitable interest in 

any EKPC System Unit. 

33. “Parties” means EKPC and the United States of America, and “Party” means 

either one of the two named “Parties.” 

34. “Permitting State” means the Commonwealth of Kentucky. 

35. “Plaintiff” means the United States of America. 

36. “Pollution Control Upgrade Analysis” means the technical study, analysis, 

review, and selection of control technology recommendations (including an emission rate or 

removal efficiency) identical to that which would be performed in connection with an 

application for a federal PSD permit, taking into account the characteristics of the existing 

facility. Except as otherwise provided in this Consent Decree, such study, analysis, review, and 

selection of recommendations shall be carried out in accordance with applicable federal and state 

regulations and guidance describing the process and analysis for determining Best Available 

Control Technology (BACT), as that term is defined in 40 C.F.R. §52.21(b)(12), including, 

without limitation, the December 1, 1987 EPA Memorandum from J. Craig Potter, Assistant 

Administrator for Air and Radiation, regarding Improving New Source Review (NSR) 

Implementation. Nothing in this Decree shall be construed either to: (A) alter the force and 

effect of statements known as or characterized as “guidance” or (B) permit the process or result 

10
 
of a “Pollution Control Upgrade Analysis” to be considered BACT for any purpose under the 

Act. 

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

this Consent Decree. 

38. “PM CEMS,” “Mercury CEMS,” “PM Continuous Emission Monitoring 

System,” or “Mercury Continuous Emission Monitoring System” means, as specified in Section 

VII.C (PM and Mercury Monitoring) of this Consent Decree, the equipment that samples, 

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

record of PM or Mercury emissions. 

39. “PM Control Device” means an electrostatic precipitator (“ESP”) or a baghouse 

(“BH”) or any other device which reduces emissions of particulate matter (PM). 

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

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

with the reference method set forth in 40 C.F.R. Part 60, App. A, Method 5 (filterable portion 

only). 

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

C of Subchapter I of the Clean Air Act, 42 U.S.C. §§ 7470 - 7492 and 40 C.F.R. Part 52. 

42. “Re-power” shall mean either (1) the replacement of an existing pulverized coal 

boiler through the construction of a new circulating fluidized bed ("CFB") boiler or other clean 

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

maintains a 30-Day Rolling Average Emission Rate not greater than 0.100 lb/mmBTU for SO2 or 

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

11
 
Day Rolling Average Emission Rate not greater than 0.070 lb/mmBTU for NOx, and a PM 

Emission Rate not greater than 0.015 lb/mmBTU; or (2) the modification of a Unit, or removal 

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

electricity through the use of new combined cycle combustion turbine technology fueled by 

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

gas, and at a minimum achieves and maintains a 1-Hour Average NOx Emission Rate not greater 

than 2.0 ppm. 

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

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

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

Consent Decree. 

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

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

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

46. “Spurlock Plant” means the Spurlock Power Station located near Maysville, 

Kentucky, consisting of the following coal-fired cogeneration Units: Unit 1 (344 MW) 

(“Spurlock 1”) and Unit 2 (555 MW) (“Spurlock 2”). Spurlock 1 and 2 are each configured to 

supply thermal energy to an adjacent box manufacturing plant. 

47. “System-Wide 12-Month Rolling Tonnage” means the sum of the tons of the 

pollutant in question emitted from the EKPC System in the most recent complete month and the 

previous eleven (11) months. A new System-Wide 12-Month Rolling Tonnage shall be 

calculated for each new complete month in accordance with the provisions of this Consent 

12
 
Decree. The calculation of each System-Wide 12-Month Rolling Tonnage shall include the 

pollutants emitted during periods of startup, shutdown, and Malfunction within each calendar 

month, except as otherwise provided by the Force Majeure provisions of this Consent Decree. 

48. “Title V Permit” means the permit required of EKPC’s major sources under 

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

49. “Unit” means, solely for the purposes of this Consent Decree, collectively, the 

coal pulverizer, stationary equipment that feeds coal to the boiler, the boiler that produces steam 

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

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

equipment and systems necessary for the production of electricity. 

IV. ELECTION TO EITHER INSTALL EMISSION CONTROLS AT COOPER 2 OR
 RETIRE OR RE-POWER DALE 3 AND 4
 

50. No later than December 31, 2009, EKPC shall elect in writing to Plaintiff to either 

(1) install and continuously operate NOx emission controls at Cooper 2 by December 31, 2012, 

and SO2 emissions controls by June 30, 2012, as required in Paragraphs 53 and 65, or (2) retire 

and permanently cease to operate Dale 3 and 4 by December 31, 2012. Should EKPC retire and 

cease to operate Dale 3 and 4 pursuant to Option (2), EKPC may resume operation of such Units 

only if EKPC first Re-powers the Units pursuant to Paragraph 42 of this Decree, commences 

commercial operation of such Re-powered Units by May 31, 2014, and thereafter continues to 

operate in compliance with the rates set forth in Paragraph 42. Should EKPC choose to Repower Dale Units 3 and 4, EKPC shall timely apply for a preconstruction permit from the 

Permitting State under 401 Ky. Admin. Reg. 51:017 prior to commencing such Re-powering. In 

applying for such permit EKPC shall seek, as part of the permit, provisions requiring Emission 

Rates no greater than those set forth in Paragraph 42. 

13
 
V. NOx EMISSION REDUCTIONS AND CONTROLS 

A. NOx Emission Controls 

51. Beginning 60 days after entry of this Consent decree, and continuing until 

December 31, 2012, EKPC shall operate year-round the SCR technology on Spurlock 1 and 

Spurlock 2 to achieve and maintain the Emission Rates required by this Paragraph. EKPC shall 

operate year-round the SCR technology on Spurlock 1 so as to achieve and maintain a 30-Day 

Rolling Average Emission Rate for NOx not greater than 0.120 lb/mmBTU. EKPC shall operate 

year-round the SCR technology on Spurlock 2 so as to achieve and maintain a 30-Day Rolling 

Average Emission Rate for NOx not greater than 0.100 lb/mmBTU. During periods when both 

Spurlock 1 and Spurlock 2 are operating, EKPC shall operate the SCR technology on both 

Spurlock 1 and 2 so as to achieve and maintain a Combined 30-Day Rolling Average Emission 

Rate for those two Units for NOx not greater than 0.100 lb/mmBTU. 

52. Beginning on January 1, 2013, and continuing thereafter, EKPC shall operate 

year-round the SCR technology on Spurlock 1 and 2 so as to achieve and maintain a NOx 30-Day 

Rolling Average Emission Rate not greater than 0.100 lb/mmBTU for each Unit. 

53. Pursuant to Paragraph 50, if EKPC elects to install and continuously operate 

emission controls at Cooper 2, then beginning on December 31, 2012, EKPC shall install and 

commence continuous operation of year-round SCR technology on Cooper 2 (or equivalent NOx 

control technology approved pursuant to Paragraph 54) so as to achieve, and thereafter maintain, 

a NOx 30-Day Rolling Average Emission Rate not greater than 0.080 lb/mmBTU. 

54. With prior written notice to and written approval from EPA, EKPC may, in lieu 

of installing and operating an SCR at Cooper 2, install and operate equivalent NOx control 

technology so long as such equivalent NOx control technology is designed for at least a 90% 

14
 
removal efficiency for NOx and achieves and thereafter maintains a 30-Day Rolling Average 

Emission Rate no less stringent than 0.080 lb/mmBTU NOx. 

55. In accordance with the dates prescribed in Paragraphs 51, 52, and 53, EKPC shall 

continuously operate each SCR (or equivalent NOx control technology approved pursuant to 

Paragraph 54) at all times that the Unit it serves is in operation, consistent with the technological 

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

the SCR or equivalent technology, for minimizing emissions to the extent practicable. 

56. Beginning 30 days from entry of this Consent Decree, EKPC shall also operate 

low NOx burners (“LNB”) on all of the units within the EKPC System and over-fire air on 

Spurlock Unit 2 at all times that the units are in operation. 

B. System-Wide NOx Emission Limits 

57. EKPC shall comply with the following System-Wide 12-Month Rolling Tonnage 

limitations for NOx, which apply to all EKPC System Units collectively: 

For the 12-Month Period 

Commencing on the Date Specified

Below, and Each 12-Month Period 

Thereafter: 

System-wide 12-Month Rolling 

Tonnage Limitation for NOx 

January 1, 2008 11,500 tons 

January 1, 2013 8,500 tons 

January 1, 2015 8,000 tons 

58. The system-wide annual emissions limits for NOx set forth in Paragraph 57 shall 

apply prospectively from the specified date on which a 12-month period commences, that is 

compliance with the cap shall first be determined 12 months following the commencement date 

15
 
specified above, and shall end on the date that the subsequent system-wide limit, if any, takes 

effect. EKPC may not use NOx Allowances to comply with these system-wide limitations. 

C.	 Use of NOx Allowances 

59. Except as provided in this Consent Decree, EKPC shall not sell or trade any NOx 

Allowances allocated to the EKPC System that would otherwise be available for sale or trade as 

a result of the actions taken by EKPC to comply with the requirements of this Consent Decree. 

60. Except as provided in this Consent Decree, NOx Allowances allocated to the 

EKPC System may be used by EKPC only to meet its own federal and/or State Clean Air Act 

regulatory requirements for any EKPC System Unit or New Unit. 

61. Provided that EKPC is in compliance with the system-wide NOx emission 

limitations of this Consent Decree, nothing in this Consent Decree shall preclude EKPC from 

selling or transferring NOx Allowances allocated to the EKPC System that become available for 

sale or trade as a result of: 

a.	 activities that reduce NOx emissions at any EKPC System Unit prior to the date of 

entry of this Consent Decree; 

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

technique that is not otherwise required under this Consent Decree; 

c.	 achievement and maintenance of NOx emission rates below both (1) a NOx 

30-Day Rolling Average Emission Rate of 0.100 lb/mmBTU (for Spurlock 1 and 

2) or 0.080 lb/mmBTU (for Cooper 2) and (2) the NOx Combined 30-Day Rolling 

Average Emission Rate of 0.100 lb/mmBTU established by this Consent Decree; 

provided, however, that any achievement and maintenance of NOx emission rates 

16
 
resulting from the use of Subparagraph 5.c shall not be sold, traded or used by EKPC; 

d.	 permanent shutdown or repowering of any EKPC System Unit not otherwise 

required by this Consent Decree; 

e.	 a fuel change at a Unit that results in an emission reduction, provided that the 

emission reduction is made enforceable through modification of this Consent 

Decree; or 

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

enforceable through modification of this Consent Decree, 

so long as EKPC timely reports the generation of such surplus NOx Allowances in accordance 

with Section XII (Periodic Reporting) of this Consent Decree. EKPC shall be allowed to sell or 

transfer NOx Allowances equal to the NOx emissions reductions achieved for any given year by 

any of the actions specified in Subparagraphs 61.b. through 61.f. only to the extent that the total 

NOx emissions from all EKPC System Units are below the System-Wide 12-Month Rolling 

Tonnage limitation for that year. 

62. EKPC may not purchase or otherwise obtain NOx Allowances from another 

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

nothing in this Consent Decree shall prevent EKPC from purchasing or otherwise obtaining NOx 

Allowances from another source for purposes of complying with state or federal Clean Air Act 

requirements to the extent otherwise allowed by law. 

D.	 General NOx Provisions 

63. In determining Emission Rates for NOx, EKPC shall use CEMS in accordance 

with the procedures specified in 40 C.F.R. Part 75. 

17
 
VI. SO2 EMISSION REDUCTIONS AND CONTROLS 

A. SO2 Emission Controls 

1. New FGD Installations 

64. EKPC shall install and commence continuous operation of an FGD (or equivalent 

SO2 control technology approved pursuant to Paragraph 66) on the following Units within the 

EKPC System so as to achieve, by the dates specified below, and thereafter maintain, a 30-Day 

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

Rolling Average SO2 Emission Rate of no greater than 0.100 lb/mmBTU: 

Unit Date by which EKPC must

install and commence 

continuous operation of an

FGD (or equivalent SO2 

control technology approved

pursuant to Paragraph 66) 

Date by which EKPC’s FGD Must

Achieve and Maintain 30-Day

Rolling Average 

Removal Efficiency or Emission

Rate for SO2 

Spurlock 2 October 1, 2008 January 1, 2009 

Spurlock 1 June 30, 2011 June 30, 2011 

65. Pursuant to Paragraph 50, if EKPC elects to install and continuously operate 

emission controls at Cooper 2, then beginning on June 30, 2012, EKPC shall install and 

commence continuous operation of FGD technology (or equivalent SO2 control technology 

approved pursuant to Paragraph 66) on Cooper 2 so as to achieve, and thereafter maintain, a 30-

day Rolling Average SO2 Removal Efficiency of at least ninety-five percent (95%) for Cooper 2 

or a 30-Day Rolling Average SO2 Emission Rate of no greater than 0.100 lb/mmBTU. 

66. With prior written notice to and written approval from EPA, EKPC may, in lieu 

of installing and operating an FGD at any Unit specified in Paragraph 64 and 65, install and 

operate equivalent SO2 control technology so long as such equivalent SO2 control technology 

achieves and maintains a 30-Day Rolling Average SO2 Removal Efficiency of at least ninety18
 
five percent (95%) or a 30-Day Rolling Average SO2 Emission Rate of no greater than 0.100 

lb/mmBTU. 

2. Continuous Operation of SO2 Controls 

67. EKPC shall continuously operate each FGD (or equivalent SO2 control 

technology approved pursuant to Paragraph 66) covered under this Consent Decree at all times 

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

manufacturers’ specifications, and good engineering and maintenance practices for the FGD or 

equivalent technology, for minimizing emissions to the extent practicable. 

B. System-Wide SO2 Emission Limits 

68. EKPC shall comply with the following System-Wide 12-Month Rolling Tonnage 

limitations for SO2, which apply to all EKPC System Units collectively: 

For the 12-Month Period 

Commencing on the Date Specified

Below, and Each 12-Month Period 

Thereafter:

 System-Wide

12-Month Rolling Tonnage

Limitation 

for SO2 

October 1, 2008 57,000 tons 

July 1, 2011 40,000 tons 

January 1, 2013 28,000 tons 

69. Each of the system-wide annual emission limits for SO2 set forth in Paragraph 68 

shall apply prospectively from the specified date on which a 12-month period commences, that is 

compliance with the cap shall first be determined 12 months following the commencement date 

specified above, and shall end on the date that the subsequent system-wide limit, if any, takes 

effect. EKPC shall not use SO2 allowances or credits to comply with these system-wide 

limitations. 

19
 
C. Surrender of SO2 Allowances 

70. For purposes of this Subsection, the “surrender of allowances” means 

permanently surrendering allowances from the accounts administered by EPA for all units in the 

EKPC System, so that such allowances can never be used to meet any compliance requirement 

under the Clean Air Act, the Kentucky SIP, or this Consent Decree. 

71. EKPC may use any SO2 Allowances allocated by EPA to the EKPC System only 

to meet its own federal and/or State Clean Air Act regulatory requirements for any EKPC 

System Unit or New Unit. EKPC shall not sell or transfer any allocated EKPC System SO2 

Allowances to a third party, except as provided in Paragraphs 72, 73, and 76 below. 

72. For each calendar year beginning with calendar year 2008, EKPC shall surrender 

to EPA, or transfer to a non-profit third party selected by EKPC for surrender, SO2 Allowances 

allocated to EKPC System Units that are surplus to its Clean Air Act SO2 Allowance-holding 

requirements for the EKPC System Units and New Units, collectively, for that year. EKPC shall 

make such surrender annually, within forty-five (45) days of EKPC’s receipt from EPA of the 

Annual Deduction Reports for SO2. Any surrender need not include the specific SO2 Allowances 

that were allocated to EKPC System Units, so long as EKPC surrenders SO2 Allowances that are 

from the same year or an earlier year and that are equal to the number required to be surrendered 

under this Paragraph 72. 

73. If any allowances are transferred directly to a non-profit third party, EKPC shall 

include a description of such transfer in the next report submitted to EPA pursuant to Section XII 

(Periodic Reporting) of this Consent Decree. Such report shall: (i) provide the identity of the 

non-profit third-party recipient(s) of the SO2 Allowances and a listing of the serial numbers of 

the transferred SO2 Allowances; and (ii) include a certification by the third-party recipient(s) 

stating that the recipient(s) will not sell, trade, or otherwise exchange any of the allowances and 

20
 
will not use any of the SO2 Allowances to meet any obligation imposed by any environmental 

law. No later than the third periodic report due after the transfer of any SO2 Allowances, EKPC 

shall include a statement that the third-party recipient(s) surrendered the SO2 Allowances for 

permanent surrender to EPA in accordance with the provisions of Paragraph 74 within one (1) 

year after EKPC transferred the SO2 Allowances to them. EKPC shall not have complied with 

the SO2 Allowance surrender requirements of this Paragraph 73 until all third-party recipient(s) 

shall have actually surrendered the transferred SO2 Allowances to EPA. 

74. For all SO2 Allowances surrendered to EPA, EKPC or the third-party recipient(s) 

(as the case may be) shall first submit an SO2 Allowance transfer request form to EPA’s Office 

of Air and Radiation’s Clean Air Markets Division directing the transfer of such SO2 Allowances 

to the EPA Enforcement Surrender Account or to any other EPA account that EPA may direct in 

writing. As part of submitting these transfer requests, EKPC or the third-party recipient(s) shall 

irrevocably authorize the transfer of these SO2 Allowances and identify – by name of account 

and any applicable serial or other identification numbers or station names – the source and 

location of the SO2 Allowances being surrendered. 

75. The requirements in Paragraphs 71, 72, 73, 74, and 76 of this Decree pertaining to 

EKPC’s use and retirement of SO2 Allowances are permanent injunctions not subject to any 

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

Decree in whole or in part. 

76. Provided that EKPC is in compliance with the system-wide SO2 emissions 

limitations of this Consent Decree, nothing in this Consent Decree shall preclude EKPC from 

banking, selling or transferring SO2 Allowances allocated to the EKPC System that become 

available for sale or trade as a result of: 

21
 
a.	 activities that reduce SO2 emissions at any EKPC System Unit prior to the date of 

entry of this Consent Decree; 

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

technique that is not otherwise required under this Consent Decree; 

c.	 achievement and maintenance of a 30-Day Rolling Average SO2 Removal 

Efficiency at an Improved Unit that is below the applicable 30-Day Rolling 

Average SO2 Removal Efficiency limit specified in Paragraphs 64 and 65; 

d.	 permanent shutdown or repowering of any EKPC System Unit not otherwise 

required by the Consent Decree; 

e.	 a fuel change at a Unit that results in an emission reduction, provided that the 

emission reduction is made enforceable through modification of this Consent 

Decree; or 

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

enforceable through modification of this Consent Decree, 

so long as EKPC timely reports the generation of such surplus SO2 Allowances in accordance 

with Section XII (Periodic Reporting) of this Consent Decree. EKPC shall be allowed to bank, 

sell or transfer SO2 Allowances equal to the SO2 emissions reductions achieved for any given 

year by any of the actions specified in Subparagraphs 76.b. through 76.f. only to the extent that 

the total SO2 emissions from all EKPC System Units are below the System-Wide 12-Month 

Rolling Tonnage limitation for that year. 

22
 
77. Nothing in this Consent Decree shall prevent EKPC from purchasing or otherwise 

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

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

D. Fuel Limitations 

78. EKPC shall not burn coal having a sulfur content greater than any amount 

authorized by regulation or State permit at any EKPC System Unit. 

E. General SO2 Provisions 

79. In determining Emission Rates for SO2, EKPC shall use CEMS in accordance 

with the procedures specified in 40 C.F.R. Part 75. 

80. For Units that are required to be equipped with SO2 control equipment and that 

are subject to the percent removal efficiency requirements of this Consent Decree, the outlet SO2 

Emission Rate and the inlet SO2 Emission Rate shall be determined based on the data generated 

in accordance with 40 C.F.R. Part 75.15 (1999) (using SO2 CEMS data from both the inlet and 

outlet of the control device). 

VII. PM AND MERCURY EMISSION REDUCTIONS AND CONTROLS 

A. Optimization of PM Emission Controls 

81. Within ninety (90) days after entry of this Consent Decree and continuing 

thereafter, EKPC shall continuously operate each PM control device on its EKPC System Units 

to maximize PM emission reductions, consistent with manufacturers’ specifications, the 

operational design and maintenance limitations of the Units and good engineering practices. 

Specifically, EKPC shall, at a minimum: (a) energize each section of the ESP for each Unit, 

regardless of whether that action is needed to comply with opacity limits; (b) maintain the 

energy or power levels delivered to the ESPs for each Unit to achieve the greatest possible 

23
 
removal of PM; (c) make best efforts to expeditiously repair and return to service 

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

openings in ESP casings and ductwork to minimize air leakage. Within two hundred seventy 

(270) days after entry of this Consent Decree and continuing thereafter, EKPC shall also 

optimize the plate-cleaning and discharge-electrode-cleaning systems for the ESPs at each EKPC 

System Unit by varying the cycle time, cycle frequency, rapper-vibrator intensity, and number of 

strikes per cleaning event, of these systems to minimize PM emissions. 

B. Upgrade of Existing PM Emission Controls 

82. Within 365 days of lodging of this Consent Decree, EKPC shall demonstrate that 

each of the EKPC System Units can achieve and maintain a PM Emission Rate of no greater than 

0.030 lb/mmBTU in accordance with Paragraph 87. In the alternative and in lieu of 

demonstrating compliance with the PM Emission Rate applicable under this Paragraph 82, 

EKPC may elect to undertake an upgrade of the existing PM emissions control equipment for 

any such Unit based on a PM Pollution Control Upgrade Analysis for that Unit. The preparation, 

submission, and implementation of such PM Pollution Control Upgrade Analysis shall be 

undertaken and completed in accordance with the compliance schedules and procedures 

specified in Paragraph 84. 

83. Demonstration and Compliance with PM Emission Limit. If EKPC demonstrates 

by the applicable date set forth in Paragraph 82 that a Unit can achieve and maintain a PM 

Emission Rate of no greater than 0.030 lb/mmBTU, EKPC shall thereafter operate that Unit to 

maximize PM emission reductions, consistent with the Unit’s operational design and safety 

requirements, and shall achieve and maintain a PM Emission Rate no greater than 0.030 

lb/mmBTU. 

24
 
84. PM Emission Control Upgrade. For each EKPC System Unit for which EKPC 

does not elect to meet a PM Emission Rate of 0.030 lb/mmBTU, EKPC shall prepare, submit, 

and implement a PM Pollution Control Upgrade Analysis in accordance with this Paragraph 84. 

Such PM Pollution Control Upgrade Analysis shall include proposed upgrades to the PM 

pollution control device and a proposed alternate PM Emission Rate that the Unit shall meet 

upon completion of such upgrade. For each Unit for which such a PM Pollution Control 

Upgrade Analysis is required, EKPC shall deliver such PM Pollution Control Upgrade Analysis 

to EPA for approval pursuant to Section XIII (Review and Approval of Submittals) of this 

Consent Decree within 180 days of the date on which the particular EKPC System Unit is unable 

to make the demonstration required by Paragraph 83. 

a.	 In conducting the PM Pollution Control Upgrade Analysis for any Unit, EKPC 

need not consider any of the following PM control measures: 

i.	 the complete replacement of the existing ESP with a new ESP, FGD, or 

baghouse, or 

ii.	 the upgrade of the existing ESP controls through the installation of a 

supplemental PM Control Device, through the refurbishment of existing 

PM Control Devices, or through other measures, if the costs of such 

upgrade are equal to or greater than the costs of a replacement ESP, FGD, 

or baghouse (on a total dollar-per-ton-of-pollutant-removed basis). 

With each PM Pollution Control Upgrade Analysis delivered to EPA, EKPC shall 

simultaneously deliver all documents that support or were considered in preparing 

such PM Pollution Control Upgrade Analysis. EKPC shall retain a qualified 

25
 
contractor to assist in the performance and completion of each PM Pollution 

Control Upgrade Analysis. 

b.	 Beginning one (1) year after EPA approval of the recommendation(s) made in a 

PM Pollution Control Upgrade Analysis for a Unit, EKPC shall not operate that 

Unit unless all equipment called for in the recommendation(s) of the Pollution 

Control Upgrade Analysis has been installed. An installation period longer than 

one year may be allowed if EKPC makes such a request in the PM Pollution 

Control Upgrade Analysis and EPA determines such additional time is necessary 

due to factors such as the magnitude of the PM control project or the need to 

address reliability concerns that could result from multiple EKPC System Unit 

outages. Upon installation of all equipment recommended under an approved PM 

Pollution Control Upgrade Analysis, EKPC shall operate such equipment in 

compliance with the recommendation(s) of the approved PM Pollution Control 

Upgrade Analysis, including compliance with any PM Emission Rate specified by 

the recommendation(s). 

85. EKPC shall continuously operate each ESP in the EKPC System at all times that 

the Unit it serves is combusting Fossil Fuel, in compliance with manufacturers’ specifications, 

the operational design and maintenance limitations of the Unit, and good engineering practices. 

C.	 PM and Mercury Monitoring 

1.	 PM Stack Tests 

86. Beginning in calendar year 2008, and continuing annually thereafter, EKPC shall 

conduct a PM performance test on each EKPC System Unit. The annual stack test requirement 

imposed on each EKPC System Unit by this Paragraph 86 may be satisfied by stack tests 

conducted by EKPC as required by its permits from the Kentucky Natural Resources and 

26
 
Environmental Protection Cabinet for any year that such stack tests are required under the 

permits. EKPC may perform biennial rather than annual testing provided that (a) two of the 

most recently completed test results from tests conducted in accordance with 40 C.F.R. Part 60, 

Appendix A-1, Method 5 demonstrate that the PM emissions are equal to or less than 0.015 

lb/mmBTU, or (b) the Unit is equipped with a PM CEMS in accordance with Paragraphs 88 

through 95. EKPC shall perform annual rather than biennial testing the year immediately 

following any test result demonstrating that the particulate matter emissions are greater than 

0.015 lb/mmBTU, unless the Unit is equipped with a PM CEMS in accordance with Paragraphs 

88 through 95. 

87. The reference and monitoring methods and procedures for determining 

compliance with PM Emission Rates shall be those specified in 40 C.F.R. Part 60, Appendix A1, Method 5. Use of any particular method shall conform to the EPA requirements specified in 

40 C.F.R. Part 60, Appendix A and 40 C.F.R. § 60.48a (b) and (e), or any federally approved 

method contained in the Kentucky SIP. EKPC shall calculate the PM Emission Rates from the 

stack test results in accordance with 40 C.F.R. § 60.8(f). The results of each PM stack test shall 

be submitted to EPA within 30 days of completion of each test. 

2. PM CEMS 

88. EKPC shall install and operate PM CEMS in accordance with Paragraphs 89 

through 95. Operation of such PM CEMS shall be in accordance with 40 C.F.R. Part 60, App. B, 

Performance Specification 11, and App. F Procedure 2. Each PM CEMS shall comprise a 

continuous particle mass monitor measuring PM concentration, directly or indirectly, on an 

hourly average basis and a diluent monitor used to convert the concentration to units of 

lb/mmBTU. EKPC shall maintain, in an electronic database, the hourly average emission 

27
 
values of all PM CEMS in lb/mmBTU. EKPC shall use reasonable efforts to keep each PM 

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

89. No later than six (6) months after entry of this Consent Decree, EKPC shall 

submit to EPA for review and approval pursuant to Section XIII (Review and Approval of 

Submittals) of this Consent Decree a plan for the installation and certification of each PM 

CEMS. 

90. EKPC shall install, certify, and operate PM CEMS on two (2) Units, stacks or 

common stacks in accordance with the following schedule: 

Stack Deadline to Commence Operation of PM CEMS 

Spurlock 2 10/1/08 

Cooper 1 12/31/12 

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

operation of each PM CEMS, EKPC shall submit to EPA for review and approval pursuant to 

Section XIII (Review and Approval of Submittals) of this Consent Decree a proposed Quality 

Assurance/Quality Control (“QA/QC”) protocol that shall be followed in calibrating such PM 

CEMS. Following EPA’s approval of the protocol, EKPC shall thereafter operate each PM 

CEMS in accordance with the approved protocol. 

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

the QA/QC protocol, EKPC shall use the criteria set forth in 40 C.F.R. Part 60, App. B, 

Performance Specification 11, and App. F Procedure 2. EKPC shall include in its QA/QC 

protocol a description of any periods in which it proposes that the PM CEMS may not be in 

operation in accordance with Performance Specification 11. 

28
 
93. No later than ninety (90) days after EKPC begins operation of the PM CEMS, 

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

installation and certification plan submitted to and approved by EPA in accordance with 

Paragraph 89. 

94. EKPC shall operate the PM CEMS for at least two (2) years on each of the Units 

specified in Paragraph 90. After two (2) years of operation, EKPC may attempt to demonstrate 

that it is infeasible to continue operating PM CEMS. As part of that demonstration, EKPC shall 

submit an alternative PM monitoring plan for review and approval by the United States. The 

plan shall explain the basis for stopping operation of the PM CEMS and propose an alternativemonitoring plan. If the United States disapproves the alternative PM monitoring plan, or if the 

United States rejects EKPC’s claim that it is infeasible to continue operating PM CEMS, such 

disagreement is subject to Section XVI (Dispute Resolution). 

95. Operation of a PM CEMS shall be considered no longer feasible if (a) the PM 

CEMS cannot be kept in proper condition for sufficient periods of time to produce reliable, 

adequate, or useful data consistent with the QA/QC protocol; or (b) EKPC demonstrates that 

recurring, chronic, or unusual equipment adjustment or servicing needs in relation to other types 

of continuous emission monitors cannot be resolved through reasonable expenditures of 

resources. If EPA determines that operation is no longer feasible, EKPC shall be entitled to 

discontinue operation of and remove the PM CEMS. 

3. Mercury CEMS 

96. EKPC shall install and operate Mercury CEMS in accordance with Paragraphs 97 

through 102. The Mercury CEMS shall continuously measure mercury emission concentration, 

directly or indirectly, on an hourly average basis, in units of pounds per trillion BTU 

(“lb/TBTU”). EKPC shall maintain, in an electronic database, the hourly average emission 

29
 
values of all Mercury CEMS in lb/TBTU. EKPC shall use reasonable efforts to keep each 

Mercury CEMS running and producing data whenever any Unit served by the Mercury CEMS is 

operating. 

97. No later than six (6) months after entry of this Consent Decree, EKPC shall 

submit to EPA for review and approval pursuant to Section XIII (Review and Approval of 

Submittals) of this Consent Decree a plan for the installation and certification of the Mercury 

CEMS. 

98. EKPC shall install, certify, and operate the Mercury CEMS on the following Unit 

in accordance with the following schedule: 

Unit Deadline to Commence Operation of Mercury CEMS 

Spurlock 1 or 2 10/1/08 

No later than six (6) months after entry of this Consent Decree, EKPC may submit to EPA for 

review and approval an alternative Unit on which to install the Mercury CEMS required by this 

Paragraph 98. 

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

operation of each Mercury CEMS, EKPC shall submit to EPA for review and approval pursuant 

to Section XIII (Review and Approval of Submittals) of this Consent Decree a proposed QA/QC 

protocol that shall be followed in calibrating such Mercury CEMS. Following EPA’s approval 

of the protocol, EKPC shall thereafter operate the Mercury CEMS in accordance with the 

approved protocol. 

100. No later than ninety (90) days after EKPC begins operation of the Mercury 

CEMS, EKPC shall conduct tests of the Mercury CEMS to demonstrate compliance with the 

30
 
Mercury CEMS installation and certification plan submitted to and approved by EPA in 

accordance with Paragraph 97. 

101. EKPC shall operate the Mercury CEMS for at least two (2) years on the Unit 

specified in Paragraph 98. After two (2) years of operation, EKPC may attempt to demonstrate 

that it is infeasible to continue operating Mercury CEMS. As part of that demonstration, EKPC 

shall submit an alternative Mercury monitoring plan for review and approval by the United 

States. The plan shall explain the basis for stopping operation of the Mercury CEMS and 

propose an alternative-monitoring plan. If the EPA disapproves the alternative Mercury 

monitoring plan, or if the EPA rejects EKPC’s claim that it is infeasible to continue operating 

Mercury CEMS, such disagreement is subject to Section XVI (Dispute Resolution). 

102. Operation of a Mercury CEMS shall be considered no longer feasible if (a) the 

Mercury CEMS cannot be kept in proper condition for sufficient periods of time to produce 

reliable, adequate, or useful data consistent with the QA/QC protocol; or (b) EKPC demonstrates 

that recurring, chronic, or unusual equipment adjustment or servicing needs in relation to other 

types of continuous emission monitors cannot be resolved through reasonable expenditures of 

resources. If EPA determines that operation is no longer feasible, EKPC shall be entitled to 

discontinue operation of and remove the Mercury CEMS. 

4. PM and Mercury Reporting 

103. Following the installation of each PM and Mercury CEMS, EKPC shall begin and 

continue to report to EPA, pursuant to Section XII (Periodic Reporting), the data recorded by the 

PM and Mercury CEMS, expressed in lb/mmBTU and lb/TBTU, respectively, on a 3-hour, 24-

hour, 30-day, and 365-day rolling average basis in electronic format, as required in Paragraphs 

88 and 96. 

31
 
D. General PM Provisions 

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

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

minimum, to monitor progress in reducing PM emissions. Nothing in this Consent Decree is 

intended to, or shall, alter or waive any applicable law (including any defenses, entitlements, 

challenges, or clarifications related to the Credible Evidence Rule, 62 Fed. Reg. 8315 (Feb. 27, 

1997)) concerning the use of data for any purpose under the Act, generated either by the 

reference methods specified herein or otherwise. 

VIII. PROHIBITION ON NETTING CREDITS OR OFFSETS FROM REQUIRED
 CONTROLS
 

105. Emission reductions generated by EKPC to comply with the requirements of this 

Consent Decree shall not be considered as a creditable contemporaneous emission decrease for 

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

programs. 

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

the previous Paragraph 105 do not apply to emission reductions achieved by EKPC System Units 

that are greater than those required under this Consent Decree. For purposes of this Paragraph 

106, emission reductions from an EKPC System Unit are greater than those required under this 

Consent Decree if they result from EKPC compliance with federally-enforceable emission limits 

that are more stringent than those limits imposed on EKPC System Units under this Consent 

Decree and under applicable provisions of the Clean Air Act or the Kentucky SIP. 

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

generated under this Consent Decree from being considered by the Commonwealth of Kentucky 

or EPA as creditable contemporaneous emission decreases for the purpose of attainment 

32
 
demonstrations submitted pursuant to § 110 of the Act, 42 U.S.C. § 7410, or in determining 

impacts on NAAQS, PSD increment, or air quality related values, including visibility, in a Class 

I area. 

IX. ENVIRONMENTAL PROJECTS 

108. EKPC shall implement the Environmental Project (“Project”) described in 

Appendix A in compliance with the approved plans and schedules for such Project and other 

terms of this Consent Decree. EKPC shall submit plans for the Project to the United States for 

review and approval pursuant to Section XIII (Review and Approval of Submittals) of this 

Consent Decree in accordance with the schedules set forth in Appendix A. EKPC shall maintain, 

and present to the United States, upon request, all documents to substantiate the cost of the 

Project and shall provide these documents to the United States within thirty (30) days of a 

request by the United States for the documents. 

109. All plans and reports prepared by EKPC pursuant to the requirements of this 

Section of the Consent Decree shall be publicly available without charge. 

110. EKPC shall certify, as part of each plan submitted to the United States for any 

Project, that EKPC is not otherwise required by law to perform the Project described in the plan, 

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

that EKPC will not use any Project, or portion thereof, to satisfy any obligations that it may have 

under other applicable requirements of law, including any applicable renewable portfolio 

standards. 

111. EKPC shall use good faith efforts to secure as much benefit as possible for the 

Project, consistent with the applicable requirements and limits of this Consent Decree. 

33
 
112. If EKPC elects (where such an election is allowed) to undertake a Project by 

contributing funds to another person or instrumentality that will carry out the Project, that person 

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

(b) identify its legal authority to conduct the Project for which EKPC contributes the funds. 

Regardless of whether EKPC elected (where such election is allowed) to undertake a Project by 

itself or to do so by contributing funds to another person or instrumentality that will carry out the 

Project, EKPC acknowledges that it will receive credit for the expenditure of such funds only if 

EKPC demonstrates that the funds have been actually spent by either EKPC or by the person or 

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

EKPC), and that such expenditures met all requirements of this Consent Decree. 

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

Consent Decree, EKPC shall submit to the United States a report that documents the date that the 

Project was completed, EKPC’s results of implementing the Project, including the emission 

reductions or other environmental benefits achieved, and the costs incurred by EKPC in 

implementing the Project. 

114. EKPC shall not financially benefit to a greater extent than any other member of 

the general public from the sale or transfer of technology obtained in the course of implementing 

any Project. 

115. Beginning one (1) year after entry of this Consent Decree, EKPC shall provide 

the United States with semi-annual updates concerning the progress of each Project. 

X. CIVIL PENALTY 

116. Within thirty (30) calendar days after entry of this Consent Decree, EKPC shall 

pay to the United States a civil penalty in the amount of $750,000. The civil penalty shall be 

34
 
paid by Electronic Funds Transfer (“EFT”) to the United States Department of Justice, in 

accordance with current EFT procedures, referencing USAO File Number 2007Z00290 and 

2004V00107 and DOJ Case Number 90-5-2-1-08085 and the civil action case name and case 

number of this action. The costs of such EFT shall be EKPC’s responsibility. Payment shall be 

made in accordance with instructions provided to EKPC by the Financial Litigation Unit of the 

U.S. Attorney’s Office for the Eastern District of Kentucky, Lexington Division. Any funds 

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

EKPC shall provide notice of payment, referencing the USAO File Number, the DOJ Case 

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

EPA in accordance with Section XIX (Notices) of this Consent Decree. 

117. Failure to timely pay the civil penalty shall subject EKPC to interest accruing 

from the date payment is due until the date payment is made at the rate prescribed by 28 U.S.C. § 

1961, and shall render EKPC liable for all charges, costs, fees, and penalties established by law 

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

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

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

expenditures for purposes of federal law. 

XI. RESOLUTION OF CLAIMS 

A. RESOLUTION OF U.S. CIVIL CLAIMS 

119. Claims Based on Modifications Occurring Before the Lodging of Decree. 

Entry of this Decree shall resolve all civil claims of the United States under either: 

a. Parts C or D of Subchapter I of the Clean Air Act, 

b. Section 111 of the Clean Air Act and 40 C.F.R. Section 60.14, 

35
 
c.	 Sections 502(a) and 504(a) of the Clean Air Act, but only to the extent that such 

claims are either (i) based on EKPC’s failure to obtain an operating permit that 

reflects applicable requirements imposed under Parts C or D of Subchapter I, or 

Section 111, of the Clean Air Act; or (ii) EKPC’s operation of Spurlock 2 at a 

heat input above that listed in the 1982 Spurlock Operating Permit No. 0-82-270 

and 1999 Spurlock Title V permit V-97-050, 

d.	 401 KAR 51:017 and all relevant prior versions of these regulations, 

e.	 401 KAR 52:020 and all relevant prior versions of these regulations, but only to 

the extent that such claims are based on either (i) EKPC’s failure to obtain an 

operating permit that reflects applicable requirements imposed under 401 KAR 

51:017, or (ii) EKPC’s operation of Spurlock 2 at a heat input above that listed in 

the 1982 Spurlock Operating Permit No. 0-82-270 and 1999 Spurlock Title V 

permit V-97-050, 

that arose from any modifications that commenced at any EKPC System Unit prior to the date of 

lodging of this Decree, including but not limited to those modifications alleged in the Complaint 

in this civil action. 

120.	 Claims Based on Modifications After the Lodging of Decree. 

Entry of this Decree also shall resolve all civil claims of the United States for pollutants 

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

promulgated thereunder as of the date of lodging of this Decree, where such claims are based on 

a modification completed before December 31, 2015 and: 

a.	 commenced at any EKPC System Unit after lodging of this Decree; or 

b.	 that this Consent Decree expressly directs EKPC to undertake. 

36
 
The term “modification” as used in this Paragraph 120 shall have the meaning that term is given 

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

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

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

B.	 PURSUIT OF U.S. CIVIL CLAIMS OTHERWISE RESOLVED 

122. Bases for Pursuing Resolved Claims Across EKPC System. If EKPC violates 

Paragraph 57 (System-wide NOx Rolling Tonnage Limits); Paragraph 68 (System-wide SO2 

Rolling Tonnage Limits); or Paragraph 78 (Fuel Limitations); exceeds any 30-Day Rolling 

Average Emission Rate or 30-Day Rolling Average SO2 Removal Efficiency for more than 60 

consecutive days, or fails by more than ninety days to complete installation or upgrade and 

commence operation of any emission control device required pursuant to Paragraphs 51, 52, 53, 

64, or 65; or fails by more than ninety days to retire and permanently cease to operate or Repower EKPC System Units pursuant to Paragraph 50, then the United States may pursue any 

claim at any EKPC System Unit that is otherwise covered by the resolution of claims under 

Subsection A of this Section, subject to (a) and (b) below. 

a.	 For any claims based on modifications undertaken at an Other Unit (any EKPC 

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

may be pursued only where the modification(s) on which such claim is based was 

commenced within the five (5) years preceding the violation or failure specified 

in this Paragraph 122. 

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

may be pursued only where the modification(s) on which such claim is based was 

commenced (i) after lodging of the Consent Decree and (ii) within the five years 

preceding the violation or failure specified in this Paragraph 122. 

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

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

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

covered by the resolution of claims under Subsection A of this Section, if the modification (or 

collection of modifications) at the Improved Unit on which such claims are based (i) was 

commenced after lodging of this Consent Decree, and (ii) individually (or collectively) increased 

the maximum hourly emission rate of that Unit for NOx or SO2 (as measured by 40 C.F.R. § 

60.14 (b) and (h)) by more than ten percent (10%). 

124. Additional Bases for Pursuing Resolved Claims for Modifications at an Other 

Unit. Solely with respect to Other Units, the United States may also pursue claims arising from 

a modification (or collection of modifications) at an Other Unit that are otherwise covered by the 

resolution of claims under Subsection (a) of this Section, if the modification (or collection of 

modifications) at the Other Unit on which the claim is based was commenced within the five (5) 

years preceding any of the following events: 

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

after lodging of this Consent Decree increases the maximum hourly emission rate 

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

C.F.R. § 60.14(b) and (h)); 

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

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

identified in Paragraph 12 or 13) during either of the following periods: the date 

of lodging of this Decree through December 31, 2010; January 1, 2011 through 

December 31, 2015. (Capital Expenditures shall be measured in calendar year 

38
 
2004 constant dollars, as adjusted by the McGraw-Hill Engineering News-Record 

Construction Cost Index); or 

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

after lodging of this Consent Decree results in an emissions increase of NOx 

and/or SO2 at such Other Unit, and such increase: 

i.	 presents, by itself, or in combination with other emissions or sources, “an 

imminent and substantial endangerment” within the meaning of Section 

303 of the Act, 42 U.S.C. §7603; 

ii.	 causes or contributes to violation of a NAAQS in any Air Quality Control 

Area that is in attainment with that NAAQS; 

iii.	 causes or contributes to violation of a PSD increment; or 

iv.	 causes or contributes to any adverse impact on any formally-recognized 

air quality and related values in any Class I area. 

d.	 Solely for purposes of Paragraph 124, Subparagraph (c), the determination of 

whether there was an emissions increase must take into account any emissions 

changes relevant to the modeling domain that have occurred or will occur under 

this Decree at other EKPC System Units. In addition, an emissions increase shall 

not be deemed to have occurred at an Other Unit unless the annual emissions of 

the relevant pollutant (NOx or SO2) from the plant at which such modification(s) 

occurred exceed the annual emissions from that plant for calendar year 2003. 

e.	 The introduction of any new or changed NAAQS shall not, standing alone, 

provide the showing needed under Paragraph 124, Subparagraphs (c)(ii) or 

39
 
(c)(iii), to pursue any claim for a modification at an Other Unit resolved under 

Subsection A of this Section. 

XII. PERIODIC REPORTING 

125. Within one hundred eighty (180) days after each date established by Paragraphs 

51, 52, 53, 64 and 65 of this Consent Decree for EKPC to achieve and maintain a certain 

Emission Rate or 30-Day Rolling Average SO2 Removal Efficiency at any EKPC System Unit, 

EKPC shall conduct a performance test that demonstrates compliance with the Emission Rate or 

Removal Efficiency required by this Consent Decree. Within forty-five (45) days of each such 

performance test, EKPC shall submit the results of the performance test to EPA at the addresses 

specified in Section XIX (Notices) of this Consent Decree. 

126. Beginning thirty (30) days after the end of the first full calendar quarter following 

the entry of this Consent Decree, continuing on a semi-annual basis until December 31, 2015, 

and in addition to any other express reporting requirement in this Consent Decree, EKPC shall 

submit to EPA a progress report. 

127.	 The progress report shall contain the following information: 

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

b.	 all information relating to emission allowances and credits that EKPC claims to 

have generated in accordance with Paragraphs 61 or 76 by compliance beyond the 

requirements of this Consent Decree; and 

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

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

delay, and any steps taken by EKPC to mitigate such delay. 

40
 
128. In any periodic progress report submitted pursuant to this Section, EKPC may 

incorporate by reference information previously submitted under its Title V permitting 

requirements, provided that EKPC attaches the Title V permit report and provides a specific 

reference to the provisions of the Title V permit report that are responsive to the information 

required in the periodic progress report. 

129. In addition to the progress reports required pursuant to this Section, EKPC shall 

provide a written report to EPA of any violation of the requirements of this Consent Decree, 

including exceedances of the Unit-specific 30-Day Rolling Average Emission Rates, 

Unit-specific 30-Day Rolling Average SO2 Removal Efficiencies, Combined 30-Day Rolling 

Average Emission Rate, 1-Hour Average NOx Emission Rate, and System-Wide 12-Month 

Rolling Tonnage limitations, within ten (10) business days of when EKPC knew or should have 

known of any such violation. In this report, EKPC shall explain the cause or causes of the 

violation and all measures taken or to be taken by EKPC to prevent such violations in the future. 

130. Each EKPC report shall be signed by EKPC’s Environmental Manager, or, in his 

or her absence, the Vice President for Generation and Transmission Operations, or higher 

ranking official, and shall contain the following certification: 

This information was prepared either by me or under my direction or supervision 

in accordance with a system designed to assure that qualified personnel properly 

gather and evaluate the information submitted. Based on my evaluation, or the 

direction and my inquiry of the person(s) who manage the system, or the 

person(s) directly responsible for gathering the information, I hereby certify under 

penalty of law that, to the best of my knowledge and belief, this information is 

true, accurate, and complete. I understand that there are significant penalties for 

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

41
 
131. If any allowances are surrendered to any third party pursuant to Section VI.C 

(Surrender of SO2 Allowances) of this Consent Decree, the third party’s certification pursuant to 

Paragraph 73 shall be signed by a managing officer of the third party and shall contain the 

following language: 

I certify under penalty of law that,_____________ [name of third party] 

will not sell, trade, or otherwise exchange any of the allowances and will not use 

any of the allowances to meet any obligation imposed by any environmental law. 

I understand that there are significant penalties for submitting false, inaccurate, or 

incomplete information to the United States. 

XIII. REVIEW AND APPROVAL OF SUBMITTALS 

132. EKPC shall submit each plan, report, or other submission to EPA whenever such 

a document is required to be submitted for review or approval pursuant to this Consent Decree. 

EPA may approve the submittal or decline to approve it and provide written comments. Within 

sixty (60) days of receiving written comments from EPA, EKPC shall either: (a) revise the 

submittal consistent with the written comments and provide the revised submittal for final 

approval to EPA; or (b) submit the matter for dispute resolution, including the period of 

informal negotiations, under Section XVI (Dispute Resolution) of this Consent Decree. 

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

submittal pursuant to dispute resolution, EKPC shall implement the approved submittal in 

accordance with the schedule specified therein. 

XIV. STIPULATED PENALTIES 

134. For any failure by EKPC to comply with the terms of this Consent Decree, and 

subject to the provisions of Sections XV (Force Majeure) and XVI (Dispute Resolution), EKPC 

42
 
 

shall pay, within thirty (30) days after receipt of written demand to EKPC by the United States, 

the following stipulated penalties to the United States: 

Consent Decree Violation Stipulated Penalty 

(Per day per violation, unless

otherwise specified) 

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

(Civil Penalty) of this Consent Decree 

$10,000 

b. Failure to comply with any applicable Combined 30-

Day Rolling Average Emission Rate for NOx, 30-Day

Rolling Average Emission Rate for NOx or SO2, 30-Day

Rolling Average SO2 Removal Efficiency, or Emission

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

of the limits set forth in this Consent Decree 

$2,500 

c. Failure to comply with any applicable Combined 30-

Day Rolling Average Emission Rate for NOx, 30-Day

Rolling Average Emission Rate for NOx or SO2, 30-Day

Rolling Average SO2 Removal Efficiency, or Emission

Rate for PM, where the violation is equal to or greater than

5% but less than 10% in excess of the limits set forth in this 

Consent Decree 

$5,000 

d. Failure to comply with any applicable Combined 30-

Day Rolling Average Emission Rate for NOx, 30-Day

Rolling Average Emission Rate for NOx or SO2, 30-Day

Rolling Average SO2 Removal Efficiency, or Emission

Rate for PM, where the violation is equal to or greater than

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

$10,000 

e. Failure to comply with any 1-Hour Average NOx 

Emission Rate, where the violation is equal to or less than 3 

ppm. 

$1000 per violation 

f. Failure to comply with any 1-Hour Average NOx 

Emission Rate, where the violation is greater than 3 ppm. 

$5000 per violation 

g. Reserved. Reserved. 

h. Failure to comply with the System-wide 12-Month

Rolling SO2 and NOx Tonnage Limits 

$5,000 per ton per month for

the first 100 tons over the limit, 

and $10,000 per ton per month

for each additional ton over the 

limit 

i. Failure to install, commence operation, or continue

operation of the NOx, SO2, and PM pollution control

devices on any Unit, or failure to retire a Unit 

$10,000 during the first 30

days, $27,500 thereafter 

j. Failure to comply with the fuel limitations at a unit, as

required by Paragraph 78 

$10,000 

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k. Failure to install or operate CEMS as required in

Paragraphs 88 through 102 

$1,000 

l. Failure to conduct annual or biennial stack tests of PM 

emissions, as required in Paragraph 86 

$1,000 

m. Failure to apply for any permit required by Section

XVII 

$1,000 

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

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

other submittals required by this Consent Decree 

$750 during the first ten days,

$1,000 thereafter 

o. Using, selling, or transferring SO2 Allowances, except

as permitted by Paragraphs 71, 72, and 76 

the surrender, pursuant to the

procedures set forth in

Paragraphs 70, 73, and 74 of

this Consent Decree, of SO2 

Allowances in an amount equal

to four times the number of 

SO2 Allowances used, sold, or 

transferred in violation of this 

Consent Decree 

p. Using, selling or transferring NOx Allowances except as

permitted by Paragraphs 59, 60 and 61 

the surrender of NOx 

Allowances in an amount equal

to four times the number of 

NOx Allowances used, sold, or 

transferred in violation of this 

Consent Decree 

q. Failure to surrender an SO2 Allowance as required by

Paragraph 72 

(a) $27,500 plus (b) $1,000 per

SO2 Allowance 

r. Failure to demonstrate the third-party surrender of an

SO2 Allowance in accordance with Paragraph 73 

$2,500 

s. Failure to undertake and complete any of the

Environmental Projects in compliance with Section IX

(Environmental Projects) of this Consent Decree 

$1,000 during the first 30 days,

$5,000 thereafter 

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

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

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

44
 
System-Wide 12-Month Rolling Tonnage limitations is a violation each month on which the 

average is based. 

136. Where a violation of a 30-Day Rolling Average Emission Rate or 30-Day Rolling 

Average SO2 Removal Efficiency (for the same pollutant and from the same source) recurs 

within periods of less than thirty (30) days, EKPC shall not pay a daily stipulated penalty for any 

day of the recurrence for which a stipulated penalty has already been paid. 

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

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

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

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

violations of this Consent Decree. 

138. EKPC shall pay all stipulated penalties to the United States within thirty (30) days 

of receipt of written demand to EKPC from the United States, and shall continue to make such 

payments every thirty (30) days thereafter until the violation(s) no longer continues, unless 

EKPC elects within 20 days of receipt of written demand to EKPC from the United States to 

dispute the accrual of stipulated penalties in accordance with the provisions in Section XVI 

(Dispute Resolution) of this Consent Decree. 

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

Paragraph 137 during any dispute, with interest on accrued stipulated penalties payable and 

calculated at the rate established by the Secretary of the Treasury, pursuant to 28 U.S.C. § 1961, 

but need not be paid until the following: 

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

Section XVI (Dispute Resolution) of this Consent Decree that is not appealed to 

45
 
the Court, accrued stipulated penalties agreed or determined to be owing, together 

with accrued interest, shall be paid within thirty (30) days of the effective date of 

the agreement or of the receipt of EPA’s decision; 

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

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

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

with accrued interest, except as provided in Subparagraph 139.c.; 

c.	 If the Court’s decision is appealed by either Party, EKPC shall, within fifteen (15) 

days of receipt of the final appellate court decision, pay all accrued stipulated 

penalties determined to be owing, together with accrued interest. 

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

determined by the Plaintiffs through Dispute Resolution, to be owing may be less than 

the stipulated penalty amounts set forth in Paragraph 134. 

140. All stipulated penalties shall be paid in the manner set forth in Section X (Civil 

Penalty) of this Consent Decree. 

141. Should EKPC fail to pay stipulated penalties in compliance with the terms of this 

Consent Decree, the United States shall be entitled to collect interest on such penalties, as 

provided for in 28 U.S.C. § 1961. 

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

to any other rights, remedies, or sanctions available to the United States by reason of EKPC’s 

failure to comply with any requirement of this Consent Decree or applicable law, except that for 

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

46
 
penalty, EKPC shall be allowed a credit for stipulated penalties paid against any statutory 

penalties also imposed for such violation. 

XV. FORCE MAJEURE 

143. For purposes of this Consent Decree, a “Force Majeure Event” shall mean an 

event that has been or will be caused by circumstances beyond the control of EKPC, its 

contractors, or any entity controlled by EKPC that delays compliance with any provision of this 

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

EKPC’s best efforts to fulfill the obligation. “Best efforts to fulfill the obligation” include using 

best efforts to anticipate any potential Force Majeure Event and to address the effects of any 

such event (a) as it is occurring and (b) after it has occurred, such that the delay or violation is 

minimized to the greatest extent possible. 

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

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

Decree, as to which EKPC intends to assert a claim of Force Majeure, EKPC shall notify the 

United States in writing as soon as practicable, but in no event later than twenty-one (21) days 

following the date that the event occurred. In this notice, EKPC shall reference this Paragraph 

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

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

EKPC to prevent or minimize the delay or violation, the schedule by which EKPC proposes to 

implement those measures, and EKPC’s rationale for attributing a delay or violation to a Force 

Majeure Event. EKPC shall adopt all reasonable measures to avoid or minimize such delays or 

violations. EKPC shall be deemed to know of any circumstance which EKPC, its contractors, or 

any entity controlled by EKPC knew. 

47
 
145. Failure to Give Notice. If EKPC fails to comply with the notice requirements of 

this Section, the Plaintiff may void EKPC’s claim for Force Majeure as to the specific event for 

which EKPC has failed to comply with such notice requirement. 

146. Plaintiff’s Response. The Plaintiff shall notify EKPC in writing regarding 

EKPC's claim of Force Majeure within twenty (20) business days of receipt of the notice 

provided under Paragraph 144. If the Plaintiff agrees that a delay in performance has been or 

will be caused by a Force Majeure Event, the Parties shall stipulate to an extension of deadline(s) 

for performance of the affected compliance requirement(s) by a period equal to the delay 

actually caused by the event. In such circumstances, an appropriate modification shall be made 

pursuant to Section XXIII (Modification) of this Consent Decree. 

147. Disagreement. If the Plaintiff does not accept EKPC’s claim of Force Majeure, or 

if the Parties cannot agree on the length of the delay actually caused by the Force Majeure Event, 

the matter shall be resolved in accordance with Section XVI (Dispute Resolution) of this 

Consent Decree. 

148. Burden of Proof. In any dispute regarding Force Majeure, EKPC shall bear the 

burden of proving that any delay in performance or any other violation of any requirement of this 

Consent Decree was caused by or will be caused by a Force Majeure Event. EKPC shall also 

bear the burden of proving that EKPC gave the notice required by this Section and the burden of 

proving the anticipated duration and extent of any delay(s) attributable to a Force Majeure Event. 

An extension of one compliance date based on a particular event may, but will not necessarily, 

result in an extension of a subsequent compliance date. 

48
 
149. Events Excluded. Unanticipated or increased costs or expenses associated with 

the performance of EKPC's obligations under this Consent Decree shall not constitute a Force 

Majeure Event. 

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

circumstances related to an event and EKPC’s response to such circumstances, the kinds of 

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

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

emission control device; natural gas supply interruption; acts of God; acts of war or terrorism; 

and orders by a government official, government agency, or other regulatory body acting under 

and authorized by applicable law that directs EKPC to supply electricity in response to a systemwide (state-wide or regional) emergency. Depending upon the circumstances and EKPC’s 

response to such circumstances, failure of a permitting authority or the Kentucky Public Service 

Commission to issue a necessary permit or order with sufficient time for EKPC to achieve 

compliance with the requirements of this Consent Decree may constitute a Force Majeure Event 

where the failure of the authority to act is beyond the control of EKPC and EKPC has taken all 

steps available to it to obtain the necessary permit or order, including, but not limited to: 

submitting a complete application or request; responding to requests for additional information 

by the authority in a timely fashion; and accepting lawful terms and conditions after 

expeditiously exhausting any legal rights to appeal terms and conditions imposed by the 

authority. 

151. As part of the resolution of any matter submitted to this Court under Section XVI 

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

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

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

49
 
that occurred as a result of any delay agreed to by the United States or approved by the Court. 

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

accordance with the extended or modified schedule. 

152. Malfunction Events. If EKPC intends to exclude a period of Malfunction, as 

defined in Paragraph 22, from the calculation of any 30-Day Rolling Average Emission Rate, 

Combined 30-Day Rolling Average Emission Rate, or 30-Day Rolling Average SO2 Removal 

Efficiency, EKPC shall notify the United States in writing as soon as practicable, but in no event 

later than twenty one (21) days following the date the Malfunction occurs. 

a.	 In this notice, EKPC shall describe the anticipated length of time that the 

Malfunction may persist, the cause or causes of the Malfunction, all measures 

taken or to be taken by EKPC to minimize the duration of the Malfunction, and 

the schedule by which EKPC proposes to implement those measures. EKPC shall 

adopt all reasonable measures to minimize the duration of such Malfunctions, and 

to prevent the recurrence of such Malfunctions in the future. 

b.	 A Malfunction, as defined in Paragraph 22 of this Consent Decree, does not 

constitute a Force Majeure Event unless the Malfunction also meets the definition 

of a Force Majeure Event, as provided in this Section. Conversely, a period of 

Malfunction may be excluded by EKPC from the calculations of emission rates 

and removal efficiencies, as allowed under this Paragraph, regardless of whether 

the Malfunction constitutes a Force Majeure Event. 

50
 
XVI. DISPUTE RESOLUTION
 

153. The dispute resolution procedure provided by this Section shall be available to 

resolve all disputes arising under this Consent Decree, provided that the Party invoking such 

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

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

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

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

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

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

later than fourteen (14) days following receipt of such notice. 

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

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

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

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

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

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

Parties agree that the ADR activities can be completed within the 30-day informal negotiations 

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

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

negotiation period, the EPA shall provide EKPC with a written summary of their position 

regarding the dispute. The written position provided by EPA shall be considered binding unless, 

within forty-five (45) calendar days thereafter, EKPC seeks judicial resolution of the dispute by 

filing a petition with this Court. The EPA may respond to the petition within forty-five (45) 

calendar days of filing. 

51
 
157. Where the nature of the dispute is such that a more timely resolution of the issue 

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

Parties to the dispute. 

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

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

reach agreement. 

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

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

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

Decree to account for the delay that occurred as a result of dispute resolution. EKPC shall be 

liable for stipulated penalties for its failure thereafter to complete the work in accordance with 

the extended or modified schedule, provided that EKPC shall not be precluded from asserting 

that a Force Majeure Event has caused or may cause a delay in complying with the extended or 

modified schedule. 

160. 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 156, the disputing 

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

particular dispute. 

XVII. PERMITS 

161. Unless expressly stated otherwise in this Consent Decree, in any instance where 

otherwise applicable law or this Consent Decree requires EKPC to secure a permit to authorize 

construction or operation of any device, including all preconstruction, construction, and 

operating permits required under state law, EKPC shall make such application in a timely 

52
 
manner. EPA will use its best efforts to expeditiously review all permit applications submitted 

by EKPC in order to meet the requirements of this Consent Decree. 

162. Notwithstanding Paragraph 161, nothing in this Consent Decree shall be 

construed to require EKPC to apply for or obtain a PSD or Nonattainment NSR permit for 

physical changes in, or changes in the method of operation of, any EKPC System Unit that 

would give rise to claims resolved by Section XI (Resolution of Claims) of this Consent Decree. 

163. When permits are required as described in Paragraph 161, EKPC shall complete 

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

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

additional information by the permitting authorities. Any failure by EKPC to submit a timely 

permit application for any EKPC System Unit shall bar any use by EKPC of Section XV (Force 

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

164. Notwithstanding the reference to Title V or other federally enforceable permits in 

this Consent Decree, the enforcement of such permits shall be in accordance with their own 

terms and the Act. The Title V or other federally enforceable permits shall not be enforceable 

under this Consent Decree, although any term or limit established by or under this Consent 

Decree shall be enforceable under this Consent Decree regardless of whether such term has or 

will become part of a Title V or other federally enforceable permit, subject to the terms of 

Section XXVII (Conditional Termination of Enforcement Under Decree) of this Consent Decree. 

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

shall apply for amendment of its Title V permit for the Spurlock Plant to incorporate an MCR of 

5600 mmBTU/hr for Spurlock Unit 2. EPA will use its best efforts to expeditiously review such 

53
 
application submitted by EKPC and will not object to amendment of EKPC’s Title V permit for 

the Spurlock Plant to specify an MCR of 5600 mmBTU/hr for Spurlock Unit 2. 

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

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

permits, to include a schedule for all Unit-specific performance, operational, maintenance, and 

control technology requirements established by this Consent Decree including, but not limited to, 

emission rates, removal efficiencies, fuel limitations, tonnage limitations, and the requirement in 

Paragraph 72 pertaining to the surrender of SO2 Allowances. 

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

control device to be installed, upgraded, or operated on an Improved Unit under this Consent 

Decree, EKPC shall apply to include the requirements and limitations enumerated in this 

Consent Decree in either a federally enforceable operating permit issued under the Kentucky SIP 

or amendments to the Kentucky SIP. The permit or SIP amendment shall require compliance 

with the following: (a) any applicable 30-Day Rolling Average Emission Rate, 1-Hour Average 

NOx Emission Rate, or 30-Day Rolling Average SO2 Removal Efficiency, (b) the allowance 

surrender requirements set forth in this Consent Decree, and (c) any applicable tonnage 

limitations set forth in this Consent Decree. 

168. Prior to January 1, 2015, EKPC shall either: (a) apply for a federally enforceable 

operating permit issued under the Kentucky SIP for each plant in the EKPC System to include a 

provision, which shall be identical for each permit, that contains the allowance surrender 

requirements and the System-Wide 12-Month Rolling Tonnage limitations set forth in this 

Consent Decree; or (b) apply for amendments to the Kentucky SIP to include such requirements 

and limitations. If EKPC elects to apply for a federally enforceable permit, or if EKPC applies 

to amend the Kentucky SIP on a plant-specific basis, then EKPC shall include a provision in 

54
 
each such application that makes violation of the allowance surrender requirements and 

System-Wide 12-Month Rolling Tonnage limitations a violation of each permit, or plant-specific 

Kentucky SIP provision, for each plant in the EKPC System to which such requirements apply. 

169. For each EKPC System Unit, EKPC shall provide EPA with a copy of each 

application for a permit to address or comply with any provision of this Consent Decree, as well 

as a copy of any permit proposed as a result of such application, to allow for timely participation 

in any public comment opportunity. 

170. If EKPC sells or transfers to an entity unrelated to EKPC (“Third Party 

Purchaser”) part or all of its Ownership Interest in a EKPC System Unit covered under this 

Consent Decree, EKPC shall comply with the requirements of Paragraphs 166 through 168 with 

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

EKPC remains the holder of the Title V or other federally enforceable permit for such facility. 

XVIII. INFORMATION COLLECTION AND RETENTION 

171. Any authorized representative of the United States or Permitting State Agency, 

including their attorneys, contractors, and consultants, upon presentation of credentials, shall 

have a right of entry upon the premises of any facility in the EKPC System at any reasonable 

time for the purpose of: 

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

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

with the terms of this Consent Decree; 

c.	 obtaining samples and, upon request, splits of any samples taken by EKPC or its 

representatives, contractors, or consultants; and 

55
 
 

d. assessing EKPC’s compliance with this Consent Decree. 

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

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

EKPC’s performance of its obligations under this Consent Decree for the following periods: (a) 

until December 31, 2020 for records concerning modifications undertaken in accordance with 

Paragraph 120; and (b) until December 31, 2017 for all other records. This record retention 

requirement shall apply regardless of any corporate document retention policy to the contrary. 

173. All information and documents submitted by EKPC pursuant to this Consent 

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

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

or (b) EKPC claims and substantiates in accordance with 40 C.F.R. Part 2 that the information 

and documents contain confidential business information. 

174. Nothing in this Consent Decree shall limit the authority of the EPA to conduct 

tests and inspections at EKPC’s facilities under Section 114 of the Act, 42 U.S.C. § 7414, or any 

other applicable federal or state laws, regulations or permits. 

XIX. NOTICES 

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

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

addressed as follows: 

56
 
As to the United States of America: 

Chief, Environmental Enforcement Section 

Environment and Natural Resources Division 

U.S. Department of Justice 

P.O. Box 7611, Ben Franklin Station 

Washington, D.C. 20044-7611 

DJ# 90-5-2-1-08085 

and 

Director, Air Enforcement Division 

Office of Enforcement and Compliance Assurance

U.S. Environmental Protection Agency

Ariel Rios Building [2242A]

1200 Pennsylvania Avenue, N.W. 

Washington, DC 20460 

and 

Regional Administrator 

U.S. EPA Region IV

61 Forsyth Street, S.W.

Atlanta, Georgia 30303-8960 

As to EKPC: 

Environmental Manager

East Kentucky Power Cooperative

4775 Lexington Road

PO Box 707 

Winchester, KY 40392-0707 

and 

General Counsel 

East Kentucky Power Cooperative

4775 Lexington Road

PO Box 707 

Winchester, KY 40392-0707 

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

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

return receipt requested; or (c) electronic transmission, unless the recipient is not able to review 

the transmission in electronic form. All notifications, communications and transmissions (a) sent 

57
 
by overnight, certified or registered mail shall be deemed submitted on the date they are 

postmarked, or (b) sent by overnight delivery service shall be deemed submitted on the date they 

are delivered to the delivery service. All notifications, communications, and submissions made 

by electronic means shall be electronically signed and certified, and shall be deemed submitted 

on the date that EKPC receives written acknowledgment of receipt of such transmission. 

177. Either Party may change either the notice recipient or the address for providing 

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

address. 

XX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS 

178. If EKPC proposes to sell or transfer an Ownership Interest to a Third Party 

Purchaser, it shall advise the Third Party Purchaser in writing of the existence of this Consent 

Decree prior to such sale or transfer, and shall send a copy of such written notification to the 

Plaintiff pursuant to Section XIX (Notices) of this Consent Decree at least sixty (60) days before 

such proposed sale or transfer. 

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

Party Purchaser and EPA have executed, and the Court has approved, a modification pursuant to 

Section XXIII (Modification) of this Consent Decree making the Third Party Purchaser a party 

defendant to this Consent Decree and jointly and severally liable with EKPC for all the 

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

Interests, except as provided in Paragraph 181. 

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

Ownership Interests between EKPC and any Third Party Purchaser as long the requirements of 

this Consent Decree are met. This Consent Decree shall not be construed to prohibit a 

58
 
contractual allocation – as between EKPC and any Third Party Purchaser of Ownership Interests 

– of the burdens of compliance with this Decree, provided that both EKPC and such Third Party 

Purchaser shall remain jointly and severally liable to EPA for the obligations of the Decree 

applicable to the transferred or purchased Ownership Interests, except as provided in Paragraph 

181. 

181. If EPA agrees, EPA, EKPC, and the Third Party Purchaser that has become a 

party defendant to this Consent Decree pursuant to Paragraph 179, may execute a modification 

that relieves EKPC of its liability under this Consent Decree for, and makes the Third Party 

Purchaser liable for, all obligations and liabilities applicable to the purchased or transferred 

Ownership Interests. Notwithstanding the foregoing, however, EKPC may not assign, and may 

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

purchased or transferred Ownership Interests, including the obligations set forth in Sections IX 

(Environmental Projects) and X (Civil Penalty). EKPC may propose and the EPA may 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 transferred or purchased Ownership Interests, 

to the extent such obligations may be adequately separated in an enforceable manner. 

XXI. EFFECTIVE DATE 

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

Consent Decree is entered by the Court. 

XXII. RETENTION OF JURISDICTION 

183. Continuing Jurisdiction. The Court shall retain jurisdiction of this case after entry 

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

Decree and to take any action necessary or appropriate for its interpretation, construction, 

execution, modification, or adjudication of disputes. During the term of this Consent Decree, 

59
 
either Party to this Consent Decree may apply to the Court for any relief necessary to construe or 

effectuate this Consent Decree. 

XXIII. MODIFICATION 

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

agreement signed by both Parties. Where the modification constitutes a material change to any 

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

XXIV. GENERAL PROVISIONS 

185. This Consent Decree is not a permit. Compliance with the terms of this Consent 

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

regulations. The emission rates set forth herein do not relieve EKPC from any obligation to 

comply with other state and federal requirements under the Clean Air Act, including EKPC’s 

obligation to satisfy any state modeling requirements set forth in the Kentucky SIP. 

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

187. In any subsequent administrative or judicial action initiated by the United States 

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

EKPC shall not assert any defense or claim based upon principles of waiver, res judicata, 

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

based upon the contention that the claims raised by the United States in the subsequent 

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

that nothing in this Paragraph 187 is intended to affect the validity of Section XI (Resolution of 

Claims). 

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

Decree shall relieve EKPC of its obligation to comply with all applicable federal, state, and local 

60
 
laws and regulations. Subject to the provisions in Section XI (Resolution of Claims), nothing 

contained in this Consent Decree shall be construed to prevent or limit the rights of the United 

States to obtain penalties or injunctive relief under the Act or other federal, state, or local 

statutes, regulations, or permits. 

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

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

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

implementing the Act shall mean in this Decree what such term means under the Act or those 

implementing regulations. 

190. Nothing in this Consent Decree is intended to, or shall, alter or waive any 

applicable law (including but not limited to any defenses, entitlements, challenges, or 

clarifications related to the Credible Evidence Rule, 62 Fed. Reg. 8315 (Feb. 27, 1997)) 

concerning the use of data for any purpose under the Act, generated either by the reference 

methods specified herein or otherwise. 

191. Each limit and/or other requirement established by or under this Decree is a 

separate, independent requirement. 

192. Performance standards, emissions limits, and other quantitative standards set by 

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

standard or limit is expressed. For example, an Emission Rate of 0.100 is not met if the actual 

Emission Rate is 0.101. EKPC shall round the fourth significant digit to the nearest third 

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

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

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

61
 
Emission Rate of 0.100, and if an actual Emission Rate is 0.1005, that shall be reported as 0.101, 

and shall not be in compliance with an Emission Rate of 0.100. EKPC shall report data to the 

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

193. This Consent Decree does not limit, enlarge or affect the rights of either Party to 

this Consent Decree as against any third parties. 

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

understanding between the Parties with respect to the settlement embodied in this Consent 

Decree, and supercedes all prior agreements and understandings between the Parties related to 

the subject matter herein. No document, representation, inducement, agreement, understanding, 

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

used in construing the terms of this Consent Decree. 

195. Each Party to this action shall bear its own costs and attorneys' fees. 

XXV. SIGNATORIES AND SERVICE 

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

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

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

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

signature pages shall be given full force and effect. 

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

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

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

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

62
 
XXVI. PUBLIC COMMENT 

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

entry of this Consent Decree is subject to the procedures of 28 C.F.R. § 50.7, which provides for 

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

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

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

improper or inadequate. EKPC 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 EKPC, in 

writing, that the United States no longer supports entry of the Consent Decree. 

XXVII. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER DECREE 

200. Termination as to Completed Tasks. As soon as EKPC completes a construction 

project or any other requirement of this Consent Decree that is not ongoing or recurring, EKPC 

may, by motion to this Court, seek termination of the provision or provisions of this Consent 

Decree that imposed the requirement. 

201. Conditional Termination of Enforcement Through the Consent Decree. After 

EKPC: 

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

pollution controls as required by this Consent Decree; 

b. has obtained final Title V permits and has obtained federally enforceable permits 

or SIP amendments (i) as required by the terms of this Consent Decree; (ii) that 

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

terms all of the unit performance and other requirements specified in Section 

XVII (Permits) of this Consent Decree; and 

63
 
_________________________________________ 

c. certifies that the date is later than December 31, 2015; 

then EKPC may so certify these facts to the Plaintiff and this Court. If the Plaintiff does not 

object in writing with specific reasons within forty-five (45) days of receipt of EKPC’s 

certification, then, for any Consent Decree violations that occur after EKPC’s certification, the 

Plaintiff shall pursue enforcement of the requirements contained in the Title V or other federally 

enforceable permit through the permit and not through this Consent Decree. 

202. Resort to Enforcement under this Consent Decree. Notwithstanding Paragraph 

201, if enforcement of a provision in this Decree cannot be pursued by a Party under the 

applicable Title V permit, or if a Decree requirement was intended to be part of a Title V Permit 

and did not become or remain part of such permit, then such requirement may be enforced under 

the terms of this Decree at any time. 

XXVIII. FINAL JUDGMENT 

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

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

EKPC. 

SO ORDERED, THIS _____ DAY OF ________________, 2007. 

THE HONORABLE KARL S. FORESTER 

UNITED STATES DISTRICT COURT JUDGE 

64
 
 

 

Signature Page for Consent Decree in: 

United States of America 

v. 

East Kentucky Power Cooperative, No. 04-34-KSF (E.D. Ky.) 

FOR THE UNITED STATES OF AMERICA: 

RONALD J. TENPAS 

Acting Assistant Attorney General

Environment and Natural Resources Division 

United States Department of Justice 

PHILLIP A. BROOKS 

Counsel to the Chief 

JASON A. DUNN 

Trial Attorney

Environmental Enforcement Section 

Environment and Natural Resources Division 

United States Department of Justice 
_________________________ 

Signature Page for Consent Decree in: 

United States of America 

v. 

East Kentucky Power Cooperative, No. 04-34-KSF (E.D. Ky.) 

ANDREW SPARKS 

Assistant United States Attorney

Eastern District of Kentucky

United States Department of Justice 
Signature Page for Consent Decree in: 

United States of America
 v.
 East Kentucky Power Cooperative, No. 04-34-KSF (E.D. Ky.)
 

GRANTA Y. NAKAYAMA 

Assistant Administrator 

Office of Enforcement and Compliance Assurance

United States Environmental Protection Agency 

ADAM M. KUSHNER 

Director, Air Enforcement Division 

Office of Enforcement and Compliance Assurance

United States Environmental Protection Agency 

ANDREW C. HANSON 

Attorney Advisor

Air Enforcement Division 

Office of Enforcement and Compliance Assurance

United States Environmental Protection Agency 
_______________________________ 

_______________________________ 

_______________________________ 

Signature Page for Consent Decree in: 

United States of America 

v. 

East Kentucky Power Cooperative, No. 04-34-KSF (E.D. Ky.) 

MARY WILKES, 

Regional Counsel

U.S. Environmental Protection Agency

Region 4

61 Forsyth St., S.W.

Atlanta, GA 30303 

ALAN DION 

Senior Attorney

U.S. Environmental Protection Agency

Region 4

61 Forsyth Street, S.W.

Atlanta, GA 30303 

ROBERT CAPLAN 

Senior Attorney

U.S. Environmental Protection Agency

Region 4

61 Forsyth Street, S.W.

Atlanta, GA 30303 
Signature Page for Consent Decree in: 

United States of America 

v. 

East Kentucky Power Cooperative, No. 04-34-KSF (E.D. Ky.) 

FOR DEFENDANT EAST KENTUCKY 

POWER COOPERATIVE: 

ROBERT MARSHALL 

President & CEO 

East Kentucky Power Cooperative 
APPENDIX A - ENVIRONMENTAL PROJECTS REQUIREMENTS 

In compliance with and in addition to the requirements in Section IX of the Consent Decree,

EKPC shall comply with the requirements of this Appendix to ensure that the benefits of the

Environmental Project is achieved. 

I. Spurlock Plant Wet Electrostatic Precipitator Project 

A.	 Within sixty days of entry of the Consent Decree, EKPC shall submit a plan to the

Plaintiff for review and approval for the performance of the Spurlock Plant Wet

Electrostatic Precipitators (WESP) Project. The project will result in the installation of

WESPs that will control sulfuric acid emissions from Spurlock Units 1 and 2, with a goal

of achieving an emissions rate no greater than 0.005 lbs sulfuric acid mist per mmBTU

heat input. EKPC shall install and operate the Spurlock Unit 1 and 2 WESPs on the same

schedule as is required for the Spurlock Unit 1 and 2 FGDs pursuant to Paragraph 64 of

this Consent Decree. EKPC shall install, operate and maintain the WESPs in accordance

with manufacturers’ specifications and good engineering practices, so as to minimize

emissions to the maximum extent practicable. For purposes of the Consent Decree, the

expected $47 million capital cost for construction and installation of the WESPs shall be

deemed to satisfy the Environmental Projects requirements of Section IX upon

commencement of operation of this control technology, provided that EKPC continues to

operate the control technology for at least five (5) years. 

B.	 The proposed plan shall satisfy the following criteria: 

1.	 Describe how the work or project to be performed is consistent with the

requirements of Section I.A, above. 

2.	 Include a general schedule and budget for completion of the construction of the

WESPs, along with a plan for the submittal of periodic reports to the Plaintiff on

the progress of the work through completion of the construction and operation of

the WESPs. 

3.	 Require at a minimum that the WESPs be designed to achieve an emissions rate

no greater than 0.020 lbs sulfuric acid mist per mmBTU heat input. 

4. Require that EKPC shall provide the Plaintiff, upon completion of the

construction and continuing annually thereafter, with the results of annual stack

tests performed pursuant to 40 C.F.R. Appendix A, Method 8. EKPC shall, in 

accordance with manufacturers’ specifications and good engineering practices,

operate the WESPs so as to minimize emissions to the maximum extent

practicable and so as to meet the emission rate goal set forth in the proposed plan,

and in any event shall demonstrate in such annual stack tests an emissions rate no

greater than 0.020 lbs sulfuric acid mist per mmBTU heat input. 

5.	 Describe generally the expected environmental benefit for the project. 

C.	 Performance - Upon approval of the plan by the Plaintiff, EKPC shall complete the

Spurlock WESP Project according to the approved plan and schedule.