UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

UNITED STATES OF AMERICA, )

)

Plaintiff, ) CIVIL ACTION NO. 

)

 v. )

)

AMERICAN MUNICIPAL POWER, ) CONSENT DECREE 

INC., )

)

Defendant. )

) 

TABLE OF CONTENTS 

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

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

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

IV. RETIRE GORSUCH STATION ..............................................................................................8 

V. INTERIM NOx EMISSION LIMITATIONS ............................................................................8 

VI. INTERIM SO2 EMISSION LIMITATIONS..........................................................................12 

VII. PM EMISSION REDUCTIONS...........................................................................................15 

VIII. PROHIBITION ON NETTING CREDITS OR OFFSETS ................................................16 

IX. ENVIRONMENTAL MITIGATION PROJECT ..................................................................18 

X. CIVIL PENALTY....................................................................................................................20 

XI. RESOLUTION OF PAST CIVIL CLAIMS...........................................................................21 

XII. PERIODIC REPORTING .....................................................................................................22 

XIII. REVIEW AND APPROVAL OF SUBMITTALS ..............................................................24 

XIV. STIPULATED PENALTIES...............................................................................................25 

XV. FORCE MAJEURE ..............................................................................................................29 

XVI. DISPUTE RESOLUTION...................................................................................................33 

XVII. PERMITS ...........................................................................................................................34 

XVIII. INFORMATION COLLECTION AND RETENTION ....................................................36 

XIX. NOTICES.............................................................................................................................38 

i 
XX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS................................................39 

XXI. EFFECTIVE DATE.............................................................................................................41 

XXII. RETENTION OF JURISDICTION ...................................................................................41 

XXIII. MODIFICATION .............................................................................................................41 

XXIV. GENERAL PROVISIONS ...............................................................................................41 

XXV. SIGNATORIES AND SERVICE ......................................................................................43 

XXVI. PUBLIC COMMENT........................................................................................................44
 

XXVII. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER CONSENT 

DECREE........................................................................................................................................44 

XXVIII. FINAL JUDGMENT .....................................................................................................45
 

APPENDIX A – ENVIRONMENTAL MITIGATION PROJECT 

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

the United States Environmental Protection Agency (“EPA”) is concurrently filing a complaint 

for injunctive relief and civil penalties pursuant to Sections 113(b) and 167 of the Clean Air Act 

(the “Act”), 42 U.S.C. §§ 7413(b) and 7477, alleging that Defendant, American Municipal 

Power, Inc. (“AMP”), an Ohio nonprofit corporation owned and controlled by its over 125 

member municipal electric systems located in Kentucky, Michigan, Ohio, Pennsylvania, 

Virginia, and West Virginia (“AMP Members”), has undertaken construction projects at a major 

emitting facility in violation of the Prevention of Significant Deterioration (“PSD”) provisions of 

Part C of Subchapter I of the Act, 42 U.S.C. §§ 7470-7492, the Nonattainment New Source 

Review (“NSR”) provisions of Part D of Subchapter I of the Act, 42 U.S.C. §§ 7501-7515, the 

New Source Performance Standards (“NSPS”), 42 U.S.C. § 7411, requirements of Title V of the 

Act, 42 U.S.C. § 7661, and the federally approved and enforceable Ohio State Implementation 

Plan (“SIP”); 

WHEREAS, in its complaint, the United States alleges, inter alia, that AMP failed to 

obtain the necessary permits and install the controls necessary under the Act to reduce sulfur 

dioxide (“SO2”), oxides of nitrogen (“NOx”), and particulate matter (“PM”), and that AMP failed 

to obtain an operating permit under Title V of the Act that reflects applicable requirements 

imposed under Subchapter I of the Act for its R.H. Gorsuch Generating Station (“Gorsuch 

Station”) located near Marietta, Ohio; 

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

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

WHEREAS, the United States provided AMP and the State of Ohio actual notice of 

1 
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 United States and AMP (collectively, the “Parties”) have agreed that 

settlement of this action is in the best interest of the Parties and in the public interest, and that 

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

this matter; 

WHEREAS, the Parties recognize, and the Court by entering this Consent Decree finds, 

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

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

WHEREAS, AMP has cooperated in the resolution of this matter; 

WHEREAS, AMP denies the violations alleged in the complaint and associated notices 

of violation, maintains that it has been and remains in compliance with the Act and is not liable 

for civil penalties or injunctive relief, and states that it is agreeing to the obligations imposed by 

this Consent Decree solely to avoid the costs and uncertainties of litigation and to improve the 

environment, and nothing herein shall constitute an admission of liability; 

WHEREAS, the Parties recognize that AMP generates and supplies steam and other 

utilities from the Gorsuch Station to neighboring businesses that rely on those utilities and that a 

source of replacement steam will need to be installed and operational before the Gorsuch Station 

shuts down to ensure an uninterrupted supply of steam and other utilities to those customers; 

WHEREAS, the Parties anticipate that the requirements set forth in this Consent Decree, 

including the requirements to retire the Gorsuch Station and to perform an energy efficiency 

Environmental Mitigation Project, will achieve significant reductions in emissions and, thereby, 

2 
significantly improve air quality; and 

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

any issues; 

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

ADJUDGED, AND DECREED as follows: 

I. JURISDICTION AND VENUE 

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

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

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

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

purposes of this Consent Decree and the underlying complaint, and for no other purpose, AMP 

waives all objections and defenses that it may have to the Court’s jurisdiction over this action, to 

the Court’s jurisdiction over AMP, and to venue in this district. AMP consents to and shall not 

challenge entry of this Consent Decree or this Court’s jurisdiction to enter and enforce this 

Consent Decree. Except as expressly provided for herein, this Consent Decree shall not create 

any rights in or obligations of any party other than the Parties to this Consent Decree. 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 the Effective Date, the provisions of this Consent Decree shall apply to, be binding 

upon, and inure to the benefit of the Parties, their successors and assigns, and upon AMP’s 

3 
trustees, officers, employees, servants and agents solely in their capacities as such. 

3. AMP 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 the work 

required by this Consent Decree; provided, however, that to the extent such work pertains to the 

energy efficiency project required by Appendix A of this Consent Decree, AMP shall only be 

required to provide a copy of this Consent Decree to the primary contractor retained to 

implement the energy efficiency project. Notwithstanding any retention of contractors, 

subcontractors, or agents to perform any work required under this Consent Decree, AMP 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, AMP shall not assert as a defense 

the failure of its officers, trustees, employees, servants, agents, or contractors to take actions 

necessary to comply with this Consent Decree, unless it is determined to be a Force Majeure 

Event as governed by Section XV of this Consent Decree. 

III. DEFINITIONS 

4. Every term expressly defined by this Section shall have the meaning given that term 

herein. Every other term used in this Consent Decree that is also a term used under the Act or in 

a federal regulation implementing the Act shall mean in this Consent Decree what such term 

means under the Act or those regulations. 

5. “AMP” means American Municipal Power, Inc. 

6. “Ohio SIP” means the Ohio State Implementation Plan, and any amendments thereto, as 

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

7. “CAMD” means EPA’s Office of Air and Radiation’s Clean Air Markets Division. 

4 
8. “CEMS” or “Continuous Emission Monitoring System,” means, for obligations involving 

the monitoring of NOx and SO2 emissions under this Consent Decree, the devices defined in 40 

C.F.R. § 72.2, the inlet SO2 lb/mmBtu monitors, and the computer system for recording, 

calculating, and storing data and equations required by this Consent Decree. 

9. “Clean Air Act” or “Act” means the federal Clean Air Act, 42 U.S.C. §§ 7401-7671q, 

and its implementing regulations. 

10. “Consent Decree” means this Consent Decree and the Appendix hereto, which is 

incorporated into the Consent Decree. 

11. “Day” means calendar day unless otherwise specified in this Consent Decree. 

12. “Effective Date” shall have the meaning set forth in Section XXI hereof. 

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

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

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

atmosphere. 

14. “Environmental Mitigation Project” or “Project” shall have the meaning set forth in 

Section IX hereof. 

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

16. “Gorsuch Station” means AMP’s Gorsuch Generating Station, consisting of four identical 

pulverized coal-fired boilers capable of generating approximately 650,000 lbs of steam per hour 

and approximately 53 megawatts (“MW”) of electricity each. 

17. “Gorsuch Members” shall have the meaning set forth in paragraph 27 hereof. 

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

5 
input. 

19. “Netting” shall mean the process of determining whether a particular physical change or 

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

increase, as that term is defined at 40 C.F.R. § 52.21(b)(3)(i) and at Ohio Administrative Code 

(OAC) 3745-31-01(TTT) of the Ohio SIP. 

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

Consent Decree. 

21. “NOx Allowance” means an authorization to emit a specified amount of NOx that is 

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

been established under the Clean Air Act or the Ohio SIP. NOx Allowance does not include 

offsets. 

22. “Ownership Interest” means part or all of AMP’s legal or equitable ownership interest in 

the Gorsuch Station. 

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

provisions of this Consent Decree. 

24. “Parties” means the United States of America on behalf of EPA and AMP. “Party” 

means one of the named “Parties.” 

25. “Plant-wide Tonnage” means the sum of the tons of pollutant in question emitted from 

the Gorsuch Station including, without limitation, all tons of that pollutant during periods of 

startup, shutdown, and malfunction, in the designated calendar year. 

26. “Prevention of Significant Deterioration” or “PSD” means the prevention of significant 

deterioration air quality program under Part C of Subchapter I of the Clean Air Act, 42 U.S.C. §§ 

6 
7470 - 7492, and 40 C.F.R. § 52.21. It also includes the prevention of significant deterioration of 

air quality program as approved into the Ohio SIP, OAC 3745-31-11 to 3745-31-20. 

27. “Project Dollars” means expenditures and payments of AMP and AMP Members who 

were participants in the Gorsuch Station Project through Power Sales Contracts dated as of 

January 1, 1988 (“Gorsuch Members”), incurred or made in carrying out the Project identified in 

Section IX (Environmental Mitigation Project) of this Consent Decree to the extent that such 

expenditures or payments both: (a) comply with the requirements set forth in Section IX and 

Appendix A of this Consent Decree, and (b) constitute AMP’s or the Gorsuch Members’ direct 

payments for such projects, or AMP’s or the Gorsuch Members’ external costs for contractors, 

vendors, equipment, and the like. 

28. “Retire” means that AMP shall: (a) permanently shut down and cease to operate the 

Gorsuch Station as a coal-fired steam and/or electric generation plant, rendering the Gorsuch 

Station physically incapable of combusting coal and operating as a coal-fired electric generation 

plant; and (b) comply with any state and/or federal requirements applicable to the Gorsuch 

Station, and (c) relinquish all Clean Air Act permits for the Gorsuch Station. AMP shall amend 

any affected permits so as to reflect the permanent shutdown status of the Gorsuch Station as a 

coal-fired steam and/or electric generation plant. 

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

Decree. 

30. “SO2 Allowance” means an authorization or credit to emit a specified amount of SO2 that 

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

has been established under the Clean Air Act or the Ohio SIP. SO2 Allowance does not include 

7 
offsets. 

31. “State” means the State of Ohio. 

32. “Super-Compliant Allowance” means a NOx or SO2 Allowance attributable to reductions 

beyond the requirements of this Consent Decree including, but not limited to, emission 

reductions attributable to curtailments of fuel use or operating hours. 

33. “Surrender” means, with regard to SO2 or NOx Allowances, permanently surrendering so 

that such Allowances can never be used to meet any compliance requirement under the Clean Air 

Act or the Ohio SIP. 

34. “Title V Permit” means the permit required of AMP’s Gorsuch Station under Subchapter 

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

35. “Unit” means each approximately 650,000 lb/hour steam flow capacity, pulverized coalfired, boiler at the Gorsuch Station. 

IV. RETIRE GORSUCH STATION 

36. No later than December 31, 2012, AMP shall Retire the Gorsuch Station. 

V. INTERIM NOx EMISSION LIMITATIONS 

A. NOx Emission Reductions and Controls

 1. Plant-Wide Tonnage Limitation and Monitoring for NOx 

37. Beginning with calendar year 2010 and continuing each calendar year until the end of 

2012, AMP shall not exceed the following Plant-wide Tonnage limitations at the Gorsuch Station 

for NOx: 

8 
 

Calendar Year NOx Limit 

2010 2,600 tons 

2011 2,300 tons 

2012 2,100 tons 

38. For purposes of calculating the Plant-wide Tonnage for NOx when a Unit operates, AMP 

shall use CEMS in accordance with the procedures specified in 40 C.F.R. Part 75. 

2. Continuous Operation of NOx Controls 

39. AMP shall continuously operate at the Gorsuch Station the existing low NOx burners and 

the existing rotating overfire air systems that are at Units 2 and 3 at all times that the Unit the 

control serves is in operation, consistent with the technological limitations, manufacturers’ 

specifications, and good engineering and maintenance practices for minimizing emissions to the 

extent practicable. 

B. NOx Allowance Surrender 

40. Except as provided in Paragraph 45, AMP shall not sell, trade, or transfer any NOx 

Allowances allocated to the Gorsuch Station that would otherwise be available for sale, trade, or 

transfer as a result of the actions taken by AMP to comply with the requirements of this Consent 

Decree. 

41. Beginning with calendar year 2010, and continuing each calendar year thereafter, AMP 

shall surrender to EPA, or transfer to a non-profit third party selected by AMP for purposes of 

surrender, all NOx Allowances allocated to AMP's Gorsuch Station for that calendar year that 

AMP does not need in order to meet its own federal and/or State Clean Air Act regulatory 

9 
requirements at AMP’s Gorsuch Station. 

42. AMP shall make its surrender of NOx Allowances annually, within forty-five (45) days of 

notice from EPA regarding the NOx Allowances deducted for compliance for the previous 

calendar year. Any surrender need not include the specific NOx Allowances that were allocated 

to the Gorsuch Station, so long as AMP surrenders NOx Allowances that are from the same year 

and that are equal to the number required to be surrendered under this Subsection. 

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

transferred to a non-profit third party, AMP 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: (a) provide the identity of the non-profit third party recipient(s) of the 

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

include a certification by the third-party recipient(s) stating that the recipient(s) will not sell, 

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

to meet any obligation imposed by any environmental law. No later than the third periodic 

report due after the transfer of any NOx Allowances, AMP shall include a statement that the 

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

accordance with the provisions of Paragraph 44 within one year after AMP transferred the 

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

requirements of this Paragraph until all third-party recipient(s) of AMP’s NOx Allowances 

designated for surrender shall have actually surrendered the transferred NOx Allowances to EPA. 

44. For all NOx Allowances required to be surrendered to EPA, AMP or the third-party 

recipient(s) (as the case may be) shall first submit a NOx Allowance transfer request form to 

10 
CAMD directing the transfer of such NOx Allowances to the EPA Enforcement Surrender 

Account or to any other EPA account that EPA may direct in writing. As part of submitting these 

transfer requests, AMP or the third-party recipient(s) shall irrevocably authorize the transfer of 

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

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

surrendered 

C. General NOx Provisions 

45. Provided that AMP is in compliance with all NOx emission limitations established in this 

Consent Decree, nothing in this Consent Decree shall preclude AMP from using, selling, or 

transferring Super-Compliant NOx Allowances that may arise as a result of achieving and 

maintaining annual NOx emissions at the Gorsuch Station below the Plant-wide Tonnage limits 

required in this Consent Decree, so long as AMP timely reports the generation of such SuperCompliant NOx Allowances in accordance with Section XII (Periodic Reporting) of this Consent 

Decree. 

46. AMP shall not use NOx Allowances to comply with any requirement of this Consent 

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

Decree by using, tendering, or otherwise applying NOx Allowances to offset any excess 

emissions (i.e., emissions above the limits specified in Paragraph 37). 

47. Nothing in this Consent Decree shall prevent AMP from purchasing or otherwise 

obtaining, holding, carrying over from year to year, or selling or otherwise transferring NOx 

Allowances allocated to a source other than the Gorsuch Station to the extent allowed by law. 

11 
48. The requirements in Paragraphs 40 through 44 of this Consent Decree pertaining to 

AMP’s surrender of NOx Allowances are permanent injunctions not subject to any termination 

provision of this Consent Decree. 

VI. INTERIM SO2 EMISSION LIMITATIONS 

A. SO2 Emission Reductions and Controls 

1. SO2 Tonnage Limitation and Monitoring 

49. Beginning with calendar year 2010 and continuing until the end of 2012, AMP shall not 

exceed the following Plant-wide Tonnage limitations for SO2: 

Calendar Year SO2 Limit 

2010 26,000 tons 

2011 23,000 tons 

2012 21,000 tons 

50. For purposes of calculating the Plant-wide Tonnage of SO2 when a Unit operates, AMP 

shall use CEMS in accordance with the procedures specified in 40 C.F.R. Part 75. 

2. Continuous Operation of SO2 Controls 

51. AMP shall continuously operate all existing SO2 control measures, including coal 

blending procedures, to reduce SO2 emissions at all times that the Gorsuch Station is in 

operation, consistent with the technological limitations, manufacturers’ specifications, and good 

engineering and maintenance practices. 

12 
B. Surrender of SO2 Allowances 

52. Except as provided in Paragraph 57, AMP shall not sell, trade, or transfer any SO2 

Allowances allocated to the Gorsuch Station that would otherwise be available for sale, trade, or 

transfer as a result of the actions taken by AMP to comply with the requirements of this Consent 

Decree. 

53. Beginning with calendar year 2010, and continuing each calendar year thereafter, AMP 

shall surrender to EPA, or transfer to a non-profit third party selected by AMP for purposes of 

surrender, all SO2 Allowances allocated to AMP for the Gorsuch Station for that calendar year 

that AMP does not need in order to meet its own federal and/or State Clean Air Act regulatory 

requirements at the Gorsuch Station. 

54. AMP shall make its surrender of SO2 Allowances annually, within forty-five (45) days of 

its receipt from EPA of the Annual Deduction Reports for SO2. Any surrender need not include 

the specific SO2 Allowances that were allocated to the Gorsuch Station, so long as AMP 

surrenders SO2 Allowances that are from the same year and that are equal to the number required 

to be surrendered under this Subsection. 

55. If any SO2 Allowances are transferred directly to a non-profit third party for surrender to 

EPA, AMP 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 

non-profit third-party recipient(s) stating that the recipient(s) will not sell, trade, or otherwise 

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

13 
obligation imposed by any environmental law. No later than the third periodic report due after 

the transfer of any SO2 Allowances, AMP shall include a statement that the non-profit third-party 

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

the provisions of Paragraph 55 within one (1) year after AMP transferred the SO2 Allowances to 

them. AMP shall not have complied with the SO2 Allowance surrender requirements of this 

Subsection until all non-profit third-party recipient(s) of AMP’s SO2 Allowances designated for 

surrender shall have actually surrendered the transferred SO2 Allowances to EPA. 

56. For all SO2 Allowances surrendered to EPA, AMP or the non-profit third-party 

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

CAMD 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, AMP or the non-profit 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. 

C. General SO2 Provisions 

57. Provided that AMP is in compliance with all SO2 emission limitations established in this 

Consent Decree, nothing in this Consent Decree shall preclude AMP from using, selling, or 

transferring Super-Compliant SO2 Allowances that may arise as a result of achieving and 

maintaining annual SO2 emissions at the Gorsuch Station below the Plant-wide Tonnage limits 

required in this Consent Decree, so long as AMP timely reports the generation of such SuperCompliant SO2 Allowances in accordance with Section XII (Periodic Reporting) of this Consent 

14 
Decree. 

58. AMP shall not use SO2 Allowances to comply with any requirement of this Consent 

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

Decree by using, tendering, or otherwise applying SO2 Allowances to offset any excess 

emissions (i.e., emissions above the limits specified in Paragraph 49). 

59. Nothing in this Consent Decree shall prevent AMP from purchasing or otherwise 

obtaining, holding, carrying over from year to year, selling or otherwise transferring SO2 

Allowances allocated to a source other than the Gorsuch Station to the extent allowed by law. 

60. The requirements in Paragraphs 52 through 56 of this Consent Decree pertaining to 

AMP’s surrender of SO2 Allowances are permanent injunctions not subject to any termination 

provision of this Consent Decree. 

VII. PM EMISSION REDUCTIONS 

61. Beginning thirty (30) days after the Effective Date, and continuing thereafter, AMP shall 

operate each ESP at the Gorsuch Station at all times when the Units the ESP serves are in 

operation to maximize PM emission reductions, provided that such operation of the ESP is 

consistent with the technological limitations, manufacturers’ specifications and good engineering 

and maintenance practices for the ESP. AMP shall, at a minimum, to the extent reasonably 

practicable: (a) fully energize each section of the ESP for each unit, and repair any failed ESP 

section at the next planned or unplanned Unit outage; (b) operate automatic control systems on 

each ESP to maximize PM collection efficiency; (c) maximize power levels delivered to the ESP 

consistent with manufacturers’ specifications, the operational design of the unit, and good 

15 
 

engineering practices; (d) inspect for and repair during the next planned or unplanned unit outage 

of sufficient length any openings in ESP casings, ductwork and expansion joints to minimize air 

leakage; (e) and optimize the plate-cleaning and discharge-electrode-cleaning systems for the 

ESP by varying the cycle time, cycle frequency, rapper-vibrator intensity, and number of strikes 

per cleaning event. 

VIII. PROHIBITION ON NETTING CREDITS OR OFFSETS 

62. Emissions reductions at the Gorsuch Station that result from actions to be taken by AMP 

after entry of this Consent Decree to comply with the requirements of this Consent Decree shall 

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

obtaining a netting credit or offset under the Clean Air Act’s Nonattainment New Source Review 

and PSD Programs. 

63. Notwithstanding Paragraph 62, AMP may rely on emission reductions resulting from 

Retiring the Gorsuch Station, solely as offsets for purposes of Nonattainment New Source 

Review permitting as described in this Paragraph. AMP may rely on such emission reductions 

solely for the purpose of applying for a Nonattainment New Source Review Permit for a new 

natural gas fired steam and/or electricity generating station of up to 175 MW combined electric 

generating capacity from all new units ("new gas unit"), and up to 1600 mmBTU/hour, at the 

Gorsuch Station. Emission reductions resulting from Retiring the Gorsuch Station beyond those 

needed for purposes of offsets for permitting such new gas unit(s) shall be subject to the 

prohibition in Paragraph 62. The following additional limitations shall apply to the use of 

16 
 

emission reductions resulting from Retiring the Gorsuch Station for purposes of obtaining 

offsets: 

a.	 Such emission reductions must be otherwise creditable under the Ohio SIP and AMP 

must satisfy all Clean Air Act and Ohio SIP criteria for generating offsets; 

b.	 Construction of the permitted new gas unit(s) shall commence no later than five years 

after the Effective Date of this Consent Decree; and 

c.	 Ohio EPA must determine that emissions from the new gas unit(s) at the Gorsuch 

Station will not interfere with “reasonable further progress” toward attainment of a 

National Ambient Air Quality Standard in accordance with Part D of the Clean Air 

Act. 

Nothing in this Paragraph or this Consent Decree shall be construed as relieving AMP from its 

obligations to apply for appropriate New Source Review permits under the PSD and/or 

Nonattainment NSR programs for the construction and operation of the new gas unit(s) at the 

Gorsuch Station. 

64. In addition to the limitations in Paragraph 63, AMP may not generate or use any offsets 

from the Retirement of the Gorsuch Station unless AMP certifies, pursuant to the requirements 

of Section XIII (Review and Approval of Submittals) that sufficient verified offsets are 

unavailable under Ohio’s Emission Reduction Credit Banking Program, Ohio Admin. Code 

3745-111. As part of such certification, AMP must determine the availability of Verified 

Emission Reduction Credits (Verified ERCs), as defined by OAC 3745-111-01(B), (I), and (J), 

as of the date it submits a construction permit application requiring offsets for any project 

otherwise allowed by Paragraph 63. If Verified ERCs are certified to be available, AMP must 

17 
purchase the available Verified ERCs before using any offsets generated at the Gorsuch Station 

that are available for use to permit the new gas unit(s) in accordance with Paragraph 63 herein. 

AMP shall include in its certification the number of Verified ERCs available, the number of 

Verified ERCs purchased, and the number of Gorsuch Station offsets to be used to permit the 

new gas unit(s). 

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

under this Consent Decree from being considered by the State or EPA as credible 

contemporaneous emission decreases for the purpose of attainment demonstrations submitted 

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

Ambient Air Quality Standards, PSD increment, or air quality related values, including visibility, 

in a Class I area. 

IX. ENVIRONMENTAL MITIGATION PROJECT 

66. AMP shall implement the Environmental Mitigation Project promoting energy efficiency 

described in Appendix A to this Consent Decree (“Project”) in compliance with the terms of this 

Consent Decree. Since the Project will be implemented as part of a broad public power energy 

efficiency program funded in part by other sources unrelated to the Consent Decree, the Project 

will be considered complete when AMP and the Gorsuch Members spend a total of $15,000,000 

in Project Dollars over the course of not more than four (4) calendar years, starting in 2010, 

unless EPA approves a fifth year for expenditures as set forth in Appendix A. AMP shall not 

include its internal personnel costs in overseeing the implementation of the Project as Project 

Dollars counting toward the $15,000,000 total spend requirement. 

18 
67. AMP shall maintain, and present to EPA upon request, all documents to substantiate the 

Project Dollars expended to implement the Project described in Appendix A, and shall provide 

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

68. All reports prepared by AMP pursuant to the requirements of this Section of the Consent 

Decree and required to be submitted to EPA shall be publicly available from AMP without 

charge, subject to the limitations in Paragraph 120. 

69. AMP shall certify, as of the date AMP executes this Consent Decree, that AMP is not 

otherwise required by law to perform the Project described in Appendix A except for the force of 

local ordinances or resolutions of Gorsuch Members implementing the Project, that AMP is 

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

not use the Project, or a portion thereof, to satisfy any obligations that it may have under other 

applicable requirements of law, including any applicable renewable or energy efficiency 

portfolio standards, except for the force of local ordinances or resolutions of Gorsuch Members 

implementing the Project. 

70. AMP shall use good faith efforts to secure as much environmental benefit as possible for 

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

Consent Decree. 

71. If AMP elects to undertake the Project described in Appendix A by contributing funds to 

another person or entity that will carry out the Project in lieu of AMP, but not including AMP’s 

agents or contractors or the Gorsuch Members’ agents or contractors, that person or 

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

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

19 
Regardless of whether AMP elects to undertake the Project by itself or to do so by contributing 

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

that it will receive credit for the expenditure of such funds as Project Dollars only if AMP 

demonstrates that the funds have been actually spent by AMP, a Gorsuch Member, or by the 

person or instrumentality receiving them, and that such expenditures met all requirements of this 

Consent Decree. 

72. AMP shall comply with the reporting requirements described in Appendix A. 

73. In connection with initial communications to the Gorsuch Members regarding AMP’s 

Project expenditures pursuant to this Consent Decree, AMP shall include prominently in the 

communication the information that the Project expenditures were required as part of a Clean Air 

Act consent decree. 

74. Within one hundred eighty (180) calendar days following the completion of the Project 

portion of the energy efficiency program and the expenditure of all Project Dollars required 

under this Consent Decree, including any applicable periods of verification and benefit 

quantification from those expenditures, AMP shall submit to the United States in accordance 

with Paragraph 115 a report that documents the date that the Project was completed, AMP’s 

results of implementing the Project, including the emission reductions or other environmental 

benefits achieved, and the Project Dollars expended by AMP in implementing the Project. 

X. CIVIL PENALTY 

75. Within thirty (30) calendar days after entry of this Consent Decree, AMP shall pay to the 

United States a civil penalty in the amount of $850,000. The civil penalty shall be paid by 

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

20 
with current EFT procedures, referencing USAO File Number 2010A48252 and DOJ Case 

Number 90-5-2-1-09886 and the civil action case name and case number of this action. The 

costs of such EFT shall be AMP’s responsibility. Payment shall be made in accordance with 

instructions provided to AMP by the Financial Litigation Unit of the U.S. Attorney’s Office for 

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

next business day. At the time of payment, AMP 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. 

76. Failure to timely pay the civil penalty shall subject AMP 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 AMP 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. 

77. 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 PAST CIVIL CLAIMS 

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

under Part C of Subchapter I of the Clean Air Act, 42 U.S.C. §§ 7470 to 7492, under Part D of 

Subchapter I of the Act, 42 U.S.C. §§ 7501-7515, under Section 111 of the Act, 42 U.S.C. § 

7411, and under Subchapter V of the Clean Air Act, §§ 7661 to 7661f, that arose from 

21 
modifications that commenced at the Gorsuch Station prior to the date of lodging of this Consent 

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

the opacity violations alleged in the Complaint filed in this action, and any additional opacity 

violations committed by AMP at the Gorsuch Station through the date of lodging of the Decree. 

XII. PERIODIC REPORTING 

79. After entry of this Consent Decree, AMP shall submit to the United States a periodic 

report, within sixty (60) days after the end of each half of the calendar year (January through 

June and July through December) until such time as the Gorsuch Station is Retired and the 

Project is completed as applicable. The report shall include the following information: 

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

following Sections of this Consent Decree: Section IV concerning retiring the 

Gorsuch Station; Section V concerning NOx emissions and the surrender of NOx 

Allowances; Section VI concerning SO2 emissions and the surrender of SO2 

Allowances; and Section VII concerning PM emissions; 

b. all information relating to Super-Compliant Allowances that AMP claims to have 

generated in accordance with Paragraphs 45 and 57 through emission reductions 

beyond the requirements of this Consent Decree; 

c. information relating to the number of offsets generated by Retiring the Gorsuch 

Station; the number of offsets used to permit a natural gas unit pursuant to 

Paragraph 63; and the number of offsets purchased in order to permit the natural 

gas unit pursuant to Paragraph 64. 

22 
d. for the Project, a summary of actions taken, funds expended during the reporting 

period, as well as cumulative expenditures, and energy efficiency and estimated 

environmental benefits achieved to date in satisfaction of the requirements of 

Section IX (Environmental Mitigation Project). 

80. In any periodic report submitted pursuant to this Section, AMP may incorporate by 

reference information previously submitted under its Title V permitting requirements, provided 

that AMP attaches the Title V permit report (or the pertinent portions of such 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 report. 

81. In addition to the reports required by Paragraph 79, if AMP violates or deviates from any 

provision of this Consent Decree, excluding late reports for which the report itself is sufficient 

notice of the deviation, AMP shall submit to the United States a report on the violation or 

deviation within ten (10) business days after AMP obtained knowledge of the event. In the 

report, AMP shall explain the cause or causes of the violation or deviation and any measures 

taken or to be taken by AMP to cure the reported violation or deviation or to prevent such 

violation or deviations in the future. If at any time, the provisions of this Consent Decree are 

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

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

submitted to the United States to satisfy all the requirements of this Paragraph. 

82. Each AMP report shall be signed by AMP’s Environmental Manager (or equivalent title), 

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 

23 
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. 

83. If any NOx or SO2 Allowances are surrendered to any non-profit third party pursuant to 

Paragraphs 43 and 55, the non-profit third party’s certification shall be signed by a managing 

officer of the non-profit third party and shall contain the following language: I certify under 

penalty of law that _____________ [name of non-profit third party] will not sell, trade, or 

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

obligation imposed by any environmental law. I understand that there are significant penalties 

for making misrepresentations to or misleading the United States. 

XIII. REVIEW AND APPROVAL OF SUBMITTALS 

84. AMP shall submit each report or other submission required by this Consent Decree to 

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

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

written comments explaining the bases for declining such approval as soon as reasonably 

practicable. Within sixty (60) days of receiving written comments from EPA, AMP shall either: 

(a) revise the submittal consistent with the written comments and provide the revised submittal to 

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

24 
negotiations, under Section XVI (Dispute Resolution) of this Consent Decree. 

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

submittal pursuant to dispute resolution, AMP shall implement the approved submittal in 

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

XIV. STIPULATED PENALTIES 

86. For any failure by AMP to comply with the terms of this Consent Decree, and subject to 

the provisions of Sections XV (Force Majeure) and XVI (Dispute Resolution), AMP shall pay, 

within thirty (30) days after receipt of written demand to AMP by the United States, the 

following stipulated penalties to the United States: 

Consent Decree Violation Stipulated Penalty 

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

(Civil Penalty) of this Consent Decree 

$10,000 per day 

b. Failure to Retire the Gorsuch Station pursuant to Section 

IV 

$10,000 per day for first 30 

days; $37,500 per day for 

violations thereafter. Each day 

of violation shall also require 

the surrender of three SO2 

allowances for each ton of SO2 

emitted and three NOx 

allowances for each ton of NOx 

emitted. 

c. Failure to meet the Plant-wide Tonnage NOx limitation 

required by Paragraph 37 (Interim NOx Emissions 

Limitations) 

$5,000 per ton for the first 100 

tons over the limit; $10,000 per 

ton for each ton over 100 tons, 

plus the surrender of NOx 

allowances in an amount equal 

to two times the number of tons 

by which the tonnage limitation 

was exceeded. 

25 
d. Failure to meet the Plant-wide Tonnage SO2 limitation 

required by Paragraph 49 (Interim SO2 Emissions 

Limitations) 

$5,000 for the first 100 tons 

over the limit; $10,000 per ton 

for each ton over100 tons, plus 

the surrender of SO2 

allowances in an amount equal 

to two times the number of tons 

by which the tonnage limitation 

was exceeded. 

e. Failure to surrender NOx allowances pursuant to 

Paragraph 42. 

(a) $37,500 per day plus (b) 

$1,000 per NOx Allowance not 

surrendered 

f. Failure to surrender SO2 allowances pursuant to 

Paragraph 54 

(a) $37,500 per day plus (b) 

$1,000 per SO2 Allowance not 

surrendered 

g. Failure to apply for any permit required by Section XVII 

(Permits) 

$1,000 per day per violation 

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

approved, the reports or other submittals required by this 

Consent Decree 

$750 per day per violation 

during the first 10 days, $1,000 

per day per violation thereafter 

i. Failure to demonstrate the third-party surrender of an 

NOx Allowance pursuant to Paragraphs 43 and 44 

$2,500 per day per violation 

j. Failure to demonstrate the third-party surrender of a SO2 

Allowance pursuant to Paragraphs 55 and 56 

$2,500 per day per violation 

k. Failure to undertake and complete the Environmental 

Mitigation Project in compliance with Section IX 

(Environmental Mitigation Project) of this Consent Decree 

and Appendix A 

$1,000 per day per violation 

during the first 30 days, $5,000 

per day per violation thereafter 

l. Failure to operate the existing NOx controls pursuant to 

Paragraph 39. 

$5,000 per day per violation 

m. Failure to operate the existing SO2 control pursuant to 

Paragraph 51. 

$5,000 per day per violation 

n. Failure to operate the existing PM controls pursuant to 

Paragraph 61. 

$5,000 per day per violation 

26 
 

 

o. Using, selling, or transferring NOx Allowances, except 

as permitted by Paragraphs 41 through 47. 

(a) four times the market value 

of the improperly used 

allowance, as measured at the 

time of the improper use, plus 

(b) the surrender, pursuant to 

the procedures set forth in 

Paragraphs 41 through 44 of 

this Decree, of NOx Allowances 

in an amount equal to the NOx 

Allowances used, sold, or 

transferred in violation of the 

Decree. 

p. Using, selling, or transferring SO2 Allowances, except as 

permitted by Paragraphs 53 through 59. 

(a) four times the market value 

of the improperly used 

allowance, as measured at the 

time of the improper use, plus 

(b) the surrender, pursuant to 

the procedures set forth in 

Paragraphs 53 through 57 of 

this Decree, of SO2 Allowances 

in an amount equal to the SO2 

Allowances used, sold, or 

transferred in violation of the 

Decree. 

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

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

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

performance is satisfactorily completed or until the violation ceases, whichever is applicable. 

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

penalties for separate violations of this Consent Decree. 

88. AMP shall pay all stipulated penalties to the United States within thirty (30) days of 

27 
receipt of written demand to AMP from the United States, and shall continue to make such 

payments every thirty (30) days thereafter until the violation(s) no longer continues, unless AMP 

elects within twenty (20) days of receipt of written demand to AMP 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. 

89. Stipulated penalties shall continue to accrue as provided in accordance with Paragraph 86 

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 the United States 

pursuant to Section XVI (Dispute Resolution) of this Consent Decree that is not 

appealed to the Court, accrued stipulated penalties agreed or determined to be 

owing, together with accrued interest, shall be paid within thirty (30) days of the 

effective date of the agreement or of the receipt of the United States’ decision; 

b. If the dispute is appealed to the Court and the United States prevails in whole or 

in part, AMP shall, within thirty (30) days of receipt of the Court’s decision or 

order, pay all accrued stipulated penalties determined by the Court to be owing, 

together with interest accrued on such penalties determined by the Court to be 

owing, except as provided in Subparagraph c, below; 

c. If the Court’s decision is appealed by either Party, AMP shall, within fifteen (15) 

days of receipt of the final appellate court decision, pay all accrued stipulated 

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

28 
be owing by the appellate court. If the appellate court remands the action to the 

District Court for a re-calculation of the amount of stipulated penalties, AMP 

shall pay all accrued stipulated penalties, together with interest accrued on such 

stipulated penalties, within fifteen (15) days of entry of the District Court’s order. 

Notwithstanding any other provision of this Consent Decree, the accrued stipulated penalties 

agreed by the United States and AMP, or determined by the United States through Dispute 

Resolution, to be owing may be less than the stipulated penalty amounts set forth in Paragraph 

86. 

90. All stipulated penalties shall be paid in the manner set forth in Section X (Civil Penalty) 

of this Consent Decree. 

91. Should AMP 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. 

92. 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 AMP’s failure to 

comply with any requirement of this Consent Decree or applicable law, except that for any 

violation of the Act for which this Consent Decree provides for payment of a stipulated penalty, 

AMP shall be allowed a credit for stipulated penalties paid against any statutory penalties also 

imposed for such violation. 

XV. FORCE MAJEURE 

93. For purposes of this Consent Decree, a “Force Majeure Event” shall mean an event that, 

despite AMP’s best efforts to fulfill the obligation, has been or will be caused by circumstances 

29 
beyond the control of AMP, its contractors, or any entity controlled by AMP that delays 

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

provision of this Consent Decree. “Best efforts to fulfill the obligation” include using the 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 any adverse environmental 

effects of the delay or violation is minimized to the greatest extent possible. 

94. 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 AMP intends to assert a claim of Force Majeure, AMP shall notify the United States in 

writing as soon as practicable, but in no event later than twenty-one (21) calendar days following 

the date AMP first knew, or by the exercise of due diligence should have known, that the event 

caused or may cause such delay or violation. In this notice, AMP shall reference this Paragraph 

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

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

prevent or minimize the delay or violation, the schedule by which AMP proposes to implement 

those measures, and AMP’s rationale for attributing a delay or violation to a Force Majeure 

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

and any resulting adverse environmental effects. AMP shall be deemed to know of any 

circumstance which AMP, its contractors, or any entity controlled by AMP knew or should have 

known. 

95. Failure to Give Notice. If AMP fails to comply with the notice requirements of this 

Section, the United States may void AMP’s claim for Force Majeure as to the specific event for 

30 
 

which AMP has failed to comply with such notice requirement. 

96. United States’ Response. The United States shall notify AMP in writing regarding AMP’s 

claim of Force Majeure within twenty (20) business days of receipt of the notice provided under 

Paragraph 94. If the United States agrees that a delay in performance has been or will be caused 

by a Force Majeure Event, the United States and AMP 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. 

97. Disagreement. If the United States does not accept AMP’s claim of Force Majeure, or if 

the United States and AMP 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. 

98. Burden of Proof. In any dispute regarding Force Majeure, AMP 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. AMP shall also bear the 

burden of proving that AMP 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. 

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

performance of AMP’s obligations under this Consent Decree shall not constitute a Force 

Majeure Event. 

31 
100. Potential Force Majeure Events. The Parties agree that, depending upon the 

circumstances related to an event and AMP’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: acts of God; acts of war or terrorism; and orders by a government official, 

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

under and authorized by applicable law, that directs AMP to supply electricity in response to a 

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

response to such circumstances, failure of a permitting authority to issue a necessary permit in a 

timely fashion may constitute a Force Majeure Event where the failure of the permitting 

authority to act is beyond the control of AMP and AMP has taken all steps available to it to 

obtain the necessary permit, including, but not limited to: submitting a complete permit 

application; responding to requests for additional information by the permitting authority in a 

timely fashion; and accepting lawful permit terms and conditions after expeditiously exhausting 

any legal rights to appeal terms and conditions imposed by the permitting authority. 

101. As part of the resolution of any matter submitted to this Court under Section XVI 

(Dispute Resolution) regarding a claim of Force Majeure, the United States and AMP by 

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

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

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

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

accordance with the extended or modified schedule (provided that AMP shall not be precluded 

from making a further claim of Force Majeure with regard to meeting any such extended or 

32 
modified schedule). 

XVI. DISPUTE RESOLUTION 

102. 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. 

103. 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. 

104. Disputes submitted to dispute resolution under this Section shall, in the first instance, be 

the subject of informal negotiations between the Parties. Such period of informal negotiations 

shall not extend beyond thirty (30) calendar days from the date of the first meeting between the 

Parties’ representatives unless they agree in writing to shorten or extend this period. 

105. If the Parties are unable to reach agreement during the informal negotiation period, the 

United States shall provide AMP with a written summary of its position regarding the dispute. 

The written position provided by the United States shall be considered binding unless, within 

forty-five (45) calendar days thereafter, AMP seeks judicial resolution of the dispute by filing a 

petition with this Court. If AMP seeks judicial resolution, the United States’ written summary 

shall be deemed its initial filing with this Court regarding the dispute. The United States may 

submit a response to the petition within forty-five (45) calendar days of filing. 

33 
106. The time periods set out in this Section may be shortened or lengthened upon motion to 

the Court of one of the Parties to the dispute, explaining the Party’s basis for seeking such a 

scheduling modification. 

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

Party as a result of invocation of this Section or the Parties’ inability to reach agreement. 

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

the 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. AMP shall be liable for stipulated penalties for its 

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

provided that AMP 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. 

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

such disputes. In their filings with the Court under Paragraph 105, the Parties shall state their 

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

XVII. PERMITS 

110. Unless expressly stated otherwise in this Consent Decree, in any instance where 

otherwise applicable law or this Consent Decree requires AMP to secure a permit to authorize 

construction or operation of any device, including all preconstruction, construction, and 

operating permits required under State law, AMP shall make such application in a timely 

manner. The United States will use its best efforts to expeditiously fulfill its role in reviewing all 

34 
permit applications submitted by AMP in order to meet the requirements of this Consent Decree. 

111. When permits are required, AMP shall complete and submit applications for such permits 

to Ohio EPA to allow sufficient time for all legally required processing and review of the permit 

request, including requests for additional information by Ohio EPA. Any failure by AMP to 

submit a timely permit application for the Gorsuch Station shall bar any use by AMP of Section 

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

delays. 

112. Notwithstanding the reference to AMP’s Title V permit for the Gorsuch Station in this 

Consent Decree, the enforcement of that permit shall be in accordance with its own terms and the 

Act. AMP’s Title V permit for the Gorsuch Station 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 permit, subject to the terms of Section XXVII (Conditional Termination of 

Enforcement Under Consent Decree) of this Consent Decree. 

113. Within thirty (30) days after entry of this Consent Decree, AMP shall amend any 

applicable Title V permit application, or apply for amendments of its Title V permit, to include a 

schedule to (1) Retire the Gorsuch Station; and (2) achieve all specific performance, operational, 

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

but not limited to, the Plant-wide Tonnage limitations for NOx and SO2, and the requirements 

pertaining to the surrender of NOx and SO2 Allowances. 

114. Within sixty (60) days after entry of this Consent Decree, AMP shall either apply to 

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

35 
federally enforceable permit, which is not a Title V permit and which is issued independently of 

Ohio’s authority to issue a Title V permit, or request a site-specific amendment to the Ohio SIP 

to include the requirements and limitations enumerated in this Consent Decree. The federally 

enforceable permit, or the SIP as amended, shall include all new requirements applicable to that 

plant, including but not limited to, any applicable emission limit or Allowance surrender 

requirement. 

115. Upon issuance of the permit or SIP amendment required by Paragraph 114 by the 

appropriate permitting authority, or in conjunction with the issuance of such permit or SIP 

amendment, AMP shall file any applications necessary to incorporate the requirements of the 

permit or SIP amendment into the Title V operating permit for the Facility. 

116. AMP shall provide the United States with a copy of each application for a federally 

enforceable permit or Ohio SIP amendment, as well as a copy of any permit proposed as a result 

of such application, to allow for timely participation in any public comment opportunity. 

117. If AMP sells or transfers to an entity unrelated to AMP (“Third Party Purchaser”) part 

or all of its Ownership Interest covered under this Consent Decree, AMP shall comply with the 

requirements of Section XX (Sales or Transfers of Ownership Interests) of this Consent Decree 

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

such sale or transfer, AMP remains the holder of the permit for such facility. 

XVIII. INFORMATION COLLECTION AND RETENTION 

118. Any authorized representative of the United States, including its attorneys, enforcement 

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

36 
upon the premises of the Gorsuch Station 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 AMP or its 

representatives, contractors, or consultants; and 

d. assessing AMP’s compliance with this Consent Decree. 

119. AMP shall retain, and instruct its contractors and agents to preserve, all non-identical 

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 AMP’s 

performance of its obligations under this Consent Decree for the following periods: (a) until 

December 31, 2020 for records concerning retirement of the Gorsuch Station, 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. 

120. All information and documents submitted by AMP 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) AMP 

claims and substantiates in accordance with 40 C.F.R. Part 2 that the information and documents 

contain confidential business information. 

121. Nothing in this Consent Decree shall limit the authority of the EPA to conduct tests and 

inspections at AMP’s facilities under Section 114 of the Act, 42 U.S.C. § 7414, or any other 

applicable federal laws, regulations, or permits. 

37 
 

 

XIX. NOTICES 

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

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

addressed as follows: 

As to the United States of America: 

Chief, Environmental Enforcement Section 

Environment and Natural Resources Division 

U.S. Department of Justice 

P.O. Box 7611, Ben Franklin Station 

Washington, DC 20044-7611 

DJ# 90-5-2-1-09886 

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 

Director, Air and Radiation Division 

U.S. EPA Region 5 (A-18J) 

77 West Jackson Boulevard 

Chicago, IL 60604 

As to AMP: 

Randy Meyer, Director of Environmental Affairs 

American Municipal Power, Inc. 

1111 Schrock Road 

Columbus, Ohio 43229 

38 
 

John W. Bentine, General Counsel 

American Municipal Power, Inc. 

Chester, Willcox & Saxbe LLP 

65 E. State St., Suite 1000 

Columbus, Ohio 43215 

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

be sent either by: (a) overnight mail or overnight delivery service with signature required for 

delivery, or (b) certified or registered mail, return receipt requested. All notifications, 

communications, and transmissions (a) sent by overnight, certified, or registered mail shall be 

deemed submitted on the date they are postmarked, or (b) sent by overnight delivery service shall 

be deemed submitted on the date they are delivered to the delivery service. 

124. 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 

125. If AMP proposes to sell or transfer an Ownership Interest to another entity (a “Third 

Party Purchaser”), AMP 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 United States pursuant to Section XIX (Notices) of this Consent Decree at least sixty (60) 

days before such proposed sale or transfer. 

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

Purchaser and the United States have executed, and the Court has approved, a modification 

pursuant to Section XXIII (Modification) of this Consent Decree making the Third Party 

39 
Purchaser a party to this Consent Decree and jointly and severally liable with AMP for all the 

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

Ownership Interests. 

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

Interests between AMP and any Third Party Purchaser so long as the requirements of this 

Consent Decree are met. This Consent Decree shall not be construed to prohibit a contractual 

allocation – as between AMP and any Third Party Purchaser of Ownership Interests – of the 

burdens of compliance with this Consent Decree, provided that both AMP and such Third Party 

Purchaser shall remain jointly and severally liable to the United States for the obligations of this 

Consent Decree applicable to the transferred or purchased Ownership Interests. 

128. If the United States agrees, the United States, AMP, and the Third Party Purchaser that 

has become a party to this Consent Decree pursuant to Paragraph 126, may execute a 

modification that relieves AMP 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, AMP 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 Mitigation Projects) and X (Civil Penalty). AMP may propose and the United 

States may agree to restrict the scope of the joint and several liability of any purchaser or 

transferee for any obligations of this Consent Decree that are not specific to the transferred or 

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

enforceable manner. 

40 
XXI. EFFECTIVE DATE
 

129. The “Effective Date” of this Consent Decree shall be the date upon which this Consent 

Decree having been approved and signed by the Judge of the District Court, is entered in the civil 

docket by the Clerk pursuant to Fed. R. Civ. P. 79(a) (“Date of Entry”). 

XXII. RETENTION OF JURISDICTION 

130. 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, either Party to this Consent 

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

Decree. 

XXIII. MODIFICATION 

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

agreement signed by the United States and AMP. Where the modification constitutes a material 

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

XXIV. GENERAL PROVISIONS 

132. 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 

41 
emission limitations set forth herein do not relieve AMP from any obligation to comply with 

other state and federal requirements under the Clean Air Act. The limitations and requirements 

set forth herein do not relieve AMP from any obligation to comply with other state and federal 

requirements under any applicable laws. 

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

134. In any subsequent administrative or judicial action initiated by the United States for 

injunctive relief or civil penalties relating to the Gorsuch Station as covered by this Consent 

Decree, AMP 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 is intended to affect the validity of Section XI (Resolution of Past 

Civil Claims). 

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

shall relieve AMP of its obligation to comply with all applicable federal, state, and local laws 

and regulations. Subject to the provisions in Section XI (Resolution of Past Civil 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. 

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

separate, independent requirement. 

137. Emissions limits set by or under this Consent Decree must be met in tons per year. Any 

42 
portion of a ton in excess of the Plant-wide Tonnage emissions limitations pursuant to 

Paragraphs 37 and 49 will be considered one (1) ton under this Consent Decree. 

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

Consent Decree as against any third parties. 

139. 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 supersedes 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 Consent Decree or the settlement it represents, nor shall 

they be used in construing the terms of this Consent Decree. 

140. Each Party to this action shall bear its own costs and attorneys' fees. 

XXV. SIGNATORIES AND SERVICE 

141. 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. 

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

pages shall be given full force and effect. 

143. 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. 

43 
 

XXVI. PUBLIC COMMENT
 

144. Both 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 this Consent Decree is inappropriate, 

improper, or inadequate. AMP 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 AMP, in 

writing, that the United States no longer supports entry of this Consent Decree. 

XXVII. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER CONSENT 

DECREE 

145. Termination as to completed tasks. As soon as AMP completes the retirement of the 

Gorsuch Station or any other requirement of this Consent Decree that is not ongoing or recurring, 

AMP may, by motion to this Court, seek termination of the provision or provisions of this 

Consent Decree that imposed the requirement. 

146. Conditional termination of enforcement through this Consent Decree. Subject to the 

provisions of Paragraph 147, after AMP: 

a. has successfully completed all actions necessary to Retire the Gorsuch Station, 

b. has obtained all the final permits required by Section XVII (Permits) of this 

Consent Decree covering the Gorsuch Station that include as federally 

44 
 

___________________________________ 

enforceable permit terms, all of the emissions limitations and other requirements 

specified in this Consent Decree; 

then AMP may so certify these facts to the United States and this Court. If the United State does 

not object in writing with specific reasons within forty-five (45) days of receipt of AMP’s 

certification, then, for any violations of this Consent Decree that occur after the filing of notice, 

the United States shall pursue enforcement of the requirements contained in the Title V permit 

through the applicable Title V permit and/or other enforcement authorities and not through this 

Consent Decree. 

147. Resort to enforcement under this Consent Decree. Notwithstanding Paragraph 146, if 

enforcement of a provision in this Consent Decree cannot be pursued by the United States under 

the applicable Title V permit, or if a requirement of this Consent Decree was intended to be part 

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

be enforced under the terms of this Consent Decree at any time. 

XXVIII. FINAL JUDGMENT 

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

constitute a final judgment between the United States and AMP. 

SO ORDERED THIS _______ DAY OF _______________, 2010. 

United States District Judge 

45 




APPENDIX A: ENVIRONMENTAL MITIGATION PROJECT 

In compliance with and in addition to the requirements in Section IX of this Consent 

Decree (Environmental Mitigation Project), American Municipal Power, Inc. (AMP) shall 

comply with the requirements of this Appendix to ensure that the benefits of the $15 million in 

Environmental Mitigation are achieved. 

I. Energy Efficiency Mitigation 

A. Within forty-five (45) days from the Date of Entry, AMP shall submit to EPA for review 

and approval pursuant to Section XII of the Consent Decree (Review and Approval of 

Submittals), a proposed plan to spend a minimum of $15 million to provide energy 

efficiency services to all the member municipalities of the Gorsuch Station and the 

customers of such member municipalities (EE Project). Such energy efficiency services 

shall include, among other things, a program that provides financial incentives for the 

design and installation of energy efficiency building systems, and the removal and 

replacement of inefficient appliances. The energy efficiency services shall be designed to 

achieve a minimum reduction of 70,000 megawatt hours (MWhrs) in the Gorsuch 

community as well as other AMP members that may also voluntarily participate in the EE 

Project over a five (5) year period from date of approval of the EE Project plan. 

B. The EE Project dollars will act as seed funding for the entire EE Project, which is 

expected to cost significantly more, which will enroll additional, non-Gorsuch, AMP 

member utilities and may extend the energy efficiency services for a period longer than 

required by this Appendix. 

C. The Parties agree that AMP must spend at least $15 million in EE Project Dollars within 

the four (4)-year period commencing upon the date of approval of the EE Project plan, 

with a minimum of $10 million spent or obligated within the first three (3) years of the 

four (4)-year period. Upon approval by EPA, and adequate justification based on 

unexpected conditions, AMP may extend the four (4)-year payment period to five (5) 

years. AMP is not precluded from accelerating payments to better effectuate a proposed 

EE Project plan for the EE Project. 

D. The proposed EE Project plan shall include the following: 

(1) A plan for implementing the EE Project; 

(2) A summary-level budget for the EE Project; 

(3) A description of the roles of any third-parties involved in the EE Project; 

(4) A time-line for implementation of the EE Project; and 
(5) A description of the anticipated environmental benefits of the EE Project 

including an estimate of emission reductions (e.g., SO2, NOx, PM, CO2) expected 

to be realized. 

E. The EE Project plan shall also: 

(1) Provide energy efficiency services for the member municipalities of the Gorsuch 

Station and for other members who voluntarily participate in the EE Project for 

five (5) years from the date of approval of the EE Project plan (“Performance 

Period”). AMP, however, is not precluded from providing energy efficiency 

services for other member municipalities or for the member municipalities of the 

Gorsuch Station for longer than the Performance Period. AMP is also not 

precluded from achieving the Minimum Performance Amount, as described in 

Paragraph (5) below, in a shorter time period than the Performance Period; 

(2) Involve all sectors including retail, residential, and new and existing commercial 

and industrial buildings; 

(3) Describe the energy efficiency services offered. AMP shall focus on services that 

are long-term in nature (for example, designing and constructing energy efficient 

HVAC systems in new buildings). AMP shall also specifically provide a variety 

of options for energy efficiency services that are designed to benefit lower income 

customers of member municipalities of the Gorsuch Station; 

(4) Provide an estimate of the total electricity savings (measured as MWhrs saved) 

during the Performance Period. AMP shall also provide the calculations and 

assumptions associated with such estimate; 

(5) Include mechanisms to ensure achievement of at least 70% of the estimated 

MWhrs stated in Paragraph I(A) above (“Minimum Performance Amount”); 

a.	 Include a mechanism for calculating “Alternative 

Mitigation Project Dollars” if AMP fails to achieve the 70 

% Minimum Performance Amount described in Paragraph 

(5) above. The amount of such Alternative Mitigation 

Project Dollars shall be determined by subtracting the 

actual MWhrs savings achieved during the five-year 

Performance Period from the Minimum Performance 

Amount and multiplying the resulting value by the average 

cost per MWhr for the energy efficiency services during the 

five (5)-year Performance Period; 

b.	 AMP shall direct all Alternative Mitigation Project Dollars 

to an Alternative Mitigation Project as described in Section 

II of this Appendix. 
(6) Provide for independent third-party auditing and verification of efficiency gains 

and electricity savings (measured as MWhrs saved); and 

(7) To the extent possible, describe the estimated anticipated change to the electric 

grid and dispatch order of generation resources in the region, as a result of 

estimated electricity savings from the EE Project. 

F.	 Upon approval of the plan for the EE Project required by this Appendix by EPA, AMP 

shall complete the approved EE Project according to the approved plan. 

G. Commencing with the first progress report due pursuant to Section XII (Periodic 

Reporting) of the Consent Decree, and continuing annually thereafter until completion of 

the EE Project, AMP will include in the progress report information describing the 

progress of the EE Project and the EE Project Dollars expended on the EE Project. 

H. In accordance with the requirements of Section IX (Environmental Mitigation Project) 

and Section XIII (Review and Approval of Submittals), within sixty-six (66) months 

from the date of approval of the EE Project plan, AMP shall submit to EPA for approval, 

a report that documents: 

(1) The results of the first five (5) years of implementation of the EE Project, 

including the estimated emission reductions and associated environmental 

benefits achieved (including calculations and assumptions relevant to the 

estimates); and 

(2) The EE Project Dollars incurred by AMP in implementing the EE Project during 

the five (5) year Performance Period. 

II. Alternative Mitigation Project- Clean Diesel Retrofit Project 

A. Any and all Alternative Mitigation Project Dollars, as described in Section I(E)(5) of this 

Appendix, shall be directed to a clean diesel retrofit project (“Clean Diesel Project”). If 

AMP achieves the Minimum Performance Amount so that no Alternative Mitigation 

Project Dollars are generated, AMP is not required to meet any of the Alternative 

Mitigation Project obligations under this Section II. 

B. Within one hundred eighty (180) days of the end of the five (5)-year Performance Period 

(if required by Section II.A above), AMP shall submit to EPA for review and approval 

pursuant to Section XIII (Review and Approval of Submittals), a plan to retrofit inservice diesel engines with emission control equipment further described in this Section, 

designed to reduce emissions of particulates and/or ozone precursors and fund the 

operation and maintenance of the retrofit equipment for the time-period described below. 

Eligible vehicles, engines and equipment must be owned or operated by or on behalf of a 

public entity. Preference shall be given to school buses. This Clean Diesel Project shall 

include, where necessary, techniques, administration and infrastructure needed to support 

the Clean Diesel Project. AMP shall complete the retrofit projects required by this 
paragraph within two years of the date of EPA approval of the Clean Diesel Project plan. 

The parties may, by agreement, extend the deadline to complete these projects by up to 

one (1) year. 

C. The plan shall also satisfy the following criteria: 

1.	 Involve vehicles based in, and equipment located, in AMP’s members’ service 

territories; 

2.	 Provide for the retrofit of diesel engines with EPA- verified emissions control 

technologies to achieve the greatest measurable mass reductions of particulates and/or 

ozone precursors for the fleet that participate(s) in this Clean Diesel Project. The 

retrofit diesel engines must achieve emission reductions of particulates and/or ozone 

precursors by 30%-90%, as measured from the pre-retrofit emissions for the 

particular diesel engine, depending upon the particular EPA verified emissions 

control technology selected; 

3.	 Describe the process AMP will use to determine the most appropriate emissions 

control technology for each diesel engine that will achieve the greatest mass reduction 

of particulates and/or ozone precursors. In making this determination, AMP must take 

into account the particular operating criteria required for the EPA verified emissions 

control technology to achieve the verified emissions reductions; 

4.	 Provide for the retrofit of diesel engines with either: (a) diesel particulate filters, (b) 

diesel oxidation catalysts and closed crankcase ventilation systems, or (c) EPAverified idling reduction technologies; cleaner fuel use; EPA-verified aerodynamics 

technologies and low rolling resistance tires; and engine re-powering (i.e., replacing 

older engines with newer, cleaner engines); 

5.	 Describe the process AMP will use to notify fleet operators and owners that their fleet 

may be eligible to participate in the Clean Diesel Project and to solicit their interest in 

participating in the Clean Diesel Project. 

6.	 Describe the process and criteria AMP will use to select the particular fleet to 

participate in this Clean Diesel Project, consistent with the requirements of this 

Appendix; 

7.	 For each of the recipient fleet owners and operators, describe the amount of Clean 

Diesel Project dollars that will cover the costs associated with: (a) purchasing the 

verified emissions control technology; (b) installation of the verified emissions 

control technology (including data logging); and (c) training costs associated with 

repair and maintenance of the verified emissions control technology (including 

technology cleaning and proper disposal of waste generated from cleaning). This 

Clean Diesel Project shall not include costs for normal repair or operation of the 

retrofit diesel fleet; 
8.	 Describe the process AMP will use for determining which diesel engines in a 

particular fleet will be included in the Clean Diesel Project with the verified 

emissions control technology, consistent with the criteria specified in Section II.C.2 

above; 

9.	 Ensure that recipient fleet owners and/or operators, or their funders, do not otherwise 

have a legal obligation to reduce emissions through the retrofit of diesel engines; 

10. For any outside party with whom AMP might contract to carry out this Clean Diesel 

Project, establish minimum standards that include prior experience in a Clean Diesel 

Project and a record of prior ability to interest and organize fleets and community 

groups to join a clean diesel program; 

11. Ensure that the recipient fleets comply with local, state, and federal requirements for 

the disposal of the waste generated from the verified emissions control technology; 

and 

12. Include a schedule and budget for completing each portion of the Clean Diesel 

Project. 

D. In accordance with the requirements of Section XIII (Review and Approval of 

Submittals), within sixty (60) days of completion of the Clean Diesel Project, AMP shall 

submit a report to EPA that describes: 

i. the fleet owner/operator; where it implemented this Clean Diesel Project; 

ii.	 the particular types of verified emissions control technology (and the 

number of each type) that it installed pursuant to this Clean Diesel Project; 

iii.	 the type, year, and horsepower of each retrofit; an estimate of the number 

of citizens affected (if applicable) by this Clean Diesel Project, and the 

basis for this estimate; and 

iv.	 an estimate of the emission reductions for each Project or engine, as 

appropriate (using the manufacturer’s estimated reductions for the 

particular verified emissions control technology), including particulates, 

hydrocarbons, carbon monoxide, and nitrogen oxides. 

E. Upon EPA’s approval of the plan, AMP shall complete the Clean Diesel Project 

according to the approved plan and schedule.