Case 1:07-cv-00040-RFC Document 14 Filed 05/14/2007 Page 1 of 1 

IN THE UNITED STATES DISTRlCT COURT FILED 

FOR THE DISTRICT OF MONTANA ~~, iLl.! ~~ GS Dl\{. 

BILLINGS DIVISION [QG7 nfW III Prl J.? 50 

PATHfCK E. DUFFY, GLtf{;'\ 

By _ 

) DEPUTY CLERK 

UNITED STATES OF AMERICA, ) 

) 

Plaintiff, ) 

) Civil No.1 :07-CV-00040-RFC 

and ) 

) ORDER ENTERING CONSENT 

THE NORTHERN CHEYENNE TRIBE, ) DECREE 

) 

Plaintiff- Intervenor, ) 

) 

v. ) 

) 

PPL MONTANA, LLC, NORTHWESTERN ) 

CORPORATION D/B/A NORTHWESTERN' ) 

ENERGY, PUGET SOUND ENERGY, mc., ) 

PORTLAND GENERAL ELECTRIC COMPANY, ) 

AVIS TA CORPORAnON, AND PACIFICORP, ) 

) 

) 

Defendants. ) 

Upon consideration of the United States' Unopposed Motion To Enter Consent Decree, 

It is HEREBY ORDERED that the motion is GRANTED, and that the Consent Decree, 

which was lodged with this Court on March 19,2007 [Docket No.2] is approved and be deemed 

entered this day. , 

Entered this / f day of May, 2007. 

U.S. DISTRICT COURT JUDGE
 

Case 1:07-cv-00040-RFC teeG'6.005/14/2007 Page 1 of 51 

Jerel ("Jerry") L. Ellington 

Senior Counsel 

Environmental Enforcement Section 

U.S. Department of Justice 

Environment & Natural Resources Division 

1961 Stout Street - 8th Floor BY ---­

Denver, CO 80294 DEPUTY Cl.ERK 

Telephone: 303-844-1363 

ATTORNEY FOR PLAINTIFF THE UNITED STATES 

TN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MONTANA 

BILLINGS DIVISION 

"'M\ 92001 

FI LED 

O!LLlt~GS D1'/. 

) 

United States of America ) 

) 

Plaintiff. )
 

)
 

and )
 

)
 

The Northern Cheyenne Tribe, )
 

)
 

Plaintiff - Intervenors, . )
 

) 

v. ) Civil No. CV-07-40-BLG-RFC-CSO 

) 

PPL Montana, LLC, NorthWestern Corporation, ) 

d/b/a NorthWestern Energy, Puget Sound Energy, ) 

Inc., Portland General Electric Company, ) 

Avista Corporation, and PacifiCorp, ) 

) 

Defendants. ) 

) 

CONSENT DECREE 
Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 2 of 51 

TABLE OF CONTENTS 

1. JURISDICTION AND VENUE	 4
 

II. APPLICABILITy	 4
 

III. DEFINITIONS	 5
 

IV. NOx EMISSION REDUCTIONS AND CONTROLS	 8
 

A. Colstrip Unit 3	 8
 

B. Colstrip Unit 4	 9
 

C. General.	 10
 

V.	 PROHIBITION ON NETTING CREDITS OR OFFSETS FROM REQUIRED
 

CONTROLS 11
 

VI.	 RELATIONSHIP TO PSD PERlVIIT.. 12
 

VII.	 CIVIL PENALTy 12
 

VIII.	 EKERGY EFFICIENCY PROJECT : 13
 

IX.	 RESOLUTION OF PLAIJ\TIFFS' CIVIL CLAIMS 13
 

X.	 PERIODIC REPORTING 14
 

XI.	 STIPULATED PENALTIES 15
 

XII.	 FORCE MAJEURE 19
 

XIII.	 DISPUTE RESOLUTION 23
 

XIV.	 PERMITS 25
 

XV.	 INFORMATION COLLECTION AND RETE~TION 26
 

XVI.	 NOTICES 28
 

XVII.	 SALES OR TRANSFERS 29
 

XVIII.	 EFFECTIVE DATE 32
 

XIX.	 RETENTION OF JURISDICTION 32
 
Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 3 of 51 

XX. MODIFICATION , , 32
 

XXI. GENERAL PROVISIONS 32
 

XXII. SIGNATORlES AND SERVICE 34
 

XXIII. PUBLIC COMMENT 35
 

XXIV. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER DECREE 35
 

XXV. FINAL JUDGMENT 36
 

APPENDIX A , A-I
 

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Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 4 of 51 

WHEREAS, the United States of America ("the United States"), on behalf of the United 

States Environmental Protection Agency ("EPA") is filing a Complaint, at the same time as this 

Consent Decree, against the operator and owners of Units 3 and 4 at the Colstrip Power Plant, 

PPL Montana, LLC ("PPL Montana"), NorthWestern Corporation, d/b/a NorthWestern Energy, 

Puget Sound Energy, Inc., Portland General Electric Company, Avista Corporation, and 

PacifiCorp (collectively "the Defendants") pursuant to Section 113(b) of the Clean Air Act ("the 

Act"), 42 U.S.c. § 7413(b), for injunctive relief and penalties for alleged violations at the 

Colstrip Power Plant, Units 3 and 4, of Condition 7 ofthe Conditional Pennit to Commence 

Construction and Operate the Y10ntana Power Company Colstrip Units #3 and #4, dated 

September 11,1979, issued by EPA pursuant to 40 C.F.R. 52.21(i) and Part C of the Act, 42 

U.S.c.	 §§ 7470-92 ("the PSD pentlit"); 

WHEREAS, Plaintiff-Intervenor, the Northern Cheyenne Tribe, is filing a Complaint in 

Intervention and is moving to intervene in this action; 

WHEREAS, Condition 7 ofthe PSD permit requires that at such time as EPA 

promulgates requirements for best available retrofit technology ("BART") for nitrogen oxides 

("NOx") control under the Act, Montana Power Company shall review Colstrip Units 3 and 4 for 

implementation of BART for NOx control and submit its analysis to EPA for review and 

approval and further provides that failure to implement those control measures found to 

constitute BART shall be a violation ofthe PSD pennit; 

WHEREAS, Condition 7 of the PSD pennit was adopted as a result of proceedings 

initiated by the Northern Cheyenne Tribe and conducted pursuant to section 164(e) of the Act, 42 

U.S.c. § 7474(e); 
Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 5 of 51 

WHEREAS, in 1999 PPL Montana assumed Montana Power Company's obligations with 

respect to the Colstrip Power Plant, including the obligations of the PSD pennit, and is currently 

the operator of Colstrip Units 3 and 4 and is a part owner of Colstrip Unit 3; 

WHEREAS, EPA promulgated regulations for protection of visibility in 1980,45 Fed. 

Reg. 80,089 (Dec. 2, 1980), that required states to develop and submit state implementation plans 

("SIPs") containing, among other things, emission limitations representing BART for certain 

existing facilities to which visibility impairment was "reasonably attributable." The 1980 

regulations also included Guidelines for determining BART for fossil fuel-fired power plants 

with a capacity greater than 750 megawatts CMW"). These BART Guidelines provided that a 

detailed BART demonstration was unnecessary if the state set a BART limit at the level of the 

New Source Performance Standards in 40 CFR Part 60, but did not require that states set BART 

at that level. 

WHEREAS, neither Montana Pov,fer Company nor any ofthe Defendants submitted a 

written analysis and recommendation for BART controls for KOx to EPA, and, consequently, 

EPA never reviewed or approved BART tor NO" for Colstrip Units 3 and 4 under Condition 7 of 

the PSD permit; 

WHEREAS, EPA issued a compliance order to PPL Montana on December 16, 2003, 

pursuant to section 113(a)(3)(B) of the Act, 42 U.S.c. § 7413(a)(3)(B), which ordered PPL 

Montana to comply with all requirements of Condition 7 of the PSD permit for Colstrip Units 3 

and 4; 

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WHEREAS, in response to EPA's compliance order, PPL Montana asserted on behalf of 

all Defendants, and continues to assert, that the requirement to submit a NOx BART analysis and 

recommendation under Condition 7 of the PSD permit was never triggered; 

WHEREAS, EPA asserts that its promulgation ofthe 1980 visibility regulations triggered 

the requirements of Condition 7 ofthe PSD permit; 

WHEREAS, EPA agreed to defer the effectiveness of the December 16, 2003 compliance 

order pending settlement negotiations; 

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

the Complaints, maintain that they have been and remain in compliance with the Act and are not 

liable for civil penalties or injunctive relief, and are agreeing to the obligations imposed by this 

Consent Decree to avoid further costs and uncertainty; 

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

equipment pursuant to this Consent Decree will achieve significant reductions of NOx emissions 

and thereby improve air quality; 

WHEREAS, the Plaintiffs and the Defendants have agreed, and the Court by entering this 

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

length; that this settlement is fair, reasonable, in the best interest of the Parties and in the public 

interest, and consistent with the goals of the Act; and that entry of this Consent Decree without 

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

NOW, THEREFORE, without any admission by the Defendants, and without 

adjudication of the violations alleged in the Complaints, it is hereby ORDERED, ADJUDGED. 

A:\D DECREED as follows: 

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Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 7 of 51 

I. JURISDICTIO~ 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, 1362 and 1367, and 

Sections 113 and 304(a) of the Act, 42 U.S.c. §§ 7413 and 7604(a). Venue is proper under 

Sections 113(b) and 304(c) of the Act, 42 U.S.c. §§ 7413(b) and 7604(b), and under 28 U.S.c. 

§ 1391 (b) and (c). Solely for the purposes of this Consent Decree and the underlying 

Complaints, and for no other purpose, Defendants waive all objections and defenses they may 

have to the Court's jurisdiction over this action, to the Court's jurisdiction over the Defendants, 

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

this Court's jurisdiction to enter and enforce this Consent Decree. Solely for purposes of the 

Complaints filed by the Plaintiffs in this matter and resolved by the Consent Decree, for purposes 

of entry and enforcement of this Consent Decree, and for no other purpose, Defendants waive 

any defense or objection based on standing, and further waive any objection to the motion to 

intervene filed by the Northern Cheyenne Tribe. Except as expressly provided for herein, this 

Consent Decree shall not create any rights in or obligations of any Party other than the Plaintiffs 

and the Defendants. Except as provided in Section XXIII (Public Comment) of this Consent 

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

II. APPLICABILITY 

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

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

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

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Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 8 of 51 

3. Defendants shall be responsible for providing a copy of this Consent Decree to all 

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

retained to perfonn any of the material work required by this Consent Decree. Notwithstanding 

any retention of contractors, subcontractors, or agents to perfonn any work required under this 

Consent Decree, Defendants shall be responsible for ensuring that aH work is perfonned in 

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

Decree, Defendants shaH not assert as a defense the failure of their officers, directors, employees. 

servants, agents, or contractors to take actions necessary to comply with this Consent Decree, 

unless Defendants establish that such failure resulted from a Force Majeure Event, as defined in 

Paragraph 55 of this Consent Decree. 

Ill. DEFINITIONS 

4. A "24-hour Average Emission Rate" shall be detennined by calculating a 

weighted arithmetic average of all hourly emission rates (in Ibs/MMBtu or in lbs/hr. depending 

on the fonn ofthe relevant emission limit), for each Operating Day. The reference methods for 

determining NO" emission rates shaH be those specified in 40 C.F .R. Part 60. The 24-hour 

Average Emission Rate specified in Paragraphs 25.aJ and 26.aJ equals «Hl)(RI) + 

(H2)(R2))/24, where HI:::: number of hours when load is less than or equal to 400 gross MW, 

H2=nurnber of hours when load is greater than 400 gross MW, Rl=OJO IbslMMBtu, and 

R2=0.25 IbslMMBtu. 

5. A "30-day Rolling Average Emission Rate" shall be detennined by calculating a 

weighted arithmetic average of all hourly emission rates (in Ibs/MMBtu or in lbslhr, depending 

on the fonn of the relevant emission limit) for the current Operating Day and the previous 29 

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Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 9 of 51 

Operating Days. A new 30-day Rolling Average Emission Rate shall be calculated tor each new 

Operating Day. The reference methods for detennining NOx emission rates shall be those 

specified in 40 C.F.R. Part 60. The methodology tor calculating the weighted average in 

Paragraphs 25.a.l and 26.a.l is similar to that in the definition above, for the "24-hour Average 

Emission Rate," except that 720 hours are averaged, with Rl=OJO IbsIMMBtu and R2=O.l8 

Ibs/MMBtu. 

6. "CEMS" or "Continuous Emission Monitoring System" means the devices 

defined in 40 C.F.R. § 72.2 and installed and maintained as required by 40 C.F.R. Part 75. 

7. "Clean Air Act" or "Act" means the federal Clean Air Act, 42 U.S.C. §§740 1­

7671q, and its implementing regulations. 

8. "Colstrip Units 3 and 4" means, for purposes ofthis Consent Decree only, the 

Defendants' electric generating Units 3 and 4 near Colstrip, Montana. Unit 3 has a nominal net 

rating of 805 MW, and Unit 4 has a nominal net rating of 805 YfW. 

9. "Consent Decree" or "Decree" means this Consent Decree. 

1O. "Defendants" generally means PPL Montana, LLC, a Delaware limited liability 

corporation, NorthWestern Energy, Puget Sound Energy, Inc., Portland General Electric 

Company, Avista Corporation, and PacifiCorp. With regard to provisions ofthis Consent Decree 

which apply only to Unit 3 ofthe Colstrip Power Plant, "Defendants" means PPL Montana, LLC, 

Puget Sound Energy, Inc., Portland General Electric, Avista Corporation, and PacitiCorp. With 

regard to provisions ofthis Consent Decree which apply only to Unit 4 of the Colstrip Power 

Plant, "Defendants" means PPL Montana, LLC, NorthWestern Energy, Puget Sound Energy, 

Inc., Portland General Electric Company, Avista Corporation, and PacifiCorp. 

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Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 10 of 51 

11. "EPA" means the United States Environmental Protection Agency. 

]2. "lbs/MMBtu" means pounds per million British thermal units. 

13. "National Ambient Air Quality Standards" or "NAAQS" means national ambient 

air quality standards that EPA promulgates pursuant to Section 109 ofthe Act, 42 U.S.C. § 7409. 

14. "Nonattainment NSR" means the nonattainment area New Source Review 

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

40 C.F.R. Part 51. 

15. "NOx" means oxides of nitrogen. 

16. "Operating Day" means any calendar day (midnight to midnight) during Mich a 

Unit fires coal for any part of that period. 

17. "Ownership Interest" means part or all of any Defendant's legal or equitable 

ownership interest in Unit 3 or 4 at the Colstrip Power Plant. 

18. "Parties" means the United States, the Northern Cheyenne Tribe, and the 

Defendants. 

19. "Plaintiffs" means the United States and the Northern Cheyenne Tribe. 

20. "PSD" means Prevention of Significant Deterioration within the meaning of Part 

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

21. "PSD permit" means the Conditional Permit to Commence Construction and 

Operate the Montana Power Company Colstrip Units #3 and #4, dated September 11, 1979, 

issued by EPA pursuant to 40 C.F.R. 52.21 and Part C of the Act, 42 V.S.c. §§ 7470-92. 

22. "Title V Permit" means the permit required for the Colstrip Power Plant under 

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

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Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 11 of 51 

23.	 "Tribe" means the Northern Cheyenne Tribe. 

24. "Unit" means collectively, the coal pulverizer, stationary equipment that feeds 

coal to the boiler, the boiler that produces steam for the steam turbine, the steam turbine, the 

generator, the equipment necessary to operate the generator, steam turbine and boiler, and all 

associated pollution control equipment. 

IV. EMISSION REDUCTIONS AND CONTROLS 

A.	 Colstrip Unit 3 

25.	 Defendants shall comply with the following requirements: 

a.	 Beginning January 1,2008, Defendants shall not exceed any ofthe 

following NO, emissions limits at Colstrip Unit 3: 

1.	 As a 30-day Rolling Average Emission Rate: a weighted average 

0[0.18Ib/MMBtu for each hour in which the Unit is operating 

above 400 gross MW and 0.30 Ib/MMBtu for each hour in which 

the Unit is operating at or below 400 gross MW. 

2.	 As a 30-day Rolling Average Emission Rate: 1,3631bslhr. 

3.	 As a 24-hour Average Emission Rate: a weighted average of 0.25 

lb/MMBtu for each hour in which the Unit is operating above 400 

gross MW and 0.30 lblMMBtu for each hour in which the Unit is 

operating at or below 400 gross MW. 

4.	 As a 24-hour Average Emission Rate: 1,893Ibslhr. 

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Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 12 of 51 

b.	 The emission limits specified in paragraphs 25.a.1 through 4 above shall 

apply at all times, including periods of start-up, shutdmvn, load 

fluctuation, maintenance and malfunction, regardless of cause. 

c.	 By January 1,2007, Defendants shall complete the final design for the 

digital controls, 10w-NOx burners and overfire air system for Unit 3 and 

shall submit a copy ofthe tinal design to the Plaintiff.,. 

d.	 By July 1,2007, Defendants shall install digital controls, low-NOx burners 

and overtire air at Unit 3 sufficient to meet the emissions limits in 

paragraph 25.a, and shall begin operating such systems. 

B.	 Colstrip Unit 4 

26.	 Defendants shall comply with the following requirements: 

a.	 Beginning January 1, 20 I0, Defendants shall not exceed the following 

NOx emissions limits at Colstrip Unit 4: 

I.	 As a 30-day Rolling Average Emission Rate: a weighted average 

of 0.18 Ib/MMBtu for each hour in which the Unit is operating 

above 400 gross MW and 0.30 Ib/MMBtu for each hour in which 

the Unit is operating at or below 400 gross MW. 

2.	 As a 30·day Rolling Average Emission Rate: 1,363 Ibs/hr. 

3.	 As a 24-hour Calendar Day Average Emission Rate: a weighted 

average of 0.25 Ib/MMBtu for each hour in which the Unit is 

operating above 400 gross MW and 0,30 Ib/MMBtu for each hour 

in which the Unit is operating at or below 400 gross MW. 

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Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 13 of 51 

4. As a 24-hour Average Emission Rate: 1,893 Ibslhr. 

b.	 The emission limits specitied in paragraphs 26.a.1 through 4 above shall 

apply at all times, including periods of start-up, shutdown, load 

fluctuation, maintenance and malfunction, regardless of cause. 

c.	 By January 1, 2009, Defendants shall complete the final design for the 

digital controls, 10w-NOx burners and overfire air system for Unit 4 and 

shall submit a copy of the final design to the Plaintiffs. 

d.	 By July 1,2009, Defendants shall install digital controls, 10w-NOx burners 

and overtire air at Unit 4 sufficient to meet the emissions limits in 

paragraph 26.a and shall begin operating such systems. 

C.	 General, 

27. On and after January 1,2008, and January 1,2010, respectively, until this Decree 

terminates pursuant to Paragraph 105, Defendants shall, to the extent practicable, operate and 

maintain the digital controls, low NOx burners ("LNB") and overtire air on Units 3 and 4 so as to 

minimize emissions at all times the Units are in operation, consistent with the technological 

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

the digital controls, LNB and overfire air technology. Notwithstanding any other provision of 

this Consent Decree, no stipulated penalties shall accrue for violation of this provision. 

28. In determining compliance with emission limits for NOx, Defendants shall use 

CEMS in accordance with the operating requirements specified in 40 C.F.R. Part 75. 

29. Performance standards, emission limits, and other quantitative standards set by or 

under this Consent Decree shall be met to the number of significant digits in which the standard 

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Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 14 of 51 

or limit is expressed. For example, an emission limit of 0.1 00 is not met if the actual emission 

rate is 0.101. Defendants shall round the fourth significant digit to the nearest third significant 

digit, or the third significant digit to the nearest second significant digit, depending upon whether 

the limit is expressed to three or two significant digits. For example, if an actual emission rate is 

0.1004, that shall be reported as 0.100, and shall be in compliance with an emission limit of 

0.100, and if an actual emission rate is 0.1005, that shall be reported as 0.10 1, and shall not be in , 

compliance with an emission limit of 0.1 00. Defendants shall report data to at least the number 

of significant digits in which the standard or limit is expressed. 

30. For purposes of this Consent Decree, if a Unit is operating above 400 MW for 

part of one hour and at or below 400 MW for the remainder of that hour, the applicable 

emissions limits shall be based on the average load for the hour. 

31. Defendants shall maintain their data acquisition system such that load data in MW 

is recorded no less often than once per minute. Such records shall be maintained for at least five 

years from the date of recording. 

V.	 PROHIBITION ON NETTING CREDITS OR 

OFFSETS FROM REQUIRED CONTROLS 

32. Emission reductions that result from actions to be taken by Defendants after entry 

of this Consent Decree to comply with the requirements of this Consent Decree shall not be 

considered as a creditable conlemporaneous emission decrease for the purpose of obtaining a 

netting credit or offset under the Clean Air Act's Nonattainment NSR, PSD and any other 

emission trading program currently existing or which may be adopted in the future. 

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

Paragraph 32 do not apply to emission reductions achieved by Defendants that are greater than 

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those required under Paragraphs 25 and 26 of this Consent Decree. For purposes of this 

Paragraph, emission reductions are greater than those required under Paragraphs 25 and 26 only 

if they result from Defendants' compliance with federally-enforceable emission limits that are 

more stringent than those limits imposed under Paragraphs 25 and 26 and under all other 

applicable provisions of the Clean Air Act and the Montana State Implementation Plan. 

VI. RELATIONSHIP TO PSD PERMIT 

34. The Parties' establishment of the requirements in Section IV (NOx Emission 

Reductions and Controls) of this Decree, and Defendants' ongoing compliance with those 

requirements, shall be deemed permanently to satisfy the requirements ofCondition 7 of the PSD 

permit. Defendants' failure to comply with the requirements of Section IV ofthis Decree shall 

be a violation of the PSD permit, and such requirements shall be considered applicable 

requirements arising from the PSD permit under Title V of the Clean Air Act. 

VII. CIVIL PENALTY 

35. Within thirty (30) calendar days after entry of this Consent Decree, Defendants 

shall pay to the United States a civil penalty of $50,000. The civil penalty shall be paid by 

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

with current EFT procedures, referencing USAO File Number 2007V00057 and DOJ Case 

Number 90-5-2-1-08494 and the civil action case name and case number of this action. The 

costs of such EFT shall be Defendants' responsibility. Payment shall be made in accordance 

with instructions provided to Defendants by the U. S. Attorney's Office for the District of 

Montana. Any funds received after 2:00 p.m. EDT shall be credited on the next business day. At 

the time of payment, Defendants shall provide notice of payment, referencing the USAO File 

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Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 16 of 51 

1\umber, 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 XVI (Notices) of this Consent 

Decree. 

36. Failure to pay the civil penalty in a timely manner shall subject Defendants to 

interest accruing from the date payment is due until the date payment is made at the rate 

prescribed by 28 U.S.c. § 1961 and shall render Defendants liable for all charges, costs, fees, and 

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

payment. 

37. 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. 

VIII. ENERGY EFFICIENCY PROJECT 

38. In partial settlement solely of the complaint filed by the Tribe in this matter, 

Defendants shall fund a residential energy efficiency project for the benefit of the Tribe, as set 

forth in the agreement attached as Appendix A to this Decree. Notwithstanding any other 

provisions of this Decree, failure to complete the energy efficiency project shall not be subject to 

any stipulated penalties under this Decree. 

IX. RESOLUTION OF PLAINTIFFS' CIVIL CLAIMS 

39. Entry of this Decree shall resolve all of the civil claims alleged in the Complaints 

against Defendants through the date of lodging of this Decree. 

40. Reopeners. In addition to their rights to pursue enforcement of the terms of this 

Decree, the Plaintiffs reserve, and this Consent Decree is without prejudice to, any claim they 

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Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 17 of 51 

may have if Defendants operate Colstrip Unit 3 or Unit 4 more than ninety days past July 1, 

2007, or July 1,2009, respectively, without completing the required installation or upgrade and 

beginning operation of any emission control device required pursuant to Paragraphs 25 and 26. 

X. PERIODIC REPORTING 

41. Beginning thirty (30) days after the end ofthe second full calendar quarter 

following the entry of this Consent Decree, and continuing on a semi-armual basis until 

December 31, 2012, and in addition to any other express reporting requirement in this Consent 

Decree, Defendants or Defendant PPL Montana as operator and on behalf of all Defendants. shall 

submit to EPA and the Tribe a progress report. 

42.	 The progress rep011 shall contain the following infonnation: 

a.	 all infonnation necessary to detennine compliance with the requirements 

of this Consent Decree; and 

b.	 all infonnation indicating that the installation and beginning of operation 

of digital controls, LNB or ovcrfire air may be delayed, including the 

nature and cause ofthe delay, and any steps taken by Defendants to 

mitigate such delay. 

43. In any periodic progress report submitted pursuant to this Section, Defendants (or 

PPL Montana on behalf of the Defendants, as the case may be), may incorporate by reference 

infonnation previously submitted under their Title V pennitting requirements, provided that 

Defendants (or PPL Montana) attach(es) the Title V pennit report, or the relevant portion thereof, 

and provide a specific reference to the provisions of the Title V pennit report that are responsive 

Lo Lhc infonnation required in the periodic progress report. 

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Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 18 of 51 

44. In addition to the progress reports required pursuant to this Section, Defendants 

(or PPL Montana, as operator on behalf of the Defendants) shall provide a written report to EPA 

and the Tribe of any violation of the requirements of this Consent Decree within fifteen (15) 

calendar days of when Defendants knew or, in the exercise of reasonable diligence, should have 

known, of any such violation. In this report, Defendants (or PPL Montana) shall explain the 

cause or causes of the violation and all measures taken or to be taken by Defendants to prevent 

such violations in the future. 

45. Each Defendant's report shall be signed by (i) each Defendant's Vice President of 

Environmental Services or his or her equivalent or designee of at least the rank of Vice President. 

or (ii) on behalf of all Defendants not signing on their own behalf, by the Vice President and 

Chief Operating Officer of PPL Montana (or his or her equivalent or designee of at least the rank. 

ofVice President), or (iii) on behalfof all Defendants by the designated representative as defined 

in 40 C.F.R. § 72.2, and shall contain the following certification: 

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

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

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

direction and my inquiry ofthe 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 infonnation to the United States. 

XI. STIPULATED PENALTIES 

46. For any failure by Defendants to comply with the temlS of this Consent Decree. 

and subject to the provisions of Sections XII (Force Majeure) and XIII (Dispute Resolution). 

Defendants shall pay, within thirty (30) days after receipt of written demand to Defendants by the 

United States, the following stipulated penalties to the United States: 

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Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 19 of 51 

Consent Decree Violation Stipulated Penalty 

a. Failure to comply with the applicable 30-day Rolling $2,500 per day 

Average Emission Rate limit for NO., or the 24-hour 

Average Emission Rate limit for NO., where the violation is 

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

Decree 

b. Failure to comply with the applicable 30-day Rolling $5,000 per day 

Average Emission Rate limit for NO., or the 24-hour 

Average Emission Rate limit for NO., where the violation is 

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

the limits set forth in this Consent Decree 

c. Failure to comply with the applicable 30-day Rolling $10,000 per day 

Average Emission Rate limit for NOx, or the 24-hour 

Average Emission Rate limit for NO., where the violation is 

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

in this Consent Decree 

d. Operation of a Unit required under this Consent Decree $10,000 per day per violation I 

to be equipped with any NOx control device without the during the first 30 days; 

operation of such device, as required under this Consent $32,500 per day per violation 

I Decree thereafter 

e. Failure to operate CEMS as required in this Consent $1,000 per day per violation 

Decree 

f. Failure to submit in a timely manner the reports, plans, $750 per day per violation 

designs, or other submittals required by this Consent Decree during the first ten days; $1,000 

per day per violation thereafter 

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

47. Violation of an emission limit that is based on a 30-day Rolling Average Emission 

Rate is a violation on every day on which the average is based. Where a violation of a 3D-day 

Rolling Average Emission Rate limit (from the same unit) recurs within periods of less than 

thirty (30) days, Defendants shall not pay a daily stipulated penalty for any day ofthe recurrence 

for which a stipulated penalty has already been paid. For any period during which both the Ibslhr 

limit is exceeded and the Ibs/MMBtu limit is exceeded, a stipulated penalty is owed only for 

violation of one of those limits. 

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48. 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 accme until 

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

Other than the exceptions described in Paragraph 47 above, nothirig in this Consent Decree shall 

prevent the simultaneous accrual of separate stipulated penalties for separate violations ofthis 

Consent Decree. 

49. Defendants shall pay all stipulated penalties to the United States within thirty (30) 

days of receipt of written demand to Defendants from the United States and shall continue to 

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

unless Defendants elect within 20 days of receipt of written demand to Defendants from the 

United States to dispute the accrual of stipulated penalties in accordance with the provisions in 

Section XIII (Dispute Resolution) of this Consent Decree. 

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

Paragraph 46 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 ofthe United 

States pursuant to Section XIlI (Dispute Resolution) of this Consent 

Decree that is not appealed to the Court, accrued stipulated penalties 

agreed or determined to be owing, together with accrued interest, shall be 

paid within thirty (30) days of the effective date of the agreement or of the 

receipt of Plaintiffs' decision; 

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

whole or in part, Defendants shall, within sixty (60) days of receipt of the 

Court's decision or order, pay all accrued stipulated penalties determined 

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

determined by the Court to be owing, except as provided in Subparagraph 

c. below; 

c.	 If the Court's decision is appealed by the United States or any Defendant, 

Defendants shall, within fifteen (15) days of receipt of the issuance of the 

mandate from the appellate court, pay all accrued stipulated penalties 

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

penalties detennined to be owing by the appellate court. 

51. All stipulated penalties shall be paid in the following manner: 

The penalty shall be paid by Electronic Funds Transfer ("EFr) to the United States Department 

of Justice, in accordance with current EFT procedures, referencing USAO File Number 

2007V00057 and DOJ Case Number 90-5-2-1-08494 and the civil action case name and case 

number of this action. The costs of such EFT shall be Defendants' responsibility. Payment shall 

be made in accordance with instructions provided to Defendants by the U.S. Attorney's Office 

for the District of Montana. Any funds received after 2:00 p.m. Eastern Time shall be credited 

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

referencing the USAO File Number 2007V00057, the DOJ Case Number 90-5-2-1-08494, and 

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

accordance with Section XVI (Notices) of this Consent Decree. 

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52. Should Defendants fail to pay stipulated penalties in compliance with the terms of 

this Consent Decree, the United States shall be entitled to collect interest on such penalties, as 

provided for in 28 U.S.C. § 1961, and Defendants shall be 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. 

53, 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. 

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

any other rights, remedies, or sanctions available to the Plaintiffs by reason of Defendants' 

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

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

penalty, Defendants shall be allowed a dollar-for-dollar credit for stipulated penalties paid 

against any federal statutory civil penalties also imposed for such violation. Notwithstanding any 

other provision of this Consent Decree, the United States may,. in its unreviewable discretion, 

waive all or any part of any stipulated penalties which have accrued pursuant to this Consent 

Decree. 

XII. FORCE MAJEURE 

55. For purposes ofthis Consent Decree, a "Force Majeure Event" shall mean an 

event that has been or will be caused by circumstances beyond the control of Defendants, its 

contractors, or any entity controlled by Defendants that delays compliance with any provision of 

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

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despite Defendants' best efforts to fulfill the obligation. "Best efforts to fulfill the obligation" 

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

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

violation is minimized to the greatest extent possible. 

56. Notice of Force Majeure Events. If any event occurs or has occurred that may 

delay compliance with or otherwise cause a violation of any obligation under this Consent 

Decree, as to which Defendants intend to assert a claim afForce Majeure, Defendants shall 

notifY the Plaintiffs in writing as soon as practicable, but in no event later than twenty (20) 

business days following the date Defendants first knew, or by the exercise of due diligence 

should have known, that the event caused or may cause such delay or violation. In this notice, 

Defendants shall reference this Paragraph of this Consent Decree and describe the anticipated 

length of time that the delay or violation may persist, the cause or causes of the delay or 

violation, all measures taken or to be taken by Defendants to prevent or minimize the delay or 

violation, the schedule by which Defendants propose to implement those measures, and 

Defendants' rationale for attributing a delay or violation to a Force Majeure Event. Defendants 

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

shall be deemed to know of any circumstance which Defendants, their contractors, or any entity 

controlled by Defendants knew or should have known. 

57. Failure to Give Notice. If Defendants fail to comply with the notice requirements 

of this Section, the United States (after consultation with the Tribe), may void Defendants' claim 

for Force Majeure as to the specific event for which Defendants have failed to comply with such 

notice requirement. 

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58. Plaintiffs' Response. The United States shall notifY Defendants in writing 

regarding Defendants' claim of Force Majeure within twenty (20) business days of receipt of the 

notice provided under Paragraph 55. If the United States (after consultation 'With the Tribe), 

agrees that a delay in perfonnance has been or 'Will be caused by a Force Majeure Event, the 

United States and Defendants 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 XX 

(Modification) of this Consent Decree. 

59. Disagreement. If the United States (after consultation with the Tribe), does not 

accept Defendants' claim afForce Majeure, if the United States and Defendants cannot agree on 

the length of the delay actually caused by the Force Majeure Event, or if the Tribe does not agree 

with the United States's detennination regarding Defendants' claim afForce Majeure, the matter 

shall be resolved in accordance with Section XIII (Dispute Resolution) of this Consent Decree. 

60. Burden of Proof. In a dispute regarding Force Majeure, Defendants shall bear the 

burden of proving that any delay in performance or any other violation of any requirement of this 

Consent Decree was caused by or will be caused by a Force Majeure Event. Defendants shall 

also bear the burden of proving that Defendants gave the notice required by this Section and the 

burden of proving the anticipated duration and extent of any delay(s) attributable to a Force 

Majeure Event. In a dispute between the Plaintiffs regarding the applicability of Force Majeure, 

the Tribe will have the burden of proof. An extension of one compliance date based on a 

particular event may, but will not necessarily, rt'Sult in an extension of a subsequent compliance 

date. 

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61. Exclusions. Unanticipated or increased costs or expenses associated with the 

performance of Defendants' obligations under this Consent Decree shall not constitute a Force 

Majeure Event. Failure to comply with the emission limits specified in paragraphs 25.a.l 

through 4 and 26.a.1 through 4 of this Consent Decree shall not be subject to a claim of Force 

Majeure, except that Defendants may assert that initial compliance with such emission limits as 

of the deadlines specified in paragraphs 25.a and 26.a has been delayed by a Force Majeure 

Event. 

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

circumstances related to an event and Defendants' response to such circumstances, the kinds of 

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

meaning of this Section: construction, installation, labor, or equipment shortages or delays; acts 

of Ciod; acts of war or terrorism; an order by a government official, govenunent agency, other 

regulatory authority, or a regional transmission organization, acting under and authorized by 

applicable law, that directs Defendants to supply electricity in response to a system-wide (statewide or regional) emergency. Depending upon the circumstances and Defendants' response to 

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

fashion may constitute a Force Majeure Event where the failure of the permitting authority to act 

is beyond the control of Defendants and Defendants have taken all steps available to them to 

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

application; responding to requests for additional infonnation by the pennitting authority in a 

timely fashion; and accepting lawful permit tenns and conditions imposed by the permitting 

authority. 

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63. As part of the resolution of any matter submitted to this Court under Section XIII 

(Dispute Resolution) of this Consent Decree regarding a claim afForce Majeure, the Plaintiffs 

and Defendants by agreement, or this Coun 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. Defendants shall be liable for stipulated penalties for its failure thereafter to complete 

the work in accordance with the extended or modified schedule (provided that Defendants shall 

not be precluded from making a further claim of Force Majeure with regard to meeting any such 

extended or modified schedule). 

XIII. DISPUTE RESOLUTION 

64. The dispute resolution procedure provided by this Section shall be available to 

resolve all disputes arising under this Consent Decree, provided that the Party invoking such 

procedure has first made a good faith attempt to resolve the matter with the other Parties. 

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

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

notice shall describe the nature of the dispute and shall state the noticing Party's position with 

regard to such dispute. Each 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. 

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66. Disputes submitted to dispute resolution under this Section shall, in the first 

instance, be the subject of infonnal negotiations among the disputing Parties. Such period of 

infonnal negotiations shall not extend beyond thirty (30) calendar days from the date of the first 

meeting among the disputing Parties' representatives unless they agree in writing to extend this 

period. During the infonnal negotiations period, the disputing Parties may also submit their 

dispute to a mutually agreed upon alternative dispute resolution (ADR) forum if the Parties agree 

that the ADR activities can be completed within the 30-day infonnal negotiations period (or such 

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

67. If the disputing Parties are unable to reach agreement during the infonnal 

negotiation period, the Plaintiffs or either one of them shall provide Defendants with a written 

summary of their position regarding the dispute. The written position provided by a Plaintiff 

shall be considered binding unless, within forty-five (45) calendar days thereafter, Defendants 

seek judicial resolution of the dispute by filing a petition with this Court. The Plaintiffs or any 

one of them may respond to the petition within forty-five (45) calendar days of filing. In their 

initial filings with the Court under this Paragraph, the disputing Parties shaH state their respective 

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

68. 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. 

69. Except as provided herein, this Court shall not draw any inferences nor establish 

any presumptions adverse to any disputing Party as a result of invocation of this Section or the 

disputing Parties' inability to reach agreement. 

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

circumstances the Parties may agree on, or this Court may order, an extension or modification of 

the schedule for the completion ofthe activities required under this Consent Decree to account 

for the delay that occurred as a result of dispute resolution. Defendants shall be liable for 

stipulated penalties for their failure thereafter to complete the work in accordance with the 

extended or modified schedule; provided that Defendants shan 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. 

XIV. PERMITS 

71 . Unless expressl y stated otherwise in this Consent Decree, in any instance where 

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

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

preconstruction, construction, and operating permits required under state law, Defendants shall 

make such application in a timely manner, but failure to do so shall not constitute an independent 

violation of this Consent Decree subject to stipulated penalties. EPA shall use its best efforts to 

review expeditiously all pennit applications submitted by Defendants in order to meet the 

requirements of this Consent Decree. 

72. When permits are required to implement this Decree Defendants shall complete 

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

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

infomlation by the pemlitting authorities. Any failure by Defendants to submit a timely pennit 

application for Unit 3 or Unit 4 shall bar any use by Defendants of Section XII (Force Majeure) 

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of this Consent Decree, where a Force Majeure claim is based on permitting delays, but shall not 

otherwise constitute an independent violation of this Consent Decree subject to stipulated 

penalties. 

73. Notwithstanding the reference to a Title V permit in this Consent Decree, the 

enforcement of such pernlit shall be in accordance with its own ternlS and the Act. The Title V 

permit shall not be enforceable under this Consent Decree, although any ternl 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 

XXIV (Conditional Termination of Enforcement Under Decree) ofthis Consent Decree. 

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

Defendants shall amend any applicable Title V permit application and federally-enforceable state 

pernlit application, or apply for an amendment oftheir Title V permit and federally-enforceable 

state permit, to include all requirements of Paragraphs 25.a, 25.b, 25.d, 26.a, 26.b, 26.c, 26.d, 28­

34 and 77 of this Consent Decree, together with the applicable definitions in Section Ill. 

75. For changes related to or required by this Consent Decree, Defendants shall 

provide the Tribe with a copy of each application to amend their Title V permit and federally 

enforceable state permit to allow for timely participation in any public comment opportunity. 

XV. INFORMATION COLLECTION AND RETENTION 

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

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

premises of any Defendant's facility at any reasonable time for the purpose of: 

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

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Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 30 of 51 

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

accordance with the terms of this Consent Decree; 

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

Defendants or its representatives, contractors, or consultants; and 

d.	 assessing Defendants' compliance with this Consent Decree. 

77. Defendants shall retain, and instruct their contractors and agents to preserve, all 

non-identical copies of all records and documents (including records and documents in electronic 

form), in their or their contractors' or agents' possession or controL and that directly relate to 

Defendants' perfonnance of their obligations under this Consent Decree for the following 

periods: (a) until December 31,2020, for records concerning physical or operational changes 

undertaken in accordance with Paragraphs 25 and 26; and (b) until December 31, 2017, for all 

other records. This record retention requirement shall apply regardless ofany corporate 

document retention policy to the contrary. 

78. All information and documents submitted by Defendants to EPA or the United 

States pursuant to this Consent Decree shall be subject to any requests under applicable law 

providing for public disclosure of documents unless Defendants claim and substantiate in 

accordance with 40 C.F.R. Part 2 that the information and documents contain confidential 

business information. All information and documents submitted by Defendants to the Tribe 

pursuant to this Consent Decree that Defendants claim and substantiate in accordance with 40 

C.F.R. Part 2 as containing confidential business information shall be maintained by the Tribe as 

confidential for as long as EPA remains obligated to maintain that information as confidential. 

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79. Nothing in this Consent Decree shal11imit the authority of the EPA or the State of 

~ontana to conduct tests and inspections at Defendants' facilities under Section 114 of the Act, 

42 U.s.c. S7414, or any other applicable federal or state law, regulation or pennit. 

XVI. NOTICES 

80. 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, D.C. 20044-7611
 

DOJ# 90-5-2-1-08494
 

and 

Director, Air Enforcement Division
 

Office of Enforcement and Compliance Assurance
 

U.S. Environmental Protection Agency
 

Ariel Rios Building (Mail Code 2242A)
 

1200 Pennsylvania Avenue, N.W.
 

Washington, DC 20460
 

and 

Air Program Coordinator 

U.S. EPA Region 8 Montana Office
 

lOW. Fifteenth St., Suite 3200
 

Helena, MT 59626
 

As to the Northern Cheyenne Tribe: 

Director, Northern Cheyenne Tribe
 

Department of Environmental Protection
 

P.O. Box 128
 

Lame Deer, MT 59043
 

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Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 32 of 51 

and 

JohnB. Arum
 

Ziontz, Chestnut, Varnell, Berley & Slonim
 

2101 Fourth Avenue, Suite 1230
 

Seattle, WA 98121
 

As to Defendants: 

General Counsel
 

PPL Montana, LLC
 

303 North Broadway, Suite 400
 

Billings, MT 59101-1255
 

and 

Manager, Environmental Engineering
 

Colstrip Steam Generating Station
 

Willow Avenue & Warehouse Road
 

P.O. Box 38
 

Colstrip, MT 59323-0038
 

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

shall be sent by electronic mail and followed either by: (a) overnight mail or overnight delivery 

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

communications and transmissions sent by overnight, certified or registered mail shall be deemed 

submitted on the date they are postmarked, or the date they are delivered to the overnight 

delivery service. 

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

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

address. 

XVII. SALES OR TRANSFERS 

83. If a Defendant proposes to sell or transfer all or part of its Ownership Interest or 

its responsibility as operator of Unit 3 or Unit 4 to an entity unrelated to any ofthe Defendants 

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("Third Party"), it shall advise the Third Party in writing of the existence of this Consent Decree 

prior to such sale Or transfer and shall send a copy of such written notification to the Plaintiffs 

pursuant to Section XVI (Notices) of this Consent Decree at least sixty (60) days before such 

proposed sale or transfer. 

84. No sale or transfer of an Ownership Interest to a Third Party shall take place 

before the Third Party consents in writing, by a stipulation to be filed with the Court, to: (a) 

accept all of the obligations, terms and conditions of this Consent Decree applicable to the 

relevant Unit; (b) the jurisdiction of the Court to enforce the tenns of this Consent Decree as to 

such party; and (c) become a party to this Consent Decree. Notwithstanding such a sale or 

transfer of an Ownership Interest to a Third Party, the Defendant transferring such interest shall 

remain jointly and severally liable with the Third Party unless the Consent Decree is modified or 

the Defendant's joint and several liability is restricted in accordance with Paragraph 85. 

85. The Defendant selling or transferring an Ownership Interest to a Third Party may 

propose to the United States and the Tribe that that Defendant shall be relieved from further 

obligations or liabilities applicable to the purchased or transferred Ownership Interests or 

operator responsibility. The affected Defendant shall provide adequate assurances to the United 

States and the Tribe that the Third Party has the financial and technical capabilities and 

resources, in conjunction with the other Defendants, to carry out such obligations or liabilities. If 

the United States and the Tribe agree with the affected Defendant's proposal, the Parties shall 

jointly request the Court approve an appropriate modification of this Consent Decree. If the 

United States or the Tribe does not agree with the affected Defendant's proposal, the matter shall 

be resolved in accordance with Section XIII (Dispute Resolution) ofthis Consent Decree. 

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Notwithstanding the foregoing, however, the affected Defendant may not assign, and may not be 

released from, obligations under this Consent Decree to pay the civil penalty in accordance with 

Section VII, undertake the Additional Injunctive Relief in accordance with Section VIII, pay 

stipulated penalties with respect to actions occurring prior to the date of transfer of Ownership 

Interests or operator responsibility in accordance with Section XI, or maintain documents or 

provide reports with respect to those obligations in accordance with Sections X and XV. The 

affected Defendant may also propose, and the United States and the Tribe 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 or 

operator responsibility, to the extent such obligations may be adequately separated in an 

enforceable manner. 

86. Paragraphs 84 and 85 of this Consent Decree do not apply if an Ownership 

Interest is sold or transferred solely as collateral security in order to consummate a financing 

arrangement (not including a sale~leaseback), so long as the affected Defendant: a) remains an 

owner (as that term is used and interpreted under the Clean Air Act) of Colstrip Unit 3 or 4; b) 

remains subject to and liable for any obligations and liabilities of this Consent Decree; and c) 

supplies Plaintiffs with the following certification within 30 days ofthe sale or transfer: 

"Certification of Change in Ownership Interest Solely for Purpose of 

Consummating Financing. We, the Chief Executive Officer and General Counsel 

of [Defendant Company], hereby jointly certify under Title 18 U.S.C. Section 

1001, on our own behalf and on behalf of [Defendant Company], that any change 

in Defendant's Ownership Interest in any Unit that is caused by the sale or transfer 

as collateral security of such Ovmership Interest in such Unit(s) pursuant to the 

financing agreement consummated on [insert applicable date] between Defendant 

and [insert applicable entity]: a) is made solely for the purpose of providing 

collateral security in order to consummate a fmancing arrangement; b) does not 

impair Defendant's ability, legally or otherwise, to comply timely with all terms 

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and provisions of the Consent Decree entered in United States ujAmerica, et al. v. 

PPL Montana, LLC, et a(, Civil Action No.1[ l]; c) does not affect 

[Defendant Company's] interest in any Unit covered by that Consent Decree in a 

manner that is inconsistent with [Defendant Company's] perfonnance of its 

obligations under the Consent Decree; and d) in no way affects the status of 

[Defendant Company's] obligations or liabilities under that Consent Decree." 

XVIII. EFFECTIVE DATE 

87. The eftective date of this Consent Decree shall be the date upon which this 

Consent Decree is entered by the Court. 

XIX. RETENTION OF JURISDICTION 

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

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

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

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

D.:crec may apply to the Court for any relief necessary to construe or effectuate this Consent 

Decree. 

XX. MODIFICAnON 

89. The tenns ofthi~ Consent Decree may be modified only by a subsequent written 

agreement signed by the Parties. Where the modification constitutes a material change to any 

tenn of this Decree, it shall be effective only upon approval by the Court. 

XXI. GENERAL PROVISIONS 

90. This Consent Decree is not a pennit. Compliance with the terms of this Consent 

Decree does not guarantee compliance with all applicable tederal, state, or local laws or 

regulations. The emission limits set forth herein do not relieve the Defendants from any 

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obligation to comply with other state and federal requirements under the federal Clean Air Act or 

the Montana Clean Air Act. 

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

92. In any subsequent administrative or judicial action initiated by either of the 

Plaintiffs for injunctive relief or civil penalties relating to Colstrip Units 3 or 4, the Defendant 

shall not assert any defense or claim ba.<;ed upon principles of waiver, res judicata, collateral 

estoppel, issue preclusion, claim preclusion, or claim splitting, or any other defense based upon 

the contention that the claims raised by any ofthe Plaintiffs in the subsequent proceeding were 

brought, or should have been brought, in the instant case; provided, however, that nothing in this 

Paragraph is intended to affect the validity of Section IX (Resolution of Plaintiffs' Civil Claims). 

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

Decree shall relieve any Defendant of its obligation to comply with all applicable federal, state, 

and local laws and regulations. Subject to the provisions in section IX (Resolution of Plaintiffs' 

Civil Claims), nothing contained in this Consent Decree shall be construed to prevent or limit the 

rights of the PlaintitIs to obtain penalties or injunctive relief under the Act or other federal, state, 

or local statute, regulation. or permit. 

94. Every term expressly defined by this Consent Decree shall have the meaning 

given to that term by this Consent Decree, and, except as otherwise provided in this Decree. 

every other term used in this Decree that is also a term under the Act or the regulations 

implementing the Act shall have the meaning in this Decree that such term has under the Act or 

those implementing regulations. 

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95. Nothing in this Consent Decree is intended to, or shall, alter or waive any 

applicable law (including but not limited to any defenses, entitlements, challenges, or 

claritications related to the Credible Evidence Rule, 62 Fed. Reg. 8314 (Feb. 24, 1997)) 

concerning the use of data for any purpose under the Act. 

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

separate, independent requirement. 

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

Consent Decree as against any third parties. 

98. This Consent Decree constitutes the fmal, complete and exclusive agreement and 

understanding among the Parties with respect to the settlement embodied in this Consent Decree 

and supersedes all prior agreements and understandings among the Parties related to the subject 

matter herein. No other document, representation, inducement, agreement, understanding, or 

promise constitutes any part of this Decree or the settlement it represents, nor shall it be used in 

construing the tenns of this Consent Decree. 

99. Each Party shall bear its own costs and attorneys' fees. 

100. Nothing in this Decree shall be construed as a waiver of the sovereign immunity 

of the United States or the Tribe. 

XXII. SIGNATORIES AND SERVICE 

101. 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. 

34
 
Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 38 of 51 

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

signature pages shall be given full force and effect. 

103. Each Party hereby agrees to accept service of proc~ss by mail with respect to all 

matters arising under or relating to this Consent Decree and to waive the fonnal service 

requirements set forth in Rule 4 ofthe Federal Rules of Civil Procedure and any applicable Local 

Rules of this Court including, but not limited to, service of a summons. 

XXlII. PUBLIC COMMENT 

104. The Parties agree and acknowledge that final approval by the United States and 

entry of this Consent Decree is subject to the procedures of28 C.F.R. § 50.7, which provides for 

notice of the lodging of this Consent Decree in the Federal Register, an opportunity for public 

comment, and the right of the United States to withdraw or withhold consent if the comments 

disclose facts or considerations which indicate that the Consent Decree is inappropriate, 

improper or inadequate. The Defendants shall not oppose entry of this Consent Decree by this 

Court or challenge any provision of this Consent Decree unless the United States has notified the 

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

XXIV.	 CONDITIOj\AL TERMINATION OF 

ENFORCEMENT UNDER DECREE 

105. Conditional Tennination of Enforcement Through the Consent Decree. After 

December 31, 2013, ifthe Defendants: 

a.	 have successfully completed construction, and are maintaining operation, 

of all pollution controls as required by this Consent Decree; and 

b.	 have obtained final Title V pennits and any necessary federallyenforceable state pennits (i) as required by the tenns of this Consent 

35
 
Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 39 of 51 

Decree; (ii) that cover all units in this Consent Decree; and (iii) that 

include as enforceable permit terms all ofthe Unit performance and other 

requirements specified in Section XIV (Permits) ofthis Consent Decree, 

then Defendants may so certify these facts to the Plaintiffs and this Court. 

If the Plaintiffs do not object in writing with specific reasons within 

forty-five (45) days of receipt of Defendants' certification, then, for any 

Consent Decree violations that occur after the filing of notice, the 

Plaintiffs shall pursue enforcement of the requirements contained in the 

Title V permit or the applicable federally-enforceable state permit through 

the Title V pennit or the applicable federally-enforceable state permit and 

not through this Consent Decree. 

106. Resort to Enforcement under this Consent Decree. Notwithstanding Paragraph 

105, if enforcement of a provision in this Decree cannot be pursued by a Party under the 

applicable Title V permit or the applicable federally-enforceable state permit, or if a Decree 

requirement was intended to be part of a Title V Permit or the applicable federally-enforceable 

state permit and did not become or remain part of such permit, then such requirement may be 

enforced under the terms of this Decree at any time. 

XXV. FINAL JUDGMENT 

107. Upon approval and entry ofthis Consent Decree by the Court, this Consent 

Decree shall constitute a final judgment among the Plaintiffs and Defendants. 

36
 
Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 40 of 51 

SO ORDERED, THIS 14th DAY OF _..:;.:MA=Y"--- , 2001-. 

HONORABLE Richard F. Cebull 

UNITED STATES DISTRICT COURT JUDGE 

37
 
--------

Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 41 of 51 

Signature Page for Consent Decree in: 

United States a/America el ar 

v. 

PPL Montana, LLC, et al. 

FOR THE UNITED STATES OF AMERICA: 

Mat hew . McKeown 

Acting Assistant Attorney General 

Environment and Natural Resources Division 

United States Department of Justice, Room 2143 

950 Pennsylvania Avenue, NW 

Washington, D.C. 20530 

Date: 

Jerel ("Jerry") L. Ellington 

Senior Counsel 

Environmental Enforcement Section 

Environment and Natural Resources Division 

United States Department of Justice 

1961 Stout Street - 8th Floor 

Denver, CO 80294 

Date: 

William W. Mercer 

United States Attorney 

District of Montana 

2929 Third Avenue North 

Billings, MT 59102 

38
 
Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 42 of 51 

Signature Page for Consent Decree in: 

United States ofAmerica et 01. 

v. 

PPL Montana, LLC, et al. 

FOR THE UNITED STATES OF AMERICA: 

Date: 

Matthew J. McKeown 

Acting Assistant Attorney General 

Environment and Natural Resources Division 

United States Department of Justice, Room 2143 

950 Pennsylvania Avenue, NW 

Washington, D.C. 20530 

J el (" e 

S nior nse! 

Envlfonmental Enforcement Section 

Environment and Natural Resources Division 

United States Department of Justice 

1961 ~ut Street - 8th Floor 

Den/er,~1 80294 ; ; ,

VII ~j {W/2 '-.-_...._-_._-­

William W. Mercer 

United States Attorney 

District of Montana 

2929 Third Avenue North 

Billings, MT 59102 

38 
Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 43 of 51 

Signature Page for Consent Decree in: 

United States ofAmerica et al. 

v. 

PPL Montana, LLC et ai. 

Date:-!.l'Z:51 01- ­ Gr~!£I7~ Assistant Administrator 

Office of Enforcement and Compliance Assurance 

United States Environmental Protection Agency 

1200 Pennsylvania Avenue, NW 

Washington, D.C. 20460 

Director, Air Enforcement Division 

Office of Civil Enforcement 

Office of Enforcement and Compliance Assurance 

United States Environmental Protection Agency 

1200 Pennsylvania Avenue, NW 

Washington, D.C. 20460 

39
 
Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 44 of 51 

Signature Page for Consent Decree in: 

United States ofAmerica et 01. 

v. 

PPL Montana, LLC. et al. 

Date: 

Carol Rushin 

Assistant Regional Administrator 

Oflice of Enforcement, Compliance and 

Environmental Justice 

U.S. Environmental Protection Agency 

Region 8 

999 18th Street, Suite 300 

Denver, CO 80202 

Date: Dec.. 19, ~oo"

David Rochlin 

Senior Air Enforcement Attorney 

U.S. Environmental Protection Agency 

Region 8 

999 18th Street, Suite 300 

Denver, CO 80202 
Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 45 of 51 

Signature Page for Consent Decree in: 

United States ofAmerica et al. 

v. 

PPL Montana, LLC, et al. 

FOR THE NORTHERN CHEYENNE TRIBE 

Date: 2/1j 7 ~;L~

Date: L.. { YlUI L----­

J n B. Arum

aunsel for the Tribe 

Ziantz, Chestnut, Varnell, Berley & Slonim 

2101 Fourth Avenue, Suite 1230 

Seattle, WA 98121 

41 
Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 46 of 51 

Signature Page for Consent Decree in: 

United States ofAmerica et al
 

v.
 

PPL Montana, LLC, et al
 

FOR PUGET SOUND ENERGY: 

DATE: \.::"H,-:o=---Co~ Vi e P , roject Development & Contract Management 

Pu et Sound Energy, Inc. 

10885 NE 4th Street (PSE-12S) 

PO Box 97034 

Bellevue, WA 98009-9734 

42
 
Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 47 of 51 

Signature Page for Consent Decree in: 

United States ojAmerica et al. 

v.
 

PPL Montana, LLC, et al.
 

Mr. Brad Spence 

DATE: ~{},-----ec-=---_/!:....-C;~;l006
 

Vice President and Chief Operating Officer 

PPL Montana, LLC 

303 North Broadway, Suite 400 

Billings, MT 59101 

OFFICE OF 

;;NE~L

DATE: I'l.frf IG~

43
 
Case 1:07-cv-00040-RFC Docu ment 15 Filed 05/14/2007 Page 48 of 51 

Signature Page for Consent Decree in: 

United States ofAmerica et al. 

v. 

PPL Montana, UC, el al. 

44
 
Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 49 of 51 

Signature Page for Consent Decree in: 

United States ofAmerica et al.
 

v.
 

PPL Montana, LLC, et al.
 

FOR PORTLAND GENERAL ELECTRIC COMPANY: 

,d~~~'P~ DATE: l / j; 10J 

Mr. James J. Piro 

Executive Vice President 

Portland General Electric 

121 SW Salmon Street 

Portland, Oregon 97204 

45
 
Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 50 of 51 

Signature Page for Consent Decree in: 

United States ofAmerica et aI,
 

v,
 

PPL Montana. LLC, et aI,
 

FOR NORTHWESTERN CORPORATION, 

d/b/a NORTHWESTERN ENERGY: 

, • I .,.-";') I / 

:",',-",,- ~"'::;~'J t1i~ DATE: 1;)-/7-1 ie"~ Mr. Michael J, Barnes r f

I 

Resource Coordiftator, Energy Supply 

NorthWestern Corporation, 

d/b/a NorthWestern Energy 

40 East Broadway 

Butte, MT 59701 

-K&­

-46­
Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 51 of 51 

Signature Page for Consent Decree in: 

United States afAmerica et al.
 

v,
 

PPL Montana, LLC, et a1.
 

FOR PACIFICO 

Mr. Mark Man 1 

Vice President, herrnal Operations 

PacifiCorp 

1407 W. North Temple 

Salt Lake City, UT 84116 

47
 

Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 1 of 6
 

Appendix A
 
Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 2 of 6 

APPENDIX A 

RESIDENTIAL ENERGY EFFrcrENCY IMPROVEMENTS PROJECT FUNDrNG AGREEMENT 

This Agrccment is entered into on December _, 2006, hetween PPL Montana LLC 

("PPL Montana") on behalf of itself and NorthWestern COTporation, d/b/a NorthWestern Energy, 

Puget Sound Energy, Portland General Electric Company, Avista Corporation, and PacifiCorp 

(collectively "the Defendants") and the Northern Cheyenne Tribe (the "Tribe"). 

I. Purposes. 

1. Pursuant to Section VIIl of the proposed consent decree signed on December _, 2006 to 

be filed in the United States District Court for the District of Montana, Defendants have agreed 

to undertake a project to make residential energy efficiency improvements on the "Northern 

Cheyenne Reservation (the "Project"). In this Agreement, Defendants agree to provide funding 

following entry of the Consent Decree to the Tribe to undertake the Project work subject to the 

terms and conditions specified below. If the Consent Decree is not entered, this Agreement shall 

be of no force or effect. 

2. The purpose of the Project is to make energy efficiency improvemcnts on qualifying 

rcsidences on the Northern Cheyenne Reservation that would not otherwisc bc anticipated to 

occur. The objective of these improvements is to reduce energy consumption, conserving 

financial and natural resources, and eliminating air emissions that would otherwise be associated 

with the avoided energy consumption. 

II. Funding. 

3. Defendants will fund the Project through a one-time payment of $100,000 to the Tribe in 

care of its Housing Improvement Program (HIP) to be made within 30 days after entry of the 

Consent Decree. Upon receipt of the payment, the Tribe will complete Project work within one 

calendar year. The time for completion of the project may be extended only upon the express 

written consent ofPPL Montana, of behalf of all of the Defendants. 

4. The following table provides an cstimated budget for the Project. The HIP, with written 

approval from PPL Montana (on behalf of all of the Defendants), may change allocations 

between specific line items as appropriate to fulfill the objectives of the Project. Such approval 

shall not be unreasonably delayed or withheld. 

A-I
 
Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 3 of 6 

PROPOSED BUDGET ESTIMATE 

LINE ITEM AMOUNT DESCRIPTION 

Salaries $21,736.00 2 Laborers $10.45 p.h. X 1040 hrs ea. 

Employer Taxes $ 4,673.16 FICA, MEDICARE, FUTA, SUTA, OFTL 

Fringe Benefits $ 3,912.48 Section 125 Contribution 

Travel (Mileage) $ 3,000.00 .445c mile for mileage to & from projects 

Materials $51,562.99 Materials used for energy efficiency 

Professional Services $10,000.00 Electrical Repairs - Furnace Replacement 

Administrative Expenses $ 140.00 Employee Drug Testing as required by NeT 

Indirect Cost $ 4,975.37 22.89% of Salaries as required by NCT 

TOTAL $100,000.00 

III. Project Scope 

5. The parties antiCIpate that the number of residences for which energy efficiency 

improvements will be made will be approximately fifteen. The actual number of residences for 

which improvements will be made will depend on the condition of each home. 

6. The HIP will conduct an on-site inspection on each residence and prepare a list of repairs. 

The HIP will order materials in accordance with the Tribe's procurement procedures and labor 

will begin at the HIP's direction. The laborers will work on an as needed basis due to the limited 

amount of funds. Once all materials are ordered and received, the 1aborer(s) will begin the work. 

The work will be done by qualifying laborers hired by HIP in accordance with the Tribe's 

Personnel Manual. Once the work is completed and inspected, the applicant will be required to 

sign off on its completion. 

7. Based on appropriate expert input, the Tribe will prioritize the types of repairs in order to 

maximize the amount of energy savings achieved through the Project. Examples of allowable 

repairs may include the following: 

Caulking and Weather-stripping Seal cracks/openings into outside walls 

Install electrical outlet & switch gaskets Install ceiling, wall, & floor insulation 

RepairlReplace Windows Install storm windows 

RepairlReplace Exterior Doors Install Self Storing Storm Doors 

Duct and pipe insulation Seal leaks in pipes and ducts 

Repair leaky faucets Repair drain lines 

Attic ventilation! vapor barriers Install mobile home skirting 

Water heater repair/replacement Electrical Repair (related to hea ting) 

Install new insulated chimney kits for wood Repair existing heating systems (furnace, 

stove baseboard heaters) 

Instal1 new highcr efficiency heating system 

A-2 
Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 4 of 6 

8. The HlP will provide notice to PPL Montana upon completion of the ProJcct. PPL 

Montana's receipt of this notice shall constitute the Project Completion Date. 

IV. Eligibility to Participate in Project 

9. All applicants for residential energy efficiency improvements to be made in this Project 

must be both enrolled tribal members and low income households residing on the Northern 

Cheyenne Reservation. Department of Health & Human Services poverty income guidelines will 

be used to determine eligibility. 

10. Eligibility for Project participation will require: Proof of residency, Tribal enrollment 

verification, a demonstration of need, and a demonstration that the applicable meets Income 

Guidelines. If the applicant meets all requirements, he or she will be eligible to receive 

improvements. Neither the Housing Authority'S low-rent homes nor any homc that has access to 

other resources to undcrtake the samc energy efficiency improvements will be eligible for 

improvements made in this project. 

II. Applicants must, as a condition of eligibility and in a ~ritten fonn that the HIP will 

obtain prior to commencing work for an applicant's residence, hold harmless and release 

Defendants from any and all loss or liability, including the costs of settlements, judgments, 

damages and direct expenses including reasonable attorneys fees whether based on statute or 

regulation or on theories of contract, tort, strict liability, or otherwise arising from or in any 

manner relating to perfonnance of the work. 

12. Applications will bc processed in the order received and work will be done in the same 

order. 

13. When it is appropriate, these funds may be used to leverage homes that are currently 

being repaired by HIP 504 Elderly Repair Grants, and the Low Income Home Energy Assistance 

Program ("LIHEAP"). To ensure proper accountability, the funds will be kept in segregated 

account in accordance with the Tribe's Financial Manual. 

V. Reporting 

14. The HIP shall provide to PPL Montana a report describing all activities completed 

pursuant to this project within 90 days after the Project Completion Date. The HIP shall provide 

with the report a copy of all audited financial statements that pertain to these activities upon 

publication of the Tribe's annual comprehensive audited fmancial statement. 

A-3 
Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 5 of 6 

VI. Miscellaneous 

15. Nothing in this Agreement shaH be construed as creating the relationship ofprincipal and agent, 

or employer and employee, between the Defendants and the Tribe or HIP, any contractor, or 

contractor's employees, agents or subcontractors. The HIP shall have no authority to hire any persons on 

behalf of Defendants and any and all persons whom it may employ shall be deemed to be solely the 

employees ofthe HIP. The HIP is not authorized and shall not incur any debt, liability or obligation of 

any nature for or on behalfofDefendants. The HIP's employees shall not for anyputpOses whatsoever, 

be considered employees of Defendants or be eligible for any employee benefits or programs of 

Defendants. The HIP, its employees, agents, contractors and subcontractors shall hold hannless and 

release Defend,mts from any and all loss or liability, including the costs ofsettlements, judgments, 

damages and direct expenses including reasonable attorneys fees whether based on statute or 

regulation or on theories ofcontract, tort, strict liability, or otherwise arising from or in any manner 

relating to perfonnance of the work. The HIP shall in writing notify all contractors, subcontractors, 

agents or employees involved in the work ofthe provisions ofthis paragraph, which they shall accept as 

a condition of undertaking work on the Project. 

16. Nothing in this Agreement waives or shall be construed to waive the Tribe's sovereign 

immunity. 

17, Any disputes arising under this Agreement shaH be resolved pursuant to the Dispute Resolution 

procedures set forth in Section Xlll ofthe Consent Decree. 

PPL MONTANA, LLC NORTHERNCHEYENNETRffiE 

By: By:__ __ _ 

Eugene Little Coyote, President 

Its Vi c.e PCfSi~.rl Ji ~OO On behalf ofDefendants PPLMontana, LLC,
 

NorthWestern Energy LLC,
 

Puget Sound Energy, Inc.,
 

Portland General Electric Company,
 

Avista Corporation, and PacifiCorp
 

Urh~f i}­

GFNFMl COUNSEL 

BY: eJtt 

DATE: 1'l!Iq 6b 

A-4
 
-----------

Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 6 of 6 

VI. Miscellaneous 

1S. Nothing in this Agreement shall be construed as creating the relationship of principal and 

agent, or employer and employee, between the Defendants and the Tribe or HIP, any contractor, or 

contractor's employees, agents or subcontractors. The HIP shall have no authority to hire any 

persons on behalf of Defendants and any and all persons whom it may employ shall be deemed to 

be solely the employees of the HIP. The HIP is not authorized and shall not incur any debt, liability 

or obligation of any nature for or on behalf of Defendants. The HIP's employees shall not for any 

purposes whatsoever, be considered employees of Defendants or be eligible for any employee 

benefits or programs of Defendants. The HIP, its employees, agents, contractors and subcontractors 

shall hold hannless and release Defendants from any and all loss or liability, including the costs 

of settlements, judgments, damages and direct expenses .including reasonable attorneys fees 

whether based on statute or regulation or on theories of contract, tort, strict liability, or otherwise 

arising from or in any manner relating to performance of the work. The HIP shaH in writing notify 

all contractors, subcontractors, agents or employees involved in the work of the provisions of this 

paragraph, which they shall accept as a condition of undertaking work on the Project. 

16. Nothing in this Agreement waives or shall be construed to waive the Tribe's sovereign 

immunity. 

17, Any disputes ansmg under this Agreement shall be resolved pursuant to the Dispute 

Resolution procedures set forth in Section xm of the Consent Decree. 

PPL MONTANA, LLC 

Its
 

On behalf of Defendants PPL Montana, LLC,
 

NorthWestern Corporation, d/b/a NorthWestern Energy,
 

Puget Sound Energy, Inc.,
 

Portland General Electric Company,
 

Avista Corporation, and PacifiCorp
 

A-4 
Case 1:07-cv-00040-RFC Document 16 Filed 12/21/09 Page 1 of 6 

Jerel ("Jerry") L. Ellington 

Senior Counsel 

Environmental Enforcement Section 

U.S. Department of Justice 

Environment & Natural Resources Division 

1961 Stout Street - 8th Floor 

Denver, CO 80294 

Telephone: (303) 844-1363 

ATTORNEY FOR PLAINTIFF THE UNITED STATES 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MONTANA 

United States of America ) 

) 

Plaintiff, ) 

) 

and ) 

) 

The Northern Cheyenne Tribe, ) 

) 

Plaintiff - Intervenors, ) 

) 

v. ) Civil No. 1:07-CY-00040-RFC-CSO 

) 

PPL Montana, LLC, NorthWestern Corporation, ) 

d/b/a NorthWestern Energy, Puget Sound Energy, ) 

Inc., Portland General Electric Company, ) 

Avista Corporation, and PacifiCorp, ) 

) 

Defendants. ) 

) 

STIPULATION TO MODIFY PARAGRAPH 26.a. OF THE CONSENT DECREE 

WHEREAS, the United States of America ("United States"), for and on behalf of the 

United States Environmental Protection Agency ("EPA"), the Northern Cheyenne Tribe (the 

"Tribe"), and the operator and owners of Unit 4 of the Colstrip Power Plant, PPL Montana, LLC, 
Case 1:07-cv-00040-RFC Document 16 Filed 12/21/09 Page 2 of 6 

NorthWestern Corporation, d/bla! NorthWestern Energy, Puget Sound Energy, Inc., Portland 

General Electric Company, Avista Corporation, and PacifiCorp (collectively the "Defendants"), 

entered into a Consent Decree (the "Decree") which the Court approved and entered on May 14, 

2007; and 

WHEREAS, Paragraph 26.a. of the Decree requires Defendants to meet certain NOx 

emissions limitations from Unit 4 of the Colstrip Power Plant ("Unit 4") beginning on January 1, 

2010, which is six months after July 1,2009, the date when Defendants were required by 

Paragraph 26.d. of the Decree to complete the installation of digital controls, 10w-NOx burners 

("LNB"), and overfire air ("OFA") on Unit 4; and 

WHEREAS, the Parties contemplated that following the installation of the LNB, OFA, 

and digital controls Unit 4 would be restarted by no later than July 1, 2009, which would allow 

Defendants six months, until January 1,2010, to tune the LNB, OFA, and digital control 

interface to meet the NOx emissions limitations to be achieved by such new equipment; and 

WHEREAS, during the installation of the LNB, OFA, and digital control interface 

following the planned outage of Unit 4 which started on May 28,2009, Defendants learned that 

cracks in LP rotors, unrelated to the equipment upgrades required by the Decree, would delay the 

restart of Unit 4 until after July 1, 2009 and not allow Defendants the full six months 

contemplated by the Decree for Defendants to tune the LNB, OFA, and digital control interface 

to meet the NOx emissions limits by January 1,2010; and 

WHEREAS, Unit 4 could not be restarted until October 30, 2009 because of the delays 

caused by the repairs necessary to address the cracks in LP rotors; and 

2 
Case 1:07-cv-00040-RFC Document 16 Filed 12/21/09 Page 3 of 6 

WHEREAS, Defendants provided verbal and written notification to the United States, 

EPA, and the Tribe of a claimed force majeure event as required by Section XII of the Consent 

Decree; and 

WHEREAS, the United States, for and on behalf of EPA, the Tribe, and Defendants 

(collectively the "Parties") agree that in light of the delay in restarting Unit 4 caused by the 

repairs necessary to address the cracks in the LP rotors, the deadline provided by Paragraph 26.a. 

of the Decree to meet the NOx emission limits should be changed from January I, 2010 to the 

earlier of March 31, 2010 or seven days after Defendants have completed tuning the digital 

controls, low NOx burners, and overfire air on Unit 4. 

WHEREFORE, the Parties stipulate and agree as follows: 

1. Paragraph 26.a. of the Decree, which now provides that Defendants shall comply 

with NOx emissions controls requirements specified in Paragraphs 26.a.l. - 4 beginning January 

1,2010, shall be revised to read as follows: 

"26.	 Defendants shall comply with the following requirements: 

a.	 Beginning March 31, 2010 or seven days after Defendants have completed 

tuning the digital controls, low NOx burners, and overfire air on Unit 4, 

whichever is earlier:" 

2. All other provisions of Paragraph 26.a. of the Decree, including Paragraphs 

26.a.1., 26.a.2., 26.a.3., and 26.aA., shall remain the same. 

3.	 No other provisions of the Decree shall be altered or affected by this change. 

4.	 The Parties request the Court's approval of this Stipulation to the extent that the 

change in the date for meeting the NOx emissions limitations from January 1,2010, to no later 

3 
Case 1:07-cv-00040-RFC Document 16 Filed 12/21/09 Page 4 of 6 

than March 31,2010, constitutes a material change and the Court's approval may therefore be
 

required by Paragraph 89 of the Decree.
 

APPROVED AND ENTERED this __day of . 2009.
 

HONORABLE RICHARD F. CEBULL 

UNITED STATES DISTRICT COURT JUDGE 

FOR THE UNITED STATES OF AMERICA: 

J ("JERRY") L. ELLINGTON 

Senior Counsel 

Environmental Enforcement Section 

Environment and Natural Resources Division 

United States Department of Justice 

1961 Stout Street - 8th Floor 

Denver, CO 80294 

DAVID ROCHLIN 

Senior Air Enforcement Attorney 

U.S. Environmental Protection Agency 

Region 8 

999 18th Street, Suite 300 

Denver, CO 80202 

4
 
SM.P KER 

anager, Enviro tal Compliance Services 

Case1:07-cv-00040-RFC Document16 Filed12/21/09 Page50f6 

FOR THE NORTHERN CHEYENNE TRIBE: 

lOHNB. ARUM 

Counsel for the Tribe 

Ziontz, Chestnut, Varnell, Berley & Slonim 

2101 Fourth Avenue, Suite 1230 

Seattle, WA 98121 

FOR THE OPERATOR AND OWNERS OF UNIT 4 OF THE COLSTRIP POWER PLANT 

(PPL Montana, LLC, NorthWestern Corporation, d/b/a! NorthWestern Energy, Puget Sound 

Energy, Inc., Portland General Electric Company, Avista Corporation, and PacifiCorp) 

DAVID B. KINNARD 

Secretary and Associate General Counsel 

PPL Montana, LLC 

303 North Broadway, Suite 4000 

Billings, MT 59101-1255 

Colstrip Steam Generating Station 

Willow Avenue & Warehouse Road 

P.O. Box 38 

Colstrip, MT 59323-0038 

5
 
Case 1:07-cv-00040-RFC Document 16 Filed 12/21/09 Page 6 of 6 

FOR THE NORTHERN CHEYENNE TRIBE:
 

£:HNB.ARUM 

Counsel for the Tribe 

Ziontz, Chestnut, Varnell, Berley & Slonim 

2101 Fourth Avenue, Suite 1230 

Seattle, WA 98121 

FOR THE OPERATOR AND OWNERS OF UNIT 4 OF THE COLSTRIP POWER PLANT 

(pPL Montana, LLC, NorthWestem Corporation, d/b/a/NorthWestern Energy, Puget Sound 

Energy, Inc., Portland General Electric Company, Avista Corporation, and PacifiCorp) 

DAVID B. KINNARD 

Secretary and Associate General Counsel 

PPL Montana, LLC 

303 North Broadway, Suite 4000 

Billings, MT 59101-1255 

JAMES M. PARKER 

Manager, Environmental Compliance Services 

Colstrip Steam Generating Station 

Willow Avenue & Warehouse Road 

P.O. Box38 

Colstrip, MT 59323-0038 

GORDON D. CRISWELL 

Director, Environmental, Engineering, and Compliance 

Colstrip Steam Generating Station 

Willow Avenue & Warehouse Road 

P.O. Box 38 

Colstrip, MT 59323-0038 

5