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 OFAMERICA, ) ) Plaintiff, ) ) Civil No.1:07-CV-00040-RFC and 

### ) ) ORDERENTERING CONSENT THE NORTHERN CHEYENNE TRIBE, ) DECREE ) Plaintiff- Intervenor, ) ) 

### v. ) ) PPL MONTANA, LLC, NORTHWESTERN ) CORPORATION D/B/ANORTHWESTERN' ) ENERGY, PUGET SOUND ENERGY, 

## mc., ) PORTLAND GENERAL ELECTRIC COMPANY, ) AVISTA CORPORAnON, AND PACIFICORP, ) ) ) Defendants. )
Upon consideration ofthe United States' Unopposed MotionTo 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 ofMay, 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 SeniorCounsel Environmental Enforcement Section U.S. DepartmentofJustice 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 ofAmerica ) ) Plaintiff. ) ) and ) ) The Northern Cheyenne Tribe, ) ) Plaintiff

- Intervenors,
. ) ) 

### v. ) CivilNo. CV-07-40-BLG-RFC-CSO ) PPL Montana, LLC, NorthWestern Corporation, ) d/b/aNorthWestern Energy, Puget Sound Energy, ) Inc., Portland GeneralElectric 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 EMISSIONREDUCTIONS AND CONTROLS 8 A. Colstrip Unit 3 8 B. Colstrip Unit 4 9 C. General. 10 V. PROHIBITION ON NETTING CREDITS OR OFFSETS FROMREQUIRED 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 ORTRANSFERS 29 XVIII. EFFECTIVEDATE 32 XIX. RETENTION OF JURISDICTION 32Case 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 APPENDIXA , A-I

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

WHEREAS, the United States ofAmerica ("the United States"), onbehalfofthe United States Environmental Protection Agency ("EPA") is filing a Complaint, atthe same time as this Consent Decree, againstthe operator and owners ofUnits 3 and 4 at the Colstrip PowerPlant, PPL Montana, LLC ("PPL Montana"), NorthWesternCorporation, d/b/a NorthWestern Energy, Puget Sound Energy, Inc., Portland General Electric Company, Avista Corporation, and PacifiCorp (collectively "the Defendants") pursuantto Section 113(b) ofthe CleanAirAct ("the Act"), 42 U.S.c. § 7413(b), for injunctive reliefand penalties for alleged violations at the Colstrip Power Plant, Units 3 and 4, ofCondition 7 ofthe Conditional Pennitto Commence Construction and Operate the Y10ntana Power Company Colstrip Units #3 and #4, dated September 11,1979, issued by EPApursuant to 40 C.F.R. 52.21(i) and Part C ofthe 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 inthis action; WHEREAS, Condition 7 ofthe PSD permitrequires that at such time as EPA promulgates requirements for best available retrofit technology ("BART") for nitrogen oxides ("NOx") control underthe Act, Montana Power Company shall review Colstrip Units 3 and 4 for implementation ofBART for NOx control and submit its analysis to EPAfor 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 ofthe PSD pennit was adopted as a result ofproceedings initiated by the Northern Cheyenne Tribe and conducted pursuant to section 164(e) ofthe 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 ofthe PSD pennit, and is currently the operator ofColstrip Units 3 and 4 and is a part owner ofColstrip Unit 3; WHEREAS, EPA promulgated regulations for protection ofvisibility in 1980,45 Fed. Reg. 80,089 (Dec. 2, 1980), that required statesto develop and submit state implementation plans ("SIPs") containing, among otherthings, emission limitations representing BARTfor certain existing facilities to which visibility impairment was "reasonably attributable." The 1980 regulations also included Guidelines for determining BARTfor fossil fuel-fired powerplants with a capacity greater than 750 megawatts CMW"). These BART Guidelines provided that a detailed BART demonstration was unnecessary ifthe state set a BART limit at the level ofthe New Source Performance Standards in 40 CFRPart 60, but did notrequire 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, pursuantto section 113(a)(3)(B) ofthe Act, 42 U.S.c. 

### § 7413(a)(3)(B), which ordered PPL Montana to comply with all requirements ofCondition 7 ofthe PSD permit for Colstrip Units 3 

### and 4;

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WHEREAS, in response to EPA's compliance order, PPL Montana asserted on behalfof all Defendants, and continues to assert, that the requirement to submit aNOx BART analysis and recommendation under Condition 7 ofthe PSD permit was never triggered; WHEREAS, EPA asserts that its promulgation ofthe 1980 visibility regulations triggered the requirements ofCondition 7 ofthe PSD permit; WHEREAS, EPA agreed to defer the effectiveness ofthe 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 ofpollutioncontrol equipment pursuantto this Consent Decree will achieve significant reductions ofNOx 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; thatthis settlement is fair, reasonable, in the best interest ofthe Parties and in the public interest, and consistent withthe goals ofthe Act; andthat entry ofthis Consent Decree without further litigation is the most appropriate means ofresolving this matter; NOW, THEREFORE, without any admission by the Defendants, and without adjudication ofthe violations alleged in the Complaints, it is hereby ORDERED, ADJUDGED. A:\D DECREED as follows:

3

### Case 1 :07-cv-00040-RFC Document 15 Filed 

### 05/14/2007 Page 7 of 51

I.**JURISDICTIO~** AND VENUE 1. This Court hasjurisdiction overthis action, the subject matter herein, and the Parties consenting hereto, pursuantto 28 U.S.c. §§ 1331, 1345, 1355, 1362 and 1367, and Sections 113 and 304(a) ofthe Act, 42 U.S.c. §§ 7413 and 7604(a). Venue is properunder Sections 113(b) and 304(c) ofthe Act, 42 U.S.c. §§ 7413(b) and 7604(b), and under 28 U.S.c. § 1391(b) and (c). Solely for the purposes ofthis Consent Decree andthe underlying Complaints, and for no otherpurpose, Defendants waive all objections and defenses they may have to the Court'sjurisdiction overthis action, to the Court'sjurisdiction over the Defendants, and to venue in this District. Defendants shall not challenge the terms ofthis Consent Decree or this Court'sjurisdictionto enter and enforce this Consent Decree. Solely for purposes ofthe Complaints filed by the Plaintiffs in this matter and resolved by the Consent Decree, for purposes ofentry and enforcement ofthis Consent Decree, and for no other purpose, Defendants waive any defense or objection based on standing, and further waive any objection to the motionto intervene filed by the Northern Cheyenne Tribe. Except as expressly provided for herein, this Consent Decree shall not create any rights in or obligations ofany Party otherthanthe Plaintiffs and the Defendants. Except as provided in Section XXIII (Public Comment) ofthis Consent Decree, the Parties consent to entry ofthis Consent Decree without further notice. II. APPLICABILITY 2. Upon entry, the provisions ofthe Consent Decree shall apply to and be binding upon and inure to the benefit ofthe Plaintiffs and the Defendants, and theirrespective successors and assigns, officers, employees and agents, solely in their capacities as such.

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3. Defendants shall be responsible for providing a copy ofthis Consent Decree to all vendors, suppliers, consultants, contractors, agents, and any other company or other organization retained to perfonn any ofthe material work required by this Consent Decree. Notwithstanding any retention ofcontractors, subcontractors, oragents 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 ofthis ConsentDecree. In any action to enforcethis Consent Decree, Defendants shaH not assert as a defense the failure oftheir 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 ofthis Consent Decree. Ill. DEFINITIONS 4. A "24-hour Average Emission Rate" shall be detennined by calculating a weighted arithmetic average ofall hourly emission rates (in Ibs/MMBtu or in lbs/hr. depending
on the fonn oftherelevant 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 ofhours when load is less than orequal to 400 gross MW, H2=nurnber ofhours 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 ofall hourly emission rates (in Ibs/MMBtu or in lbslhr, depending
on the fonn ofthe relevant emission limit) for the current Operating Day and the previous 29

5

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Operating Days. A new 30-day Rolling AverageEmission 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 similartothat in the definition above, for the "24-hour Average Emission Rate," exceptthat 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. "CleanAir Act" or "Act" meansthe federal CleanAir Act, 42 U.S.C. 

### §§7401­ 7671q, and its implementing regulations. 8. "ColstripUnits 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 of805 MW, and Unit 4 has a nominal net rating of805 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 ofthe Colstrip Power Plant, "Defendants"means PPL Montana, LLC, NorthWesternEnergy, Puget Sound Energy, Inc., Portland General Electric Company, Avista Corporation, and PacifiCorp.

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11. "EPA" means the United States Environmental Protection Agency. ]2. "lbs/MMBtu" meanspoundspermillion Britishthermal units. 13. "National Ambient Air Quality Standards" or "NAAQS"means national ambient air quality standards that EPA promulgates pursuantto Section 109 ofthe Act, 42 U.S.C. § 7409. 14. "NonattainmentNSR" means the nonattainment areaNew Source Review program within the meaning ofPart D ofSubchapterI ofthe Act, 42 U.S.C. §§ 7501-7515, and 40 C.F.R. Part 51. 15. "NOx" means oxides ofnitrogen. 16. "Operating Day" means any calendarday (midnight to midnight) during Mich a Unit fires coal for any part ofthat period. 17. "Ownership Interest" meanspart orall ofany Defendant's legal or equitable ownership interest in Unit 3 or4 at the Colstrip Power Plant. 18. "Parties"means the United States, the Northern Cheyenne Tribe, and the Defendants. 19. "Plaintiffs"means the United States andthe Northern Cheyenne Tribe. 20. "PSD" means Prevention ofSignificant Deterioration withinthe meaning ofPart C ofSubchapterI ofthe Clean Air Act 42 U.S.C. §§ 7470

- 7492, and 40 C.F.R. Part 52. 21. "PSDpermit" means the Conditional Permit to Commence Construction and Operate the Montana Power Company Colstrip Units #3 and #4, dated September 11, 1979, issued by EPApursuant to 40 C.F.R. 52.21 and Part C ofthe Act, 42 V.S.c. 

### §§ 7470-92. 22. "Title V Permit" means the permit required for the Colstrip Power Plant under Subchapter V ofthe Act, 42 U.S.C. §§ 7661-7661e.



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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. EMISSIONREDUCTIONS 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 eachhour in which the Unit is operating at orbelow 400 gross MW. 4. As a 24-hour Average Emission Rate: 1,893Ibslhr.



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b. The emission limits specified in paragraphs 25.a.1 through 4 above shall apply at all times, including periods ofstart-up, shutdmvn, 

### load fluctuation, maintenance and malfunction, regardless ofcause.
c. ByJanuary 1,2007,Defendants shall complete the final design for the digital controls, 10w-NOx burners andoverfire air system for Unit 3 and shall submit a copy ofthe tinal designto 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, 20I0, 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 of0.18 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 orbelow400 gross MW.

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4. As a 24-hourAverage 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 ofstart-up, shutdown, load fluctuation, maintenance and malfunction, regardless ofcause.
c. ByJanuary 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 ofthe 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 maintainthe digital controls, lowNOx 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 ofthis 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 underthis Consent Decree shall be met to the number ofsignificant digits in which the standard

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or limit is expressed. For example, an emission limit of0.1 00 is not met ifthe actual emission rate is 0.101. Defendants shall round the fourth significant digit to the nearest third significant digit, or the third significant digitto the nearest second significant digit, depending upon whether the limit is expressedto three ortwo significant digits. Forexample, ifan 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 ifan actual emission rate is 0.1005, that shall be reported as 0.101, and shall not be in , compliance with an emission limit of0.100. Defendants shall report data to at least the number ofsignificant digits in which the standard or limit is expressed. 30. Forpurposes ofthis Consent Decree, ifa Unit is operating above 400 MW for part ofone hour and at orbelow400 MW for the remainder ofthat 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 oftenthan onceper minute. Such records shall be maintained for at least five years from the date ofrecording. V. PROHIBITIONON NETTINGCREDITS OR OFFSETSFROMREQUIREDCONTROLS 32. Emission reductions that result from actions to be taken by Defendants after entry ofthis Consent Decree to comply with the requirements ofthis ConsentDecree shall not be considered as a creditable conlemporaneous emission decrease for the purpose ofobtaining 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 ofnetting credits or offsets set forth in Paragraph 32 do not apply to emission reductions achieved by Defendants that are greater than


### 11

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those required under Paragraphs 25 and 26 ofthis Consent Decree. For purposes ofthis Paragraph, emission reductions are greater than those required under Paragraphs 25 and 26only ifthey result from Defendants' compliance with federally-enforceable emission limits that are
more stringent thanthose limits imposed under Paragraphs 25 and 26 and under all other applicable provisions ofthe Clean Air Act and the Montana State ImplementationPlan. VI. RELATIONSHIPTO PSD PERMIT 34. The Parties' establishment ofthe requirements in SectionIV (NOx Emission Reductions and Controls) ofthis Decree, and Defendants' ongoing compliance with those requirements, shall be deemed permanently to satisfy the requirements ofCondition 7 ofthe PSD permit. Defendants' failure to comply with the requirements ofSection IV ofthis Decree shall be a violation ofthe PSD permit, and such requirements shall be considered applicable requirements arising from the PSD permit under Title V ofthe Clean AirAct. VII. CIVIL PENALTY 35. Within thirty (30) calendardays after entry ofthis Consent Decree, Defendants shall pay tothe United States a civil penalty of$50,000. The civil penalty shall be paid by Electronic Funds Transfer ("EFT") to the United States Department ofJustice, in accordance with current EFT procedures, referencing USAO File Number2007V00057 and DOJ Case Number 90-5-2-1-08494 and the civil action case name and case number ofthis action. The costs ofsuch EFT shall be Defendants' responsibility. Payment shall be made in accordance with instructions providedto 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 ofpayment, Defendants shall provide notice ofpayment, referencing the USAO File

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1\umber, the DOJ Case Number, and the civil action case name and case number, to the Department ofJustice and to EPA in accordance with Section XVI (Notices) ofthis Consent Decree.36. Failure to pay the civil penalty in atimely 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 ofa creditor or ofthe United States in securing payment. 37. Payments made pursuant to this Section are penalties withinthe meaning of Section 162(f) ofthe Internal Revenue Code, 26 U.S.C. § 

### 162(f), and are not tax·deductible expenditures for purposes offederal law. VIII. ENERGY EFFICIENCYPROJECT 38. In partial settlement solely ofthe complaint filed by the Tribe in this matter, Defendants shall fund a residential energy efficiency projectfor the benefit ofthe Tribe, as set forth in the agreement attached as Appendix Ato this Decree. Notwithstanding any other provisions ofthis Decree, failure to completethe energy efficiency project shall not be subject to any stipulatedpenalties under this Decree. IX. RESOLUTION OF PLAINTIFFS'CIVILCLAIMS 39. Entry ofthis Decree shall resolve all ofthe civil claims alleged in the Complaints against Defendantsthrough the dateoflodging ofthis Decree. 40. Reopeners. In additionto their rights to pursue enforcement ofthe terms ofthis Decree, the Plaintiffs reserve, and this Consent Decree is without prejudice to, any claim they

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may have ifDefendants operate Colstrip Unit 3 or Unit4 more than ninety days past July 1, 2007, or July 1,2009, respectively, without completing the required installation or upgrade and beginning operation ofany emission control device required pursuant to Paragraphs 25 and 26. X. PERIODICREPORTING 41. Beginning thirty (30) days after the end ofthe second full calendarquarter following the entry ofthis 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 behalfofall 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 ofthis Consent Decree; and b. all infonnation indicating that the installation and beginning ofoperation ofdigital 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 progressreport submitted pursuant to this Section, Defendants (or PPL Montana on behalfofthe Defendants, as the case may be), may incorporate by reference infonnation previously submitted under their Title V pennittingrequirements, provided that Defendants (or PPL Montana) attach(es) the Title V pennitreport, or the relevant portion thereof, and provide a specific reference to the provisions ofthe Title V pennit report that are responsive Lo Lhc infonnation required in the periodic progress report.

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44. In addition to the progress reports required pursuant to this Section, Defendants (or PPL Montana, as operator on behalfofthe Defendants) shall provide a written report to EPA andthe Tribe ofany violation ofthe requirements ofthis Consent Decree within fifteen (15) calendar days ofwhen Defendants knew or, in the exercise ofreasonable diligence, should have known, ofany such violation. In this report, Defendants (or PPL Montana) shall explainthe
cause or causes ofthe 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 orher equivalent ordesignee ofat least the rank ofVice President.
or (ii) on behalfofall Defendants not signing on their own behalf, by the Vice President and ChiefOperating Officer ofPPL Montana (or his or her equivalent or designee ofat least the rank. ofVice President), or (iii) on behalfofall Defendants by the designated representative as defined in 40 C.F.R. 

### §72.2, and shall contain the following certification: This infonnationwas prepared either by me or under my direction or supervision in accordance with a systemdesigned to assure that qualified personnel properly gatherand evaluate the information submitted. Based on my evaluation, orthe direction and my inquiry oftheperson(s) who manage the system, orthe person(s) directly responsible for gathering the information, I hereby certify under penalty of law that, to the best ofmy knowledge and belief, this information is true, accurate, and complete. I understand that there are significant penalties for submitting false, inaccurate, orincomplete infonnation to the United States. XI. STIPULATEDPENALTIES 46. Forany failure by Defendants to comply with the temlS ofthis Consent Decree. and subject to the provisions ofSections XII (Force Majeure) and XIII (Dispute Resolution). Defendants shall pay, within thirty (30) days after receipt ofwritten demand to Defendants by the United States, the following stipulated penalties to the United States:

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ConsentDecreeViolation Stipulated Penalty a. Failure to comply with the applicable 30-day Rolling $2,500 per day Average Emission Rate limit for NO., orthe 24-hour Average Emission Rate limit for NO., where the violation is less than 5% in excess ofthe 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., orthe 24-hour Average Emission Rate limit for NO., where the violation is equal to orgreaterthan 5% but less than 10% in excess of the limits set forth in this ConsentDecree 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 ofthe limits set forth in this ConsentDecree d. Operation ofaUnit 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 ofsuch 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 mannerthe 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 ofthis Consent Decree $1,000 per day per violation 47. Violation ofan 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 ofa 3D-day Rolling Average Emission Rate limit (from the same unit) recurs within periods ofless than thirty (30) days, Defendants shall not pay a daily stipulated penalty for any day oftherecurrence for which a stipulated penalty has already been paid. Forany period during which both the Ibslhr limit is exceeded and the 

### Ibs/MMBtu limit is exceeded, a stipulated penalty is owed only for violation ofone ofthose 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 ConsentDecree shall prevent the simultaneous accrual ofseparate stipulatedpenalties for separateviolations ofthis Consent Decree. 49. Defendants shall pay all stipulated penalties to the United States within thirty (30) days ofreceipt ofwritten 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 ofreceipt ofwritten demand to Defendants from the United States to dispute the accrual ofstipulated penalties in accordance withthe provisions in Section XIII (Dispute Resolution) ofthis 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 ofthe Treasury, pursuant to 28 U.S.C. 

### § 1961, but need not be paid until the following:
a. Ifthe dispute is resolved by agreement, orby a decision ofthe United States pursuant to Section XIlI (Dispute Resolution) ofthis 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 ofthe effective date ofthe agreement or ofthe receipt ofPlaintiffs' decision;

17

### Case 1 :07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 21 of 51

b. Ifthe dispute is appealed to the Court and the United States prevails in whole or in part, Defendants shall, within sixty (60) days ofreceipt ofthe Court's decision or order, pay all accrued stipulated penalties determined by the Courtto be owing, together with interest accrued on such penalties determined by the Courtto be owing, except as provided in Subparagraph
c. below;
c. Ifthe Court's decision is appealedbythe United States or any Defendant, Defendants shall, within fifteen (15) days ofreceipt ofthe issuance ofthe 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 stipulatedpenalties shall be paid in the following manner: The penalty shall be paid by Electronic Funds Transfer ("EFr) to the United States Department ofJustice, 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 ofthis action. The costs ofsuch EFT shall be Defendants' responsibility. Payment shall be made in accordance with instructionsprovided to Defendants by the U.S. Attorney's Office for the District ofMontana. Any funds received after 2:00 p.m. Eastern Time shall be credited
on the next business day. At the time ofpayment. Defendants shall provide notice ofpayment, referencing the USAO File Number2007V00057, the DOJ Case Number 90-5-2-1-08494, and the civil action case name and case number, to the Department ofJustice and to EPA in accordance with SectionXVI (Notices) ofthis Consent Decree.



### 18Case 1 :07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 22 of 51

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 ofa creditororofthe United States 

### in securing payment. 53, Payments made pursuant to this Section are penalties within the meaning of Section 162(f) ofthe Internal Revenue Code, 26 U.S.C. § 162(f), and are not tax-deductible expenditures for purposes offederal law. 54. The stipulated penalties provided for in this Consent Decree shall be inaddition to any other rights, remedies, or sanctions available to thePlaintiffs by reason ofDefendants' failure to comply with any requirement ofthis Consent Decree or applicable law; except that, for any violation ofthe Act for which this Consent Decree provides for payment ofa 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 otherprovision ofthis Consent Decree, the United Statesmay,. in its unreviewable discretion, waive all orany part ofany stipulated penalties which have accrued pursuant to this Consent Decree. 

### XII. FORCEMAJEURE 55. For purposes ofthis Consent Decree, a "ForceMajeure Event" shall mean an event that has been or will be caused by circumstances beyond the control ofDefendants, its contractors, orany entity controlled by Defendants that delays compliance with any provisionof this Consent Decree orotheIVIise causes a violation ofany provision ofthis Consent Decree

19Case 1 :07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 23 of 51

despite Defendants' best efforts to fulfill the obligation. "Bestefforts to fulfill the obligation" includeusing best efforts to anticipate any potential Force Majeure Event and to address the effects ofany 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 ofForce Majeure Events. Ifany event occurs or has occurredthat may delay compliance with or otherwise cause a violation ofany 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 ofdue diligence should have known, that the event caused or may cause such delay or violation. Inthis notice, Defendants shall reference this Paragraph ofthis Consent Decree and describe the anticipated length oftime that the delay or violation may persist, the cause or causes ofthe 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 proposeto implementthose 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 ofany circumstance which Defendants, their contractors, or any entity controlled by Defendants knew or should have known. 57. Failure to Give Notice. IfDefendants fail to comply with the notice requirements ofthis 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.

20Case 1 :07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 24 of 51

58. Plaintiffs' Response. The United States shall notifY Defendants in writing regarding Defendants' claim ofForce Majeure within twenty (20) business days ofreceipt ofthe notice provided under Paragraph 55. Ifthe 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 ofdeadline(s) for performance ofthe 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) ofthis Consent Decree. 59. Disagreement. Ifthe United States (after consultation with the Tribe), does not accept Defendants' claim afForce Majeure, ifthe United States and Defendants cannot agree on the length ofthe delay actually caused by the Force Majeure Event, or ifthe Tribe does not agree with the United States's detennination regarding Defendants' claim afForceMajeure, the matter shall be resolved in accordance with SectionXIII (Dispute Resolution) ofthis Consent Decree. 60. Burden ofProof. In a dispute regarding ForceMajeure, Defendants shall bear the burden ofproving that any delay in performance or any other violation ofany requirement ofthis Consent Decree was caused by orwill be caused by a Force Majeure Event. Defendants shall also bear the burden ofproving that Defendants gave the notice required by this Section and the burden ofproving the anticipated duration and extent ofany delay(s) attributable to a Force Majeure Event. In a dispute between the Plaintiffs regarding the applicability ofForce Majeure, the Tribe will have the burden ofproof. An extension ofone compliance date based on a particular event may, but will not necessarily, rt'Sult in an extension ofa subsequent compliance date.



### 21

### Case 1 :07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 25 of 51

61. Exclusions. Unanticipated or increased costs or expenses associated with the performance ofDefendants' obligations under this Consent Decree shall not constitute a Force Majeure Event. Failureto comply with the emission limits specified in paragraphs 25.a.l through 4 and 26.a.1 through 4 ofthis Consent Decree shall not be subject to a claim ofForce Majeure, exceptthat Defendants may assert that initial compliance with such emission limits as ofthe deadlines specified in paragraphs 25.a and 26.ahas 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 ofthis Section: construction, installation, labor, orequipment shortages or delays; acts ofCiod; acts ofwar orterrorism; an order by a governmentofficial, 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 ofthe permitting authority to act is beyond the control ofDefendants and Defendants have taken all steps available to them to obtainthe necessary pennit, including, but not limited to: submitting 

### acomplete 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.

22

### Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 26 of 51

63. As part ofthe resolution ofany matter submitted to this Court under Section XIII (Dispute Resolution) ofthis Consent Decree regarding a claim afForce Majeure, the Plaintiffs and Defendants by agreement, orthis Counby order, may in appropriate circumstances extend or modify the schedule for completion ofwork under this Consent Decree to account for the delay in the work that occurred as a result ofany delay agreedto 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 ofForce Majeure with regard to meeting any such extended ormodified schedule). XIII. DISPUTERESOLUTION 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 matterwith the other Parties. 65. The dispute resolution procedure required herein shall be invoked by one Party giving written notice to the otherParties advising ofa dispute pursuant to this Section. The notice shall describe the nature ofthe dispute and shall state the noticing Party's position with regard to such dispute. Each Party receiving such a notice shall acknowledge receipt ofthe notice, and the Parties in dispute shall expeditiously schedule a meeting to discuss the dispute informally not later than fourteen (14) days following receipt ofsuch notice.

23

### Case 1 :07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 27 of 51

66. Disputes submitted to dispute resolution under this Section shall, in the first instance, be the subject ofinfonnal negotiations among the disputing Parties. Suchperiod of infonnal negotiations shall not extend beyond thirty (30) calendar days from the date ofthe 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 ifthe Parties agree that the ADR activities canbe completed within the 30-day infonnal negotiations period (or such longer period as the Parties may agree to in writing). 67. Ifthe disputing Parties are unable to reach agreement during the infonnal negotiation period, the Plaintiffs or either one ofthem shall provide Defendants with a written summary oftheirposition regarding the dispute. The written position provided by a Plaintiff shall be considered binding unless, within forty-five (45) calendar days thereafter, Defendants seekjudicial resolution ofthe dispute by filing a petition with this Court. The Plaintiffs or any
one ofthem may respond to the petition within forty-five (45) calendar days offiling. In their initial filings with the Court under this Paragraph, the disputing Parties shaH state their respective positions as to the applicable standard oflaw for resolving the particular dispute. 68. The time periods set out in this Section may be shortened or lengthened upon motion to the Court ofone ofthe 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 ofinvocation ofthis Sectionor the disputing Parties' inability to reach agreement.



### 24Case 1:07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 28 of 51

70. As part ofthe resolution ofany dispute underthis Section, in appropriate circumstancesthe Parties may agree on, orthis Court may order, an extension ormodification of the schedule for the completion ofthe activitiesrequired under this Consent Decree to account for the delay that occurred as a result ofdispute resolution. Defendants shall be liable for stipulated penalties for their failure thereafter to completethe work in accordance with the extended or modified schedule; providedthat Defendants shan notbeprecludedfrom asserting that a Force Majeure Event has caused ormay cause a delay in complying with the extended or modified schedule. XIV. PERMITS 71
. Unless expressly stated otherwise in this Consent Decree, in any instance where otherwise applicable law orthis Consent Decree requires Defendants to secure a permitto authorize construction or operation ofany 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 ofthis Consent Decree subjectto stipulated penalties. EPA shall use its best efforts to review expeditiously all pennit applications submitted by Defendants in orderto meet the requirements ofthis 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 ofthe permit request, including requests for additional infomlation by the pemlitting authorities. Any failure by Defendantsto submit a timely pennit application for Unit 3 or Unit 4 shall bar any use by Defendants ofSection XII (Force Majeure)



### 25Case 1 :07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 29 of 51

ofthis Consent Decree, where a Force Majeure claim is based on permitting delays, but shall not otherwise constitute an independent violation ofthis Consent Decree subject to stipulated penalties. 73. Notwithstanding the reference to a Title V permit in this Consent Decree, the enforcement ofsuch pernlit shall be in accordance with its own ternlS and the Act. The Title V permit shall not be enforceable underthis Consent Decree, although any ternl or limit established by orunderthis Consent Decree shall be enforceable under this Consent Decree regardless of whether such term has or will become part ofa Title V permit, subject to the terms ofSection XXIV (Conditional Termination ofEnforcement Under Decree) ofthis Consent Decree. 74. Within one hundred eighty (180) days after entry ofthis 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 ofParagraphs 25.a, 25.b, 25.d, 26.a, 26.b, 26.c, 26.d, 28­ 34 and 77 ofthis 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 ofeach application to amend their Title V permit and federally enforceable state permit to allow for timely participation in any public comment opportunity. XV. INFORMATIONCOLLECTIONAND RETENTION 76. Any authorized representative ofthe United States, including its attorneys, contractors, and consultants, upon presentation ofcredentials, shall have a right ofentry upon the premises ofany Defendant's facility at any reasonable time for the purpose of:
a. monitoring the progress ofactivities required under this Consent Decree;

26

### 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 ofthis Consent Decree;
c. obtaining samples and, upon request, splits ofany samples taken by Defendants or its representatives, contractors, or consultants; and d. assessing Defendants' compliance withthis Consent Decree. 77. Defendants shall retain, and instruct their contractors and agents to preserve, all non-identical copies ofall 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 oftheir 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 otherrecords. 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 subjectto any requests under applicable law providing for public disclosure ofdocuments 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 Defendantsto 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.

27

### Case 1 :07-cv-00040-RFC Docu ment 15 Filed 05/14/2007 Page 31 of 51

79. Nothing in this Consent Decree shal11imitthe authority ofthe EPA orthe State of**~ontana** to conduct tests and inspections at Defendants' facilities under Section 114 ofthe Act, 42 U.s.c. 

### S7414, or any other applicable federal or state law, regulation orpennit. XVI. NOTICES 80. Unless otherwise provided herein, whenever notifications, submissions, or communications are required bythis Consent Decree, they shall bemade in writing and addressed as follows: As to the United States ofAmerica: Chief, Environmental Enforcement Section Environment and Natural Resources Division U.S. Department ofJustice P.O. Box 7611, Ben Franklin Station Washington, D.C. 20044-7611 DOJ# 90-5-2-1-08494 and Director, Air Enforcement Division Office ofEnforcement and Compliance Assurance U.S. Environmental Protection Agency Ariel Rios Building (Mail Code 2242A) 1200 PennsylvaniaAvenue, 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 ofEnvironmental Protection P.O. Box 128 Lame Deer, MT 59043

28Case 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 Asto Defendants: General Counsel PPL Montana, LLC 303 North Broadway, Suite 400 Billings, MT 59101-1255 and Manager, Environmental Engineering Colstrip Steam Generating Station WillowAvenue & Warehouse Road P.O. Box 38 Colstrip, MT 59323-0038 81. All notifications, communications or submissions made pursuantto this Section shall be sent by electronic mail and followed either by: (a) overnight mail or overnight delivery service, or (b) certified orregisteredmail, return receipt requested. All notifications, communications andtransmissions sent by overnight, certified orregistered mail shall be deemed submitted on the datethey are postmarked, orthe date they are deliveredto theovernight delivery service. 82. Any Party may change eitherthe notice recipient orthe address for providing notices to it by serving all other Parties with a notice setting forth suchnew notice recipient or address. XVII. SALES ORTRANSFERS 83. Ifa Defendant proposes to sell or transfer all orpart ofits Ownership Interest or its responsibility as operatorofUnit 3 or Unit 4 to an entity unrelated to any ofthe Defendants
29Case 1 :07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 33 of 51

("Third Party"), it shall advise the Third Party in writing ofthe existence ofthis Consent Decree prior to such sale Or transfer and shall send a copy ofsuchwritten notification to the Plaintiffs pursuant to Section XVI (Notices) ofthis Consent Decree at least sixty (60) days before such proposed sale or transfer. 84. No sale or transfer ofan 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 ofthe obligations, terms and conditions ofthis Consent Decree applicable to the relevant Unit; (b) thejurisdictionofthe Court to enforce the tenns ofthis Consent Decree as to such party; and (c) become a party to this Consent Decree. Notwithstanding such a sale or transfer ofan Ownership Interest to a Third Party, the Defendant transferring such interest shall remainjointly and severally liable with the Third Party unless the Consent Decree is modified or the Defendant'sjointand several liability is restricted in accordancewith Paragraph 85. 85. The Defendant selling ortransferring an Ownership Interest to aThird 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 conjunctionwith 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 ofthis Consent Decree. Ifthe 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.

30Case 1 :07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 34 of 51

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, undertakethe Additional Injunctive Reliefin accordance with Section VIII, pay stipulated penalties with respect to actions occurring prior to the date oftransfer ofOwnership Interests or operator responsibility in accordance with SectionXI, 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 ofthejointand several liability ofany 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 theextent such obligations may be adequately separated in an enforceable manner. 86. Paragraphs 84 and 85 ofthis Consent Decree do not apply ifan Ownership Interest is sold or transferred solely as collateral security in orderto 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) ofColstrip Unit 3 or4; b) remains subject to and liable for any obligations and liabilities ofthis Consent Decree; and c) supplies Plaintiffs with the following certification within 30 days ofthe sale ortransfer: "Certification ofChange in Ownership Interest Solely for Purpose of Consummating Financing. We, the ChiefExecutive Officer and General Counsel of [Defendant Company], herebyjointly certify under Title 18 U.S.C. Section 1001, on our own behalfand on behalfof[Defendant Company], that any change in Defendant's Ownership Interest in any Unit that is caused by the sale or transfer as collateral security ofsuch Ovmership Interest in such Unit(s) pursuantto the financing agreement consummated on [insert applicable date] between Defendant and [insert applicable entity]: a) is made solely for the purpose ofproviding collateral security in orderto consummate a fmancing arrangement; b) does not impair Defendant's ability, legally or otherwise, to comply timely with all terms
31

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

and provisions ofthe Consent Decree entered in UnitedStates ujAmerica, etal. 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 mannerthat is inconsistent with [Defendant Company's] perfonnance ofits 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. EFFECTIVEDATE 87. The eftective date ofthis Consent Decree shall be the date upon which this Consent Decree is entered by the Court. XIX. RETENTION OFJURISDICTION 88. The Court shall retainjurisdiction ofthis case after entry ofthis Consent Decree to enforce compliance withthe terms and conditions ofthis Consent Decree and to take any action necessary orappropriate for its interpretation, construction, execution, ormodification, or for adjudication ofdisputes. During the term ofthis Consent Decree, any Party to this Consent D.:crec may apply to the Court for any reliefnecessary to construe or effectuate this Consent Decree. XX. MODIFICAnON 89. The tenns**ofthi~** Consent Decree may be modified only by a subsequentwritten agreement signed by the Parties. Where the modification constitutes a material changeto any tenn ofthis 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 ofthis 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



### 32

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

obligation to comply with other state and federal requirements underthe federal Clean Air Act or the Montana Clean Air Act. 91. This Consent Decree does not apply to any claim(s) ofalleged criminal liability. 92. 

### In any subsequent administrative orjudicial action initiated by either ofthe Plaintiffs for injunctive reliefor civil penalties relating to Colstrip Units 3 or 4, theDefendant shall not assert any defense or claim ba.<;ed upon principles ofwaiver, resjudicata, collateral estoppel, issue preclusion, claim preclusion, or claim splitting, or any other defense based upon the contention that the claims raised by any ofthePlaintiffs 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 ofSection IX (Resolution ofPlaintiffs' Civil Claims). 93. Except as specifically provided by this Consent Decree, nothing in this Consent Decree shall relieve any Defendant ofits obligation to comply with all applicable federal, state, and local laws and regulations. Subject to the provisions in section

### IX (Resolution ofPlaintiffs' Civil Claims), nothing contained inthis ConsentDecree shall be construed to prevent or limitthe rights ofthe PlaintitIs to obtain penalties or injunctive reliefunder 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.

33

### Case 1 :07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 37 of 51

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 ofdata for any purpose under the Act. 96. Each limit and/or otherrequirement established by or under this Decree is a separate, independent requirement. 97. This Consent Decree does not limit, enlarge or affect the rights ofany 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 settlementembodied 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 ofthis Decree orthe settlement it represents, nor shall it be used in construing the tenns ofthis Consent Decree. 99. Each Party shall bear its own costs and attorneys' fees. 100. Nothing in this Decree shall be construed as a waiver ofthe sovereign immunity ofthe United States or the Tribe. XXII. SIGNATORIESAND SERVICE 101. Each undersigned representative ofthe Parties certifies that he or she is fully authorized to enter into the terms and conditions ofthis Consent Decree and to execute and legally bind to this document the Party he or she represents.

34Case 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 orrelating to this Consent Decree and to waive the fonnal service requirements set forth in Rule 4 ofthe Federal Rules ofCivil Procedure and any applicable Local Rules ofthis Courtincluding, but not limited to, service ofa summons. XXlII. PUBLICCOMMENT 104. The Parties agree and acknowledge that final approval by the United States and entry ofthis Consent Decree is subject to the procedures of28 C.F.R. § 50.7, which provides for notice ofthe lodging ofthis Consent Decree in the Federal Register, an opportunity for public comment, and the right ofthe United States to withdraw or withhold consent ifthe comments disclose facts orconsiderations which indicate that the Consent Decree is inappropriate, improper or inadequate. The Defendants shall notoppose entry ofthis Consent Decree by this Court or challenge any provision ofthis ConsentDecreeunless the United States hasnotified the Defendants, in writing, that the United States no longer supports entry ofthe Consent Decree. XXIV. CONDITIOj\ALTERMINATIONOF ENFORCEMENT UNDERDECREE 105. Conditional Tennination ofEnforcement Through the Consent Decree. After December 31, 2013, ifthe Defendants:
a. have successfully completed construction, and are maintaining operation, ofall pollution controls as required by this Consent Decree; and b. have obtained final Title V pennits and any necessary federallyenforceable statepennits (i) as required by the tenns ofthis Consent

35Case 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 SectionXIV (Permits) ofthis ConsentDecree, then Defendants may so certify these facts to the Plaintiffs and this Court. Ifthe Plaintiffs do not object in writing with specific reasons within forty-five (45) days ofreceipt ofDefendants' certification, then, for any Consent Decree violations that occur after the filing ofnotice, the Plaintiffs shall pursue enforcement ofthe requirements contained in the Title V permit or the applicable federally-enforceable state permit through the Title V pennit orthe applicable federally-enforceable state permit and not through this ConsentDecree. 106. Resort to Enforcement underthis Consent Decree. Notwithstanding Paragraph 105, ifenforcementofa provision in this Decree cannot be pursued by a Party under the applicable Title V permit or the applicable federally-enforceable state permit, or ifa Decree requirement was intended to be part ofa Title V Permit orthe applicable federally-enforceable state permitand did not become orremain part ofsuch permit, then suchrequirement may be enforced under the terms ofthis Decree at any time. XXV. FINALJUDGMENT 107. Upon approval and entry ofthis Consent Decree by the Court, this Consent Decree shall constitute a finaljudgment amongthe Plaintiffs and Defendants.

36Case 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 DISTRICTCOURTJUDGE

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 ofJustice, 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 ofJustice 1961 Stout Street - 8th Floor Denver, CO 80294

Date: William W. Mercer United States Attorney District ofMontana 2929 Third Avenue North Billings, MT 59102

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

Signature Page for Consent Decree in: UnitedStates of America et 01. v. PPLMontana, LLC, etal.

FOR THE UNITED STATES OFAMERICA:

Date: Matthew J. McKeown ActingAssistant Attorney General Environment and Natural Resources Division United States Department ofJustice, 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 ofJustice 1961**~ut** Street - 8th Floor Den/er,

### ~1 80294 ; ; , 

# VII**~j** 

# {W/2 '-.-_
...._-_._-­ William W. Mercer United States Attorney District ofMontana 2929 Third Avenue North Billings, MT 59102

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

Signature Page for Consent Decree in: United States of America et al. v. PPLMontana, LLCet

### ai.

Date:

# -!.l'Z:51 

# 01- 

# ­

# Gr~!£I7~ Assistant Administrator Office ofEnforcement and Compliance Assurance United States Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, D.C. 20460

Director, Air Enforcement Division Office ofCivil Enforcement Office ofEnforcement and Compliance Assurance United States Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, D.C. 20460

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

Signature Page for Consent Decree in: UnitedStates of America et 01. v. PPL Montana, LLC. etal.

Date: Carol Rushin Assistant Regional Administrator Oflice ofEnforcement, Compliance and

Environmental Justice U.S. Environmental Protection Agency Region 8 999 18th Street, Suite 300 Denver, CO 80202

Date: Dec.. 

### 19,**~oo"** DavidRochlin SeniorAir Enforcement Attorney U.S. Environmental ProtectionAgency 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: UnitedStates of America etal. v. PPL Montana, LLC, et al. FOR THE NORTHERN CHEYENNE TRIBE

# ~;L~ Date: 

### 2/1

# j 7

Date: L.. { 

### Y

# lUI 

# L----­
n B. Arum J aunsel for the Tribe Ziantz, Chestnut, Varnell, Berley & Slonim 2101 FourthAvenue, 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: UnitedStates of America etal


### v. PPLMontana, LLC, etal

FOR PUGET SOUND ENERGY:

DATE:

# \.::"H,-:o=---Co~ Vi e P , roject Development & ContractManagement Pu et Sound Energy, Inc. 10885 NE4th 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: UnitedStates oj America et al. v. PPL Montana, LLC, et al.

Mr. Brad Spence 

### DATE:

# ~{},-----ec-=---_/!:....-C;~;l006 Vice President and ChiefOperating Officer PPLMontana, LLC 303 NorthBroadway, Suite 400 Billings, MT 59101

OFFICE OF

### ;;NE~L DATE: I'l.frf

### IG~

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



### SignaturePage for ConsentDecree in: UnitedStates of America et al. v. PPLMontana, 

### UC, el 

### al.

44

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

SignaturePage for ConsentDecree in: UnitedStates of America etal. v. PPL Montana, LLC, etal. FOR PORTLAND GENERAL ELECTRIC COMPANY:

# ,d~~~'P~ DATE: 

# l / 

# j; 

# 10J Mr. James J. Piro Executive Vice President Portland GeneralElectric 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 ConsentDecree in: UnitedStates of AmericaetaI, 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: UnitedStates afAmerica et al. v, PPL Montana, LLC, eta1. 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 ACase 1 :07-cv-00040-RFC Document 15 Filed 

### 05/14/2007 Page 2 of 6

APPENDIX A RESIDENTIAL ENERGYEFFrcrENCYIMPROVEMENTS PROJECTFUNDrNG AGREEMENT This Agrccment is entered into on December _, 2006, hetween PPL Montana LLC ("PPL Montana") on behalfofitselfand NorthWestern COTporation, d/b/aNorthWestern 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 ofthe proposed consent decree signed on December_, 2006 to be filed in the United States District Court for the District ofMontana, 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 ofthe Consent Decree to the Tribe to undertake the Project work subject to the terms and conditions specified below. Ifthe Consent Decree is not entered, this Agreement shall be ofno 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 ofthe payment, the Tribe will complete Project work within one calendar year. The time for completion ofthe project may be extended only upon the express written consent ofPPLMontana, ofbehalfofall ofthe 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 ofthe Project. Such approval shall not be unreasonably delayed or withheld.

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

PROPOSED BUDGETESTIMATE LINE ITEM AMOUNT DESCRIPTION Salaries $21,736.00 2 Laborers $10.45 p.h. X 1040 hrs ea. EmployerTaxes $ 4,673.16 FICA, MEDICARE, FUTA, SUTA, OFTL Fringe Benefits $ 3,912.48 Section 125 Contribution Travel (Mileage) 

### $ 3,000.00 .445cmile for mileage to & from projects Materials $51,562.99 Materials usedfor energy efficiency Professional Services $10,000.00 Electrical Repairs

- Furnace Replacement AdministrativeExpenses 

### $ 140.00 Employee DrugTesting as required byNeT Indirect Cost $ 4,975.37 22.89% ofSalaries 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 ofresidences for which improvements will be made will depend on the condition ofeach home. 6. The HIP will conduct 

### an on-site inspection on each residence and prepare a list ofrepairs. 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 offunds. 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 offon its completion. 7. Based on appropriate expert input, the Tribe will prioritize the types ofrepairs in orderto maximize the amount of energy savings achieved through the Project. Examples of allowable repairs mayincludethe following: Caulking andWeather-stripping Seal cracks/openings into outside walls Install electrical outlet & switch gaskets Install ceiling, wall, & floor insulation RepairlReplace Windows Install storm windows RepairlReplace ExteriorDoors Install SelfStoring Storm Doors Duct andpipe insulation Seal leaks in pipes and ducts Repair leakyfaucets Repairdrain lines Attic ventilation! vaporbarriers Install mobilehome skirting Waterheaterrepair/replacement Electrical Repair (related to heating) Install new insulated chimneykits for wood Repair existing heating systems (furnace, stove baseboard heaters) Instal1 new highcr efficiencyheating system A-2

### Case 1 :07-cv-00040-RFC Document 15 Filed 05/14/2007 Page 4 of6

8. The HlP will provide notice to PPL Montana upon completion of the ProJcct. PPL Montana'sreceipt ofthis notice shall constitute the Project Completion Date.


### IV. Eligibility toParticipate 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 ofHealth & Human Services poverty income guidelines will beused 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 ofthe 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 byHIP 504 Elderly Repair Grants, and the Low Income Home EnergyAssistance 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 ofthe 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. Nothinginthis Agreement shaHbeconstruedas creatingtherelationshipofprincipal andagent, or employer and employee, between the Defendants and the Tribe or HIP, any contractor, or contractor'semployees, agentsorsubcontractors. TheHIP shallhavenoauthorityto

### hireanypersonson behalfofDefendants and any and all persons whom it mayemploy shall be deemed to be solelythe employeesoftheHIP. TheHIP is notauthorizedand shall notincuranydebt, liabilityorobligationof anynaturefororon behalfofDefendants. The HIP's employees shall notfor anyputpOses whatsoever, be considered employees ofDefendants or be eligible for any employee benefits or programs of Defendants. TheHIP, its employees, agents, contractors and subcontractors shall holdhannless and release Defend,mts from anyand all loss orliability, includingthe costs ofsettlements,judgments, damages and direct expenses including reasonable attorneys fees whether based on statute or regulation oron theories ofcontract, tort, strict liability, orotherwise arising from orin any manner relating to perfonnance ofthe work. TheHIP shall in writing notify all contractors, subcontractors, agents oremployees involved in the workoftheprovisionsofthis paragraph, whichtheyshall acceptas a conditionofundertaking work onthe Project. 16. Nothing in this Agreement waives or shall be construed to waive the Tribe's sovereign immunity. 17, Anydisputes arisingunderthis AgreementshaH beresolvedpursuanttotheDisputeResolution procedures set forth in Section Xlll ofthe Consent Decree.
PPL MONTANA, LLC NORTHERNCHEYENNETRffiE By: By:

__ __ _ EugeneLittle Coyote, President Its 

# Vi c.e

# PCfSi~.rl 

# Ji

# ~OO On behalfofDefendants PPLMontana, LLC, NorthWesternEnergyLLC, Puget SoundEnergy, Inc., Portland General Electric Company, AvistaCorporation, and PacifiCorp**Urh~f** i}­ GFNFMlCOUNSEL 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 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 behalfofDefendants and any and all persons whom itmay employ shall be deemed to be solelythe employees ofthe

### HIP. The

### HIP is not authorized and shall not incurany debt, liability or obligation ofany nature for or on behalfofDefendants. The HIP's employees shall not for any purposes whatsoever, be considered employees of Defendants or be eligible for any employee benefits orprograms ofDefendants. 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 ofcontract, tort, strict liability, orotherwise arising from or in any manner relating to performance ofthe work. The

### HIP shaH in writingnotify all contractors, subcontractors, agents or employees involved in the work ofthe provisions ofthis paragraph, which they shall accept as a condition ofundertaking work onthe 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 ofthe Consent Decree.



### PPL MONTANA, 

### LLC

Its On behalfofDefendants PPLMontana, LLC, NorthWestern Corporation, d/b/aNorthWesternEnergy, Puget SoundEnergy, 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 ofJustice Environment & Natural Resources Division 1961 Stout Street

- 8th Floor Denver, CO 80294 Telephone: (303) 844-1363 ATTORNEY FOR PLAINTIFFTHE UNITED STATES
IN THE UNITED STATES DISTRICT COURT FOR THEDISTRICT OFMONTANA
United States ofAmerica ) ) 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. OFTHE CONSENT DECREE WHEREAS, the United States ofAmerica ("United States"), for and on behalfofthe United States Environmental Protection Agency ("EPA"), the Northern CheyenneTribe (the "Tribe"), and the operator and owners ofUnit 4 ofthe Colstrip Power Plant, PPLMontana, 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 ConsentDecree (the "Decree") which the Court approved and entered on May 14, 2007; and WHEREAS, Paragraph 26.a. ofthe Decree requires Defendants to meet certain NOx emissions limitations from Unit4 ofthe 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. ofthe Decree to complete the installation ofdigital controls, 10w-NOx burners ("LNB"), and overfire air ("OFA") on Unit4; and WHEREAS, the Parties contemplated that following the installation ofthe 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 ofthe LNB, OFA, and digital control interface following the planned outage ofUnit 4 which started on May 28,2009, Defendants learned that cracks in LProtors, unrelated to the equipment upgrades required by the Decree, would delay the restart ofUnit 4 until afterJuly 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 byJanuary 1,2010; and WHEREAS, Unit4 could not be restarted until October 30, 2009 because ofthe 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 ofa claimed force majeure event as required by Section XII ofthe Consent Decree; and WHEREAS, the United States, for and on behalfofEPA, the Tribe, and Defendants (collectively the "Parties") agree that in light ofthe delay in restarting Unit4 caused by the repairs necessary to address the cracks in the LP rotors, the deadline provided by Paragraph 26.a. ofthe Decree to meet the NOx emission limits should be changed from January I, 2010 to the earlier ofMarch 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. ofthe 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 ofParagraph 26.a. ofthe Decree, including Paragraphs 26.a.1., 26.a.2., 26.a.3., and 26.aA., shall remain the same. 3. No other provisions ofthe Decree shall be altered or affected by this change. 4. The Parties request the Court's approval ofthis Stipulation to the extent that the change in the date for meeting the NOx emissions limitations from January 1,2010, to no later 

### 3Case 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 byParagraph 89 ofthe Decree. APPROVED AND ENTERED this

__ day of
. 2009.

HONORABLE RICHARD F. CEBULL UNITED STATES DISTRICT COURT JUDGE

FORTHEUNITED STATES OFAMERICA:

J ("JERRY") L. ELLINGTON Senior Counsel Environmental Enforcement Section Environment and Natural Resources Division United States Department ofJustice 1961 Stout Street - 8th Floor Denver, CO 80294

DAVID ROCHLIN Senior Air Enforcement Attorney U.S. Environmental ProtectionAgency Region 8 999 18th Street, Suite 300 Denver, CO 80202



### 4SM.P KER anager, Enviro tal Compliance Services 

### Case1:07-cv-00040-RFC Document16 Filed12/21/09 Page50f6

FORTHENORTHERN CHEYENNETRIBE:

lOHNB. ARUM Counsel for the Tribe Ziontz, Chestnut, Varnell, Berley & Slonim 2101 Fourth Avenue, Suite 1230 Seattle, WA 98121
FORTHE OPERATOR AND OWNERS OFUNIT 4 OFTHE COLSTRIP POWERPLANT (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

FORTHENORTHERN CHEYENNE TRIBE:

£:HNB.ARUM

Counsel for the Tribe Ziontz, Chestnut, Varnell, Berley & Slonim 2101 Fourth Avenue, Suite 1230 Seattle, WA 98121
FORTHEOPERATORAND OWNERS OF UNIT 4 OF THE COLSTRIP POWERPLANT (pPLMontana, LLC,NorthWestem Corporation, d/b/a/NorthWesternEnergy, Puget Sound Energy,Inc.,Portland General Electric Company, AvistaCorporation, and PacifiCorp)

DAVID 

### B. KINNARD Secretary and Associate General Counsel PPLMontana, LLC 303 NorthBroadway, Suite 4000 Billings, MT 59101-1255

JAMES M. PARKER Manager, Environmental Compliance Services Colstrip SteamGenerating Station WillowAvenue & Warehouse Road P.O. Box38 Colstrip, MT 59323-0038

GORDON

### D. CRISWELL Director, Environmental, Engineering, and Compliance Colstrip Steam Generating Station WillowAvenue & Warehouse Road P.O. Box 38 Colstrip, MT 59323-0038 5