U:S . 'STKrCT C®UR

UNITED STATES DISTRICT COIIR'PI'TR'CT Of N .H• t• F_'J

DISTRICT OF NEN HAMPSHIRE

UNITED STATES OF AMERICA 2005 L': . 3 1 3

V . Cr . No . OS-Cr- 40S-01 ' DH

ALGONQUIN POWER SYSTEMS-NH , INC ., )

Defendant .

PLEA AGREEMENT

Pursuant to Rule 11(c)(1)(c) of the Federal Rules of

Criminal Procedure, the United States of America, by its

attorney, Thomas P . Colantuono, United States Attorney for the

District of New Hampshire, and the defendant, Algonquin Power

Systems-NH, Inc . ("APS-NH"), and its counsel, Devine, Millimet &

Branch, P .A ., enter into the following Plea Agreement :

1 . The Plea and The Offenses .

Defendant APS-NH agrees, subject to the conditions set forth

in Paragraph 5 of this Agreement, to plead guilty to a 2-count

Information charging the corporation with : a)Negligently

Discharging a Harmful Quantity of Oil into a Water of the United

States, in violation of 33 U .S .C . §§ 1321(b)(3)and 1319(c)(1)(A)

(Count 1) ; and b)Negligently Discharging a Pollutant through a

Point Source to Waters of the United States Without a Permit, in

violation of 33 U .S .C . §§ 1311(a) and 1319(c)(1)(A) (Count 2) .

Case 1:05-cr-00285-SM Document 2 Filed 12/15/05 Page 1 of 15
2 . The Statutes and Elements of the Offenses .

The charges set forth in the Information are brought under

the following provisions of Title 33, United States Code and

applicable provisions of the Code of Federal Regulations :

A . Count 1 (33 U .S .C . § 1321(b)(3) )

The discharge of oil or hazardous substances (I) into or

upon the navigable waters of the United States, adjoining

shorelines, or into or upon the waters of the contiguous

zone . . . in such quantities as may be harmful a s

determined by the President under paragraph (4) of this

subsection, is prohibited . . . .

33 U .S .C . § 1321(b)(3) .

Section 1321(b)(4), referenced in the above statute, states :

The President shall by regulation determine for the purposes

of this section those quantities of oil and any hazardous

substances the discharge of which may be harmful to the

public health or welfare or the environment of the United

States . . . .

The regulation referenced in subsection (4) above is set forth i n

Title 40 of the Code of Federal Regulations as follows :

For purposes of section 1321(b)(4) of the Act, discharges of

oil in such quantities that the Administrator [of the

Environmental Protection Agency] has determined may be

harmful to the public health or welfare or the environment

of the United States include discharges of oil that :

(b) Cause a film or sheen upon or discoloration of the

surface of the water or adjoining shorelines or cause a

sludge or emulsion to be deposited beneath the surface

of the water or upon adjoining shorelines .

40 C .F .R . § 110 .3 . The regulations define a "sheen" as "an

iridescent appearance on the surface of the water ." 40 C .F .R . §

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Case 1:05-cr-00285-SM Document 2 Filed 12/15/05 Page 2 of 15
110 .1 . A negligent violation of Section 1321(b)(3) is punishabl e

under the statute as follows :

Any person who - (A) negligently violates section 1311 [or]

1321(b)(3) . . . of this title, . . . shall be punished by a

fine of not less than $2,500 nor more than $25,000 per day

of violation, or by imprisonment for not more than 1 year,

or by both .

33 U .S .C . §1319(c)(1)(A) .

The essential elements of the offense under 33 U .S .C . §

1321(b)(3) are as follows :

(1) that the defendant discharged oil on one or more

occasions ;

(2) that the discharge was made into or upon the navigable

waters of the United States or adjoining shorelines ;

(3) that the discharge occurred in such quantities as may be

harmful ; an d

(4) that the discharge occurred as a result of defendant's

negligence .

United States v . Pedro Rivera ( D .P .R ., Cr . No . 95-84 ( EL), rev'd .

On unrelated grounds , 131 F . 3d 222 (15' Cir . 1997 ), United States

v . Murray C . Verrett (M.D . La ., Cr . No . 02-219-A) .

B . Count 2 ( 33 U .S .C . § 1311(a) )

Except as in compliance with this section and sections 1312,

1316, 1317, 1328, 1342, and 1344 of this title [authorizing

permits for the discharge of pollutants from a point

source], the discharge of any pollutant by any person shall

be unlawful .

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Case 1:05-cr-00285-SM Document 2 Filed 12/15/05 Page 3 of 15
33 U .S .C . § 1311(a) . An offense under section 1311(a) is

punishable as set forth in 33 U .S .C . §1319(c)(1)(A), supra .

The essential elements of the offense under 33 U .S .C . §

1311(a) are as follows :

(1) that the defendant discharged a pollutant through a

point source ;

(2) that the pollutant was discharged into a water of the

United States ;

(3) that the defendant was not permitted to discharge the

pollutant ; and

(4) that the discharge occurred as a result of defendant's

negligence .

United States v . M/G Transport Services ( S .D . Ohio, CR-1-95-18),

173 F . 3d 584 ( 6th Cir . 1999 ), United States v . Wilson , 133 F .3d

251 (4th Cir . 1997 ), United States v . Pedro Rivera ( D .P .R ., Cr .

No . 95-84 ( BL), rev' d . On unrelated grounds , 131 F . 3d 222 (1°t

Cir . 1997 ), United States v . Murray C . Verrett (M.D . La ., Cr . No .

02-219-A) .

3 . Penalties .

The defendant understands that the penalties for the

offenses are :

i . a maximum fine of $25,000 on each count, per each day

of violation (see 33 U .S .C . § 1319(c)(1)(A)) o r

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Case 1:05-cr-00285-SM Document 2 Filed 12/15/05 Page 4 of 15
$200,000 (see 18 U .S .C . §3571(c)) ;

ii . a maximum term of probation of 5 years on each count

(see 18 U .S .C . §3561© ; U .S .S .G . §8D1 .2) ; and

iii . a mandatory $125 special assessment on each count .

18 U .S .C . §3013(a)(1)(B)(iii) ; U .S .S .G . §8E1 .1) .

In addition to the other penalties provided by law, the

Court may also order the defendant to pay any restitution as may

be applicable pursuant to 18 U .S .C . § 3663 or § 3663A .

4 . Sentencing and Application of the Sentencina Guidelinea .

APS-NH understands that the Sentencing Reform Act of 198 4

applies in this case and that the Court is required to consider

the United States Sentencing Guidelines as advisory guidelines .

APS-NH further understands that it will not have the right to

withdraw its guilty plea if the applicable advisory guideline

range or the sentence is other than anticipated, except as

expressly provided in this Plea Agreement .

The defendant also understands that the United States and

the United States Probation Office shall :

A . advise the Court of any additional, relevant facts that

are presently known or may subsequently come to its

attention ;

B . respond to questions from the Court ;

C . correct any inaccuracies in the pre-sentence report ;

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Case 1:05-cr-00285-SM Document 2 Filed 12/15/05 Page 5 of 15
D . respond to any statements made by APS-NH or its counsel

to a probation officer or to the Court .

APS-NH understands that the United States and the Probation

Office may address the Court with respect to an appropriate

sentence to be imposed in this case and that any estimate of the

probable sentence or the probable sentencing range relating to

the corporation pursuant to the advisory Sentencing Guidelines

that it may have received from any source is only a prediction

and not a promise, and is not binding on the United States, the

Probation Office, or the Court, except as expressly provided in

this Plea Agreement .

5 . Stipulations and Other Acreenents .

A . The parties stipulate pursuant to Fed . R . Crim . P .

11(c)(1)(c), that the following sentence is an

appropriate disposition of the case :

The fine to be imposed on the defendant on each count

of the 2-count Information is $5,000 .00, for an

aggregate criminal fine of $10,000 .00 .

B . In addition, the parties understand and acknowledge

that this plea agreement and the above stipulated

sentence have been entered into as part of a "global

settlement agreement" which includes a civil settlement

set forth in a separate civil Stipulation and Orde r

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Case 1:05-cr-00285-SM Document 2 Filed 12/15/05 Page 6 of 15
negotiated by the parties .

The agreement of APS-NH, Inc ., to plead guilty to 2

misdemeanor charges will be binding on APS-NH Inc . only

if the Court also approves and enters the parties'

civil Stipulation and Order .

C . Further, the United States has agreed that it will not

pursue criminal charges in connection with the conduct

which forms the basis of the Information against other

Algonquin entities . '

The stipulations set forth in paragraphs A, B, and C above

are intended by the parties to be "binding" under Fed . R . Crim .

P . 11(c)(1)(C) . By using the word "binding", the parties mean

that if the Court cannot or will not accept these stipulations,

either party will be permitted to withdraw from this Ple a

Agreement . The parties will not be allowed to withdraw from this

Plea Agreement for any other reason .

The United States and the defendant are free to make

recommendations with respect to other components of the criminal

sentence as appropriate unless such recommendations are

inconsistent with the terms of this Plea Agreement .

1 For the purpose of this plea agreement, the phrase

"conduct which forms the basis of the Information" includes all

conduct by employees or officers of any Algonquin entity relating

to the operation of the Riverbend hydroelectric plant in

Franklin, New Hampshire, during the period from January 1, 2001

through July 31, 2001 .

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Case 1:05-cr-00285-SM Document 2 Filed 12/15/05 Page 7 of 15
6 . Waiver of Trial Riahts and Conseauences of Plea .

APS-NH understands that the defendant has the right to b e

represented by an attorney at every stage of the proceeding and,

if necessary, one will be appointed to represent the defendant .

The corporation understands that it has the right :

A . to plead not guilty or to maintain that plea if it has

already been made ;

B . to be tried by a jury and, at that trial, the right to

the assistance of counsel ;

C . to confront and cross-examine witnesses against the

defendant ; and

D . to compulsory process for the attendance of witnesses

to testify in the defendant's defense .

The defendant understands that by pleading guilty the

defendant waives and gives up those rights and that if a plea of

guilty is accepted by the Court, there will not be a trial of any

kind .

7 . Acknowledqment of Guilt ; Voluntariness of Plea .

The defendant corporation acknowledges that it :

A . is entering into this Plea Agreement and is pleading

guilty freely and voluntarily because it is guilty ;

B . is entering into this Plea Agreement without relianc e

upon any discussions with the United States and without

promise of benefit of any kind except as described i n

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Case 1:05-cr-00285-SM Document 2 Filed 12/15/05 Page 8 of 15
this Plea Agreement ;

C . is entering into this Plea Agreement without threats,

force, intimidation, or coercion of any kind ;

D . understands the nature of the offenses to which it is

pleading guilty, including the penalties provided by

law ; and

E . is completely satisfied with the representation and

advice received from its undersigned attorney .

8 . Scoue of Aareement .

APS-NH understands that this Plea Agreement is limited to

the undersigned parties and cannot bind any other federal

authority, or any state or local authority . The parties

acknowledge that this plea is part of a global settlement to

address hydraulic oil discharges from the Riverbend hydro

electric power generating plant in Franklin, New Hampshire that

occurred between January 315C and February 15, 2001 . No

representations have been made to the defendant with respect to

any civil or administrative consequences that may result from the

defendant's plea of guilty beyond those agreements made in this

Plea Agreement and in the separate civil Stipulation and Order

negotiated by the parties as part of this global settlement .

Finally, APS-NH acknowledges that this Plea Agreement has been

reached without regard to any civil tax matters that may be

pending or which may arise involving it .

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Case 1:05-cr-00285-SM Document 2 Filed 12/15/05 Page 9 of 15
9 . Satisfaction of Federal Criminal Liability ; Breach .

The defendant's guilty plea, if accepted by the Court, will

satisfy any federal criminal liability of the defendant in the

District of New Hampshire as a result of the defendant's

participation in the conduct which forms the basis of the

Information in this case .2 APS-NH understands that if, before

sentencing, it violates any term or condition of this Plea

Agreement, engages in any criminal activity, or fails to appear

for sentencing, the United States may consider such conduct to be

a breach of the Plea Agreement and may withdraw from it .

10 . Waivers .

A . Appeal and Collateral Review .

The defendant is aware that t has the right to challeng e

the sentence and guilty plea on direct appeal . The defendant is

also aware that it may, in some circumstances, be able to argue

that the defendant's plea should be set aside, or the defendant's

sentence be set aside or reduced, in a collateral challenge (such

as pursuant to a motion under 28 U .S .C . § 2255 or § 2241) .

By entering into this Plea Agreement, APS-NH knowingly and

voluntarily waives any right to appeal or to collaterall y

2 For the purpose of this plea agreement, the phrase

"conduct which forms the basis of the Information" includes all

conduct by employees or officers of any Algonquin entity relating

to the operation of the Riverbend hydroelectric plant in

Franklin, New Hampshire, during the period from January 1, 2001

through July 31, 2001 .

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Case 1:05-cr-00285-SM Document 2 Filed 12/15/05 Page 10 of 15
challenge :

The defendant's guilty plea and any other aspect of

defendant's conviction ;

The defendant's waiver of rights to appeal and to bring

collateral challenges shall not apply to appeals or challenges

based on new legal principles in First Circuit or Supreme Court

cases decided after the date of this Plea Agreement which are

held by the First Circuit or Supreme Court to have retroactive

effect . The defendant's waiver of the right to collateral review

does not extend to claims that the plea was unknowing or

involuntary or to claims that the defendant received ineffective

assistance of counsel in the negotiation of the plea or plea

agreement .

This Plea Agreement does not affect the rights or

obligations of the United States as set forth in 18 U .S .C . §

3742(b), and the United States therefore retains its appeal

rights .

B . Fraadom of Information and Privacy Acta .

The defendant hereby waives all rights, whether asserted

directly or by a representative, to request or receive from any

department or agency of the United States any records pertaining

to the investigation or prosecution of this case, including

without limitation any records that may be sought under the

Freedom of Information Act, 5 U .S .C . §552, or the Privacy Act o f

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Case 1:05-cr-00285-SM Document 2 Filed 12/15/05 Page 11 of 15
1974, 5 U .S .C . §522a .

11 . No Other Promises .

APS-NH acknowledges that no other promises, agreements, or

conditions have been entered into other than those set forth in

this Plea Agreement or revealed to the Court, and none will be

entered into unless set forth in writing, signed by all parties,

and submitted to the Court .

12 . Final Bindina Aareement .

None of the terms of this Plea Agreement shall be binding on

the United States until this Plea Agreement is signed by the

defendant and the defendant's attorney and until signed by the

United States Attorney for the District of New Hampshire .

13 . Agreament Provisions Not Severable .

The United States and APS-NH understand and agree that if

any provision of this Plea Agreement is deemed invalid or

unenforceable, then the entire Plea Agreement is null and void

and no part of it may be enforced .

THOMAS P . COLANTUONO

United States Att o

Date : B

ssistant U .S . Attorne y

ed Rubega

Bar No . 221 1

U .S . Attorney's Offic e

55 Pleasant St ., 4th Floor

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Case 1:05-cr-00285-SM Document 2 Filed 12/15/05 Page 12 of 15
Concord, NH 03301

(603) 225-155 2

I, 1> h''i j to ` ta2.(G. ._ , an officer and

director of Algonquin Power Systems-NH, Inc . ("APS-NH") and

empowered by corporate resolution to bind Algonquin Power

Systems-NH, Inc . in this matter, have read this thirteen (13)

page Plea Agreement . I fully understand and, on behalf of

Algonquin Power Systems-NH, Inc ., accept the terms thereof . A

copy of the resolution empowering me to sign on behalf of and to

bind Algonquin Power Systems-NH, Inc . in this matter is attached .

I, Peter Beeson, have read the above Agreement and have

explained it to my client Algon; n owe Sys s- , Inc . .,

which, through its President, t , advises m e

that it understands and accepts t~rms thereof .

Date : t( Z IJ, 2DO6

Peter Beeson, Esq . ,

Counsel for Algonquin Power Systems-NH, Inc .

Case 1:05-cr-00285-SM Document 2 Filed 12/15/05 Page 13 of 15
CONSENT MINUTES OF THE

BOARD OF DIRECTORS OF

ALGONQUIN POWER SYSTEMS NEW HAMPSHIRE, INC .

We, the undersigned, being all of the Directors of Algonquin Power Systems

New Hampshire. Inc., a New Hampshire corporation with a principal place of business i n

, New Hampshire (hereinafter, the "Corporation' ), do hereby consent to the

adoption of the following votes pursuant to Article III, Section 8 of the Corporation's By-Laws

with the same force and effect as if adopted at a duly convened meeting:

VOTED: That a plea of guilty by the Corporation to one count of Negligent

Discharge of a Harmful Quantity of Oil into a Water of the United States

in violation of 33 U.S.C. § 1321(b)(3) and 1319 (c)(1)(A); and one count

of Negligent Discharge of a Pollutant through a Point Source to Waters of

the United States Without a Permit in violation of 33 U.S .C. § 1311(a). and

1319(c)(1)(A), in the matter of United States v. ALGONQUIN POWER

SYSTEMS NEW HAMPSHIRE, INC . (D.N.H. 2005), is in the best

interests of the Corporation and is hereby approved and authorized.

VOTED: That the form of the Plea Agreement by and between the Corporation and

the United States Attorney for the District of New Hampshire (attached

hereto and incorporated herein by reference ) setting forth the terms,

provisions and conditions of the plea of guilty by the Corporation to the

above-described counts in said matter is hereby approved ("Plea

Agreement").

VOTED: That the president of the Corporation, David Kerr, be and hereby is

authorized and empowered to sign on behalf of the Corporation the Plea

Agreement and any and all other documents required by the United States

Attorney for the District of New Hampshire to effectuate the terms,

provisions and conditions of the Plea Agreement, and to take any and all

other necessary action in furtherance thereof.

VOTED : To enter with the corporate records of the Corporation a copy of these

Consent Minutes executed by the board of Directors of the Corporation.

Notice of time, place and purpose and all other formalities in connection with thes e

Consent Minutes and the action taken herein is hereby waived .

O ~ e tl~t 4.

Dated this day of i)

,'~~n"

'ac~~~,

2005 at "MA)4 ,A 1.U► LL,6 , hiew-I aw cbi e .

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