ex10-1.htm


    IN
      THE
      UNITED STATES DISTRICT COURT

    FOR
      THE
      SOUTHERN DISTRICT OF OHIO

    EASTERN
      DIVISION

     

     

    
      	 	 	 	 	 
	 	
              UNITED
                STATES OF AMERICA

            	)	 	 
	 	 	)	 	 
	 	
                               Plaintiff,

            	)	 	 
	 	 	)	 	 
	 	
                  and

            	)	 	 
	 	 	)	 	 
	 	
              STATE
                OF NEW YORK, ET AL.,

            	)	 	 
	 	 	)	 	 
	 	
                              Plaintiff-Intervenors,

            	)	 	 
	 	 	)	 	 
	 	     v.	)	 	JUDGE
              EDMUND A. SARGUS, JR.
	 	 	)	 	Magistrate
              Judge Terence P. Kemp
	 	 	)	 	 
	 	AMERICAN
              ELECTRIC POWER SERVICE	)	 	 
	 	 	)	 	Civil
              Action No C2-99-1250
	 	CORP.,
              ET AL.,	)	 	(Consolidated
              with C2-99-1182)
	 	 	)	 	 
	 	                        Defendants.	)	 	 
	 	 	)	 	 
	 	 	)	 	 


    

     

     

    
      
        	 	 	 	 	 
	 	
                UNITED
                  STATES OF AMERICA

              	)	 	 
	 	 	)	 	 
	 	
                                 Plaintiff,

              	)	 	 
	 	 	)	 	 
	 	     v.	)	 	JUDGE
                GREGORY L. FROST
	 	 	)	 	Magistrate
                Judge Norah McCann King
	 	 	)	 	 
	 	AMERICAN
                ELECTRIC POWER SERVICE	)	 	 
	 	CORP.,
                ET AL.,	)	 	Civil
                Action No C2-05-360
	 	 	)	 	 
	 	                        Defendants.	)	 	 
	 	 	)	 	 
	 	 	)	 	 


      

       

       

      
        
          	 	 	 	 	 
	 	
                  OHIO
                    CITIZEN ACTION, ET AL.,

                	)	 	 
	 	 	)	 	 
	 	
                                   Plaintiffs,

                	)	 	 
	 	 	)	 	 
	 	     v.	)	 	JUDGE
                  GREGORY L. FROST
	 	 	)	 	Magistrate
                  Judge Norah McCann King
	 	 	)	 	 
	 	AMERICAN
                  ELECTRIC POWER SERVICE	)	 	 
	 	CORP.,
                  ET AL.,	)	 	Civil
                  Action No C2-04-1098
	 	 	)	 	 
	 	                        Defendants.	)	 	 
	 	 	)	 	 
	 	 	)	 	 


        

         

      

    

     

     

    


    


    


    


    


    CONSENT
      DECREE

    


     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    TABLE
      OF CONTENTS

     

    I.  JURISDICTION
      AND VENUE

     

    II.  APPLICABILITY 

     

    III.  DEFINITIONS 

     

    IV.  NOx
      EMISSION REDUCTIONS
      AND CONTROLS 

     

    A.           Eastern
      System-Wide Annual Tonnage Limitations for NOx

     

    B.           NOx
      Emission
      Limitations and Control Requirements

     

    C.           General
      Provisions for Use and Surrender of NOx
      Allowances 

     

    D.           Use
      of Excess NOx
      Allowances 

     

    E.           Super-Compliant
      NOx
      Allowances 

     

    F.           Method
      for Surrender of Excess NOx
      Allowances 

     

    G.           Reporting
      Requirements for NOx
      Allowances

     

    H.           General
      NOx
      Provisions

     

    V.  SO2
      EMISSION REDUCTIONS
      AND CONTROLS 

     

    A.           Eastern
      System-Wide Annual Tonnage Limitations for SO2 

     

    B.           SO2
      Emission
      Limitations and Control Requirements

     

    C.           Use
      and Surrender of SO2
      Allowances 

     

    D.           Method
      for Surrender of Excess SO2
Allowances 

     

    E.           Super-Compliant
      SO2
Allowances

     

    F.           Reporting
      Requirements for SO2  Allowances

     

    G.           General
      SO2 Provisions
      

     

    VI.  PM
      EMISSION REDUCTIONS AND
      CONTROLS                                                                                                                    

     

    A.           Optimization
      of Existing ESPs 

     

    B.           PM
      Emission Rate and Testing 

     

    C.           PM
      Emissions Monitoring 

     

    D.           Installation
      and Operation of PM CEMS 

     

    E.           PM
      Reporting 

     

    F.           General
      PM Provisions 

     

    VII.  PROHIBITION
      ON NETTING CREDITS OR OFFSETS FROM REQUIRED CONTROLS

     

    VIII.  ENVIRONMENTAL
      MITIGATION PROJECTS 

     

    A.           Requirements
      for Projects Described in Appendix A ($36 million) 

     

    B.           Mitigation
      Projects to be Conducted by the States ($24 million) 

     

    IX.
      CIVIL
      PENALTY 

     

    X.  RESOLUTION
      OF CIVIL CLAIMS AGAINST DEFENDANTS

     

    A.           Resolution
      of the United States’ Civil Claims 

     

    
      	
               

            	
              B.

            	
                
                Pursuit by the United States of Civil Claims Otherwise Resolved by
                Subsection A 

            	
               

            


    

     

    
      	
               

            	
              C.

            	
                
                Resolution of Past Claims of the States and Citizen Plaintiffs and
                Reservation of Rights 

            	
               

            


    

     

    XI.  PERIODIC
      REPORTING 

     

    XII.  REVIEW
      AND APPROVAL OF SUBMITTALS 

     

    XIII. 
      STIPULATED PENALTIES 

     

    XIV.  FORCE
      MAJEURE 

     

    XV.  DISPUTE
      RESOLUTION 

     

    XVI.  PERMITS 

     

    XVII.  INFORMATION
      COLLECTION AND RETENTION 

     

    XVIII.  NOTICES 

     

    XIX.  SALES
      OR TRANSFERS OF OPERATIONAL OR OWNERSHIP INTERESTS 

     

    XX.  EFFECTIVE
      DATE 

     

    XXI.  RETENTION
      OF JURISDICTION 

     

    XXII.  MODIFICATION 

     

    XXIII.
      GENERAL PROVISIONS 

     

    XXIV.  SIGNATORIES
      AND SERVICE

     

    XXV.
      PUBLIC COMMENT 

     

    XXVI.
      CONDITIONAL TERMINATION OF ENFORCEMENT UNDER DECREE 

     

    XXVII.
      FINAL JUDGMENT 


    Appendix
      A: Environmental Mitigation Projects

     

    Appendix
      B: Reporting Requirements

     

    Appendix
      C: Monitoring Strategy and Calculation of 30-Day Rolling Average

                          Removal
      Efficiency for Conesville Units 5 and 6

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    WHEREAS,
      the following complaints have been filed against American Electric Power Service
      Corporation, Indiana Michigan Power Company, Ohio Power Company, Appalachian
      Power Company, Cardinal Operating Company, and Columbus Southern Power Company
      in the above-captioned cases, United States, et al. v. American Electric
      Power Service Corp., et al., Civil Action Nos. C2-99-1182 and
      C2-99-1250 (“AEP I”) and United States, et al. v. American Electric
      Power Service Corp., et al., Civil Action Nos. C2-04-1098 and C2-05-360
      (“AEP II”):

     

    (a)           the
      United States of America (“United States”), on behalf of the United States
      Environmental Protection Agency (“EPA”), filed initial complaints on November 3,
      1999 and April 8, 2005, and filed amended complaints on March 3, 2000 and
      September 17, 2004, pursuant to Sections 113(b), 165, and 167 of the Clean
      Air
      Act (the “Act”), 42 U.S.C. §§ 7413, 7475, and 7477;

     

     (b)           the
      States of New York, Connecticut, New Jersey, Vermont, New Hampshire, Maryland,
      and Rhode Island, and the Commonwealth of Massachusetts, after their motion
      to
      intervene was granted, filed initial complaints on December 14, 1999 and
      November 18, 2004, and filed amended complaints on April 5, 2000, September
      24,
      2002, and September 17, 2004, pursuant to Section 304 of the Act, 42 U.S.C.
§
7604; and

     

    (c)           Ohio
      Citizen Action, Citizens Action Coalition of Indiana, Hoosier Environmental
      Council, Valley Watch, Inc., Ohio Valley Environmental Coalition, West Virginia
      Environmental Council, Clean Air Council, Izaak Walton League of America, United
      States Public Interest Research Group, National Wildlife Federation, Indiana
      Wildlife Federation, League of Ohio Sportsmen, Sierra Club, and Natural
      Resources Defense Council, Inc. filed an initial complaint on November 19,
      1999,
      and filed amended complaints on January 1, 2000 and September 16, 2004, pursuant
      to Section 304 of the Act, 42 U.S.C. § 7604;

     

    WHEREAS,
      the complaints filed against Defendants in AEP I and AEP II
      sought injunctive relief and the assessment of civil penalties for alleged
      violations of, inter alia, the:

     

    (a)           Prevention
      of Significant Deterioration and Nonattainment New Source Review provisions
      in
      Part C and D of Subchapter I of the Act, 42 U.S.C. §§ 7470-7492, 7501-7515;
      and

     

    (b)           federally-enforceable
      state implementation plans developed by Indiana, Ohio, Virginia, and West
      Virginia;

     

    WHEREAS,
      EPA issued notices of violation (“NOVs”) to Defendants with respect to such
      allegations on November 2, 1999, November 22, 1999, and June 18,
      2004;

     

    WHEREAS,
      EPA provided Defendants and the States of Indiana, Ohio, and West Virginia,
      and
      the Commonwealth of Virginia, with actual notice pertaining to Defendants’
alleged violations, in accordance with Section 113(a)(1) and (b) of the Act,
      42
      U.S.C. § 7413(a)(1) and (b);

     

    WHEREAS,
      in their complaints, the United States, the States, and Citizen Plaintiffs
      (collectively, the “Plaintiffs”) alleged, inter alia, that Defendants
      made major modifications to major emitting facilities, and failed to obtain
      the
      necessary permits and install the controls necessary under the Act to reduce
      sulfur dioxide, nitrogen oxides, and/or particulate matter emissions, and
      further alleged that such emissions damage human health and the
      environment;

     

    WHEREAS,
      the Plaintiffs’ complaints state claims upon which relief can be granted against
      Defendants under Sections 113, 165, and 167 of the Act, 42 U.S.C. §§ 7413,
      7475, and 7477, and 28 U.S.C. § 1355;

     

    WHEREAS,
      Defendants have denied and continue to deny the violations alleged in the
      complaints and NOVs, maintain that they have been and remain in compliance
      with
      the Act and are not liable for civil penalties or injunctive relief, and state
      that they are agreeing to the obligations imposed by this Consent Decree solely
      to avoid the costs and uncertainties of litigation and to improve the
      environment;

     

    WHEREAS,
      Defendants have installed and operated SCR technology on several Units in the
      AEP Eastern System, as those terms are defined herein, during the five (5)
      month
      ozone season to achieve emission reductions in compliance with the NOx SIP
      Call;

     

    WHEREAS,
      the Plaintiffs and Defendants anticipate that this Consent Decree, including
      the
      installation and operation of pollution control technology and other measures
      adopted pursuant to this Consent Decree, will achieve
      significant reductions of emissions from the AEP
      Eastern System and thereby significantly improve air quality;

     

    WHEREAS,
      the liability phase of AEP I was tried on July 6-7, 2005, and July
      11-12, 2005, and no decision has been rendered;

     

    WHEREAS,
      the Parties have agreed, and the Court by entering this Consent Decree finds,
      that this Consent Decree has been negotiated in good faith and at arm’s length;
      that this settlement is fair, reasonable, and in the public interest, and
      consistent with the goals of the Act; and that entry of this Consent Decree
      without further litigation is the most appropriate means of resolving this
      matter;

     

    NOW,
      THEREFORE, without any admission by Defendants, and without adjudication of
      the
      violations alleged in the complaints or the NOVs, it is hereby ORDERED,
      ADJUDGED, AND DECREED as follows:

     

    I.  JURISDICTION
      AND VENUE

     

    1.  This
      Court has jurisdiction over this action, the subject matter herein, and the
      Parties consenting hereto, pursuant to 28 U.S.C. §§ 1331, 1345, 1355, and
      1367, Sections 113, 167, and 304 of the Act, 42 U.S.C. §§ 7413, 7477, and
      7604.  Solely for the purposes of this Consent Decree, venue is proper
      under Section 113(b) of the Act, 42 U.S.C. § 7413(b), and under 28 U.S.C.
§ 1391(b) and (c).   Solely for the purposes of this
      Consent Decree and the underlying complaints, and for no other purpose,
      Defendants waive all objections and defenses that they may have to the Court’s
      jurisdiction over this action, to the Court’s jurisdiction over Defendants, and
      to venue in this District.  Defendants shall not challenge the terms
      of this Consent Decree or this Court’s jurisdiction to enter and enforce this
      Consent Decree.  Solely for the purposes of the complaints filed by
      the Plaintiffs in this matter and resolved by the Consent Decree, for the
      purposes of entry and enforcement of this Consent Decree, and for no other
      purpose, Defendants waive any defense or objection based on
      standing.  Except as expressly provided for herein, this Consent
      Decree shall not create any rights in or obligations of any party other than
      the
      Plaintiffs and Defendants.  Except as provided in Section XXV (Public
      Comment) of this Consent Decree, the Parties consent to entry of this Consent
      Decree without further notice.  To facilitate entry of this Consent
      Decree, upon the Date of Lodging of this Consent Decree the Parties shall file
      a
      Joint Motion to Consolidate AEP I and AEP II so that AEP
      II is consolidated into AEP I.

     

    II.  APPLICABILITY

     

    2.  Upon
      entry, the provisions of the Consent Decree shall apply to and be binding upon
      and inure to the benefit of Plaintiffs and Defendants, and their respective
      successors and assigns, and upon their officers, employees, and agents, solely
      in their capacities as such.

     

    3.  Defendants
      shall be responsible for providing a copy of this Consent Decree to all vendors,
      suppliers, consultants, contractors, agents, and any other company or other
      organization retained to perform any of the work required by this Consent
      Decree.  Notwithstanding any retention of contractors, subcontractors,
      or agents to perform any work required under this Consent Decree, Defendants
      shall be responsible for ensuring that all work is performed in accordance
      with
      the requirements of this Consent Decree.  For this reason, in any
      action to enforce this Consent Decree, Defendants shall not assert as a defense
      the failure of their officers, directors, employees, servants, agents, or
      contractors to take actions necessary to comply with this Consent Decree, unless
      Defendants establish that such failure resulted from a Force Majeure Event,
      as
      defined in Paragraph 158 of this Consent Decree.

     

    III.  DEFINITIONS

     

    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
      Consent Decree, every other term used in this Consent Decree that is also a
      term
      under the Act or the regulations implementing the Act shall mean in this Consent
      Decree what such term means under the Act or those implementing
      regulations.

     

    4.  A
“1-hour
      Average NOx
      Emission Rate” for a re-powered gas-fired, electric generating unit means, and
      shall be expressed as, the average concentration in parts per million (“ppm”) by
      dry volume, corrected to 15% O2, as averaged
      over
      one (1) hour.  In determining the 1-Hour Average NOx Emission
      Rate,
      Defendants shall use CEMS in accordance with applicable reference methods
      specified in 40 C.F.R. Part 60 to calculate the emissions for each 15-minute
      interval within each clock hour, except as provided in this
      Paragraph.  Compliance with the 1-Hour Average NOx Emission
      Rate shall
      be shown by averaging all 15-minute CEMS interval readings within a clock hour,
      except that any 15-minute CEMS interval that contains any part of a startup
      or
      shutdown shall not be included in the calculation of that 1-Hour
      average.  A minimum of two 15-minute CEMS interval readings within a
      clock hour, not including startup or shutdown intervals, is required to
      determine compliance with the 1-Hour average NOx Emission
      Rate.  All emissions recorded by CEMS shall be reported in 1-Hour
      averages.

     

    5.  A
“30-Day
      Rolling Average Emission Rate” for a Unit means, and shall be expressed as, a
      lb/mmBTU and calculated in accordance with the following procedure: first,
      sum
      the total pounds of the pollutant in question emitted from the Unit during
      an
      Operating Day and the previous twenty-nine (29) Operating Days; second, sum
      the
      total heat input to the Unit in mmBTU during the Operating Day and the previous
      twenty-nine (29) Operating Days; and third, divide the total number of pounds
      of
      the pollutant emitted during the thirty (30) Operating Days by the total heat
      input during the thirty (30) Operating Days.  A new 30-Day Rolling
      Average Emission Rate shall be calculated for each new Operating
      Day.  Each 30-Day Rolling Average Emission Rate shall include all
      emissions that occur during all periods of startup, shutdown, and Malfunction
      within an Operating Day, except as follows:

     

    
      	
               

            	
              a.

            	
              Emissions
                and BTU inputs that occur during a period of Malfunction shall be
                excluded
                from the calculation of the 30-Day Rolling Average Emission Rate
                if
                Defendants provide notice of the Malfunction to EPA in accordance
                with
                Paragraph 159 in Section XIV (Force Majeure) of this Consent
                Decree;

            


    

    
      	
               

            	
              b.

            	
              Emissions
                of NOx
                and BTU inputs that occur during the fifth and subsequent Cold Start
                Up
                Period(s) that occur at a given Unit during any 30-day period shall
                be
                excluded from the calculation of the 30-Day Rolling Average Emission
                Rate
                if inclusion of such emissions would result in a violation of any
                applicable 30-Day Rolling Average Emission Rate and Defendants have
                installed, operated, and maintained the SCR in question in accordance
                with
                manufacturers’ specifications and good engineering practices.  A
                “Cold Start Up Period” occurs whenever there has been no fire in the
                boiler of a Unit (no combustion of any Fossil Fuel) for a period
                of six
                (6) hours or more.  The NOx
                emissions to
                be excluded during the fifth and subsequent Cold Start Up Period(s)
                shall
                be the lesser of (i) those NOx
                emissions
                emitted during the eight (8) hour period commencing when the Unit
                is
                synchronized with a utility electric distribution system and concluding
                eight (8) hours later, or (ii) those NOx
                emissions
                emitted prior to the time that the flue gas has achieved the minimum
                SCR
                operational temperature specified by the catalyst manufacturer;
                and

            


    

    
      	
               

            	
              c.

            	
              For
                SO2,
                shall include all emissions and BTUs commencing from the time the
                Unit is
                synchronized with a utility electric distribution system through
                the time
                that the Unit ceases to combust fossil fuel and the fire is out in
                the
                boiler.

            


    

     

    6.  A
“30-Day
      Rolling Average Removal Efficiency” means, for SO2, at a Unit
      other
      than Conesville Unit 5 and Conesville Unit 6, the percent reduction in the
      mass
      of SO2 achieved
      by a Unit’s FGD system over a 30-Operating Day period and shall be calculated as
      follows: step one, sum the total pounds of SO2 emitted
      as measured
      at the outlet of the FGD system for the Unit during the current Operating Day
      and the previous twenty-nine (29) Operating Days as measured at the outlet
      of
      the FGD system for that Unit; step two, sum the total pounds of SO2 delivered
      to the
      inlet of the FGD system for the Unit during the current Operating Day and the
      previous twenty-nine (29) Operating Days as measured at the inlet to the FGD
      system for that Unit; step three, subtract the outlet SO2 emissions
      calculated in step one from the inlet SO2 emissions
      calculated in step two; step four, divide the remainder calculated in step
      three
      by the inlet SO2 emissions
      calculated in step two; and step five, multiply the quotient calculated in
      step
      four by 100 to express as a percentage of removal efficiency.  A new
      30-day Rolling Average Removal Efficiency shall be calculated for each new
      Operating Day, and shall include all emissions that occur during all periods
      within each Operating Day except that emissions that occur during a period
      of
      Malfunction may be excluded from the calculation if Defendants provide Notice
      of
      the Malfunction to Plaintiffs in accordance with Section XIV (Force Majeure)
      and
      it is determined to be a Force Majeure Event pursuant to that
      Section.

     

    7.  “AEP
      Eastern System” means, solely for purposes of this Consent Decree, the following
      coal-fired, electric steam generating Units (with the nominal nameplate net
      capacity of each Unit):

     

    
      	 a.  	Amos
              Unit 1 (800 MW), Amos Unit 2 (800 MW), and Amos Unit 3 (1300 MW) located
              in St. Albans, West Virginia;


      	
              b.  

            	
              Big
                Sandy Unit 1 (260 MW) and Big Sandy Unit 2 (800 MW) located in Louisa,
                Kentucky;

            


    

    
      	
              c.  

            	
              Cardinal
                Unit 1 (600 MW), Cardinal Unit 2 (600 MW), and Cardinal Unit 3 (630
                MW)
                located in Brilliant, Ohio;

            


    

    
      	
              d.  

            	
              Clinch
                River Unit 1 (235 MW), Clinch River Unit 2 (235 MW), and Clinch River
                Unit
                3 (235 MW) located in Carbo,
                Virginia;

            


    

    
      	
              e.  

            	
              Conesville
                Unit 1 (125 MW), Conesville Unit 2 (125 MW), Conesville Unit 3 (165
                MW),
                Conesville Unit 4 (780 MW), Conesville Unit 5 (375 MW), and Conesville
                Unit 6 (375 MW) located in Conesville,
                Ohio;

            


    

    
      	
              f.  

            	
              Gavin
                Unit 1 (1300 MW) and Gavin Unit 2 (1300 MW) located in Cheshire,
                Ohio;

            


    

    
      	
              g.  

            	
              Glen
                Lyn Unit 5 (95 MW) and Glen Lyn Unit 6 (240 MW) located in Glen Lyn,
                Virginia;

            


    

    
      	
              h.  

            	
              Kammer
                Unit 1 (210 MW), Kammer Unit 2 (210 MW), and Kammer Unit 3 (210 MW)
                located in Moundsville, West
                Virginia;

            


    

    
      	
              i.  

            	
              Kanawha
                River Unit 1 (200 MW) and Kanawha River Unit 2 (200 MW) located in
                Glasgow, West Virginia;

            


    

    
      	
              j.  

            	
              Mitchell
                Unit 1 (800 MW) and Mitchell Unit 2 (800 MW) located in Moundsville,
                West
                Virginia;

            


    

    k.  Mountaineer
      Unit 1 (1300 MW) located in New Haven, West Virginia;

    
      	
              l.  

            	
              Muskingum
                River Unit 1 (205 MW), Muskingum River Unit 2 (205 MW), Muskingum
                River
                Unit 3 (215 MW), Muskingum River Unit 4 (215 MW), and Muskingum River
                Unit
                5 (585 MW) located in Beverly,
                Ohio;

            


    

    
      	
              m.  

            	
              Picway
                Unit 9 (100 MW) located in Lockbourne,
                Ohio;

            


    

    
      	
              n.  

            	
              Rockport
                Unit 1 (1300 MW) and Rockport Unit 2 (1300 MW) located in Rockport,
                Indiana;

            


    

    
      	
              o.  

            	
              Sporn
                Unit 1 (150 MW), Sporn Unit 2 (150 MW), Sporn Unit 3 (150 MW), Sporn
                Unit
                4 (150), and Sporn Unit 5 (450 MW) located in New Haven, West Virginia;
                and

            


    

    
      	
              p.  

            	
              Tanners
                Creek Unit 1 (145 MW), Tanners Creek Unit 2 (145 MW), Tanners Creek
                Unit 3
                (205 MW), and Tanners Creek Unit 4 (500 MW) located in Lawrenceburg,
                Indiana.

            


    

     

    8.  “Boiler
      Island” means: a Unit’s (a) fuel combustion system (including bunker, coal
      pulverizers, crusher, stoker, and fuel burners); (b) combustion air system;
      (c)
      steam generating system (firebox, boiler tubes, and walls); and (d) draft system
      (excluding the stack), all as further described in “Interpretation of
      Reconstruction,” by John B. Rasnic, U.S. EPA (November 25, 1986) and attachments
      thereto.

     

    9.  “CEMS”
or
      “Continuous Emission Monitoring System” means, for obligations involving NOx and SO2
      under this Consent
      Decree, the devices defined in 40 C.F.R. § 72.2 and installed and maintained as
      required by 40 C.F.R. Part 75.

     

    10.  “Citizen
      Plaintiffs” means, collectively, Ohio Citizen Action, Citizens Action Coalition
      of Indiana, Hoosier Environmental Council, Valley Watch, Inc., Ohio Valley
      Environmental Coalition, West Virginia Environmental Council, Clean Air Council,
      Izaak Walton League of America, United States Public Interest Research Group,
      National Wildlife Federation, Indiana Wildlife Federation, League of Ohio
      Sportsmen, Sierra Club, and Natural Resources Defense Council, Inc.

     

    11.  “Clean
      Air Act” or “Act” means the federal Clean Air Act, 42 U.S.C. §§ 7401-7671q, and
      its implementing regulations.

     

    12.  “Clean
      Air Interstate Rule” or “CAIR” means the regulations promulgated by EPA on May
      12, 2005, at 70 Fed. Reg. 25,161, which are entitled, “Rule to Reduce Interstate
      Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule);
      Revisions to Acid Rain Program; Revisions to NOx SIP Call;
      Final
      Rule,” and any subsequent amendments to that regulation, and any applicable,
      federally-approved state implementation plan or the federal implementation
      plan
      to implement CAIR.

     

    13.  “Consent
      Decree” or “Decree” means this Consent Decree and the appendices attached
      hereto, which are incorporated into this Consent Decree.

     

    14.  “Continuously
      Operate” or “Continuous Operation” means that when an SCR, FGD, ESP, or Other
      NOx Pollution
      Controls are used at a Unit, except during a Malfunction, they shall be operated
      at all times such Unit is in operation, consistent with the technological
      limitations, manufacturers’ specifications, and good engineering and maintenance
      practices for such equipment and the Unit so as to minimize emissions to the
      greatest extent practicable.

     

    15.  “Date
      of
      Entry” means the date this Consent Decree is approved or signed by the United
      States District Court Judge; provided, however, that if the Parties’ Joint
      Motion to Consolidate, as specified in Paragraph 1, is denied or not decided,
      then the “Date of Entry” means the date that the last of the two United States
      District Court Judges hearing these cases approves or signs this Consent
      Decree.

     

    16.  “Date
      of
      Lodging” means the date this Consent Decree is filed for lodging with the Clerk
      of the Court for the United States District Court for the Southern District
      of
      Ohio.

     

    17.  “Day”
      means, unless otherwise specified, calendar day.

     

    18.  “Defendants”
      or “AEP” means American Electric Power Service Corporation, Kentucky Power
      Company d/b/a American Electric Power, Indiana Michigan Power Company d/b/a
      American Electric Power, Ohio Power Company d/b/a American Electric Power,
      Cardinal Operating Company and its owners (Ohio Power and Buckeye Power),
      Appalachian Power Company d/b/a American Electric Power, and Columbus Southern
      Power Company d/b/a American Electric Power.

     

    19.  “Eastern
      System-Wide Annual Tonnage Limitation” means the limitations, as specified in
      this Consent Decree, on the number of tons of the air pollutants that may be
      emitted from the AEP Eastern System during the relevant calendar year
      (i.e., January 1 through December 31), and shall include all emissions of
      the air pollutants emitted during all periods of startup, shutdown, and
      Malfunction, except that emissions that occur during a period of
      Malfunction may be excluded from the calculation if Defendants provide Notice
      of
      the Malfunction to Plaintiffs in accordance with Section XIV (Force Majeure)
      and
      it is determined to be a Force Majeure Event pursuant to that
      Section.

     

    20.   “Emission
      Rate” means the number of pounds of pollutant emitted per million BTU of heat
      input (“lb/mmBTU”), measured in accordance with this Consent
      Decree.

     

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

     

    22.  “ESP”
      means electrostatic precipitator, a pollution control device for the reduction
      of PM.

     

    23.  “Environmental
      Mitigation Project” means a project funded or implemented by Defendants as a
      remedial measure to mitigate alleged damage to human health or the
      environment, including National Parks or Wilderness Areas, claimed to have
      been
      caused by the alleged violations described in the complaints or to compensate
      Plaintiffs for costs necessitated as a result of the alleged
      damages.

     

    24.  “Existing
      Unit” means a Unit that commenced operation prior to the Date of Lodging of this
      Consent Decree.

     

    25.  “Flue
      Gas
      Desulfurization System,” or “FGD,” means a pollution control device with one or
      more absorber vessels that employs flue gas desulfurization technology for
      the
      reduction of SO2.

     

    26.  “Fossil
      Fuel” means any hydrocarbon fuel, including coal, petroleum coke, petroleum oil,
      or natural gas.

     

    27.  An
      “Improved Unit” for NOx means an
      AEP
      Eastern System Unit equipped with an SCR or scheduled under this Consent Decree
      to be equipped with an SCR, or required to be Retired, Retrofitted, or
      Re-powered.  A Unit may be an Improved Unit for one pollutant without
      being an Improved Unit for another.  Any Other Unit in the AEP Eastern
      System can become an Improved Unit for NOx if it is
      equipped
      with an SCR and the requirement to Continuously Operate such SCR is incorporated
      into a federally-enforceable non-Title V permit or site-specific amendment
      to
      the state implementation plan and the Title V Permit applicable to that
      Unit.

     

    28.   An
      “Improved Unit” for SO2 means an
      AEP
      Eastern System Unit equipped with an FGD or scheduled under this Consent Decree
      to be equipped with an FGD, or required to be Retired, Retrofitted, or
      Re-powered.  A Unit may be an Improved Unit for one pollutant without
      being an Improved Unit for another.  Any Other Unit in the AEP Eastern
      System can become an Improved Unit for SO2 if it is
      equipped
      with an FGD and the requirement to Continuously Operate such FGD is incorporated
      into a federally-enforceable non-Title V permit or site-specific amendment
      to
      the state implementation plan and the Title V Permit applicable to that
      Unit.

     

    29.  “KW”
      means kilowatt or one thousand watts.

     

    30.  “lb/mmBTU”
      means one pound per million British thermal units.

     

    31.  “Malfunction”
      means any sudden, infrequent, and not reasonably preventable failure of air
      pollution control equipment, process equipment, or a process to operate in
      a
      normal or usual manner.  Failures that are caused in part by poor
      maintenance or careless operation are not Malfunctions.

     

    32.  “MW”
      means a megawatt or one million watts.

     

    33.  “NSR
      Permit” means a preconstruction permit issued by the permitting authority
      pursuant to Parts C or D of Subchapter I of the Clean Air Act.

     

    34.  “National
      Ambient Air Quality Standards” or “NAAQS” means national ambient air quality
      standards that are promulgated pursuant to Section 109 of the Act, 42 U.S.C.
      § 7409.

     

    35.  “New
      and
      Newly Permitted Unit” means a Unit that commenced operation after the Date of
      Lodging of this Consent Decree, and that has been issued a final NSR Permit
      for
      SO2 and NOx
      that includes
      applicable Best Available Control Technology (“BACT”) and/or Lowest Achievable
      Emission Rate (“LAER”) limitations, as those terms are respectively defined at
      42 U.S.C. §§ 7479(3), 7501(3).

     

    36.  “Nonattainment
      NSR” means the nonattainment area New Source Review program within the meaning
      of Part D of Subchapter I of the Act, 42 U.S.C. §§ 7501-7515, and its
      regulations, 40 C.F.R. Part 51.

     

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

     

    38.  “NOx
      Allowance” means an
      authorization to emit a specified amount of NOx that is
      allocated
      or issued under an emissions trading or marketable permit program of any kind
      that has been established under the Clean Air Act or a state implementation
      plan.

     

    39.  “NOx
      CAIR Allocations”
means the number of NOx Allowances
      allocated to the AEP Eastern System Units pursuant to the Clean Air Interstate
      Rule, excluding any NOx Allowances
      awarded
      by Indiana, Kentucky, Ohio, West Virginia, and Virginia to an AEP Eastern System
      Unit from the “compliance supplement pool,” as that phrase is defined at 40
      C.F.R. § 96.143, or in a federally-approved state implementation plan or
      federal implementation plan to implement CAIR.

     

    40.  “Operating
      Day” means any day on which a Unit fires Fossil Fuel.

     

    41.  “Other
      NOx Pollution
      Controls” means the measures identified in the table in Paragraph 69 that will
      achieve reductions in NOx emissions
      at the
      Units specified therein.

     

    42.  “Other
      SO2 Measures”
      means the measures identified in Paragraph 90 that will achieve reductions
      in
      SO2 emissions
      at the Units specified therein.

     

    43.  “Other
      Unit” means any Unit of the AEP Eastern System that is not an Improved Unit for
      the pollutant in question.

     

    44.  “Operational
      or Ownership Interest” means part or all of
      Defendants’ legal or equitable operational or ownership interests in any Unit in
      the AEP Eastern System.

     

    45.  “Parties”
      means the United States, the States, the Citizen Plaintiffs, and
      Defendants.  “Party” means one of the Parties.

     

    46.  “Plaintiffs”
      means the United States, the States, and the Citizen Plaintiffs.

     

    47.  “Plant-Wide
      Annual Rolling Tonnage Limitation for SO2 at Clinch
      River”
means the sum of the tons of SO2 emitted
      during all
      periods of operation from the Clinch River plant, including, without limitation,
      all SO2 emitted
      during periods of startup, shutdown, and Malfunction, in the most recent month
      and the previous eleven (11) months.  A new Annual Rolling Average
      Tonnage Limitation for years 2010 through 2014, and for 2015 and continuing
      thereafter, shall be calculated in accordance with Paragraph 88.

     

    48.  “Plant-Wide
      Annual Tonnage Limitation for SO2 at Kammer”
means
      the sum of the tons of SO2 emitted
      during all
      periods of operation from the Kammer plant, including, without limitation,
      all
      SO2 emitted
      during periods of startup, shutdown, and Malfunction, during the relevant
      calendar year (i.e., January 1 through December 31).  A new
      Plant-Wide Annual Tonnage Limitation shall be calculated for each new calendar
      year.

     

    49.  “PM”
      means particulate matter, as measured in accordance with the provisions of
      this
      Consent Decree.

     

    50.  “PM
      CEMS”
or “PM Continuous Emission Monitoring System” means the equipment that samples,
      analyzes, measures, and provides, by readings taken at frequent intervals,
      an
      electronic or paper record of PM emissions.

     

    51.  “PM
      Emission Rate” means the number of pounds of PM emitted per million BTU of heat
      input (lb/mmBTU), as measured in annual stack tests in accordance with EPA
      Method 5, 5B, or 17, 40 C.F.R. Part 60, including Appendix A.

     

    52.  “Project
      Dollars” means Defendants’ expenditures and payments incurred or made in
      carrying out the Environmental Mitigation Projects identified in Section VIII
      (Environmental Mitigation Projects) of this Consent Decree to the extent that
      such expenditures or payments both: (a) comply with the requirements set forth
      in Section VIII (Environmental Mitigation Projects) and Appendix A of this
      Consent Decree, and (b) constitute Defendants’ direct payments for such
      projects, or Defendants’ external costs for contractors, vendors, and
      equipment.

     

    53.  “PSD”
      means Prevention of Significant Deterioration within the meaning of Part C
      of
      Subchapter I of the Clean Air Act, 42 U.S.C. §§ 7470-7492, and its regulations,
      40 C.F.R. Part 52.

     

    54.   “Re-power”
      means either (1) the replacement of an existing pulverized coal boiler through
      the construction of a new circulating fluidized bed (“CFB”) boiler or other
      technology of equivalent environmental performance that at a minimum achieves
      and maintains a 30-Day Rolling Average Emission Rate not greater than 0.100
      lb/mmBTU or a 30-Day Rolling Average Removal Efficiency of at least ninety-five
      percent (95%) for SO2 and a 30-Day
      Rolling Average Emission Rate not greater than 0.070 lb/mmBTU for NOx; or (2)
      the
      modification of such Unit, or removal and replacement of Unit components, such
      that the modified or replaced Unit generates electricity through the use of
      new
      combined cycle combustion turbine technology fueled by natural gas containing
      no
      more than 0.5 grains of sulfur per 100 standard cubic feet of natural gas,
      and
      at a minimum, achieves a 1-hour Average NOx Emission
      Rate not
      greater than 2.0 ppm.

     

    55.  “Retire”
      means that Defendants shall: (a) permanently shut down and cease to operate
      the
      Unit; and (b) comply with any state and/or federal requirements applicable
      to
      that Unit.  Defendants shall amend any applicable permits so as to
      reflect the permanent shutdown status of such Unit.

     

    56.   “Retrofit”
      means that the Unit must install and Continuously Operate both an SCR and an
      FGD.  For the 600 MW listed in the table in Paragraph 68 and 87,
“Retrofit” means that the Unit must meet a federally-enforceable 30-Day Rolling
      Average Emission Rate of 0.100 lb/mmBTU for NOx and a 30-Day
      Rolling Average Emission Rate of 0.100 lb/mmBTU for SO2, measured
      in
      accordance with the requirements of this Consent Decree.

     

    57.  “Selective
      Catalytic Reduction System” or “SCR” means a pollution control device that
      employs selective catalytic reduction technology for the reduction of NOx
      emissions.

     

    58.  “Selective
      Non-Catalytic Reduction” means a pollution control device for the reduction of
      NOx emissions
      that utilizes ammonia or urea injection into the boiler.

     

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

     

    60.  “SO2
      Allowance” means
“allowance” as defined at 42 U.S.C. § 7651a(3):  “an authorization,
      allocated to an affected unit by the Administrator of EPA under Subchapter
      IV of
      the Act, to emit, during or after a specified calendar year, one ton of sulfur
      dioxide.”

     

    61.  “SO2
      Allocations” means
      the number of SO2 Allowances
      allocated to the AEP Eastern System Units.

     

    62.  “Super-Compliant
      NOx Allowance”
      means an allowance attributable to reductions beyond the requirements of this
      Consent Decree as determined in accordance with Paragraph 80.

     

    63.  “Super-Compliant
      SO2 Allowance”
      means an allowance attributable to reductions beyond the requirements of this
      Consent Decree as determined in accordance with Paragraph 98.

     

    64.  “States”
      means the States of Connecticut, Maryland, New Hampshire, New Jersey, New York,
      Rhode Island, and Vermont, and the Commonwealth of Massachusetts.

     

    65.  “Title
      V
      Permit” means the permit required for Defendants’ major sources under Subchapter
      V of the Act, 42 U.S.C. §§ 7661-7661e.

     

    66.  “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 ancillary equipment, including pollution control
      equipment.  An electric steam generating station may comprise one or
      more Units.

     

    IV.  NOx
      EMISSION
      REDUCTIONS AND CONTROLS

     

    A.           Eastern
      System-Wide Annual Tonnage Limitations for NOx.

     

    67.  Notwithstanding
      any other provisions of this Consent Decree, except Section XIV (Force Majeure),
      during each calendar year specified in the table below, all Units in the AEP
      Eastern System, collectively, shall not emit NOx in excess
      of the
      following Eastern System-Wide Annual Tonnage Limitations:

     

    
      	
              Calendar
                Year

            	
              Eastern
                System-Wide Annual Tonnage Limitations for NOx

            
	
              2009

            	
              96,000
                tons

            
	
              2010

            	
              92,500
                tons

            
	
              2011

            	
              92,500
                tons

            
	
              2012

            	
              85,000
                tons

            
	
              2013

            	
              85,000
                tons

            
	
              2014

            	
              85,000
                tons

            
	
              2015

            	
              75,000
                tons

            
	
              2016,
                and each year thereafter

            	
              72,000
                tons

            


    

    


    B.           NOx
      Emission
      Limitations and Control Requirements.

     

    68.  No
      later
      than the dates set forth in the table below, Defendants shall install and
      Continuously Operate SCR on each Unit identified therein, or, if indicated
      in
      the table, Retire, Retrofit, or Re-power such Unit:

    


    
      	
              Unit

            	
              NOx
                Pollution
                Control

            	
              Date

            
	
              Amos
                Unit 1

            	
              SCR

            	
              January
                1, 2008

            
	
              Amos
                Unit 2

            	
              SCR

            	
              January
                1, 2009

            
	
              Amos
                Unit 3

            	
              SCR

            	
              January
                1, 2008

            
	
              Big
                Sandy Unit 2

            	
              SCR

            	
              January
                1, 2009

            
	
              Cardinal
                Unit 1

            	
              SCR

            	
              January
                1, 2009

            
	
              Cardinal
                Unit 2

            	
              SCR

            	
              January
                1, 2009

            
	
              Cardinal
                Unit 3

            	
              SCR

            	
              January
                1, 2009

            
	
              Conesville
                Unit 1

            	
              Retire,
                Retrofit, or Re-power

            	
              Date
                of Entry of this Consent Decree

            
	
              Conesville
                Unit 2

            	
              Retire,
                Retrofit, or Re-power

            	
              Date
                of Entry of this Consent Decree

            
	
              Conesville
                Unit 3

            	
              Retire,
                Retrofit, or Re-power

            	
              December
                31, 2012

            
	
              Conesville
                Unit 4

            	
              SCR

            	
              December
                31, 2010

            
	
              Gavin
                Unit 1

            	
              SCR

            	
              January
                1, 2009

            
	
              Gavin
                Unit 2

            	
              SCR

            	
              January
                1, 2009

            
	
              Mitchell
                Unit 1

            	
              SCR

            	
              January
                1, 2009

            
	
              Mitchell
                Unit 2

            	
              SCR

            	
              January
                1, 2009

            
	
              Mountaineer
                Unit 1

            	
              SCR

            	
              January
                1, 2008

            
	
              Muskingum
                River Units 1-4

            	
              Retire,
                Retrofit, or Re-power

            	
              December
                31, 2015

            
	
              Muskingum
                River Unit 5

            	
              SCR

            	
              January
                1, 2008

            
	
              Rockport
                Unit 1

            	
              SCR

            	
              December
                31, 2017

            
	
              Rockport
                Unit 2

            	
              SCR

            	
              December
                31, 2019

            
	
              Sporn
                Unit 5

            	
              Retire,
                Retrofit, or Re-power

            	
              December
                31, 2013

            
	
              A
                total of at least 600 MW from the following list of Units: Sporn
                Units
                1-4, Clinch River Units 1-3, Tanners Creek Units 1-3, and/or Kammer
                Units
                1-3

            	
              Retire,
                Retrofit, or Re-power

            	
              December
                31, 2018

            


    

    


    69.  Other
      NOx
      Pollution
      Controls.  No later than the dates set forth in the table below,
      Defendants shall Continuously Operate the Other NOx Pollution
      Controls
      on the Units identified therein:

     

    
      	
              Unit

            	
              Other
                NOx
                Pollution Controls

            	
              Date

            
	
              Big
                Sandy Unit 1

            	
              Low
                NOx
                Burners

            	
              Date
                of Entry

            
	
              Glen
                Lyn Units 5 and 6

            	
              Low
                NOx
                Burners

            	
              Date
                of Entry

            
	
              Clinch
                River Units 1, 2, and 3

            	
              Low
                NOx
                Burners, and Selective Non-catalytic Reduction

            	
              For
                Low NOx
                Burners, Date of Entry, and, for Selective Non-Catalytic Reduction,
                December 31, 2009

            
	
              Conesville
                Units 5 and 6

            	
              Low
                NOx
                Burners

            	
              Date
                of Entry

            
	
              Kammer
                Units 1, 2, and 3

            	
              Overfire
                Air

            	
              Date
                of Entry

            
	
              Kanawha
                River Units 1 and 2

            	
              Low
                NOx
                Burners

            	
              Date
                of Entry

            
	
              Picway
                Unit 9

            	
              Low
                NOx
                Burners

            	
              Date
                of Entry

            
	
              Tanners
                Creek Units 1, 2, and 3

            	
              Low
                NOx
                Burners

            	
              Date
                of Entry

            
	
              Tanners
                Creek Unit 4

            	
              Overfire
                Air

            	
              Date
                of Entry

            


    

     

    C.           General
      Provisions for Use and Surrender of NOx
      Allowances.

     

    70.  Except
      as
      may be necessary to comply with this Section and Section XIII (Stipulated
      Penalties), Defendants may not use NOx Allowances
      to
      comply with any requirement of this Consent Decree, including by claiming
      compliance with any emission limitation or Eastern System-Wide Annual Tonnage
      Limitation required by this Decree, by using, tendering, or otherwise applying
      NOx Allowances
      to achieve compliance or offset any emissions above the limits specified in
      this
      Consent Decree.

     

    71.  As
      required by this Section IV of this Consent Decree, Defendants shall surrender
      NOx Allowances
      that would otherwise be available for sale, trade, or transfer as a result
      of
      actions taken by Defendants to comply with the requirements of this Consent
      Decree.

     

    72.  NOx
      Allowances
      allocated to the AEP Eastern System may be used by Defendants to meet their
      own
      federal and/or state Clean Air Act regulatory requirements for the Units
      included in the AEP Eastern System.  Subject to Paragraph 70, nothing
      in this Consent Decree shall prevent Defendants from purchasing or otherwise
      obtaining NOx
      Allowances from another source for purposes of complying with their own federal
      and/or state Clean Air Act requirements to the extent otherwise allowed by
      law.

     

    73.  The
      requirements in this Consent Decree pertaining to Defendants’ use and surrender
      of NOx
      Allowances are permanent injunctions not subject to any termination provision
      of
      this Consent Decree.  These provisions shall survive any termination
      of this Consent Decree.

     

    D.           Use
      of Excess NOx
      Allowances.

     

    74.  Calculation
      of Unrestricted and Restricted NOx
      Allowances.  On an annual basis, beginning in 2009, Defendants
      shall calculate the difference between the NOx CAIR Allocations
      for the Units in the AEP Eastern System for that year and the annual AEP Eastern
      System-Wide Tonnage Limitations for NOx for that
      calendar
      year.  This difference represents the total Excess NOx Allowances
      for that
      calendar year.  For purposes of this Consent Decree, for each year
      commencing in 2009 and ending in 2015, forty-two percent (42%) of the Excess
      NOx Allowances
      shall be Unrestricted Excess NOx Allowances
      and
      fifty-eight percent (58%) shall be Restricted Excess NOx
      Allowances.  Commencing in 2016, and continuing thereafter, all Excess
      NOx Allowances
      shall be Restricted Excess NOx
      Allowances.

     

    75.  Use
      and Surrender of Unrestricted Excess NOx
      Allowances.  For each calendar year commencing in 2009 and ending
      in 2015, Defendants may use Unrestricted Excess NOx Allowances
      in any
      manner authorized by law.  No later than March 1, 2016, Defendants
      must surrender, or transfer to a non-profit third party selected by Defendants
      for surrender, all unused Unrestricted Excess NOx Allowances
      subject
      to surrender accumulated during the period from 2009 through 2015.

     

    76.  Use
      and Surrender of Restricted Excess NOx
      Allowances.  Beginning in calendar year 2009, and for each
      calendar year thereafter, Defendants shall calculate the difference between
      the
      number of any Restricted Excess NOx Allowances
      and the
      number of NOx
      Allowances that is equal to the amount of actual NOx emissions
      from:  (a) any New and Newly Permitted Unit as defined in this Consent
      Decree, and (b) the following five natural-gas plants but only up to a
      cumulative total of 1200 tons of NOx in any
      single year:
      Ceredo Generating Station located near Ceredo, West Virginia, with a nominal
      generating capacity of 505 megawatts; Waterford Energy Center located in
      southeastern Ohio, with a nominal generating capacity of 821 megawatts; Darby
      Electric Generating Station located near Columbus, Ohio, with a nominal
      generating capacity of 480 megawatts; Lawrenceburg Generating Station located
      in
      Lawrenceburg, Indiana, with a generating capacity of 1,096 megawatts; and a
      natural gas-fired power plant under construction near Dresden, Ohio, with a
      nominal generating capacity of 580 megawatts.  This difference shall
      be the amount of Restricted Excess NOx Allowances
      potentially subject to surrender in 2016.  During calendar years 2009
      through 2015, Defendants may accumulate Restricted Excess NOx Allowances
      potentially subject to surrender in 2016.

     

    77.  NOx
      Allowances from Renewable Energy.  Beginning in calendar year
      2009, and for each calendar year thereafter, Defendants may subtract from the
      number of Restricted Excess NOx Allowances
      potentially subject to surrender, a number of allowances calculated in
      accordance with this Paragraph.  To calculate such number, Defendants
      shall use the following method: multiply 0.0002 by the sum of (a) the actual
      annual generation in MWH/year generated from solar or wind power projects first
      owned or operated by Defendants after the Date of Lodging of this Consent
      Decree, and (b) the actual annual generation in MWH/year purchased by Defendants
      from solar or wind power projects in any year after the Date of Lodging of
      this
      Consent Decree.  Such figure so calculated shall be subtracted from
      the number of Restricted Excess NOx Allowances
      potentially subject to surrender each year.  The remainder shall be
      the Restricted Excess NOx Allowances
      subject
      to surrender.

     

    78.  Defendants
      may, solely at their discretion, use Restricted Excess NOx Allowances
      at a New
      and Newly Permitted Unit for which Defendants have received a final NSR Permit
      from the permitting agency even if the NSR Permit has been appealed but not
      stayed during the permit appeal process.  If Defendants use Restricted
      Excess NOx
      Allowances at such New and Newly Permitted Unit, and the emissions from such
      New
      and Newly Permitted Unit are greater than what such Unit is permitted to emit
      after final adjudication of the appeal process, Defendants shall, within thirty
      (30) days of such final adjudication, retire an amount of NOx Allowances
      equal to
      the number of tons of NOx actually
      emitted
      that exceeded the finally adjudicated permit limit.

     

    79.  No
      later
      than March 1, 2016, the total number of Restricted Excess NOx Allowances
      subject
      to surrender accumulated during 2009 through 2015 as calculated in accordance
      with Paragraphs 74, 76, and 77, shall be surrendered or transferred to a
      non-profit third party selected by Defendants for surrender, pursuant to
      Subsection F, below.  Beginning in calendar year 2016, and for each
      calendar year thereafter, the total number of Restricted Excess NOx Allowances
      subject
      to surrender for that year calculated in accordance with Paragraph 74, 76 and
      77, shall be surrendered, or transferred to a non-profit third party selected
      by
      Defendants for surrender, by March 1 of the following calendar
      year.

     

    E.           Super-Compliant
      NOx
      Allowances.

     

    80.  In
      each
      calendar year beginning in 2009, and continuing thereafter, Defendants may
      use
      in any manner authorized by law any NOx Allowances
      made
      available in that year as a result of maintaining actual NOx emissions
      from the
      AEP Eastern System below the Eastern System-Wide Annual Tonnage Limitations
      for
      NOx under this
      Consent Decree for each calendar year.  Defendants shall timely report
      the generation of such Super-Compliant NOx Allowances
      in
      accordance with Section XI (Periodic Reporting) and Appendix B of this Consent
      Decree.

     

    F.           Method
      for Surrender of Excess NOx
      Allowances.

     

    81.  For
      purposes of this Consent Decree, the “surrender” of Excess Restricted or
      Unrestricted Excess NOx Allowances
      subject
      to surrender means permanently surrendering to EPA NOx Allowances
      from the
      accounts administered by EPA so that such NOx Allowances
      can
      never be used thereafter to meet any compliance requirement under the Clean
      Air
      Act, a state implementation plan, or this Consent Decree.

     

    82.  For
      all
      Restricted or Unrestricted Excess NOx Allowances
      subject
      to surrender required to be surrendered to EPA in Paragraphs 79 and 75, above,
      Defendants or the third party recipient(s) (as the case may be) shall first
      submit a NOx
      Allowance transfer request form to EPA’s Office of Air and Radiation’s Clean Air
      Markets Division directing the transfer of such NOx Allowances
      to the
      EPA Enforcement Surrender Account or to any other EPA account that EPA may
      direct in writing.  As part of submitting these transfer requests,
      Defendants or the third party recipient(s) shall irrevocably authorize the
      transfer of these NOx Allowances
      and
      identify – by name of account and any applicable serial or other identification
      numbers or station names – the source and location of the NOx Allowances
      being
      surrendered.

     

    83.  If
      any
      NOx Allowances
      required to be surrendered under this Consent Decree are transferred directly
      to
      a non-profit third party, Defendants shall include a description of such
      transfer in the next report submitted to EPA as required by Section XI (Periodic
      Reporting) of this Consent Decree.  Such report shall: (a) identify
      the non-profit third party recipient(s) of the NOx Allowances
      and list
      the serial numbers of the transferred NOx Allowances;
      and (b)
      include a certification by the third party recipient(s) stating that the
      recipient(s) will not sell, trade, or otherwise exchange any of the NOx Allowances
      and will
      not use any of the NOx Allowances
      to meet
      any obligation imposed by any environmental law.  No later than the
      second periodic report due after the transfer of any NOx Allowances,
      Defendants shall include a statement that the third party recipient(s)
      surrendered the NOx Allowances
      for
      permanent surrender to EPA in accordance with the provisions of Paragraph 82
      within one (1) year after Defendants transferred the NOx Allowances
      to
      them.  Defendants shall not have complied with the NOx Allowance
      surrender
      requirements of this Paragraph until all third party recipient(s) have actually
      surrendered the transferred NOx Allowances
      to
      EPA.

     

    G.           Reporting
      Requirements for NOx
      Allowances.

     

    84.  Defendants
      shall comply with the reporting requirements for NOx Allowances
      as
      described in Section XI (Periodic Reporting) and Appendix B.

     

    H.           General
      NOx
      Provisions.

     

    85.  To
      the
      extent a NOx
      Emission Rate is required under this Consent Decree, Defendants shall use CEMS
      in accordance with the reference methods specified in 40 C.F.R. Part 75 to
      determine such Emission Rate.

     

    V.  SO2
      EMISSION
      REDUCTIONS AND CONTROLS

     

    A.           Eastern
      System-Wide Annual Tonnage Limitations for SO2.

     

    86.  Notwithstanding
      any other provisions of this Consent Decree, except Section XIV (Force Majeure),
      during each calendar year specified in the table below, all Units in the AEP
      Eastern System, collectively, shall not emit SO2 in excess
      of the
      following Eastern System-Wide Annual Tonnage Limitations:

     

    
      	
              Calendar
                Year

            	
              Eastern
                System-Wide Annual Tonnage Limitations for SO2

            
	
              2010

            	
              450,000
                tons

            
	
              2011

            	
              450,000
                tons

            
	
              2012

            	
              420,000
                tons

            
	
              2013

            	
              350,000
                tons

            
	
              2014

            	
              340,000
                tons

            
	
              2015

            	
              275,000
                tons

            
	
              2016

            	
              260,000
                tons

            
	
              2017

            	
              235,000
                tons

            
	
              2018

            	
              184,000
                tons

            
	
              2019,
                and each year thereafter

            	
              174,000
                tons

            


    

    


    B.           SO2
      Emission
      Limitations and Control Requirements.

     

    87.  No
      later
      than the dates set forth in the table below, Defendants shall install and
      Continuously Operate an FGD on each Unit identified therein, or, if indicated
      in
      the table, Retire, Retrofit, or Re-power such Unit:

     

    
      	
              Unit

            	
              SO2
                Pollution
                Control

            	
              Date

            
	
              Amos
                Units 1 and 3

            	
              FGD

            	
              December
                31, 2009

            
	
              Amos
                Unit 2

            	
              FGD

            	
              December
                31, 2010

            
	
              Big
                Sandy Unit 2

            	
              FGD

            	
              December
                31, 2015

            
	
              Cardinal
                Units 1 and 2

            	
              FGD

            	
              December
                31, 2008

            
	
              Cardinal
                Unit 3

            	
              FGD

            	
              December
                31, 2012

            
	
              Conesville
                Units 1 and 2

            	
              Retire,
                Retrofit, or Re-power

            	
              Date
                of Entry

            
	
              Conesville
                Unit 3

            	
              Retire,
                Retrofit, or Re-power

            	
              December
                31, 2012

            
	
              Conesville
                Unit 4

            	
              FGD

            	
              December
                31, 2010

            
	
              Conesville
                Unit 5

            	
              Upgrade
                existing FGD and meet a 95% 30-day Rolling Average Removal
                Efficiency

            	
              December
                31, 2009

            
	
              Conesville
                Unit 6

            	
              Upgrade
                existing FGD and meet a 95% 30-day Rolling Average Removal
                Efficiency

            	
              December
                31, 2009

            
	
              Gavin
                Units 1 and 2

            	
              FGD

            	
              Date
                of Entry

            
	
              Mitchell
                Units 1 and 2

            	
              FGD

            	
              December
                31, 2007

            
	
              Mountaineer
                Unit 1

            	
              FGD

            	
              December
                31, 2007

            
	
              Muskingum
                River Units 1-4

            	
              Retire,
                Retrofit, or Re-power

            	
              December
                31, 2015

            
	
              Muskingum
                River Unit 5

            	
              FGD

            	
              December
                31, 2015

            
	
              Rockport
                Unit 1

            	
              FGD

            	
              December
                31, 2017

            
	
              Rockport
                Unit 2

            	
              FGD

            	
              December
                31, 2019

            
	
              Sporn
                Unit 5

            	
              Retire,
                Retrofit, or Re-power

            	
              December
                31, 2013

            
	
              A
                total of at least 600 MW from the following list of Units: Sporn
                Units
                1-4, Clinch River Units 1-3, Tanners Creek Units 1-3, and/or Kammer
                Units
                1-3

            	
              Retire,
                Retrofit, or Re-power

            	
              December
                31, 2018

            


    

    


    88.  Plant-Wide
      Annual Rolling Average Tonnage Limitation for SO2
      at Clinch
      River. Beginning on January 1, 2010, and continuing through December 31,
      2014, Defendants shall limit their total annual SO2 emissions
      at the
      Clinch River plant to a Plant-Wide Annual Rolling Average Tonnage Limitation
      of
      21,700 tons.  Beginning on January 1, 2015, and continuing thereafter,
      Defendants shall limit their total annual SO2 emissions
      at the
      Clinch River plant to a Plant-Wide Annual Rolling Average Tonnage Limitation
      of
      16,300 tons.  For purposes of calculating the Plant-Wide Annual
      Rolling Average Tonnage Limitation that begins in 2010, Defendants shall use
      the
      period beginning January 1, 2010 through December 31, 2010 to establish the
      initial annual period that is subject to the Plant-Wide Annual Rolling Average
      Tonnage Limitation for 2010 through 2014.  Defendants shall then
      calculate a new Plant-Wide Annual Rolling Average Tonnage Limitation each month
      thereafter through December 31, 2014, by averaging the most recent month with
      the previous eleven (11) months.  For purposes of calculating the
      Plant-Wide Annual Rolling Average Tonnage Limitation that begins in 2015,
      Defendants shall use the period beginning January 1, 2015 through December
      31,
      2015 to establish the initial annual period that is subject to the Plant-Wide
      Annual Average Rolling Tonnage Limitation for 2015.  Defendants shall
      then calculate a new Plant-Wide Annual Rolling Average Tonnage Limitation each
      month thereafter by averaging the most recent month with the previous eleven
      (11) months.

     

    89.  Plant-Wide
      Annual Tonnage Limitation for SO2
      at
      Kammer.  Beginning on January 1, 2010, and continuing annually
      thereafter, Defendants shall limit their total annual SO2 emissions
      at the
      Kammer plant to a Plant-Wide Annual Tonnage Limitation of 35,000
      tons.

     

    90.  Other
      SO2
      Measures.  No later than the dates set forth in the table below,
      Defendants shall comply with the limit on coal sulfur content for such Units,
      at
      all times that the Units are in operation:

     

    
      	
              Unit

            	
              Other
                SO2
                Measures

            	
              Date

            
	
              Big
                Sandy Unit 1

            	
              Units
                can only burn coal with a sulfur content no greater than 1.75 lb/mmBTU
                on
                an annual average basis

            	
              Date
                of Entry

            
	
              Glen
                Lyn Units 5 and 6

            	
              Units
                can only burn coal with a sulfur content no greater than 1.75 lb/mmBTU
                on
                an annual average basis.

            	
              Date
                of Entry

            
	
              Kanawha
                River Units 1 and 2

            	
              Units
                can only burn coal with a sulfur content no greater than 1.75 lb/mmBTU
                on
                an annual average basis

            	
              Date
                of Entry

            
	
              Tanners
                Creek Units 1, 2, and 3

            	
              Units
                can only burn coal with a sulfur content no greater than 1.2 lb/mmBTU
                on
                an annual average basis

            	
              Date
                of Entry

            
	
              Tanners
                Creek Unit 4

            	
              Unit
                can only burn coal with a sulfur content no greater than 1.2 % on
                an
                annual average basis

            	
              Date
                of Entry

            


    

    


    C.           Use
      and Surrender of SO2
      Allowances.

     

    91.  Defendants
      may use SO2
      Allowances allocated to the AEP Eastern System by the Administrator of EPA
      under
      the Act, or by any state under its state implementation plan, to meet their
      own
      federal and/or state regulatory requirements for the Units included in the
      AEP
      Eastern System.  Subject to Paragraph 92, nothing in this Consent
      Decree shall prevent Defendants from purchasing or otherwise obtaining SO2 Allowances
      from
      another source for purposes of complying with their own federal and/or state
      Clean Air Act requirements to the extent otherwise allowed by law.

     

    92.  Except
      as
      may be necessary to comply with this Section and Section XIII (Stipulated
      Penalties), Defendants may not use any SO2 Allowances
      to
      comply with any requirement of this Consent Decree, including by claiming
      compliance with any emission limitation, Eastern System-Wide Annual Tonnage
      Limitations, Plant-Wide Annual Rolling Average Tonnage Limitation for SO2 at Clinch
      River, or
      Plant-Wide Annual Tonnage Limitation for SO2 at Kammer
      required
      by this Consent Decree by using, tendering, or otherwise applying SO2 Allowances
      to
      achieve compliance or offset any emissions above the limits specified in this
      Consent Decree.

     

    93.  On
      an
      annual basis beginning in 2010, and continuing thereafter, Defendants shall
      calculate the number of Excess SO2 Allowances
      by
      subtracting the number of SO2 Allowances
      equal to
      the annual Eastern System-Wide Tonnage Limitations for SO2 for each
      calendar
      year times the applicable allowance surrender ratio from the annual SO2 Allocations
      for all
      Units within the AEP Eastern System for the same calendar
      year.  Defendants shall surrender, or transfer to a non-profit third
      party selected by Defendants for surrender, all Excess SO2 Allowances
      that
      have been allocated to the AEP Eastern System for the specified calendar year
      by
      the Administrator of EPA under the Act or by any state under its state
      implementation plan. Defendants shall make the surrender of SO2 Allowances
      required
      by this Paragraph to EPA by March 1 of the immediately following calendar
      year.

     

    D.           Method
      for Surrender of Excess SO2
      Allowances.

     

    94.  For
      purposes of this Subsection, the “surrender” of Excess SO2 Allowances
      means
      permanently surrendering allowances from the accounts administered by EPA so
      that such allowances can never be used thereafter to meet any compliance
      requirement under the Clean Air Act, a state implementation plan, or this
      Consent Decree.

     

    95.  If
      any
      SO2 Allowances
      required to be surrendered under this Consent Decree are transferred directly
      to
      a non-profit third party, Defendants shall include a description of such
      transfer in the next report submitted to EPA pursuant to Section XI (Periodic
      Reporting) of this Consent Decree.  Such report shall:
      (i) identify the non-profit third party recipient(s) of the SO2 Allowances
      and list
      the serial numbers of the transferred SO2 Allowances;
      and
      (ii) include a certification by the third party recipient(s) stating that the
      recipient(s) will not sell, trade, or otherwise exchange any of the allowances
      and will not use any of the SO2 Allowances
      to meet
      any obligation imposed by any environmental law.  No later than the
      second periodic report due after the transfer of any SO2 Allowances,
      Defendants shall include a statement that the third party recipient(s)
      surrendered the SO2 Allowances
      for
      permanent surrender to EPA in accordance with the provisions of Paragraph 96
      within one (1) year after Defendants transferred the SO2 Allowances
      to
      them.  Defendants shall not have complied with the SO2 Allowance
      surrender
      requirements of this Paragraph until all third party recipient(s) have actually
      surrendered the transferred SO2 Allowances
      to
      EPA.

     

    96.  For
      all
      SO2 Allowances
      surrendered to EPA, Defendants or the third party recipient(s) (as the case
      may
      be) shall first submit an SO2 Allowance
      transfer
      request form to EPA’s Office of Air and Radiation’s Clean Air Markets Division
      directing the transfer of such SO2 Allowances
      to the
      EPA Enforcement Surrender Account or to any other EPA account that EPA may
      direct in writing.  As part of submitting these transfer requests,
      Defendants or the third party recipient(s) shall irrevocably authorize the
      transfer of these SO2 Allowances
      and
      identify – by name of account and any applicable serial or other identification
      numbers or station names – the source and location of the SO2 Allowances
      being
      surrendered.

     

    97.  The
      requirements in this Consent Decree pertaining to Defendants’ surrender of
      SO2 Allowances
      are permanent injunctions not subject to any termination provision of this
      Decree.  These provisions shall survive any termination of this
      Consent Decree in whole or in part.

     

    E.           Super-Compliant
      SO2
      Allowances.

     

    98.  In
      each
      calendar year beginning in 2010, and continuing thereafter, Defendants may
      use
      in any manner authorized by law any SO2 Allowances
      made
      available in that year as a result of maintaining actual SO2 emissions
      from the
      AEP Eastern System below the Eastern System-Wide Annual Tonnage Limitations
      for
      SO2 under this
      Consent Decree for each calendar year.  Defendants shall timely report
      the generation of such Super-Compliant SO2 Allowances
      in
      accordance with Section XI (Periodic Reporting) and Appendix B of this Consent
      Decree.

     

    F.           Reporting
      Requirements for SO2
      Allowances.

     

    99.  Defendants
      shall comply with the reporting requirements for SO2 Allowances
      as
      described in Section XI (Periodic Reporting) and Appendix B.

     

    G.           General
      SO2
      Provisions.

     

    100.  To
      the
      extent an Emission Rate or 30-Day Rolling Average Removal Efficiency for SO2 is required
      under
      this Consent Decree, Defendants shall use CEMS in accordance with the reference
      methods specified in 40 C.F.R. Part 75 to determine such Emission
      Rate.

     

    101.  Notwithstanding
      Paragraphs 6 and 100, the 30-Day Rolling Average Removal Efficiency for SO2 at Conesville
      Unit
      5 and Conesville Unit 6 shall be determined in accordance with Appendix
      C.

     

    VI.  PM
      EMISSION REDUCTIONS AND CONTROLS

     

    A.           Optimization
      of Existing ESPs.

     

    102.   Beginning
      thirty (30) days after the Date of Entry, and continuing thereafter, Defendants
      shall Continuously Operate each ESP on Cardinal Unit 1, Cardinal Unit 2, and
      Muskingum River Unit 5 to maximize PM emission reductions at all times when
      the
      Unit is in operation, provided that such operation of the ESP is consistent
      with
      the technological limitations, manufacturers’ specifications, and good
      engineering and maintenance practices for the ESP.  Defendants shall,
      at a minimum, to the extent reasonably practicable: (a) fully energize each
      section of the ESP for each unit, and repair any failed ESP section at the
      next
      planned Unit outage (or unplanned outage of sufficient length); (b) operate
      automatic control systems on each ESP to maximize PM collection efficiency;
      (c)
      maintain power levels delivered to the ESPs, consistent with manufacturers’
specifications, the operational design of the Unit, and good engineering
      practices; and (d) inspect for and repair during the next planned Unit outage
      (or unplanned outage of sufficient length) any openings in ESP casings,
      ductwork, and expansion joints to minimize air leakage.

     

    B.           PM
      Emission Rate and Testing.

     

    103.  No
      later
      than the dates specified in the table below, Defendants shall Continuously
      Operate each Unit specified therein to achieve and maintain a PM Emission Rate
      no greater than 0.030 lb/mmBTU:

     

    
      	
              Unit

            	
              Date
                to Achieve and Maintain PM Emission Rate

            
	
              Cardinal
                Unit 1

            	
              December
                31, 2009

            
	
              Cardinal
                Unit 2

            	
              December
                31, 2009

            
	
              Muskingum
                River Unit 5

            	
              December
                31, 2012

            


    

     

    104.  On
      or
      before the date established by this Consent Decree for Defendants to achieve
      and
      maintain 0.030 lb/mmBTU at Cardinal Unit 1, Cardinal Unit 2, and Muskingum
      River
      Unit 5, Defendants shall conduct a performance test for PM that demonstrates
      compliance with the PM Emission Rate required by this Consent
      Decree.  Within forty-five (45) days of each such performance test,
      Defendants shall submit the results of the performance test to Plaintiffs
      pursuant to Section XVIII (Notices) of this Consent Decree.

     

    C.           PM
      Emissions Monitoring.

     

    105.  Beginning
      in calendar year 2010 for Cardinal Unit 1 and Cardinal Unit 2, and calendar
      year
      2013 for Muskingum River Unit 5, and continuing in each calendar year
      thereafter, Defendants shall conduct a stack test for PM on each stack servicing
      Cardinal Unit 1, Cardinal Unit 2, and Muskingum River Unit 5.  The
      annual stack test requirement imposed by this Paragraph may be satisfied by
      stack tests conducted by Defendants as required by their permits from the State
      of Ohio for any year that such stack tests are required under the
      permits.

     

    106.  The
      reference methods and procedures for determining compliance with PM Emission
      Rates shall be those specified in 40 C.F.R. Part 60, Appendix A, Method 5,
      5B,
      or 17, or an alternative method that is promulgated by EPA, requested for use
      herein by Defendants, and approved for use herein by EPA.  Use of any
      particular method shall conform to the EPA requirements specified in 40 C.F.R.
      Part 60, Appendix A and 40 C.F.R. § 60.48Da(b) and (e), or any
      federally-approved method contained in the Ohio State Implementation
      Plan.  Defendants shall calculate the PM Emission Rates from the stack
      test results in accordance with 40 C.F.R.     §
60.8(f).  The results of each PM stack test shall be submitted to EPA
      within forty-five (45) days of completion of each test.

     

    
      	
                     
                D.  

            	
              Installation
                and Operation of PM CEMS.

            


    

    


    107.  Defendants
      shall install, calibrate, operate, and maintain PM CEMS, as specified
      below.  Each PM CEMS shall comprise a continuous particle mass monitor
      measuring particulate matter concentration, directly or indirectly, on an hourly
      average basis and a diluent monitor used to convert the concentration to units
      of lb/mmBTU.  Defendants shall maintain, in an electronic database,
      the hourly average emission values produced by all PM CEMS in
      lb/mmBTU.  Defendants shall use reasonable efforts to keep each PM
      CEMS running and producing data whenever any Unit served by the PM CEMS is
      operating.

     

    108.  No
      later
      than December 31, 2011, Defendants shall submit to EPA pursuant to Section
      XII
      (Review and Approval of Submittals) of this Consent Decree: (a) a plan for
      the
      installation and certification of each PM CEMS, and (b) a proposed Quality
      Assurance/Quality Control (“QA/QC”) protocol that shall be followed in
      calibrating such PM CEMS.  In developing both the plan for
      installation and certification of the PM CEMS and the QA/QC protocol, Defendants
      shall use the criteria set forth in 40 C.F.R. Part 60, Appendix B, Performance
      Specification 11, and Appendix F, Procedure 3.   Following
      approval by EPA of the protocol, Defendants shall thereafter operate each PM
      CEMS in accordance with the approved protocol.

     

    109.  No
      later
      than the dates specified below, Defendants shall install, certify, and operate
      PM CEMS on the stacks or common stacks for Cardinal Unit 1, Cardinal Unit 2,
      and
      a third Unit, as further described in Paragraph 110:

     

    
      	
              Stack

            	
              Date
                to Commence Operation of PM CEMS

            
	
              Cardinal
                Unit 1

            	
              December
                31, 2012

            
	
              Cardinal
                Unit 2

            	
              December
                31, 2012

            
	
              Unit
                to be identified pursuant to Paragraph 110

            	
              December
                31, 2012

            


    

     

    110.  No
      later
      than December 31, 2011, Defendants shall identify, subject to Plaintiffs’
approval, the third Unit required by Paragraph 109.

     

    111.  No
      later
      than ninety (90) days after Defendants begin operation of the PM CEMS,
      Defendants shall conduct tests of each PM CEMS to demonstrate compliance with
      the PM CEMS installation and certification plan submitted to and approved by
      EPA.

     

    112.  Demonstration
      that PM CEMS are Infeasible.  Defendants shall operate the PM CEMS
      for at least two (2) years on each of the Units specified in Paragraphs 109
      and
      110.  After two (2) years of operation, Defendants may attempt to
      demonstrate that it is infeasible to continue operating PM CEMS.  As
      part of such demonstration, Defendants shall submit an alternative PM monitoring
      plan for review and approval by EPA.  The plan shall explain the basis
      for stopping operation of the PM CEMS and propose an alternative PM monitoring
      plan.  If the United States disapproves the alternative PM monitoring
      plan, or if the United States rejects Defendants’ claim that it is infeasible to
      continue operating PM CEMS, such disagreement is subject to Section XV (Dispute
      Resolution).

     

    113.  “Infeasible
      to Continue Operating PM CEMS” Standard.  Operation of a PM CEMS
      shall be considered no longer feasible if: (a) the PM CEMS cannot be kept in
      proper condition for sufficient periods of time to produce reliable, adequate,
      or useful data consistent with the QA/QC protocol, or (b) Defendants demonstrate
      that recurring, chronic, or unusual equipment adjustment or servicing needs
      in
      relation to other types of continuous emission monitors cannot be resolved
      through reasonable expenditures of resources.  If EPA determines that
      Defendants have demonstrated pursuant to this Paragraph that operation is no
      longer feasible, Defendants shall be entitled to discontinue operation of and
      remove the PM CEMS.

     

    114.  PM
      CEMS Operations Will Continue During Dispute Resolution or Proposals for
      Alternative Monitoring.  Until EPA approves an alternative
      monitoring plan, or until the conclusion of any proceeding under Section XV
      (Dispute Resolution), Defendants shall continue to operate the PM
      CEMS.  If EPA has not issued a decision regarding an alternative
      monitoring plan within 120 days, Defendants may initiate action under Section
      XV
      (Dispute Resolution).

     

               E.           PM
      Reporting.

     

    115.  Defendants
      shall comply with the reporting requirements for PM as described in Section
      XI
      (Periodic Reporting) and Appendix B.

     

    F.           General
      PM Provisions.

     

    116.  Although
      stack testing shall be used to determine compliance with the PM Emission Rate
      established by this Consent Decree, data from the PM CEMS shall be used, at
      a
      minimum, to monitor progress in reducing PM emissions.

     

    VII.           PROHIBITION
      ON NETTING CREDITS OR

             OFFSETS
      FROM REQUIRED CONTROLS

    


    117.  Emission
      reductions that result from actions required to be taken by Defendants after
      the
      Date of Entry of this Consent Decree to comply with the requirements of this
      Consent Decree shall not be considered as a creditable contemporaneous emission
      decrease for the purpose of obtaining a netting credit or offset under the
      Clean
      Air Act’s Nonattainment NSR and PSD programs.

     

    118.  Nothing
      in this Consent Decree is intended to preclude the emission reductions generated
      under this Consent Decree from being considered by a State or EPA as creditable
      contemporaneous emission decreases for the purpose of attainment demonstrations
      submitted pursuant to § 110 of the Act, 42 U.S.C. § 7410, or in determining
      impacts on NAAQS, PSD increment, or air quality related values, including
      visibility, in a Class I area.

     

    VIII.  ENVIRONMENTAL
      MITIGATION PROJECTS

     

    119.  Defendants
      shall implement the Environmental Mitigation Projects (“Projects”) described in
      Appendix A to this Consent Decree and fund the categories of Projects described
      in Subsection B, below, in compliance with the approved plans and schedules
      for
      such Projects and other terms of this Consent Decree.  In funding
      and/or implementing all such Projects in Appendix A and Subsection B, Defendants
      shall expend moneys and/or implement Projects valued at no less than $36 million
      for the Projects identified in Appendix A and $24 million for the payments
      to
      the States to fund Projects within the categories set forth in Subsection
      B.  Defendants shall fund and/or implement such Projects over a period
      of no later than five (5) years from the Date of Entry.  Defendants
      may propose establishing one or more qualified settlement funds
      within the meaning of Treas. Reg. §1.468B-1 in conjunction with one or more
      Mitigation Projects.  Any such trust would be established pursuant to
      a trust agreement in a form to be mutually agreed upon by the affected
      Parties.  Nothing in the foregoing is intended by the United States to
      be a determination or opinion regarding whether such trust would meet the
      requirements of Treas. Reg. §1.468B-1 or is otherwise appropriate.

     

    A.           Requirements
      for Projects Described in Appendix A ($36 million).

     

    120.  Defendants
      shall maintain, and present to EPA upon request, all documents to substantiate
      the Project Dollars expended to implement the Projects described in Appendix
      A,
      and shall provide these documents to EPA within thirty (30) days of a request
      for the documents.

     

    121.  All
      plans
      and reports prepared by Defendants pursuant to the requirements of this Section
      of the Consent Decree and required to be submitted to EPA shall be publicly
      available from Defendants without charge.

     

    122.  Defendants
      shall certify, as part of each plan submitted to EPA for any Project, that
      Defendants are not otherwise required by law to perform the Project described
      in
      the plan, that Defendants are unaware of any other person who is required by
      law
      to perform the Project, and that Defendants will not use any Project, or portion
      thereof, to satisfy any obligations that it may have under other applicable
      requirements of law, including any applicable renewable portfolio
      standards.

     

    123.  Defendants
      shall use good faith efforts to secure as much benefit as possible for the
      Project Dollars expended, consistent with the applicable requirements and limits
      of this Consent Decree.

     

    124.  If
      Defendants elect (where such an election is allowed) to undertake a Project
      by
      contributing funds to another person or entity that will carry out the Project
      in lieu of Defendants, but not including Defendants’ agents or contractors, that
      person or instrumentality must, in writing: (a) identify its legal authority
      for
      accepting such funding; and (b) identify its legal authority to conduct the
      Project for which Defendants contribute the funds.  Regardless of
      whether Defendants elect (where such election is allowed) to undertake a Project
      by itself or to do so by contributing funds to another person or instrumentality
      that will carry out the Project, Defendants acknowledge that they will receive
      credit for the expenditure of such funds as Project Dollars only if Defendants
      demonstrate that the funds have been actually spent by either Defendants or
      by
      the person or instrumentality receiving them, and that such expenditures met
      all
      requirements of this Consent Decree.

     

    125.  Defendants
      shall comply with the reporting requirements for Appendix A Projects as
      described in Section XI (Periodic Reporting) and Appendix B.

     

    126.  Within
      sixty (60) days following the completion of each Project required under this
      Consent Decree (including any applicable periods of demonstration or testing),
      Defendants shall submit to the United States a report that documents the date
      that the Project was completed, Defendants’ results of implementing the Project,
      including the emission reductions or other environmental benefits achieved,
      and
      the Project Dollars expended by Defendants in implementing the
      Project.

     

    B.           Mitigation
      Projects to be Conducted by the States ($24 million).

     

    127.  The
      States, by and through their respective Attorneys General, shall jointly submit
      to Defendants Projects within the categories identified in this Subsection
      B for
      funding in amounts not to exceed $4.8 million per calendar year for no less
      than
      five (5) years following the Date of Entry of this Consent Decree beginning
      as
      early as calendar year 2008.  The funds for these Projects will be
      apportioned by and among the States, and Defendants shall not have approval
      rights for the Projects or the apportionment.  Defendants shall pay
      proceeds as designated by the States in accordance with the Projects submitted
      for funding each year within seventy-five (75) days after being notified in
      writing by the States.  Notwithstanding the $4.8 million and 5-year
      limitation above, if the total costs of the projects submitted in any one or
      more years are less than $4.8 million, the difference between that amount and
      $4.8 million will be available for funding by Defendants of new or previously
      submitted projects in the following years, except that all amounts not
      designated by the States within ten (10) years after the Date of Entry of this
      Consent Decree shall expire.

     

    128.  Categories
      of Projects.  The States agree to use money funded by Defendants
      to implement Projects that pertain to energy efficiency and/or pollution
      reduction.  Such projects may include, but are not limited by, the
      following:

     

    
      	
               

            	
              a.

            	
              Retrofitting
                land and marine vehicles (e.g., automobiles, off-road and on-road
                construction and other vehicles, trains, ferries) and transportation
                terminals and ports, with pollution control devices, such as particulate
                matter traps, computer chip reflashing, and battery hybrid
                technology;

            


    

    b.         Truck-stop
      and marine port electrification;

    c.         Purchase
      and installation of photo-voltaic cells on buildings;

    
      	
               

            	
              d.

            	
              Projects
                to conserve energy use in new and existing buildings, including appliance
                efficiency improvement projects, weatherization projects, and projects
                intended to meet EPA’s Green Building guidelines (see
                http://www.epa.gov/greenbuilding/pubs/enviro-issues.htm) and/or
                the
                Leadership in Energy and Environmental Design (LEED) Green Building
                Rating
                System (see http://www.usgbc.org/DisplayPage.aspx?CategoryID=19),
                and projects to collect information in rental markets to assist in
                design
                of efficiency and conservation
                programs;

            


    

    
      	
               

            	
              e.

            	
              Construction
                associated with the production of energy from wind, solar, and
                biomass;

            


    

    
      	
               

            	
              f.

            	
              “Buy
                back” programs for dirty old motors (e.g., automobile, lawnmowers,
                landscape equipment);

            


    

    
      	
               

            	
              g.

            	
              Programs
                to remove and/or replace oil-fired home heating equipment to allow
                use of
                ultra-low sulfur oil, and outdoor wood-fired
                boilers;

            


    

    h.         Purchase
      and retirement of SO2 and NOx
      allowances;
      and

    i.          Funding
      program to improve modeling of mobile source sector.

     

    IX.
      CIVIL PENALTY

     

    129.  Within
      thirty (30) days after the Date of Entry, Defendants shall pay to the United
      States a civil penalty in the amount of $15,000,000.  The civil
      penalty shall be paid by Electronic Funds Transfer (“EFT”) to the United States
      Department of Justice, in accordance with current EFT procedures, referencing
      USAO File Number 1999v01542 and DOJ Case Number 90-5-2-1-06893 and the civil
      action case name and consolidated case numbers of this action.  The
      costs of such EFT shall be Defendants’ responsibility.  Payment shall
      be made in accordance with instructions provided to Defendants by the Financial
      Litigation Unit of the U.S. Attorney’s Office for the Southern District of
      Ohio.  Any funds received after 2:00 p.m. EDT shall be credited on the
      next business day.  At the time of payment, Defendants shall provide
      notice of payment, referencing the USAO File Number, the DOJ Case Number, and
      the civil action case name and consolidated case numbers, to the Department
      of
      Justice and to EPA in accordance with Section XVIII (Notices) of this Consent
      Decree.

     

    130.  Failure
      to timely pay the civil penalty shall subject Defendants to interest accruing
      from the date payment is due until the date payment is made at the rate
      prescribed by 28 U.S.C. § 1961, and shall render Defendants liable for all
      charges, costs, fees, and penalties established by law for the benefit of a
      creditor or of the United States in securing payment.

     

    131.  Payment
      made pursuant to this Section is a penalty within the meaning of Section 162(f)
      of the Internal Revenue Code, 26 U.S.C. § 162(f), and is not a
      tax-deductible expenditure for purposes of federal law.

     

    X.  RESOLUTION
      OF CIVIL CLAIMS AGAINST DEFENDANTS

     

    A.           Resolution
      of the United States’ Civil Claims.

     

    132.  Claims
      Based on Modifications Occurring Before The Date of Lodging of This Consent
      Decree.   Entry of this Decree shall resolve all civil claims of
      the United States against Defendants that arose from any modifications commenced
      at any AEP Eastern System Unit prior to the Date of Lodging of this Consent
      Decree, including but not limited to, those modifications alleged in the Notices
      of Violation and complaints filed in AEP I and AEP II, under
      any or all of: (a) Parts C or D of Subchapter I of the Clean Air Act, 42 U.S.C.
      §§ 7470-7492, 7501-7515; (b) Section 111 of the Clean Air Act, 42 U.S.C. § 7411,
      and 40 C.F.R. § 60.14; (c) the federally-approved and enforceable Indiana State
      Implementation Plan, Kentucky State Implementation Plan, Ohio State
      Implementation Plan, Virginia State Implementation Plan, and West Virginia
      State
      Implementation Plan; or (d) Sections 502(a) and 504(a) of Title V of the Clean
      Air Act, 42 U.S.C §§ 7611(a) and 7611(c), but only to the extent that such
      claims are based on Defendants’ failure to obtain an operating permit that
      reflects applicable requirements imposed under Parts C or D of Subchapter I,
      or
      Section 111 of the Clean Air Act.

     

    133.  Claims
      Based on Modifications after the Date of Lodging of This Consent
      Decree.  Entry of this Consent Decree also shall resolve all civil
      claims of the United States against Defendants that arise based on a
      modification commenced before December 31, 2018, or solely for Rockport Unit
      2,
      before December 31, 2019, for all pollutants, except Particulate Matter,
      regulated under Parts C or D of Subchapter I of the Clean Air Act, and under
      regulations promulgated thereunder, as of the Date of Lodging of this Consent
      Decree, and:

    
      	
               

            	
              a.

            	
              where
                such modification is commenced at any AEP Eastern System Unit after
                the
                Date of Lodging of this Consent Decree;
                or

            


    

    
      	
               

            	
              b.

            	
              where
                such modification is one this Consent Decree expressly directs Defendants
                to undertake.

            


    

    The
      term
“modification” as used in this Paragraph shall have the meaning that term is
      given under the Clean Air Act and under the regulations in effect as of the
      Date
      of Lodging of this Consent Decree, as alleged in the complaints in AEP
      I and AEP II.

     

    134.  Reopener.  The
      resolution of the United States’ civil claims against Defendants, as provided by
      this Subsection A, is subject to the provisions of Subsection B of this
      Section.

     

    B.           Pursuit
      by the United States of Civil Claims Otherwise Resolved by Subsection
      A.

     

    135.  Bases
      for Pursuing Resolved Claims for the AEP Eastern System.   If
      Defendants violate: (a) the Eastern System-Wide Annual Tonnage Limitations
      for
      NOx required
      pursuant to Paragraph 67; (b) the Eastern System-Wide Annual Tonnage Limitations
      for SO2
      required pursuant to Paragraph 86; or (c) operate a Unit more than ninety (90)
      days past a date established in this Consent Decree without completing the
      required installation, upgrade, or commencing Continuous Operation of any
      emission control device required pursuant to Paragraphs 68, 69, 87, 102, and
      103
      then the United States may pursue any claim at any AEP Eastern System Unit
      that
      is otherwise resolved under Subsection A (Resolution of United States’ Civil
      Claims), subject to (a) and (b) below.

     

    
      	
               

            	
              a.

            	
              For
                any claims based on modifications undertaken at any Unit in the AEP
                Eastern System that is not an Improved Unit for the pollutant in
                question,
                claims may be pursued only where the modification(s) on which such
                claim
                is based was commenced within the five (5) years preceding the violation
                or failure specified in this
                Paragraph.

            


    

    
      	
               

            	
              b.

            	
              For
                any claims based on modifications undertaken at an Improved Unit,
                claims
                may be pursued only where the modification(s) on which such claim
                is based
                was commenced: (1) after the Date of Lodging of this Consent Decree
                and
                (2) within the five (5) years preceding the violation or failure
                specified
                in this Paragraph.

            


    

     

    136.  Additional
      Bases for Pursuing Resolved Claims for Modifications at an Improved
      Unit.  Solely with respect to an Improved Unit, the United States
      may also pursue claims arising from a modification (or collection of
      modifications) at an Improved Unit that has otherwise been resolved under
      Subsection A (Resolution of the United States’ Civil Claims) if the modification
      (or collection of modifications) at the Improved Unit on which such claim is
      based (a) was commenced after the Date of Lodging of this Consent Decree and
      (b)
      individually (or collectively) increased the maximum hourly emission rate of
      that Unit for NOx or SO2
      (as measured by 40
      C.F.R. § 60.14 (b) and (h)) by more than ten percent (10%).

     

    137.  Any
      Other
      Unit can become an Improved Unit for NOx if (a)
      it is
      equipped with an SCR, and (b) the operation of such SCR is incorporated into
      a
      federally-enforceable non-Title V permit or site-specific amendment to the
      state
      implementation plan and incorporated into a Title V permit applicable to that
      Unit.  Any Other Unit can become an Improved Unit for SO2 if (a)
      it is
      equipped with an FGD, and (b) the operation of such FGD is incorporated into
      a
      federally-enforceable non-Title V permit or site-specific amendment to the
      state
      implementation plan and incorporated into a Title V permit applicable to that
      Unit.

     

    138.  Additional
      Bases for Pursuing Resolved Claims for Modifications at Other
      Units.

          a. 
Solely
      with respect to Other Units,
i.e., a Unit that is not an Improved Unit under the terms of this Consent
      Decree, the United States may also pursue claims arising from a modification
      (or
      collection of modifications) at an Other Unit that has otherwise been resolved
      under Subsection A (Resolution of the United States’ Civil Claims), if the
      modification (or collection of modifications) at the Other Unit on which the
      claim is based was commenced within the five (5) years preceding any of the
      following events:

    1.           a
      modification (or collection of modifications) at such Other Unit commenced
      after
      the Date of Lodging of this Consent Decree increases the maximum hourly emission
      rate for such Other Unit for the relevant pollutant (NOx or SO2)
      (as measured by 40
      C.F.R. § 60.14(b) and (h));

    2.           the
      aggregate of all Capital Expenditures made at such Other Unit exceed $125/KW
      on
      the Unit’s Boiler Island (based on the generating capacities identified in
      Paragraph 7) during the period from the Date of Entry of this Consent Decree
      through December 31, 2015. (Capital Expenditures
      shall be measured in calendar year 2007 constant dollars, as adjusted by the
      McGraw-Hill Engineering News-Record Construction Cost
      Index);  or

    3.           a
      modification (or collection of modifications) at such Other Unit commenced
      after
      the Date of Lodging of this Consent Decree results in an emissions increase
      of
      NOx and/or
      SO2 at such
      Other Unit, and such increase:  (i)  presents, by itself, or
      in combination with other emissions or  sources, “an imminent and
      substantial endangerment” within the meaning of Section 303 of the Act, 42
      U.S.C. §7603; (ii)  causes or contributes to violation of a NAAQS in
      any Air Quality Control Area that is in attainment with that NAAQS; (iii) causes
      or contributes to violation of a PSD increment; or (iv) causes or contributes
      to
      any adverse impact on any formally-recognized air quality and related values
      in
      any Class I area.  The introduction of any new or changed NAAQS shall
      not, standing alone, provide the showing needed under Subparagraphs (3)(ii)
      or
      (3)(iii) of this Paragraph, to pursue any claim for a modification at an Other
      Unit resolved under Subparagraph A of this Section.

          b.    
Solely
      with respect to Other Units at the plant listed below, the United States may
      also pursue claims arising from a modification (or collection of modifications)
      at such Other Units commenced after the Date of Lodging of this Consent Decree
      if such modification (or collection of modifications) results in an emissions
      increase of SO2
      at such Other Unit, and such increase causes the emissions at the plant at issue
      to exceed the Plant-Wide Annual Rolling Average Tonnage Limitation for SO2 at Clinch
      River
      listed in the table below for year 2010-2014 and/or 2015 and
      beyond:

     

    
      	
              Plant

            	
              Year

            	
              SO2
                Tons
                Limit

            
	
              Clinch
                River

            	
              2010
                - 2014

            	
              21,700

            
	
              Clinch
                River

            	
              2015
                and each year thereafter

            	
              16,300

            


    

    


    
      	
               

            	
              C.

            	
              Resolution
                of Past Claims of the States and Citizen Plaintiffs and Reservation
                of
                Rights.

            


    

    


    139.  The
      States and Citizen Plaintiffs agree that this Consent Decree resolves all civil
      claims that have been alleged in their respective complaints or could have
      been
      alleged against Defendants prior to the Date of Lodging of this Consent Decree
      for violations of: (a) Parts C or D of Subchapter I of the Clean Air Act, 42
      U.S.C. §§ 7470-7492, 7501-7515, and (b) Section 111 of the Act, 42 U.S.C. §
7411, and 40 C.F.R § 60.14, at Units within the AEP Eastern System.

     

    140.  The
      States and Citizen Plaintiffs expressly do not join in giving the Defendants
      the
      covenant provided by the United States through Paragraph 133 of this Consent
      Decree, do not release any claims under the Clean Air Act and its implementing
      regulations arising after the Date of Lodging of this Consent Decree, and
      reserve their rights, if any, to bring any actions against the Defendants
      pursuant to 42 U.S.C. § 7604 for any claims arising after the Date of Lodging of
      this Consent Decree.

     

    141.  Notwithstanding
      Paragraph 140, the States and Citizen Plaintiffs release Defendants from any
      civil claim that may arise under the Clean Air Act for Defendants’ performance
      of activities that this Consent Decree expressly directs Defendants to
      undertake, except to the extent that such activities would cause a significant
      increase in the emission of a criteria pollutant other than SO2, NOx,
      or
      PM.

     

    142.  Retention
      of Authority Regarding NAAQS Exceedences.  Nothing in this Consent
      Decree shall be construed to affect the authority of the United States or any
      state under applicable federal statutes or regulations and applicable state
      statutes or regulations to impose appropriate requirements or sanctions on
      any
      Unit in the AEP Eastern System, including, but not limited to, the Units at
      the
      Clinch River plant, if the United States or a state determines that emissions
      from any Unit in the AEP Eastern System result in violation of, or interfere
      with the attainment and maintenance of, any ambient air quality
      standard.

     

    XI.  PERIODIC
      REPORTING

     

    143.  Beginning
      on March 31, 2008, and continuing annually thereafter on March 31 until
      termination of this Consent Decree, and in addition to any other express
      reporting requirement in this Consent Decree, Defendants shall submit to the
      Unites States, the States, and the Citizen Plaintiffs a progress report in
      compliance with Appendix B of this Consent Decree.

     

    144.  In
      any
      periodic progress report submitted pursuant to this Section, Defendants may
      incorporate by reference information previously submitted under their Title
      V
      permitting requirements, provided that Defendants attach the Title V permit
      report, or the relevant portion thereof, and provide a specific reference to
      the
      provisions of the Title V permit report that are responsive to the information
      required in the periodic progress report.

     

    145.  In
      addition to the progress reports required pursuant to this Section, Defendants
      shall provide a written report to the United States, the States, and the Citizen
      Plaintiffs of any violation of the requirements of this Consent Decree within
      fifteen (15) days of when Defendants knew or should have known of any such
      violation.  In this report, Defendants shall explain the cause or
      causes of the violation and all measures taken or to be taken by Defendants
      to
      prevent such violations in the future.

     

    146.  Each
      report shall be signed by Defendants’ Vice President of Environmental Services
      or his or her equivalent or designee of at least the rank of Vice President,
      and
      shall contain the following certification:

     

    This
      information was prepared either by me or under my direction or supervision
      in
      accordance with a system designed to assure that qualified personnel properly
      gather and evaluate the information submitted.  Based on my
      evaluation, or the direction and my inquiry of the person(s) who manage the
      system, or the person(s) directly responsible for gathering the information,
      I
      hereby certify under penalty of law that, to the best of my knowledge and
      belief, this information is true, accurate, and complete.  I
      understand that there are significant penalties for submitting false,
      inaccurate, or incomplete information to the United States.

     

    147.  If
      any
      SO2 or NOx
      Allowances are
      surrendered to any third party pursuant to this Consent Decree, the third
      party’s certification pursuant to Paragraphs 83 and 95 shall be signed by a
      managing officer of the third party and shall contain the following
      language:

     

    I
      certify
      under penalty of law that,_____________ [name of third party] will not sell,
      trade, or otherwise exchange any of the allowances and will not use any of
      the
      allowances to meet any obligation imposed by any environmental law.  I
      understand that there are significant penalties for submitting false,
      inaccurate, or incomplete information to the United States.

     

    XII.  REVIEW
      AND APPROVAL OF SUBMITTALS

     

    148.  Defendants
      shall submit each plan, report, or other submission required by this Consent
      Decree to the Plaintiffs specified, whenever such a document is required to
      be
      submitted for review or approval pursuant to this Consent Decree.  The
      Plaintiff(s) to whom the report is submitted, as required, may approve the
      submittal or decline to approve it and provide written comments explaining
      the
      bases for declining such approval as soon as reasonably
      practicable.  Such Plaintiff(s) will endeavor to coordinate their
      comments into one document when explaining their bases for declining such
      approval.  Within sixty (60) days of receiving written comments from
      any of the Plaintiff(s), Defendants shall either: (a) revise the submittal
      consistent with the written comments and provide the revised submittal to the
      Plaintiff(s); or (b) submit the matter for dispute resolution, including the
      period of informal negotiations, under Section XV (Dispute Resolution) of this
      Consent Decree.

     

    149.  Upon
      receipt of Plaintiffs’ or Plaintiff’s (as the case may be) final approval of the
      submittal, or upon completion of the submittal pursuant to dispute resolution,
      Defendants shall implement the approved submittal in accordance with the
      schedule specified therein.

     

    XIII.  STIPULATED
      PENALTIES

     

    150.  For
      any
      failure by Defendants to comply with the terms of this Consent Decree, and
      subject to the provisions of Sections XIV (Force Majeure) and XV (Dispute
      Resolution), Defendants shall pay, within thirty (30) days after receipt of
      written demand to Defendants by the United States, the following stipulated
      penalties to the United States:

     

    
      	
              Consent
                Decree Violation

            	
              Stipulated
                Penalty (Per Day, Per Violation, Unless Otherwise
                Specified)

            
	
              a.  Failure
                to pay the civil penalty as specified in Section IX (Civil Penalty)
                of
                this Consent Decree

            	
              $10,000
                per day

            
	
              b.  Failure
                to comply with any applicable 30-Day Rolling Average Emission Rate,
                30-Day
                Rolling Average Removal Efficiency, Emission Rate for PM, or Other
                SO2
                Measures
                where the violation is less than 5% in excess of the limits set forth
                in
                this Consent Decree

            	
              $2,500
                per day per violation

            
	
              c. 
                Failure to comply with any applicable 30-Day Rolling Average Emission
                Rate, 30-Day Rolling Average Removal Efficiency, Emission Rate for
                PM, or
                Other SO2
                Measures where the violation is equal to or greater than 5% but less
                than
                10% in excess of the limits set forth in this Consent
                Decree

            	
              $5,000
                per day per violation

            
	
              d. 
                Failure to comply with any applicable 30-Day Rolling Average Emission
                Rate, 30-Day Rolling Average Removal Efficiency, Emission Rate for
                PM, or
                Other SO2
                Measures where the violation is equal to or greater than 10% in excess
                of
                the limits set forth in this Consent Decree

            	
              $10,000
                per day per violation

            
	
              e.  Failure
                to comply with the Eastern System-Wide Annual Tonnage Limitation
                for
                SO2

            	
              $5,000
                per ton for the first 1000 tons, and $10,000 per ton for each additional
                ton above 1000 tons, plus the surrender, pursuant to the procedures
                set
                forth in Paragraphs 82 and 83, of  NOx
                Allowances in
                an amount equal to two times the number of tons by which the limitation
                was exceeded

            
	
              f.  Failure
                to comply with the Plant-Wide Annual Rolling Tonnage Limitation for
                SO2
                at
                Clinch River

            	
              $40,000
                per ton, plus the surrender, pursuant to the procedures set forth
                in
                Paragraphs 95 and 96, of SO2
                Allowances in
                an amount equal to two times the number of tons by which the limitation
                was exceeded

            
	
              g.  Failure
                to comply with the Eastern System-Wide Annual Tonnage Limitation
                for
                NOx

            	
              $5,000
                per ton for the first 1000 tons, and $10,000 per ton for each additional
                ton above 1000 tons, plus the surrender, pursuant to the procedures
                set
                forth in Paragraphs 95 and 96, of SO2
                Allowances in
                an amount equal to two times the number of tons by which the limitation
                was exceeded

            
	
              h.  Failure
                to install, commence operation, or Continuously Operate a pollution
                control device required under this Consent Decree

            	
              $10,000
                per day per violation during the first 30 days, $32,500 per day per
                violation thereafter

            
	
              i.  
                Failure to Retire, Retrofit, or Re-power a Unit by the date specified
                in
                this Consent Decree

            	
              $10,000
                per day per violation during the first 30 days, $32,500 per day per
                violation thereafter

            
	
              j.  
                Failure to install or operate CEMS as required in this Consent
                Decree

            	
              $1,000
                per day per violation

            
	
              k.  Failure
                to conduct performance tests of PM emissions, as required in this
                Consent
                Decree

            	
              $1,000
                per day per violation

            
	
              l.  
                Failure to apply for any permit required by Section XVI
                (Permits)

            	
              $1,000
                per day per violation

            
	
              m. Failure
                to timely submit, modify, or implement, as approved, the reports,
                plans,
                studies, analyses, protocols, or other submittals required in this
                Consent
                Decree

            	
              $750
                per day per violation during the first ten days, $1,000 per day per
                violation thereafter

            
	
              n. 
                Using NOx
                Allowances except as permitted by Paragraphs 75, 76, and
                78

            	
              The
                surrender of NOx
                Allowances in
                an amount equal to four times the number of NOx
                Allowances
                used in violation of this Consent Decree

            
	
              o.  Failure
                to surrender NOx
                Allowances as
                required by Paragraphs 75 and 79

            	
              (a)
                $32,500 per day plus (b) $7,500 per NOx
                Allowance not
                surrendered

            
	
              p.  Failure
                to surrender SO2
                Allowances as
                required by Paragraph 93

            	
              (a)
                $32,500 per day plus (b) $1,000 per SO2
                Allowance not
                surrendered

            
	
              q.  Failure
                to demonstrate the third party surrender of an SO2
                Allowance or
                NOx
                Allowance in accordance with Paragraphs 95-96 and 82-83.

            	
              $2,500
                per day per violation

            
	
              r.  Failure
                to implement any of the Environmental Mitigation Projects described
                in
                Appendix A in compliance with Section VIII (Environmental Mitigation
                Projects) of this Consent Decree

            	
              The
                difference between the cost of the Project, as identified in Appendix
                A,
                and the dollars Defendants spent to implement the
                Project

            
	
              s.  Failure
                to fund an Environmental Mitigation Project, as submitted by the
                States,
                in compliance with Section VIII (Environmental Mitigation Projects)
                of
                this Consent Decree

            	
              $1,000
                per day per violation during the first 30 days, $5,000 per day per
                violation thereafter

            
	
              t. 
                 Failure to Continuously Operate required Other NOx
                Pollution
                Controls required in Paragraph 69

            	
              $10,000
                per day during the first 30 days, and $32,500 each day
                thereafter

            
	
              u.  Failure
                to comply with the Plant-Wide Annual Tonnage Limitation for SO2
                at
                Kammer

            	
              $40,000
                per ton, plus the surrender, pursuant to the procedures set forth
                in
                Paragraphs 95 and 96 of SO2
                Allowances in
                an amount equal to two times the number of tons by which the limitation
                was exceeded

            
	
              v.  Any
                other violation of this Consent Decree

            	
              $1,000
                per day per violation

            


    

    


    151.  Violation
      of an Emission Rate or 30-Day Rolling Average Removal Efficiency that is based
      on a 30-Day Rolling Average is a violation on every day on which the average
      is
      based.  Where a violation of a 30-Day Rolling Average Emission Rate or
      30-Day Rolling Average Removal Efficiency (for the same pollutant and from
      the
      same source) recurs within periods of less than thirty (30) days, Defendants
      shall not pay a daily stipulated penalty for any day of the recurrence for
      which
      a stipulated penalty has already been paid.

     

    152.  All
      stipulated penalties shall begin to accrue on the day after the performance
      is
      due or on the day a violation occurs, whichever is applicable, and shall
      continue to accrue until performance is satisfactorily completed or until the
      violation ceases, whichever is applicable.  Nothing in this Consent
      Decree shall prevent the simultaneous accrual of separate stipulated penalties
      for separate violations of this Consent Decree.

     

    153.  Defendants
      shall pay all stipulated penalties to the United States within thirty (30)
      days
      of receipt of written demand to Defendants from the United States, and shall
      continue to make such payments every thirty (30) days thereafter until the
      violation(s) no longer continues, unless Defendants elect within twenty (20)
      days of receipt of written demand to Defendants from the United States to
      dispute the accrual of stipulated penalties in accordance with the provisions
      in
      Section XV (Dispute Resolution) of this Consent Decree.

     

    154.  Stipulated
      penalties shall continue to accrue as provided in accordance with Paragraph
      152
      during any dispute, with interest on accrued stipulated penalties payable and
      calculated at the rate established by the Secretary of the Treasury, pursuant
      to
      28 U.S.C. § 1961, but need not be paid until the
      following:

     

    
      	
               

            	
              a.

            	
              If
                the dispute is resolved by agreement, or by a decision of Plaintiffs
                pursuant to Section XV (Dispute Resolution) of this Consent Decree
                that is
                not appealed to the Court, accrued stipulated penalties agreed or
                determined to be owing, together with accrued interest, shall be
                paid
                within thirty (30) days of the effective date of the agreement or
                of the
                receipt of Plaintiffs’ decision;

            


    

    
      	
               

            	
              b.

            	
              If
                the dispute is appealed to the Court and Plaintiffs prevail in whole
                or in
                part, Defendants shall, within sixty (60) days of receipt of the
                Court’s
                decision or order, pay all accrued stipulated penalties determined
                by the
                Court to be owing, together with interest accrued on such penalties
                determined by the Court to be owing, except as provided in Subparagraph
                c,
                below;

            


    

    
      	
               

            	
              c.

            	
              If
                the Court’s decision is appealed by any Party, Defendants shall, within
                fifteen (15) days of receipt of the final appellate court decision,
                pay
                all accrued stipulated penalties determined to be owing, together
                with
                interest accrued on such stipulated penalties determined to be owing
                by
                the appellate court.

            


    

     

    Notwithstanding
      any other provision of this Consent Decree, the accrued stipulated penalties
      agreed by the Plaintiffs and Defendants, or determined by the Plaintiffs through
      Dispute Resolution, to be owing may be less than the stipulated penalty amounts
      set forth in Paragraph 150.

     

    155.    All
      stipulated penalties shall be paid in the manner set forth in Section IX (Civil
      Penalty) of this Consent Decree.

     

    156.  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.

     

    157.  The
      stipulated penalties provided for in this Consent Decree shall be in addition
      to
      any other rights, remedies, or sanctions available to Plaintiffs by reason
      of
      Defendants’ failure to comply with any requirement of this Consent Decree or
      applicable law, except that for any violation of the Act for which this Consent
      Decree provides for payment of a stipulated penalty, Defendants shall be allowed
      a credit for stipulated penalties paid against any statutory penalties also
      imposed for such violation.

     

    XIV.  FORCE
      MAJEURE

     

    158.  For
      purposes of this Consent Decree, including, but not limited to, Paragraphs
      67
      and 86, a “Force Majeure Event” shall mean an event that has been or will be
      caused by circumstances beyond the control of Defendants or any entity
      controlled by Defendants that delays compliance with any provision of this
      Consent Decree or otherwise causes a violation of any provision of this Consent
      Decree despite Defendants’ best efforts to fulfill the
      obligation.   “Best efforts to fulfill the obligation” include
      using best efforts to anticipate any potential Force Majeure Event and to
      address the effects of any such event (a) as it is occurring and (b) after
      it has occurred, such that the delay or violation is minimized to the greatest
      extent possible.

     

    159.  Notice
      of Force Majeure Events.  If any event occurs or has occurred that
      may delay compliance with or otherwise cause a violation of any obligation
      under
      this Consent Decree, as to which Defendants intend to assert a claim of Force
      Majeure, Defendants shall notify the Plaintiffs in writing as soon as
      practicable, but in no event later than twenty-one (21) business days following
      the date Defendants first knew, or by the exercise of due diligence should
      have
      known, that the event caused or may cause such delay or violation.  In
      this notice, Defendants shall reference this Paragraph of this Consent Decree
      and describe the anticipated length of time that the delay or violation may
      persist, the cause or causes of the delay or violation, all measures taken
      or to
      be taken by Defendants to prevent or minimize the delay or violation, the
      schedule by which Defendants propose to implement those measures, and
      Defendants’ rationale for attributing a delay or violation to a Force Majeure
      Event.  Defendants shall adopt all reasonable measures to avoid or
      minimize such delays or violations.  Defendants shall be deemed to
      know of any circumstance which Defendants or any entity controlled by Defendants
      knew or should have known.

     

    160.  Failure
      to Give Notice.  If Defendants materially fail to comply with the
      notice requirements of this Section, the Plaintiffs may void Defendants’ claim
      for Force Majeure as to the specific event for which Defendants have failed
      to
      comply with such notice requirement.

      

    161.  Plaintiffs’
      Response.  The Plaintiffs shall notify Defendants in writing
      regarding Defendants’ claim of Force Majeure as soon as reasonably
      practicable.  If the Plaintiffs agree that a delay in performance has
      been or will be caused by a Force Majeure Event, the Parties shall stipulate
      to
      an extension of deadline(s) for performance of the affected compliance
      requirement(s) by a period equal to the delay actually caused by the event,
      or
      the extent to which Defendants may be relieved of stipulated penalties or other
      remedies provided under the terms of this Consent Decree.   Such
      agreement shall be reduced to writing, and signed by all Parties.  If
      the agreement results in a material change to the terms of this Consent Decree,
      an appropriate modification shall be made pursuant to Section XXII
      (Modification).  If such change is not material, no modification of
      this Consent Decree shall be required.

     

    162.  Disagreement.  If
      Plaintiffs do not accept Defendants’ claim of Force Majeure, or if the
      Plaintiffs and Defendants cannot agree on the length of the delay actually
      caused by the Force Majeure Event, or the extent of relief required to address
      the delay actually caused by the Force Majeure Event, the matter shall be
      resolved in accordance with Section XV (Dispute Resolution) of this Consent
      Decree.

     

    163.  Burden
      of Proof.  In any dispute regarding Force Majeure, Defendants
      shall bear the burden of proving that any delay in performance or any other
      violation of any requirement of this Consent Decree was caused by or will be
      caused by a Force Majeure Event.  Defendants shall also bear the
      burden of proving that Defendants gave the notice required by this Section
      and
      the burden of proving the anticipated duration and extent of any delay(s)
      attributable to a Force Majeure Event.  An extension of one compliance
      date based on a particular event may, but will not necessarily, result in an
      extension of a subsequent compliance date.

     

    164.  Events
      Excluded.  Unanticipated or increased costs or expenses associated
      with the performance of Defendants’ obligations under this Consent Decree shall
      not constitute a Force Majeure Event.

     

    165.  Potential
      Force Majeure Events.  The Parties agree that, depending upon the
      circumstances related to an event and Defendants’ response to such
      circumstances, the kinds of events listed below are among those that could
      qualify as Force Majeure Events within the meaning of this Section:
      construction, labor, or equipment delays; Malfunction of a Unit or emission
      control device; unanticipated coal supply or pollution control reagent delivery
      interruptions; acts of God; acts of war or terrorism; and orders by a government
      official, government agency, other regulatory authority, or a regional
      transmission organization, acting under and authorized by applicable law, that
      directs Defendants to operate an AEP Eastern System Unit in response to a local
      or system-wide (state-wide or regional) emergency (which could include
      unanticipated required operation to avoid loss of load or unserved
      load).  Depending upon the circumstances and Defendants’ response to
      such circumstances, failure of a permitting authority to issue a necessary
      permit in a timely fashion may constitute a Force Majeure Event where the
      failure of the permitting authority to act is beyond the control of Defendants
      and Defendants have taken all steps available to it to obtain the necessary
      permit, including, but not limited to: submitting a complete permit application;
      responding to requests for additional information by the permitting authority
      in
      a timely fashion; and accepting lawful permit terms and conditions after
      expeditiously exhausting any legal rights to appeal terms and conditions imposed
      by the permitting authority.

     

    166.  As
      part
      of the resolution of any matter submitted to this Court under Section XV
      (Dispute Resolution) of this Consent Decree regarding a claim of Force Majeure,
      the Plaintiffs and Defendants by agreement, or this Court by order, may in
      appropriate circumstances extend or modify the schedule for completion of work
      under this Consent Decree to account for the delay in the work that occurred
      as
      a result of any delay agreed to by the Plaintiffs or approved by the
      Court.  Defendants shall be liable for stipulated penalties for their
      failure thereafter to complete the work in accordance with the extended or
      modified schedule (provided that Defendants shall not be precluded from making
      a
      further claim of Force Majeure with regard to meeting any such extended or
      modified schedule).

     

    XV.  DISPUTE
      RESOLUTION

     

    167.  The
      dispute resolution procedure provided by this Section shall be available to
      resolve all disputes arising under this Consent Decree, provided that the Party
      invoking such procedure has first made a good faith attempt to resolve the
      matter with the other Parties.

     

    168.  The
      dispute resolution procedure required herein shall be invoked by one Party
      giving written notice to the other Parties advising of a dispute pursuant to
      this Section.  The notice shall describe the nature of the dispute and
      shall state the noticing Party’s position with regard to such
      dispute.  The Parties receiving such a notice shall acknowledge
      receipt of the notice, and the Parties in dispute shall expeditiously schedule
      a
      meeting to discuss the dispute informally not later than fourteen (14) days
      following receipt of such notice.

     

    169.  Disputes
      submitted to dispute resolution under this Section shall, in the first instance,
      be the subject of informal negotiations among the disputing
      Parties.  Such period of informal negotiations shall not extend beyond
      thirty (30) days from the date of the first meeting among the disputing Parties’
representatives unless they agree in writing to shorten or extend this
      period.  During the informal negotiations period, the disputing
      Parties may also submit their dispute to a mutually agreed upon alternative
      dispute resolution (ADR) forum if the Parties agree that the ADR activities
      can
      be completed within the 30-day informal negotiations period (or such longer
      period as the Parties may agree to in writing).

     

    170.  If
      the
      disputing Parties are unable to reach agreement during the informal negotiation
      period, the Plaintiffs shall provide Defendants with a written summary of their
      position regarding the dispute.  The written position provided by
      Plaintiffs shall be considered binding unless, within forty-five (45) days
      thereafter, Defendants seek judicial resolution of the dispute by filing a
      petition with this Court.  The Plaintiffs may respond to the petition
      within forty-five (45) days of filing.  In their initial filings with
      the Court under this Paragraph, the disputing Parties shall state their
      respective positions as to the applicable standard of law for resolving the
      particular dispute.

     

    171.  The
      time
      periods set out in this Section may be shortened or lengthened upon motion
      to
      the Court of one of the Parties to the dispute, explaining the Party’s basis for
      seeking such a scheduling modification.

     

    172.  This
      Court shall not draw any inferences nor establish any presumptions adverse
      to
      any disputing Party as a result of invocation of this Section or the disputing
      Parties’ inability to reach agreement.

     

    173.  As
      part
      of the resolution of any dispute under this Section, in appropriate
      circumstances the disputing Parties may agree, or this Court may order, an
      extension or modification of the schedule for the completion of the activities
      required under this Consent Decree to account for the delay that occurred as
      a
      result of dispute resolution.  Defendants shall be liable for
      stipulated penalties for their failure thereafter to complete the work in
      accordance with the extended or modified schedule, provided that Defendants
      shall not be precluded from asserting that a Force Majeure Event has caused
      or
      may cause a delay in complying with the extended or modified
      schedule.

     

    174.  The
      Court
      shall decide all disputes pursuant to applicable principles of law for resolving
      such disputes.  In their initial filings with the Court under
      Paragraph 170, the disputing Parties shall state their respective positions
      as
      to the applicable standard of law for resolving the particular
      dispute.

     

    
      	
               XVI.  PERMITS

            


    

     

    175.  Unless
      expressly stated otherwise in this Consent Decree, in any instance where
      otherwise applicable law or this Consent Decree requires Defendants to secure
      a
      permit to authorize construction or operation of any device contemplated herein,
      including all preconstruction, construction, and operating permits required
      under state law, Defendants shall make such application in a timely
      manner.  Defendants shall provide Notice to Plaintiffs under Section
      XVIII (Notices), for each Unit that Defendants submit an application for any
      permit described in this Paragraph 175.

     

    176.  Notwithstanding
      the previous Paragraph, nothing in this Consent Decree shall be construed to
      require Defendants to apply for or obtain a PSD or Nonattainment NSR permit
      for
      physical changes in, or changes in the method of operation of, any AEP Eastern
      System Unit that would give rise to claims resolved by Paragraph 132 and 133,
      subject to Paragraphs 134 through 138, or Paragraphs 139 and 141 of this Consent
      Decree.

     

    177.  When
      permits are required as described in Paragraph 175, Defendants shall complete
      and submit applications for such permits to the appropriate authorities to
      allow
      time for all legally required processing and review of the permit request,
      including requests for additional information by the permitting
      authorities.  Any failure by Defendants to submit a timely permit
      application for any Unit in the AEP Eastern System shall bar any use by
      Defendants of Section XIV (Force Majeure) of this Consent Decree, where a Force
      Majeure claim is based on permitting delays.

     

    178.  Notwithstanding
      the reference to Title V permits in this Consent Decree, the enforcement of
      such
      permits shall be in accordance with their own terms and the Act.  The
      Title V permits shall not be enforceable under this Consent Decree, although
      any
      term or limit established by or under this Consent Decree shall be enforceable
      under this Consent Decree regardless of whether such term or limit has or will
      become part of a Title V permit, subject to the terms of Section XXVI
      (Conditional Termination of Enforcement Under Decree) of this Consent
      Decree.

     

    179.  Within
      three (3) years from the Date of Entry of this Consent Decree, and in accordance
      with federal and/or state requirements for modifying or renewing a Title V
      permit, Defendants shall amend any applicable Title V permit application, or
      apply for amendments to their Title V permits, to include a schedule for any
      Unit-specific performance, operational, maintenance, and control technology
      requirements established by this Consent Decree including, but not limited
      to,
      required emission rates or other limitations.  For Units subject to a
      requirement to Retire, Retrofit, or Re-power, Defendants shall apply to modify,
      renew, or obtain any applicable Title V permit to include a schedule for any
      Unit-specific performance, operation, maintenance, and control technology
      requirements established by this Consent Decree including, but not limited
      to,
      required emission rates or other limitations, within (12) twelve months of
      making such election to Retire, Retrofit, or Re-power.

     

    180.  Within
      one (1) year from commencement of operation of each pollution control device
      to
      be installed, upgraded, and/or operated under this Consent Decree, Defendants
      shall apply to include the requirements and limitations enumerated in this
      Consent Decree into federally-enforceable non-Title V permits and/or
      site-specific amendments to the applicable state implementation plans to reflect
      all new requirements applicable to each Unit in the AEP Eastern System, the
      Plant-Wide Annual Rolling Average Tonnage Limitation for SO2 at Clinch
      River,
      and the Plant-Wide Annual Tonnage Limitation for SO2 at
      Kammer.

     

    181.  Defendants
      shall provide the United States with a copy of each application for a
      federally-enforceable non-Title V permit or amendment to a state implementation
      plan, as well as a copy of any permit proposed as a result of such application,
      to allow for timely participation in any public comment period.

     

    182.  Prior
      to
      termination of this Consent Decree, Defendants shall obtain enforceable
      provisions in their Title V permits for the AEP Eastern System that incorporate
      (a) any Unit-specific requirements and limitations of this Consent Decree,
      such
      as performance, operational, maintenance, and control technology requirements,
      (b) the Plant-Wide Annual Rolling Average Tonnage Limitation for SO2 at Clinch
      River and
      the Plant-Wide Annual Tonnage Limitation for SO2 at Kammer,
      and (c)
      the Eastern System-Wide Annual Tonnage Limitations for SO2 and NOx.  If
      Defendants do not obtain enforceable provisions for the Eastern System-Wide
      Annual Tonnage Limitations for SO2 and NOx
      in such Title V
      permits, then the requirements in Paragraphs 86 and 67 shall remain enforceable
      under this Consent Decree and shall not be subject to termination.

     

    183.  If
      Defendants sell or transfer to an entity unrelated to Defendants (“Third-Party
      Purchaser”) part or all of Defendants’ Ownership Interest in a
      Unit in the AEP Eastern System, Defendants shall comply
      with the requirements of Section XIX (Sales or Transfers of Operational or
      Ownership Interests) with regard to that Unit prior to any such sale or transfer
      unless, following any such sale or transfer, Defendants remain the holder of
      the
      Title V permit for such facility.

     

    XVII.
      INFORMATION COLLECTION AND RETENTION

     

    184.  Any
      authorized representative of the United States, including attorneys,
      contractors, and consultants, upon presentation of credentials, shall have
      a
      right of entry upon the premises of any facility in the AEP Eastern System
      at
      any reasonable time for the purpose of:

     

    
      	
               

            	
              a.

            	
              monitoring
                the progress of activities required under this Consent
                Decree;

            


      	 	b.	verifying
              any data or information submitted to the United States in accordance
              with
              the terms of this Consent Decree;


      	 	c.	obtaining
              samples and, upon request, splits of any samples taken by Defendants
              or
              their representatives, contractors, or consultants;
              and


    

    
      	
               

            	
              d.

            	
              assessing
                Defendants’ compliance with this Consent
                Decree.

            


    

     

    185.   Defendants
      shall retain, and instruct their contractors and agents to preserve, all
      non-identical copies of all records and documents (including records and
      documents in electronic form) now in their or their contractors’ or agents’
possession or control (with the exception of their contractors’ copies of field
      drawings and specifications), and that directly relate to Defendants’
performance of their obligations under this Consent Decree until six (6) years
      following completion of performance of such obligations.  This record
      retention requirement shall apply regardless of any corporate document retention
      policy to the contrary.

     

    186.  All
      information and documents submitted by Defendants pursuant to this Consent
      Decree shall be subject to any requests under applicable law providing public
      disclosure of documents unless (a) the information and
      documents are subject to legal privileges or protection or (b) Defendants claim
      and substantiate in accordance with 40 C.F.R. Part 2 that the information
      and documents contain confidential business information.

     

    187.  Nothing
      in this Consent Decree shall limit the authority of EPA to conduct tests and
      inspections at Defendants’ facilities under Section 114 of the Act, 42 U.S.C.
§ 7414, or any other applicable federal or state laws, regulations, or
      permits.

     

    XVIII.  NOTICES

     

    188.  Unless
      otherwise provided herein, whenever notifications, submissions, or
      communications are required by this Consent Decree, they shall be made in
      writing and addressed as follows:

     

    As
      to
      the United States:

    Chief,
      Environmental Enforcement Section

    Environment
      and Natural Resources Division

    U.S.
      Department of Justice

    P.O.
      Box
      7611, Ben Franklin Station

    Washington,
      DC  20044-7611

    DJ#
      90-5-2-1-06893

    


    and

    


    Director,
      Air Enforcement Division

    Office
      of
      Enforcement and Compliance Assurance

    U.S.
      Environmental Protection Agency

    Ariel
      Rios Building [Mail Code 2242A]

    1200
      Pennsylvania Avenue, N.W.

    Washington,
      DC  20460

    


    and

    


    Air
      Enforcement & Compliance Assurance Branch

    U.S.
      EPA
      Region V

    77
      W.
      Jackson St.

    Mail
      Code
      AE17J

    Chicago,
      IL 60604

    


    and

    


    Air
      Protection Division Director

    U.S.
      EPA
      Region III

    1650
      Arch
      Street

    Philadelphia,
      PA 19103

    


    As
      to
      the State of Connecticut:

    


    Office
      of
      the Attorney General

    Environmental
      Department

    P.O.
      Box
      120

    Hartford,
      Connecticut

    06141-0120

    


    As
      to
      the State of Maryland:

    


    Frank
      Courtright

    Program
      Manager

    Air
      Quality Compliance Program

    Maryland
      Department of the Environment

    1800
      Washington Blvd.

    Baltimore,
      Maryland 21230

    fcourtright@mde.state.md.us

    


    As
      to
      the Commonwealth of Massachusetts:

    


    Frederick
      D. Augenstern, Assistant Attorney General

    Office
      of
      the Attorney General

    1
      Ashburton Place, 18th floor

    Boston,
      Massachusetts 02108

    fred.augenstern@state.ma.us

    


    and

    


    Douglas
      Shallcross, Esquire

    Department
      of Environmental Protection

    Office
      of
      General Counsel

    1
      Winter
      Street

    Boston,
      Massachusetts 02108

    Douglas.Shallcross@state.ma.us

     

    As
      to
      the State of New Hampshire:

    


    Director,
      Air Resources Division

    New
      Hampshire Department of Environmental Services

    29
      Hazen
      Dive

    Concord,
      New Hampshire 03302-0095

    


    As
      to
      the State of New Jersey:

    


    Kevin
      P.
      Auerbacher

    Section
      Chief

    Environmental
      Enforcement Section

    R.J.
      Hughes Justice Complex

    25
      Market
      Street

    P.O.
      Box
      093

    Trenton,
      New Jersey 08625-0093

    


    As
      to
      the State of New York:

    


    Robert
      Rosenthal

    Assistant
      Attorney General

    New
      York
      State Attorney General's Office

    The
      Capitol

    Albany,
      New York 12224

    


    As
      to
      the State of Rhode Island:

    


    Tricia
      K.
      Jedele

    Special
      Assistant Attorney General

    150
      South
      Main Street

    Providence,
      RI  02903

    (401)
      274-4400, Ext. 2400

    tjedele@riag.ri.gov

    


    As
      to
      the State of Vermont:

    


    Environmental
      Division

    Office
      of
      the Attorney General

    109
      State
      Street

    Montpelier,
      Vermont 05609-1001

    


    and

    


    Director

    Air
      Pollution Control Division

    Department
      of Environmental Conservation

    Agency
      of
      Natural Resources

    Building
      3 South

    103
      South
      Main Street

    Waterbury,
      Vermont 05671-0402

    


    As
      to
      the Citizen Plaintiffs:

    


    Nancy
      S.
      Marks

    Natural
      Resources Defense Council, Inc.

    40
      West
      20th Street

    New
      York,
      New York 10011

    (212)
      727-4414

    nmarks@nrdc.org

    


    and

    


    Albert
      F.
      Ettinger

    Environmental
      Law and Policy Center

    35
      East
      Wacker Dr. Suite 1300

    Chicago,
      Illinois 60601-2110

    (312)
      673-6500

    aettinger@elpc.org

    


    As
      to
      Defendants:

     

    189.  All
      notifications, communications, or submissions made pursuant to this Section
      shall be sent as follows:  (a) by overnight mail or overnight delivery
      service to the United States; and (b) by electronic mail to all Plaintiffs,
      if
      practicable, but if not practicable, then by overnight mail or overnight
      delivery service to the States and Citizen Plaintiffs.  All
      notifications, communications, and transmissions sent by overnight delivery
      service shall be deemed submitted on the date they are delivered to the delivery
      service.

     

    190.  Any
      Party
      may change either the notice recipient or the address for providing notices
      to
      it by serving all other Parties with a notice setting forth such new notice
      recipient or address.

     

    XIX.  SALES
      OR TRANSFERS OF OPERATIONAL OR OWNERSHIP INTERESTS

     

    191.  If
      Defendants propose to sell or transfer an Operational or Ownership Interest
      to
      an entity unrelated to Defendants (“Third Party”), they shall advise the Third
      Party in writing of the existence of this Consent Decree prior to such sale
      or
      transfer, and shall send a copy of such written notification to the Plaintiffs
      pursuant to Section XVIII (Notices) of this Consent Decree at least sixty (60)
      days before such proposed sale or transfer.

     

    192.  No
      sale
      or transfer of an Operational or Ownership Interest shall take place before
      the
      Third Party and Plaintiffs have executed, and the Court has approved, a
      modification pursuant to Section XXII (Modification) of this Consent Decree
      making the Third Party a party to this Consent Decree and jointly and severally
      liable with Defendants for all the requirements of this Decree that may be
      applicable to the transferred or purchased Interests.

     

    193.  This
      Consent Decree shall not be construed to impede the transfer of any Interests
      between Defendants and any Third Party so long as the requirements of this
      Consent Decree are met.  This Consent Decree shall not be construed to
      prohibit a contractual allocation – as between Defendants and any Third Party –
of the burdens of compliance with this Decree, provided that both Defendants
      and
      such Third Party shall remain jointly and severally liable for the obligations
      of the Consent Decree applicable to the transferred or purchased
      Interests.

     

    194.  If
      the
      Plaintiffs agree, the Plaintiffs, Defendants, and the Third Party that has
      become a party to this Consent Decree pursuant to Paragraph 192, may execute
      a
      modification that relieves Defendants of liability under this Consent Decree
      for, and makes the Third Party liable for, all obligations and liabilities
      applicable to the purchased or transferred Interests.  Notwithstanding
      the foregoing, however, Defendants may not assign, and may not be released
      from,
      any obligation under this Consent Decree that is not specific to the purchased
      or transferred Interests, including the obligations set forth in Section VIII
      (Environmental Mitigation Projects), Paragraphs 86 and 67, and Section IX (Civil
      Penalty).  Defendants may propose and the Plaintiffs may agree to
      restrict the scope of the joint and several liability of any purchaser or
      transferee for any obligations of this Consent Decree that are not specific
      to
      the transferred or purchased Interests, to the extent such obligations may
      be
      adequately separated in an enforceable manner.

     

    195.  Defendants
      may propose and Plaintiffs may agree to restrict the scope of joint and several
      liability of any purchaser or transferee for any AEP Eastern System obligations
      to the extent such obligations may be adequately separated in an enforceable
      manner using the methods provided by or approved under Section XVI
      (Permits).

     

    196.  Paragraphs
      191-195 of this Consent Decree do not apply if an Interest is sold or
      transferred solely as collateral security in order to consummate a financing
      arrangement (not including a sale-leaseback), so long as Defendants: (a) remain
      the operator (as that term is used and interpreted under the Clean Air Act)
      of
      the subject AEP Eastern System Unit(s); (b) remain subject to and liable for
      all
      obligations and liabilities of this Consent Decree; and (c) supply Plaintiffs
      with the following certification within thirty (30) days of the sale or
      transfer:

     

    “Certification
      of Change in Ownership Interest Solely for Purpose of Consummating
      Financing.  We, the Chief Executive Officer and General Counsel of
      American Electric Power Service Corp. (“AEP”), hereby jointly certify under
      Title 18 U.S.C. Section 1001, on our own behalf and on behalf of AEP, that
      any
      change in AEP’s Ownership Interest in any AEP Eastern System Unit that is caused
      by the sale or transfer as collateral security of such Ownership Interest in
      such Unit(s) pursuant to the financing agreement consummated on [insert
      applicable date] between AEP and [insert applicable entity]: a) is made solely
      for the purpose of providing collateral security in order to consummate a
      financing arrangement; b) does not impair AEP’s ability, legally or otherwise,
      to comply timely with all terms and provisions of the Consent Decree entered
      in
United States, et al. v. American Electric Power Service Corp., et al.,
      Civil Action No. C2-99-1250 (“AEP I”) and United States, et al. v. American
      Electric Power Service Corp., et al., Civil Action Nos. C2-04-1098 and
      C2-05-360 (“AEP II”); c) does not affect AEP’s operational control of any Unit
      covered by that Consent Decree in a manner that is inconsistent with AEP’s
      performance of its obligations under the Consent Decree; and d) in no way
      affects the status of AEP’s obligations or liabilities under that Consent
      Decree.”

    


    XX.  EFFECTIVE
      DATE

     

    197.  The
      effective date of this Consent Decree shall be the Date of Entry.

     

    XXI.  RETENTION
      OF JURISDICTION

     

    198.  The
      Court
      shall retain jurisdiction of this case after the Date of Entry of this Consent
      Decree to enforce compliance with the terms and conditions of this Consent
      Decree and to take any action necessary or appropriate for its interpretation,
      construction, execution, modification, or adjudication of
      disputes.  During the term of this Consent Decree, any Party to this
      Consent Decree may apply to the Court for any relief necessary to construe
      or
      effectuate this Consent Decree.

     

    XXII.  MODIFICATION

     

    199.  The
      terms
      of this Consent Decree may be modified only by a subsequent written agreement
      signed by the Plaintiffs and Defendants.  Where the modification
      constitutes a material change to any term of this Decree, it shall be effective
      only upon approval by the Court.

     

    XXIII.  GENERAL
      PROVISIONS

     

    200.  This
      Consent Decree is not a permit.  Compliance with the terms of this
      Consent Decree does not guarantee compliance with all applicable federal, state,
      or local laws or regulations.  The limitations and requirements set
      forth herein do not relieve Defendants from any obligation to comply with other
      state and federal requirements under the Clean Air Act at any Units covered
      by
      this Consent Decree, including the Defendants’ obligation to satisfy any state
      modeling requirements set forth in a state implementation plan.

     

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

     

    202.  In
      any
      subsequent administrative or judicial action initiated by any of the Plaintiffs
      for injunctive relief or civil penalties relating to the facilities covered
      by
      this Consent Decree, Defendants shall not assert any defense or claim based
      upon
      principles of waiver, res judicata, collateral estoppel,
      issue preclusion, claim preclusion, or claim splitting, or any other defense
      based upon the contention that the claims raised by any of the Plaintiffs in
      the
      subsequent proceeding were brought, or should have been brought, in the instant
      case; provided, however, that nothing in this Paragraph affects the validity
      of
      Paragraphs Paragraph 132 and 133, subject to Paragraphs 134 through 138, or
      Paragraphs 139 and 141.

     

    203.  Except
      as
      specifically provided by this Consent Decree, nothing in this Consent Decree
      shall relieve Defendants of their obligation to comply with all applicable
      federal, state, and local laws and regulations.  Subject to the
      provisions in Section X (Resolution of Civil Claims Against Defendants), nothing
      contained in this Consent Decree shall be construed to prevent or limit the
      rights of the Plaintiffs to obtain penalties or injunctive relief under the
      Act
      or other federal, state, or local statutes, regulations, or
      permits.

     

    204.  At
      any
      time prior to termination of this Consent Decree, Defendants may request
      approval from Plaintiffs to implement other control technology for SO2 or NOx
      than what is
      required by this Consent Decree.  In seeking such approval, Defendants
      must demonstrate that such alternative control technology is capable of
      achieving pollution reductions equivalent to an FGD (for SO2) or SCR
      (for
      NOx) at the
      Units in the AEP Eastern System at which Defendants seek approval to implement
      such other control technology for SO2 or NOx.  Approval
      of such a request is solely at the discretion of the Plaintiffs.

     

    205.  Nothing
      in this Consent Decree is intended to, or shall, alter or waive any applicable
      law (including but not limited to any defenses, entitlements, challenges, or
      clarifications related to the Credible Evidence Rule, 62 Fed. Reg. 8314 (Feb.
      24, 1997)) concerning the use of data for any purpose under the Act generated
      either by the reference methods specified herein or otherwise.

     

    206.  Each
      limit and/or other requirement established by or under this Consent Decree
      is a
      separate, independent requirement.

     

    207.  Performance
      standards, emissions limits, and other quantitative standards set by or under
      this Consent Decree must be met to the number of significant digits in which
      the
      standard or limit is expressed.  For example, an Emission Rate of
      0.100 is not met if the actual Emission Rate is 0.101.  Defendants
      shall round the fourth significant digit to the nearest third significant digit,
      or the third significant digit to the nearest second significant digit,
      depending upon whether the limit is expressed to three or two significant
      digits.  For example, if an actual Emission Rate is 0.1004, that shall
      be reported as 0.100, and shall be in compliance with an Emission Rate of 0.100,
      and if an actual Emission Rate is 0.1005, that shall be reported as 0.101,
      and
      shall not be in compliance with an Emission Rate of 0.100.  Defendants
      shall report data to the number of significant digits in which the standard
      or
      limit is expressed.

     

    208.  This
      Consent Decree does not limit, enlarge, or affect the rights of any Party to
      this Consent Decree as against any third parties.

     

    209.  This
      Consent Decree constitutes the final, complete, and exclusive agreement and
      understanding among the Parties with respect to the settlement embodied in
      this
      Consent Decree, and supersedes all prior agreements and understandings among
      the
      Parties related to the subject matter herein.  No document,
      representation, inducement, agreement, understanding, or promise constitutes
      any
      part of this Consent Decree or the settlement it represents, nor shall they
      be
      used in construing the terms of this Consent Decree.

     

    210.  Except
      for Citizen Plaintiffs, each Party to this action shall bear its own costs
      and
      attorneys’ fees.  Defendants shall reimburse the Citizen Plaintiffs’
attorneys’ fees and costs, pursuant to 42 U.S.C. § 7604(d), and the agreement
      between counsel for Defendants and Citizen Plaintiffs within thirty (30) days
      of
      the Date of Entry of this Consent Decree.

     

    XXIV.  SIGNATORIES
      AND SERVICE

     

    211.  Each
      undersigned representative of the Parties certifies that he or she is fully
      authorized to enter into the terms and conditions of this Consent Decree and
      to
      execute and legally bind to this document the Party he or she
      represents.

     

    212.  This
      Consent Decree may be signed in counterparts, and such counterpart signature
      pages shall be given full force and effect.

     

    213.  Each
      Party hereby agrees to accept service of process by mail with respect to all
      matters arising under or relating to this Consent Decree and to waive the formal
      service requirements set forth in Rule 4 of the Federal Rules of Civil Procedure
      and any applicable Local Rules of this Court including, but not limited to,
      service of a summons.

     

    XXV.
      PUBLIC COMMENT

     

    214.  The
      Parties agree and acknowledge that final approval by the United States and
      the
      entry of this Consent Decree is subject to the procedures of 28 C.F.R. § 50.7,
      which provides for notice of lodging of this Consent Decree in the Federal
      Register, an opportunity for public comment, and the right of the United States
      to withdraw or withhold consent if the comments disclose facts or considerations
      which indicate that the Consent Decree is inappropriate, improper, or
      inadequate.  The Defendants shall not oppose entry of this Consent
      Decree by this Court or challenge any provision of this Consent Decree unless
      the United States has notified the Defendants, in writing, that the United
      States no longer supports entry of the Consent Decree.

     

    XXVI.
      CONDITIONAL TERMINATION OF ENFORCEMENT UNDER DECREE

     

    215.  Termination
      as to Completed Tasks.  As soon as Defendants complete a
      construction project or any other requirement of this Consent Decree that is
      not
      ongoing or recurring, Defendants may, by motion to this Court, seek termination
      of the provision or provisions of this Consent Decree that imposed the
      requirement.

     

    216.  Conditional
      Termination of Enforcement Through the Consent Decree.  After
      Defendants:

    
      	
               

            	
              a.

            	
              have
                successfully completed construction, and have maintained Continuous
                Operation, of all pollution controls as required by this Consent
                Decree;

            


    

    
      	
               

            	
              b.

            	
              have
                obtained final Title V permits (i) as required by the terms of this
                Consent Decree; (ii) that cover all Units in this Consent Decree;
                and
                (iii) that include as enforceable permit terms all of the Unit performance
                and other requirements specified in this Consent Decree;
                and

            


    

    
      	
               

            	
              c.

            	
              certify
                that the date is later than December 31,
                2022;

            


    

    then
      Defendants may so certify these facts to the Plaintiffs and this
      Court.  If the Plaintiffs do not object in writing with specific
      reasons within forty-five (45) days of receipt of Defendants’ certification,
      then, for any Consent Decree violations that occur after the filing of notice,
      the Plaintiffs shall pursue enforcement of the requirements contained in the
      Title V permit through the applicable Title V permit and not through this
      Consent Decree.

     

    217.  Resort
      to Enforcement under this Consent Decree.  Notwithstanding
      Paragraph 216, if enforcement of a provision in this Consent Decree cannot
      be
      pursued by a Party under the applicable Title V permit, or if a Consent Decree
      requirement was intended to be part of a Title V Permit and did not become
      or
      remain part of such permit, then such requirement may be enforced under the
      terms of this Consent Decree at any time.

     

    XXVII.
      FINAL JUDGMENT

     

    218.  Upon
      approval and entry of this Consent Decree by the Court, this Consent Decree
      shall constitute a final judgment among the Parties.

    SO
      ORDERED, THIS _____ DAY OF ________________, 2007.

    


    _________________________________________

    HONORABLE
      EDMUND A. SARGUS, JR.

    UNITED
      STATES DISTRICT COURT JUDGE

    


    _________________________________________

    HONORABLE
      GREGORY L. FROST

    UNITED
      STATES DISTRICT COURT JUDGE

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Signature
      Page for Consent Decree in:

    


    United
      States et al.

    v.

    American
      Electric Power Service Corp., et al.

    


    FOR
      THE UNITED STATES:

    


    


    


    ________________________________________

    RONALD
      J.
      TENPAS

    Acting
      Assistant Attorney General

    Environmental
      and Natural Resources Division

    United
      States Department of Justice

    
 

    ________________________________________

    W.
      BENJAMIN FISHEROW

    Deputy
      Chief

    Environmental
      Enforcement Section

    


     

    ________________________________________

    PHILIP
      A.
      BROOKS

    Counsel
      to the Chief

    
 

    ________________________________________

    JUSTIN
      A.
      SAVAGE

    THOMAS
      A.
      MARIANI

    Assistant
      Chief

    JAMES
      A.
      LOFTON

    Senior
      Counsel

    MARC
      BORODIN

    JENNIFER
      A. LUKAS-JACKSON

    THOMAS
      A.
      BENSON

    KATHERINE
      L. VANDERHOOK

    DEBORAH
      BEHLES

    MYLES
      E.
      FLINT, II

    Trial
      Attorneys

    LESLIE
      B.
      BELLAS

    By
      Special Appointment as a Department of Justice Attorney

    Environmental
      Enforcement Section

    Environmental
      and Natural Resources Division

    United
      States Department of Justice

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Signature
      Page for Consent Decree in:

    


    United
      States et al.

    v.

    American
      Electric Power Service Corp., et al.

    


    


    FOR
      THE UNITED STATES:

    


    


    


    


    


    


    


    _______________________________________

    GREGORY
      G. LOCKHART

    United
      States Attorney

    Southern
      District of Ohio

    


    

 

    _______________________________________

    MARK
      D’ALESSANDRO

    Assistant
      United States Attorney

    Southern
      District of Ohio

    United
      States Department of Justice

    


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    Signature
      Page for Consent Decree in:

    


    United
      States et al.

    v.

    American
      Electric Power Service Corp., et al.

    


    


    FOR
      THE UNITED STATES:

    


    


    


                            ________________________________________


    GRANTA
      Y.
      NAKAYAMA

    Assistant
      Administrator

    Office
      of
      Enforcement and Compliance Assurance

    United
      States Environmental Protection Agency

    


    


    


    


    ________________________________________

    WALKER
      B.
      SMITH

    Director,
      Office of Civil Enforcement

    Office
      of
      Enforcement and Compliance Assurance

    United
      States Environmental Protection Agency

    


    


    


    


    


                            ________________________________________
                        ADAM
      M.
      KUSHNER

    Acting
      Director, Air Enforcement Division

    Office
      of
      Enforcement and Compliance Assurance

    United
      States Environmental Protection Agency

    


    


    


    


                            ________________________________________


    ILANA
      S.
      SALTZBART

    EDWARD
      MESSINA

    Attorney-Advisor

    Air
      Enforcement Division

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Signature
      Page for Consent Decree in:

    


    United
      States et al.

    v.

    American
      Electric Power Service Corp., et al.

    


    


    


    


     

    _________________________________

    MARY
      A.
      GADE

    Regional
      Administrator

    Region
      5

    U.S.
      Environmental Protection Agency

    


    


    


    _________________________________

    ROBERT
      KAPLAN

    Regional
      Counsel

    Region
      5

    U.S.
      Environmental Protection Agency

    


     

     

    _________________________________

    STEPHEN
      ROTHBLATT

    Director

    Air
      and
      Radiation Division

    Region
      5

    U.S.
      Environmental Protection Agency

    


    


    


    


    _________________________________

    SABRINA
      ARGENTIERI

    Associate
      Regional Counsel

    Region
      5

    U.S.
      Environmental Protection Agency

    


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Signature
      Page for Consent Decree in:

    


    United
      States et al.,

    v.

    American
      Electric Power Service Corp., et al.

    


    


    


    


    ___________________________________

    DONALD
      S.
      WELSH

    Regional
      Administrator

    U.S.
      EPA
      Region III

    


    


    


    ____________________________________

    WILLIAM
      C. EARLY

    Regional
      Counsel

    U.S.
      EPA
      Region III

    


    


    


    


    ____________________________________

    DONNA
      L.
      MASTRO

    Senior
      Assistant Regional Counsel

    U.S.
      EPA
      Region III

    


    


    


    ____________________________________

    DOUGLAS
      J. SNYDER

    Senior
      Assistant Regional Counsel

    U.S.
      EPA
      Region III

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    Signature
      Page for Consent Decree in:

    


    United
      States et al.

    v.

    American
      Electric Power Service Corp., et al.

    


    


    FOR
      THE STATE OF CONNECTICUT:

    


    


    


    


    


    


    ______________________________

    RICHARD
      BLUMENTHAL

    Attorney
      General

    


    


    


    


    _______________________________

    KIMBERLY
      MASSICOTTE

    Assistant
      Attorney
      General

    


    


    


    


    _______________________________

    JOSE
      A. SUAREZ

    Assistant
      Attorney
      General

    


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Signature
      Page for Consent Decree in:

    


    United
      States et al.

    v.

    American
      Electric Power Service Corp., et al.

    


    


    FOR
      THE STATE OF MARYLAND:

    


    


    


    


    ____________________________________

    SHARI
      T. WILSON,
      Secretary

    Maryland
      Department of the Environment

    1800
      Washington Blvd.

    Baltimore,
      Maryland  21230

    


    


    


    ______________________________________

    DOUGLAS
      F. GANSLER

    Attorney
      General of Maryland

    


    


    ______________________________________

    MATTHEW
      ZIMMERMAN

    Assistant
      Attorney General

    Office
      of
      the Attorney General

    1800
      Washington Blvd.

    Baltimore,
      Maryland 21230

    410-537-3452

    


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Signature
      Page for Consent Decree in:

    


    United
      States et al.

    v.

    American
      Electric Power Service Corp., et al.

    


    


    FOR
      THE COMMONWEALTH OF MASSACHUSETTS:

    


    


    


    


    


    


    


    ________________________________

    MARTHA
      COAKLEY

    ATTORNEY
      GENERAL

    


    


    


    


    


    ________________________________

    FREDERICK
      D. AUGENSTERN

    Assistant
      Attorney General

    Environmental
      Protection Division

    1
      Ashburton Place, 18th Floor

    Boston,
      Massachusetts 02108

    (617)
      727-2200 ext. 2427

    


     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Signature
      Page for Consent Decree in:

    


    United
      States et al.

    v.

    American
      Electric Power Service Corp., et al.

    


    


    FOR
      THE STATE OF NEW HAMPSHIRE:

    


    


    


    


    


    


    _________________________________

    MAUREEN
      D. SMITH

    Senior
      Assistant Attorney General

    33
      Capitol Street

    Concord,
      New Hampshire 03301

    


    


    


    


    


    _________________________________

    K.
      ALLEN
      BROOKS

    Assistant
      Attorney General

    33
      Capitol Street

    Concord,
      New Hampshire 03301

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Signature
      Page for Consent Decree in:

    


    United
      States et al.

    v.

    American
      Electric Power Service Corp., et al.

    


    


    


    FOR
      THE STATE OF NEW JERSEY:

    


    


    


    


    


    _____________________________

    ANNE
      C. MILGRAM

    Attorney
      General

    


    


    


    


    


    ______________________________

    JON
      C. MARTIN

    Deputy
      Attorney General

    Environmental
      Enforcement
      Section

    


     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Signature
      Page for Consent Decree in:

    


    United
      States et al.

    v.

    American
      Electric Power Service Corp., et al.

    


    


    


    FOR
      THE STATE OF NEW YORK:

    


    


    


    


    


    


                                ____________________________

                                                ANDREW
      M. CUOMO

                                                Attorney
      General

    
 

    


    


                                ____________________________

                                                ROBERT
      ROSENTHAL

                                                Assistant
      Attorney General

                                                Environmental
      Protection Bureau

                                                The
      Capitol

                                                Albany,
      New York 12224

                                     Of
      counsel

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Signature
      Page for Consent Decree in:

    


    United
      States et al.

    v.

    American
      Electric Power Service Corp., et al.

    


    


    FOR
      THE STATE OF RHODE ISLAND:

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    Signature
      Page for Consent Decree in:

    


    United
      States et al.

    v.

    American
      Electric Power Service Corp., et al.

    


    


    


    FOR
      THE STATE OF VERMONT:

    


     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Signature
      Page for Consent Decree in:

    


    United
      States et al.

    v.

    American
      Electric Power Service Corp., et al.

    


    


    FOR
      CITIZEN PLAINTIFFS:

    


    


    


    


    


    ____________________________________

    NANCY
      S.
      MARKS

    Natural
      Resources Defense Council, Inc.

    40
      West
      20th Street

    New
      York,
      NY
      10011                                                      


    


    


     

     

    ____________________________________

    ALBERT
      F.
      ETTINGER

    Environmental
      Law and Policy Center

    35
      East
      Wacker Drive, Suite 1300

    Chicago,
      Illinois 60601-2110

    


    


    


    


    ______________________________________

    STEPHEN
      P. SAMUELS, Ohio Bar # 0007979

    Schottenstein,
      Zox & Dunn Co, LPA

    P.O
      Box
      165020

    Columbus,
      Ohio 43216-5020

    


     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Signature
      Page for Consent Decree in:

    


    United
      States et al.

    v.

    American
      Electric Power Service Corp., et al.

    


    


    


    FOR
      DEFENDANTS AMERICAN ELECTRIC POWER SERVICE CORPORATION, ET
      AL.:

    


    


    
      	 	 	 


    

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      APPENDIX
        A

      ENVIRONMENTAL
        MITIGATION PROJECTS

      


      In
        compliance with and in addition to
        the requirements in Section VIII of this Consent Decree (Environmental
        Mitigation Projects), Defendants shall comply with the requirements of this
        Appendix to ensure that the benefits of the $36 million in federally directed
        Environmental Mitigation Projects are achieved.

      


      
        	
                I.

              	
                National
                  Parks Mitigation

              


      

      


      
        	
                 

              	
                A.

              	
                Within
                  45
                  days from the Date of Entry, Defendants shall pay to the National
                  Park Service the sum of $2 million to be used in accordance with
                  the Park
                  System Resource Protection Act, 16 U.S.C. § 19jj, for the restoration of
                  land, watersheds, vegetation, and forests using adaptive management
                  techniques designed to improve ecosystem health and mitigate harmful
                  effects from air pollution.  This may include reforestation or
                  restoration of native species and acquisition of equivalent resources
                  and
                  support for collaborative initiatives with state and local agencies
                  and
                  other stakeholders to develop plans to assure resource protection
                  over the
                  long-term.  Projects will focus on one or more of the following
                  Class I areas alleged in the underlying action to have been injured
                  by
                  emissions from Defendants facilities:  Shenandoah National Park,
                  Mammoth Cave National Park, and Great Smoky Mountains National
                  Park.

              


      

      


      
        	
                 

              	
                B.

              	
                Payment
                  of the amount specified in the preceding paragraph shall be made
                  to the
                  Natural Resource Damage and Assessment Fund managed by the United
                  States
                  Department of the Interior.  Instructions for transferring funds
                  will be provided to the Defendants by the National Park
                  Service.  Notwithstanding Section I.A of this Appendix, payment
                  of funds by Defendants is not due until ten (10) days after receipt
                  of
                  payment instructions.

              


      

      


      
        	
                 

              	
                C.

              	
                Upon
                  payment of the required funds into the Natural Resource Damage
                  and
                  Assessment Fund, Defendants shall have no further responsibilities
                  regarding the implementation of any project selected by the National
                  Park
                  Service in connection with this provision of the Consent
                  Decree.

              


      

      


      
        	
                II.

              	
                Overall
                  Environmental Mitigation Project Schedule and
                  Budget

              


      

      


      
        	
                 

              	
                A.

              	
                Within
                  120 days of the Date of Entry, as further described below, Defendants
                  shall submit plans to EPA for review and approval for completing
                  the
                  remaining $34 million in federally directed Environmental Mitigation
                  Projects specified in this Appendix over a period of not more than
                  five
                  (5) years from the Date of Entry.  EPA will consult with the
                  Citizen Plaintiffs, through their counsel, prior to approving or
                  commenting on any proposed plan.  The Parties agree that
                  Defendants are entitled to spread their payments for Environmental
                  Mitigation Projects evenly over the five-year period commencing
                  upon the
                  Date of Entry.  Defendants are not, however, precluded from
                  accelerating payments to better effectuate a proposed mitigation
                  plan,
                  provided however, Defendants shall not be entitled to any reduction
                  in the
                  nominal amount of the required payments by virtue of the early
                  expenditures.  EPA may, but is not required to, approve a
                  proposed Project budget that results in a back-loading of some
                  expenditures.  EPA shall determine prior to approval that all
                  Projects are consistent with federal
                  law.

              


      

      


      
        	
                 

              	
                B.

              	
                Defendants
                  may, at their election, consolidate the plans required by this
                  Appendix
                  into a single plan.

              


      

      


      
        	
                 

              	
                C.

              	
                In
                  addition to the requirements set forth below, Defendants shall
                  submit
                  within 120 days of the Date of Entry, a summary-level budget and
                  Project
                  time-line that covers all of the Projects
                  proposed.

              


      

      


      
        	
                 

              	
                D.

              	
                Beginning
                  March 31, 2008, and continuing on March 31 of each year thereafter
                  until
                  completion of each Project (including any applicable periods of
                  demonstration or testing), Defendants shall provide the United
                  States and
                  Citizen Plaintiffs with written reports detailing the progress
                  of each
                  Project, including Project Dollars.

              


      

      


      
        	
                 

              	
                E.

              	
                Within
                  60 days following the completion of each Project required under
                  Appendix
                  A, Defendants shall submit to the United States and Citizen Plaintiffs
                  a
                  report that documents the date that the Project was completed,
                  the results
                  of implementing the Project, including the emission reductions
                  or other
                  environmental benefits achieved, and the Project Dollars expended
                  by
                  Defendants in implementing the
                  Project.

              


      

      


      
        	
                 

              	
                F.

              	
                Upon
                  approval of the plans required by this Appendix by EPA, Defendants
                  shall
                  complete the Environmental Mitigation Projects according to the
                  approved
                  plans.  Nothing in this Consent Decree shall be interpreted to
                  prohibit Defendants from completing Environmental Mitigation Projects
                  before the deadlines specified in the schedule of an approved
                  plan.

              


      

      


      
        	
                III.

              	
                Acquisition
                  and Restoration of Ecologically Significant Areas in Indiana, Kentucky,
                  North Carolina, Ohio, Pennsylvania, Virginia, and West
                  Virginia

              


      

      


      
        	
                 

              	
                A.

              	
                Within
                  120 days of the Date of Entry, and on each anniversary of the initial
                  submission for the following four (4) years, Defendants shall submit
                  a
                  plan to EPA for review and approval, in consultation with the Citizen
                  Plaintiffs, for acquisition and/or restoration of ecologically
                  significant
                  areas in Indiana, Kentucky, North Carolina, Ohio, Pennsylvania,
                  Virginia,
                  and West Virginia (“Land Acquisition and
                  Restoration”).  Defendants shall spend no less than a total of
                  $10 million in Project Dollars on Land Acquisition and Restoration
                  over
                  the five year period provided under this Appendix for completion
                  of
                  federally directed Environmental Mitigation
                  Projects.

              


      

      


      
        	
                 

              	
                B.

              	
                Defendants’
                  proposed plan shall:

              


      

      


      
        	
                 

              	
                1.

              	
                Describe
                  the proposed Land Acquisition and Restoration projects in sufficient
                  detail to allow the reader to ascertain how each proposed action
                  meets the
                    requirements set out below.  For purposes of this Appendix and
                  Section VIII (Environmental Mitigation Projects) of this Consent
                  Decree,
                  land acquisition means purchase of interests in land, including
                  fee
                  ownership, easements, or other restrictions that run with the land
                  that
                  provide for perpetual protection of the acquired
                  land.  Restoration may include, by way of illustration, direct
                  reforestation (particularly of tree species that may be affected
                  by acidic
                  deposition) and soil enhancement.  Any restoration action must
                  also incorporate the acquisition of an interest in the restored
                  lands
                  sufficient to ensure perpetual protection of the restored
                  land.  Any proposal for acquisition of land must identify fully
                  all owners of the interests in the land.  Every proposal for
                  acquisition of land must identify the ultimate holder of the interests
                  to
                  be acquired and provide a basis for concluding that the proposed
                  holder of
                  title is appropriate for long-term protection of the ecological
                  or
                  environmental benefits sought to be achieved through the
                  acquisition.

              


      

      


      
        	
                 

              	
                2.

              	
                Describe
                  generally the ecological significance of the area to be acquired
                  or
                  restored.  In particular, identify the environmental/ecological
                  benefits expected as a result of the proposed action.  In
                  proposing areas for acquisition and restoration, Defendants shall
                  focus on
                  those areas that are in most need of conservation action or that
                  promise
                  the greatest conservation return on
                  investment.

              


      

      


      
        	
                 

              	
                3.

              	
                Describe
                  the expected cost of the Land Acquisition and Restoration, including
                  the
                  fair market value of any areas to be
                  acquired.

              


      

      


      
        	
                 

              	
                4.

              	
                Identify
                  any person or entity other than Defendants that will be involved
                  in the
                  land acquisition or restoration action.  Defendants shall
                  describe the third-party’s role in the action and the basis for asserting
                  that such entity is able and suited to perform the intended
                  role.  For purposes of this Section of the Appendix,
                  third-parties shall only include non-profits; federal, state, and
                  local
                  agencies; or universities.  Any proposed third-party must be
                  legally authorized to perform the proposed action or to receive
                  Project
                  Dollars.

              


      

      


      
        	
                 

              	
                5.

              	
                Include
                  a schedule for completing and funding each portion of the
                  project.

              


      

      


      
        	
                 

              	
                C.

              	
                Performance
                  - Upon approval of the plan by EPA, after consultation with the
                  Citizen
                  Plaintiffs, Defendants shall complete the Land Acquisition and
                  Restoration
                  project according to the approved plan and
                  schedule.

              


      

      


      
        	
                IV.

              	
                Nitrogen
                  Impact Mitigation in the Chesapeake
                  Bay

              


      

      


      
        	
                 

              	
                A.

              	
                Within
                  120 days of Date of Entry, Defendants shall submit a plan to EPA
                  for
                  review and approval, in consultation with the Citizen Plaintiffs,
                  for the
                  mitigation of adverse impacts on the Chesapeake Bay associated
                  with
                  nitrogen (“Chesapeake Bay Mitigation Project”).  Defendants
                  shall spend no less than a total of $3 million in Project Dollars
                  on the
                  Chesapeake Bay Mitigation Project.

              


      

      


      
        	
                 

              	
                B.

              	
                Defendant’s
                  proposed plan shall:

              


      

      


      
        	
                 

              	
                1.

              	
                Describe
                  proposed Project(s) that reduce nitrogen loading in the Chesapeake
                  Bay or
                  otherwise mitigate the adverse effects of nitrogen in the Chesapeake
                  Bay.  Projects that may be approved include, by way of
                  illustration, creation of forested stream buffers on agricultural
                  land or
                  other land cover to establish a “buffer zone” to keep livestock out of the
                  adjoining waterway and to filter runoff before it enters the
                  waterway.

              


      

      


      
        	
                 

              	
                2.

              	
                Describe
                  generally the expected environmental benefit of the proposed Chesapeake
                  Bay Mitigation Project.  The key criteria for selection of
                  components of the Project are the magnitude of the expected
                  ecological/environmental benefit(s) in relation to the cost and
                  the
                  relative permanence of the expected benefit(s).  Expected
                  loadings benefits should be quantified to the extent
                  practicable.

              


      

      


      
        	
                 

              	
                3.

              	
                Describe
                  the expected cost of each element of the Chesapeake Bay Mitigation
                  Project, including the fair market value of any interests in land
                  to be
                  acquired.

              


      

      


      
        	
                 

              	
                4.

              	
                Identify
                  any person or entity other than Defendants that will be involved
                  in any
                  aspect of the Chesapeake Bay Mitigation Project.  Defendants
                  shall describe the third-party’s role in the action and the basis for
                  asserting that such entity is able and suited to perform the intended
                  role.  For purposes of this Section of the Appendix,
                  third-parties shall only include non-profits; federal, state, and
                  local
                  agencies; or universities.  Any proposed third-party must be
                  legally authorized to perform the proposed action or to receive
                  Project
                  Dollars.

              


      

      


      
        	
                 

              	
                5.

              	
                Include
                  a schedule for completing and funding each portion of the
                  Project.

              


      

      


      
        	
                 

              	
                C.

              	
                Performance
                  - Upon approval of the plan for Chesapeake Bay Mitigation by EPA,
                  Defendants shall complete the Project according to the approved
                  plan and
                  schedule.

              


      

      


      
        	
                V.

              	
                Mobile
                  Source Emission Reduction
                  Projects

              


      

      


      
        	
                 

              	
                A.

              	
                Within
                  120 days of the Date of Entry, Defendants shall submit a plan to
                  EPA for
                  review and approval, in consultation with the Citizen Plaintiffs,
                  for the
                  completion of Projects to reduce emissions from Defendants’ fleet of barge
                  tugboats on the Ohio River, diesel trains at or near power plants,
                  Defendants’ fleet of motor vehicles in certain eastern states, and/or
                  truck stops in certain eastern states (“Mobile Source
                  Projects”).  Defendants shall spend no less than a total of $21
                  million in Project Dollars on one or more of the three Mobile Source
                  Projects specified in this Section, in accordance with the plans
                  for such
                  Projects approved by EPA, after consultation with the Citizen
                  Plaintiffs.  The key criteria for selection of components of the
                  Mobile Source Projects are the magnitude of the expected environmental
                  benefit(s) in relation to the cost.

              


      

      


      
        	
                 

              	
                B.

              	
                Diesel
                  Tug/Train Project

              


      

      


      
        	
                 

              	
                1.

              	
                Defendants
                  are among the leading barge operators in the country, with operations
                  on
                  the Ohio River, the Mississippi River, and the Gulf Coast. Barges
                  are
                  propelled by tugboats, which generally use a type of marine diesel
                  fuel
                  known as No. 2 distillate fuel oil.  Tugboats that switch to
                  ultra- low sulfur diesel fuel (“ULSD”) reduce emissions of NOX,
                  PM, volatile
                  organic compounds (“VOCs”), and other air pollutants.  All
                  marine diesel fuel must be ULSD by June 1, 2012, pursuant to EPA’s Nonroad
                  Diesel Rule (see“Control of Emissions of Air Pollution from Nonroad
                  Diesel Engines and Fuels; Final Rule,” 69 Fed. Reg. 38,958 (June 29,
                  2004)).  Defendants also receive coal by diesel
                  trains.

              


      

      


      
        	
                 

              	
                2.

              	
                As
                  part of the plan for Mobile Source Projects, Defendants may elect
                  to
                  achieve accelerated emission reductions from their tugboat fleet
                  on the
                  Ohio River (“Ohio River Tug Fleet”) and/or their diesel powered trains
                  used at or near their power plants, as one of the three possible
                  mobile
                  source Projects under this Consent Decree (“Diesel Tug/Train
                  Project”).

              


      

      


      
        	
                 

              	
                3.

              	
                The
                  Diesel Tug/Train Project shall require one or more of the
                  following:

              


      

      


      
        	
                 

              	
                a.

              	
                The
                  accelerated retrofitting or re-powering of Tugs with engines that
                  require
                  the use of ULSD.  Selection of this Project is expressly
                  conditioned upon identification of satisfactory technology and
                  an
                  agreement between EPA and Defendants on how to credit Project Dollars
                  towards this project.

              


      

      


      
        	
                 

              	
                b.

              	
                The
                  retrofitting or repowering of the marine engines in the Ohio River
                  Tug
                  Fleet with diesel oxidation catalysts (“DOCs”), diesel particulate filters
                  (“DPFs”), or other equivalent advanced technologies that reduce emissions
                  of PM and VOCs from marine engines in tugboats (collectively
                  “DOC/DPFs”).  Defendants shall only install DOCs/DPFs that have
                  received applicable approvals or verifications, if any, from the
                  relevant
                  regulatory agencies for reducing emissions from tugboat
                  engines.  Defendants must maintain any DOCs/DPFs installed as
                  part of the Tug Project for the useful life of the equipment (as
                  defined
                  in the proposed Plan), even after the completion of the Tug
                  Project.  Project Dollars may be spent on DOCs/DPFs within 5
                  years of the Date of Entry, in accordance with the approved schedule
                  for
                  the mitigation projects in this
                  Appendix.

              


      

      


      
        	
                 

              	
                c.

              	
                The
                  accelerated use of ULSD for the Ohio River Tug Fleet, from the
                  Date of
                  Entry through January 1, 2012.  Notwithstanding any other
                  provision of this Consent Decree, including this Appendix, Defendants
                  shall only receive credit for the incremental cost of ULSD as compared
                  to
                  the cost of the fuel Defendants would otherwise
                  utilize.

              


      

      


      
        	
                 

              	
                d.

              	
                Emission
                  reduction measures for diesel powered trains.  Such measures may
                  include retro-fitting with, or conversion to, Multiple Diesel Engine
                  GenSets that are EPA Tier III Off-Road certified; Diesel Electric
                  Hybrid;
                  Anti-idling controls/strategies and Auto Shut-Off
                  capabilities.  Selection of this Project is expressly
                  conditioned upon identification of satisfactory technology and
                  an
                  agreement between EPA and Defendants on how to credit Project Dollars
                  towards this project.

              


      

      


      
        	
                 

              	
                4.

              	
                The
                  proposed plan for the Diesel Tug/Train Project
                  shall:

              


      

      


      
        	
                 

              	
                a.

              	
                Describe
                  the expected cost of the project, including the costs for any equipment,
                  material, labor costs, and the proposed method for accounting for
                  the cost
                  of each element of the Diesel Tug/Train Project, including the
                  incremental
                  cost of ULSD.

              


      

      


      
        	
                 

              	
                b.

              	
                Describe
                  generally the expected environmental benefit of the project, including
                  any
                  expected fuel efficiency improvements and quantify emission reductions
                  expected.

              


      

      


      
        	
                 

              	
                c.

              	
                Include
                  a schedule for completing each portion of the Diesel Tug/Train
                  Project.

              


      

      


      
        	
                 

              	
                5.

              	
                Performance
                  - Upon approval of the Diesel Tug/Train Project plan by EPA, Defendants
                  shall complete the project according to the approved plan and
                  schedule.

              


      

      


      
        	
                 

              	
                C.

              	
                Hybrid
                  Vehicle Fleet Project

              


      

      


      
        	
                 

              	
                1.

              	
                AEP
                  has a fleet of approximately 11,000 motor vehicles in the eleven
                  states
                  where it operates, including vehicles in Indiana, Ohio, Michigan,
                  Virginia, West Virginia, and Kentucky.  These motor vehicles are
                  generally powered by conventional diesel or gasoline engines and
                  include
                  vehicles such as diesel “bucket” trucks.  The use of hybrid
                  engine technologies in Defendants’ motor vehicles, such as diesel-electric
                  engines, will improve fuel efficiency and reduce emissions of NOX,
                  PM, VOCs,
                  and other air pollutants.

              


      

      


      
        	
                 

              	
                2.

              	
                As
                  part of the plan for Mobile Source Projects, Defendants may elect
                  to spend
                  Project Dollars on the replacement of conventional motor vehicles
                  in their
                  fleet with newly manufactured Hybrid Vehicles (“Hybrid Vehicle Fleet
                  Project”).

              


      

      


      
        	
                 

              	
                3.

              	
                The
                  proposed plan for the Hybrid Vehicle Fleet Project
                  shall:

              


      

      


      
        	
                 

              	
                a.

              	
                Propose
                  the replacement of conventional gasoline or diesel powered motor
                  vehicles
                  (such as bucket trucks) with Hybrid Vehicles.  For purposes of
                  this subsection of this Appendix, “Hybrid Vehicle” means a vehicle that
                  can generate and utilize electric power to reduce the vehicle’s
                  consumption of fossil fuel.  Any Hybrid Vehicle proposed for
                  inclusion in the Hybrid Fleet Project shall meet all applicable
                  engine
                  standards, certifications, and/or
                  verifications.

              


      

      


      
        	
                 

              	
                b.

              	
                Provide
                  for Hybrid Vehicles replacement in that portion of Defendants’ fleet in
                  Indiana, Ohio, Michigan, West Virginia, Virginia, and/or
                  Kentucky.  Notwithstanding any other provision of this Consent
                  Decree, including this Appendix, Defendants shall only receive
                  credit
                  toward Project Dollars for the incremental cost of Hybrid Vehicles
                  as
                  compared to the cost of a newly manufactured, similar motor
                  vehicle.

              


      

      


      
        	
                 

              	
                c.

              	
                Prioritize
                  the replacement of diesel-powered vehicles in Defendants’
                  fleet.

              


      

      


      
        	
                 

              	
                d.

              	
                Provide
                  a method to account for the costs of the Hybrid Vehicles, including
                  the
                  incremental costs of such vehicles as compared to conventional
                  gasoline or
                  diesel motor vehicles.

              


      

      


      
        	
                 

              	
                e.

              	
                Certify
                  that Defendants will use the Hybrid Vehicles for their useful life
                  (as
                  defined in the proposed plan).

              


      

      


      
        	
                 

              	
                f.

              	
                Include
                  a schedule for completing each portion of the
                  Project.

              


      

      


      
        	
                 

              	
                g.

              	
                Describe
                  generally the expected environmental benefits of the Project, including
                  any fuel efficiency improvements, and quantify emission reductions
                  expected.

              


      

      


      
        	
                 

              	
                4.

              	
                Performance
                  - Upon approval by EPA of the plan for the Hybrid Vehicle Fleet
                  Project,
                  after consultation with the Citizen Plaintiffs, Defendants shall
                  complete
                  the Project according to the approved
                  plan.

              


      

      


      
        	
                 

              	
                D.

              	
                Truck
                  Stop Electrification

              


      

      


      
        	
                 

              	
                1.

              	
                Long-haul
                  truck drivers typically idle their engines at night at rest areas
                  to
                  supply heat or cooling in their sleeper cab compartments, and to
                  maintain
                  vehicle battery charge while electrical appliances such as televisions,
                  computers, and microwaves are in use.  Modifications to rest
                  areas to provide parking spaces with electrical power, heat, and
                  air
                  conditioning will allow truck drivers to turn their engines
                  off.  Truck stop electrification reduces idling time and
                  therefore reduces diesel fuel usage, and thus reduces emissions
                  of PM,
                  NOx,
                  and
                  VOCs.

              


      

      


      
        	
                 

              	
                2.

              	
                As
                  part of the plan for Mobile Source Projects, Defendants may elect
                  to
                  achieve emission reductions by truck stop electrification, which
                  shall
                  include, where necessary, techniques and infrastructure needed
                  to support
                  such a program (“Truck Stop Electrification
                  Project”).

              


      

      


      
        	
                 

              	
                3.

              	
                The
                  proposed plan for the Truck Stop Electrification Project
                  shall:

              


      

      


      
        	
                 

              	
                a.

              	
                Identify
                  truck stops in one or more of the following States for
                  Electrification:  Ohio, Indiana, Kentucky, North Carolina,
                  Pennsylvania, West Virginia, and Virginia.  EPA may give
                  preference to electrification Projects that are co-located, if
                  possible,
                  along the same transportation
                  corridor.

              


      

      


      
        	
                 

              	
                b.

              	
                Describe
                  the level of expected usage of the planned electrification facilities,
                  air
                  quality in the vicinity of the proposed Projects, proximity of
                  the
                  proposed Project to population centers, and whether the owner or
                  some
                  other entity is willing to pay for some portion of the
                  work.

              


      

      


      
        	
                 

              	
                c.

              	
                Provide
                  for the construction of truck stop electrification stations with
                  established technologies and
                  equipment.

              


      

      


      
        	
                 

              	
                d.

              	
                Account
                  for hardware procurement and installation costs at the recipient
                  truck
                  stops.

              


      

      


      
        	
                 

              	
                e.

              	
                Include
                  a schedule for completing each portion of the
                  Project.

              


      

      


      
        	
                 

              	
                f.

              	
                Describe
                  generally the expected environmental benefits of the Project and
                  quantify
                  emission reductions expected.

              


      

      


      
        	
                 

              	
                4.

              	
                Performance
                  - Upon approval of the plan for the Truck Stop Electrification
                  Project by
                  EPA, after consultation with the Citizen Plaintiffs, Defendants
                  shall
                  complete the Project according to the approved
                  plan.

              


      

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      APPENDIX
        B

      


      REPORTING
        REQUIREMENTS

      
 

      
        	
                I.

              	
                Annual
                  Reporting Requirements

              


      

       

          In
        accordance
        with the dates specified below, for periods on and after the Date of Entry,
        Defendants shall submit annual reports to the United States, the States,
        and the
        Citizen Plaintiffs, electronically and in hard copy, as required by Paragraph
        143 and certified as required by Paragraph 146.  In such annual
        reports, Defendants shall include the following information:

       

      A.  Eastern
        System-Wide
        Annual Tonnage Limitations for SO2 and NOx

      


      Beginning
        on March 31, 2010, for the
        Eastern System-Wide Annual Tonnage Limitations for NOx, and
        March 31,
        2011, for the Eastern System-Wide Annual Tonnage Limitations for SO2, and
        annually
        thereafter, Defendants shall report the following information: (a) the total
        actual annual tons of the pollutant emitted from each Unit (or for Units
        vented
        to a common stack, from each combined stack) within the AEP Eastern System,
        as defined in Paragraph 7, during the prior calendar year; (b) the total
        actual
        annual tons of the pollutant emitted from the AEP Eastern System during the
        prior calendar year; (c) the difference, if any, between the applicable Eastern
        System-Wide Annual Tonnage Limitation for the pollutant in that calendar
        year
        and the amount reported in subparagraph (b); and (d) the annual average emission
        rate, expressed as a lb/mmBTU for NOx, for
        each Unit
        within the AEP Eastern System and for the entire AEP Eastern System during
        the
        prior calendar year.  Data reported pursuant to this subsection shall
        be based upon the CEMS data submitted to the Clean Air Markets
        Division.

      


      B.  Plant-Wide
        Annual Rolling
        Average Tonnage Limitation for SO2 at Clinch
        River

      


      Beginning
        on March 31, 2011, and
        continuing annually thereafter, Defendants shall report: (a) the actual tons
        of
        SO2 emitted
        from all Units at the Clinch River plant on an annual rolling average basis
        as
        defined in Paragraphs 47 and 88 for the prior calendar year; and (b) the
        applicable Plant-Wide Annual Rolling Average Tonnage Limitation for SO2 at the
        Clinch River
        plant for the prior calendar year.  For calendar years other than 2010
        and 2015, Defendants shall also report the 12-month rolling average emissions
        for each month.

      


      C.  Plant-Wide
        Tonnage
        Limitation for SO2 at
        Kammer

      


      Beginning
        on March 31, 2011, and
        continuing annually thereafter, Defendants shall report: (a) the actual tons
        of
        SO2 emitted
        from all Units at the Kammer plant as specified in Paragraph 48 for the prior
        calendar year; and (b) the Plant-Wide Tonnage Limitation for SO2 at the
        Kammer plant
        for that calendar year.

      


      D.  Reporting
        Requirements
        for Excess NOx
        Allowances

      


      1.  Reporting
        Requirements
        for Unrestricted Excess NOx
        Allowances

      


      Beginning
        on March 31, 2010, and
        continuing annually through March 31, 2016,  Defendants shall report
        the number of Unrestricted Excess NOx Allowances
        available each year between 2009 through 2015, and how or whether such
        allowances were used so that Defendants account for each Unrestricted Excess
        NOx Allowance
        for each year during 2009 through 2015.  No later than March 31, 2016,
        Defendants shall report: (a) the cumulative number of unused Unrestricted
        Excess
        NOx Allowances
        subject to surrender pursuant to Paragraph 75 and calculated pursuant to
        Paragraph 74, and (b) the total number of unused Unrestricted Excess NOx Allowances
        that
        they surrendered.

      


      2.  Reporting
        Requirements
        for Restricted Excess NOx
        Allowances

      


      a.  Beginning
        on March 31,
        2010, and continuing annually through March 31, 2016, Defendants shall
        report:  (a) the number of Restricted Excess NOx Allowances available
        each year between 2009 through 2015; (b) the actual emissions from any New
        and
        Newly Permitted Unit during each year; (c) the actual NOx emissions from
        the
        five natural gas plants listed in Paragraph 76 during each year; (d) the
        amount,
        if any, of Restricted Excess NOx Allowances that are not subject to surrender
        each year because of Defendants’ investment in renewable energy as defined in
        Paragraph 77 and the data supporting Defendants’ calculation; and (e) the
        difference between the cumulative total of Restricted Excess NOx Allowances
        available from each year and any prior year and the actual emissions reported
        under (b) and (c), above, for that year and any Restricted Excess NOx Allowances
        not
        subject to surrender reported under (d), above.  No later than March
        31, 2016, Defendants shall report: (a) the cumulative number of unused
        Restricted Excess NOx Allowances
        subject
        to surrender calculated pursuant to Paragraphs 76 and 77, and (b) the total
        number of unused Restricted Excess NOx Allowances
        that
        they surrendered.

      


      b.  No
        later than March 31,
        2017, and continuing annually thereafter, Defendants shall report: (a) the
        number of Restricted Excess NOx Allowances
        available in the prior year; (b) the actual emissions from any New and Newly
        Permitted Unit during such year; (c) the actual emissions from the five natural
        gas plants listed in Paragraph 76 during such year; (d) the amount, if any,
        of
        Restricted Excess NOx Allowances
        that are
        not subject to surrender for such year because of Defendants’ investment in
        renewable energy as defined in Paragraph 77 and the data supporting Defendants’
calculation; (e) the number of Restricted Excess NOx Allowances
        subject
        to surrender for such year calculated pursuant to Paragraphs 76 and 77; and
        (f)
        the total number of unused Restricted Excess NOx Allowances
        that
        they surrendered for such year.

      


      E.  Reporting
        Requirements
        for Excess SO2
        Allowances

      


      Beginning
        on March 31, 2011, and
        continuing annually thereafter, Defendants shall report: (a) the number of
        Excess SO2
        Allowances subject to surrender calculated pursuant to Paragraph 93, and
        (b) the
        total number of Excess SO2 Allowances
        that
        they surrendered.

      


      F.  Continuous
        Operation of
        Pollution Controls required by Paragraphs 68, 69, 87, and 102

      


      On
        March 31 of the year following
        Defendants’ obligation pursuant to this Consent Decree to commence Continuous
        Operation of an SCR, FGD, ESP, or Additional NOx Pollution
        Controls,
        Defendants shall report the date that they commenced Continuous Operation
        of
        each such pollution control as required by this Consent
        Decree.  Beginning on March 31, 2008, and continuing annually
        thereafter, Defendants shall report, for any SCR, FGD, ESP, or Additional
        NOx Pollution
        Controls required to Continuously Operate during that year, the duration
        of any
        period during which that pollution control did not Continuously Operate,
        including the specific dates and times that such pollution control did not
        operate, the reason why Defendants did not Continuously Operate such pollution
        control, and the measures taken to reduce emissions of the pollutant controlled
        by such pollution control.

      


      G.  Installation
        of SO2 and NOx
        Pollution
        Controls

      


      Beginning
        on March 31, 2008, and
        continuing annually thereafter, Defendants shall report on the progress of
        construction of NOx and SO2
        pollution controls
        required by this Consent Decree including:  (1) if construction is not
        underway, any available information concerning the construction schedule,
        including the dates of any major contracts executed during the prior calendar
        year, and any major components delivered during the prior calendar year;
        (2) if
        construction is underway, the estimated percent of installation as of the
        end of
        the prior calendar year, the current estimated construction completion date,
        and
        a brief description of completion of significant milestones during the prior
        calendar year, including a narrative description of the current construction
        status (e.g. foundations completed, absorber installation proceeding all
        material on-site, new stack erection completed, etc.); and (3) once construction
        is complete, the dates the equipment was placed in service and any acceptance
        testing was performed during the prior calendar year.

      


      H.  Installation
        and
        Operation of PM CEMS

      


      Beginning
        on March 31, 2013, for
        Cardinal Units 1 and 2 and a third Unit identified pursuant to Paragraph
        110,
        and continuing annually thereafter for all periods of operation of PM CEMS
        as
        required by this Consent Decree, Defendants shall report the data recorded
        by
        the PM CEMS, expressed in lb/mmBTU on a 3-hour rolling average basis in
        electronic format for the prior calendar year, in accordance with Paragraph
        107.

      


      I.  Other
        SO2
        Measures

      


      Commencing
        in the first annual report
        Defendants submit pursuant to Paragraph 143, and continuing annually thereafter,
        Defendants shall submit all data necessary to determine Defendants’ compliance
        with the annual average coal content specified in the table in Paragraph
        90.

      


      J.  1-Hour
        Average NOx
        Emission Rate and 30-Day Rolling Average Emission

           Rates
        for SO2 and
        NOx

      


      1.
        Beginning on March 31 of the year
        following Defendants’ obligation pursuant to this Consent Decree to first comply
        with an applicable 1-Hour Average NOx Emission
        Rate
        and/or 30-Day Rolling Average Emission Rate for SO2 and NOx,
        and continuing
        annually thereafter, Defendants shall report all 1-Hour Average Emission
        Rate
        results and/or 30-Day Rolling Average Emission Rate results to determine
        compliance with such emission rate, as defined in Paragraph 4 or 5, as
        appropriate.  Defendants shall also report: (a) the date and time that
        the Unit initially combusts any fuel after shutdown; (b) the date and time
        after
        startup that the Unit is synchronized with a utility electric distribution
        system; (c) the date and time that the fire is extinguished in a Unit; and
        (d)
        for the fifth and subsequent Cold Start Up Period that occurs within any
        30-Day
        period, the earlier of the date and time that is either (i) eight hours after
        the unit is synchronized with a utility electric distribution system, or
        (ii)
        the flue gas has reached the SCR operational temperature range specified
        by the
        catalyst manufacturer.

      


      2.
        Within the first report that
        identifies a 1-Hour Average NOx Emission
        Rate or
        30-Day Rolling Average Emission Rate for SO2 or NOx,
        Defendants shall
        include at least five (5) example calculations (including hourly CEMS data
        in
        electronic format for the calculation) used to determine the 1-Hour Average
        NOx Emission
        Rate and the 30-Day Rolling Average Emission Rate for SO2 or NOx
        for five (5)
        randomly selected days.  If at any time Defendants change the
        methodology used in determining the 1-Hour Average NOx Emission
        Rate or
        the 30-Day Rolling Average Emission Rate for SO2 or NOx,
        Defendants shall
        explain the change and the reason for using the new methodology.

      


      K.  30-Day
        Rolling Average
        Removal Efficiency for SO2

      


      1.
        Beginning on March 31 of the year
        following Defendants’ obligation pursuant to this Consent Decree to first comply
        with a 30-Day Rolling Average Removal Efficiency, and continuing annually
        thereafter, Defendants shall report all 30-Day Rolling Average Removal
        Efficiency results to determine compliance with such removal efficiency as
        defined in Paragraph 6 or, for Conesville Units 5 and 6, as specified in
        Appendix C.

      


      2.
        Within the first report that
        identifies a 30-Day Rolling Average Removal Efficiency for SO2, Defendants
        shall
        include at least five (5) example calculations (including hourly CEMS data
        in
        electronic format for the calculation) used to determine the 30-Day Rolling
        Average Removal Efficiency for five (5) randomly selected days.  If at
        any time Defendants change the methodology used in determining the 30-Day
        Rolling Average Removal Efficiency, Defendants shall explain the change and
        the
        reason for using the new methodology.

      


      L.  PM
        Emission
        Rates

      


      Beginning
        on March 31, 2010, for
        Cardinal Units 1 and 2, and beginning on March 31, 2013 for Muskingum River
        Unit
        5, and continuing annually thereafter, Defendants shall report the PM Emission
        Rate as defined in Paragraph 51, for Cardinal Unit 1, Cardinal Unit 2, and
        Muskingum River Unit 5.   For all such Units, Defendants shall
        attach a copy of the executive summary and results of any stack test performed
        during the calendar year covered by the annual report.

      


      M.  Environmental
        Mitigation
        Projects

      


      1.  Mitigation
        Projects to
        be Conducted by the States

      


      Defendants
        shall report the
        disbursement of funds as required in Paragraph 127 of the Consent Decree
        in the
        next annual progress report that Defendants submit pursuant to Paragraph
        143
        following such disbursement of funds.

      


      2.  Appendix
        A
        Projects

      


      Beginning
        March 31, 2008, and
        continuing on March 31 of each year thereafter until completion of each Project
        (including any applicable periods of demonstration or testing), Defendants
        shall
        provide the United States and Citizen Plaintiffs with written reports detailing
        the progress of each Project, including Project Dollars.

      


      N.
        Other Unit becoming an Improved
        Unit

      


      If
        Defendants decide to make an Other
        Unit an Improved Unit, Defendants shall so state in the next annual progress
        report they submit pursuant to Paragraph 143 after making such decision,
        and
        comply with the reporting requirements specified in Section I.G of this Appendix
        and any other reporting or notice requirements in accordance with the Consent
        Decree.

      


      
        	
                II.

              	
                Deviation
                  Reports

              


      

      


      Beginning
        March 31, 2008, and
        continuing annually thereafter, Defendants shall report a summary of all
        deviations from the requirements of the Consent Decree that occurred during
        the
        prior calendar year, identifying the date and time that the deviation occurred,
        the date and time the deviation was corrected, the cause and any corrective
        actions taken for each deviation, if necessary, and the date that the deviation
        was initially reported under Paragraph 145.  In addition to any
        express requirements in Section I, above, or in the Consent Decree, such
        deviations required to be reported include, but are not limited to, the
        following requirements: the 1-Hour Average NOx Emission Rate, the
        30-Day Rolling Average Emission Rates for SO2 and NOx, the
        30-Day Rolling Average Removal Efficiency for SO2,
        and the PM Emission Rate.

      


      
        	
                III.

              	
                Submissions
                  Pending Review

              


      

      


      In
        each annual report Defendants submit
        pursuant to Paragraph 143, Defendants shall include a list of all plans or
        submissions made pursuant to this Consent Decree during the calendar year
        covered by the annual report, the date(s) such plans or submissions were
        submitted to one or more Plaintiffs for review and/or approval, and shall
        identify which, if any, are still pending review and approval by Plaintiffs
        upon
        the date of submission of the annual report.

      


      
        	
                IV.

              	
                Other
                  Information Necessary To Determine
                  Compliance

              


      

      


      To
        the extent that information not
        expressly identified above is necessary to determine Defendants’ compliance with
        the requirements of this Consent Decree during a reporting period, and has
        not
        otherwise been submitted in accordance with the provisions of the Consent
        Decree, Defendants shall provide such information as part of the annual report
        required pursuant to Section XI of the Consent Decree.

      


       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      APPENDIX
        C

      


      MONITORING
        STRATEGY AND CALCULATION OF

      THE
        30-DAY ROLLING AVERAGE REMOVAL EFFICIENCY

      FOR
        CONESVILLE UNITS 5 AND 6

      


      I.           Monitoring
        Strategy

      


      
        	
                1.  

              	
                The
                  SO2
                  monitoring system for Conesville Units 5 & 6 will consist of two
                  separate FGD inlet monitors in each of the two FGD inlet ducts
                  for each
                  Unit, and one FGD outlet monitor in the combined flow from the
                  outlets of
                  the FGD modules for each Unit, prior to the common
                  stack.

              


      

      


      
        	
                2.  

              	
                Due
                  to space constraints and potential interferences, monitors are
                  currently
                  located in the inlet duct for one FGD module on each Unit and at
                  the
                  combined outlet from both FGD modules for each Unit prior to entering
                  the
                  stack using best engineering
                  judgment.

              


      

      


      
        	
                3.  

              	
                On
                  or before December 31, 2008, Defendants shall submit a monitoring
                  plan to
                  EPA for approval that will propose where to site and install an
                  additional
                  inlet monitor in each of the unmonitored FGD inlet ducts for each
                  Unit,
                  and include a requirement that Defendants submit a complete certification
                  application for the Conesville Units 5 & 6 monitoring system to EPA
                  and the state permitting authority.

              


      

      


      
        	
                4.  

              	
                The
                  Monitoring Plan will incorporate the applicable procedures and
                  quality
                  assurance testing found in 40 C.F.R. Part 75, subject to the
                  following:

              


      

      


      
        	
                a.  

              	
                The
                  PS-2 siting criteria will not be applied to these monitoring systems;
                  however, the majority of the procedures in Section 8.1.3.2 of PS-2
                  will be
                  followed.  Sampling of at least nine (9) sampling points
                  selected in accordance with PS-1 will be performed prior to the
                  initial
                  RATA.  If the resultant SO2
                  emission
                  rates for any single sampling point calculated in accordance with
                  Equation
                  19.7 are all within 10% or 0.02 lb/mmBtu of the mean of all nine
                  (9)
                  sampling points, the alternative traverse point locations (0.4,
                  1.2, and
                  2.0 meters from the duct wall) will be representative and may be
                  used for
                  all subsequent RATAs.

              


      

      


      
        	
                b.  

              	
                The
                  required relative accuracy test audit will be performed in accordance
                  with
                  the procedures of 40 C.F.R. Part 75, except that the calculations
                  will be
                  performed on an SO2
                  emission rate
                  basis (i.e., lb/mmBtu).

              


      

      


      
        	
                c.  

              	
                The
                  criteria for passing the relative accuracy test audit will be the
                  same
                  criteria that 40 C.F.R. Part 75 requires for relative accuracy
                  or
                  alternative performance specification as provided for NOx
                  emission
                  rates.

              


      

      


      
        	
                d.  

              	
                “Diluent
                  capping” (i.e., 5% CO2)
                  will be
                  applied to the SO2
                  emission rate
                  for any hours where the measured CO2
                  concentration
                  rounds to zero.

              


      

      


      
        	
                e.  

              	
                Results
                  of quality assurance testing, data gathered by the inlet and outlet
                  monitoring systems, and the resultant 30-day Rolling Average Removal
                  Efficiencies for these monitoring systems are not required to be
                  reported
                  in the quarterly reports submitted to EPA’s Clean Air Markets Division for
                  purposes of 40 C.F.R. Part 75.   Results will be maintained
                  at the facility and available for inspection, and the 30-day Rolling
                  Average Removal Efficiency will be reported in accordance with
                  the
                  requirements of the Consent Decree and Appendix B.  Equivalent
                  data retention and reporting requirements will be incorporated
                  into the
                  applicable permits for these Units.

              


      

      


      
        	
                f.  

              	
                Missing
                  Data Substitution of 40 C.F.R Part 75 will not be
                  implemented.

              


      

      


      
        	
                g.  

              	
                Initial
                  performance testing will be performed before the effective date
                  of the
                  30-Day Rolling Average Removal Efficiency requirements, and the
                  results
                  will be reported to Plaintiffs as part of the annual report submitted
                  in
                  accordance with Appendix B.

              


      

      


      II.           Calculation
        of 30-Day Rolling Average Removal Efficiency

      


      1.           Removal
        efficiency shall be calculated by the equation:

      


      [SO2
        emission rate Inlet–
SO2
        emission rate Outlet ] / SO2
        emission rate Inlet *
        100

      


      
        	
                 

              	
                2.

              	
                Inlet
                  and outlet emission rates shall be calculated using the methodology
                  specified in 40 C.F.R. Part 60 Appendix B – Method 19.  Inlet
                  emission rates will be based on the average of the valid recorded
                  values
                  calculated for each of the inlet FGD monitors at each
                  Unit.  Measurements are made on a wet basis, so Equation 19.7
                  will be utilized to determine the hourly SO2
                  emission rate
                  at each location.  To make the conversion between the measured
                  wet SO2
                  and CO2
                  concentrations and an emission rate in pounds per million BTU,
                  an
                  electronic Data System will perform Equation 19.7 using the SO2
                  ppm
                  conversion factor from Table 19-1 of Method 19 and the Fc factor
                  for the
                  applicable fuel (currently bituminous coal) in Table 19-2 of Method
                  19.  The resulting equation will
                  be:

              


      

      


      Emission
        rate (lb SO2/mmBtu)
        = 1.660 x
        10-7 * SO2
        (in ppm) * Fc * 100
        / CO2 (in
        %)

      


      
        	
                 

              	
                3.

              	
                The
                  electronic data system will calculate the hourly average SO2
                  and CO2
                  concentration
                  in accordance with 40 C.F.R. Part 75 quality control/quality assurance
                  requirements and will compute and retain these SO2
                  emission
                  rates for every operating hour meeting the minimum data capture
                  requirements in accordance with 40 C.F.R. Part 75.  Prior to the
                  calculation of the SO2
                  emission
                  rate, hourly SO2
                  and CO2
                  concentrations will be rounded to the nearest tenth (i.e., 0.1 ppm
                  or 0.1 % CO2)
                  and the
                  resulting SO2
                  emission rate
                  will be rounded to the nearest thousandth (i.e., 0.001
                  lb/mmBtu).

              


      

      


      
        	
                 

              	
                4.

              	
                From
                  these hourly SO2
                  emission
                  rates, SO2
                  removal
                  efficiencies will be calculated for each hour when the Unit is
                  firing
                  fossil fuel, and the hourly SO2
                  and CO2
                  monitors meet
                  the QA/QC requirements of Part 75.  Hourly SO2
                  removal
                  efficiencies will be computed by taking the hourly inlet SO2
                  emission rate
                  minus the outlet SO2
                  emission
                  rate, dividing the result by inlet SO2
                  emission rate
                  and multiplying by 100.  The resulting removal efficiency will
                  be rounded to the nearest tenth (i.e., 95.1%).  Daily
                  SO2
                  removal efficiencies will be calculated by taking the sum of Hourly
                  SO2
                  removal efficiencies and dividing by the number of valid monitored
                  hours
                  for each Operating Day.  The resulting daily removal
                  efficiencies will be rounded to the nearest tenth (i.e.,
                  95.1%).

              


      

      


      
        	
                 

              	
                5.

              	
                The
                  30-Day Rolling Average Removal Efficiency will be computed by taking
                  the
                  current Operating Day’s daily SO2
                  removal
                  efficiency (as described in Paragraph 4 of this Appendix C) plus
                  the
                  previous 29 Operating Days’ daily SO2
                  removal
                  efficiency, and dividing the sum by 30.  In the event that a
                  daily SO2
                  removal efficiency is not available for an Operating Day, Defendants
                  shall
                  exclude that Operating Day from the calculation of the 30-Day Rolling
                  Average Removal Efficiency.  The resulting 30-day Rolling
                  Average Removal Efficiency will be rounded to the nearest tenth
                  of a
                  percent (i.e., a value of 95.04% rounds down to 95.0%, and a value
                  of 95.05% rounds up to 95.1%).