Case 2:10-cv-13101-BAF-RSW ECF No. 282, PageID.8911 Filed 07/22/20 Page 1 of 75
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
`
`
`
`Plaintiff,
`
`Civil Action No.
`2:10-cv-13101
`
`Judge Bernard A. Friedman
`
`Magistrate Judge R. Steven
`Whalen
`
`
`
`CONSENT DECREE
`
`
`
`i
`
`UNITED STATES OF AMERICA,
`
`
`
`and
`
`SIERRA CLUB,
`
` Intervenor-Plaintiff,
`
`
`
`DTE ENERGY COMPANY AND
`DETROIT EDISON COMPANY,
`
`
`
`
`v.
`
`Defendants.
`
`
`
`
`
`
`
`
`
`

`

`Case 2:10-cv-13101-BAF-RSW ECF No. 282, PageID.8912 Filed 07/22/20 Page 2 of 75
`
`TABLE OF CONTENTS
`
`JURISDICTION AND VENUE ........................................................................................3
`I.
`APPLICABILITY ............................................................................................................. 3
`II.
`DEFINITIONS .................................................................................................................. 4
`III.
`COMPLIANCE REQUIREMENTS ............................................................................... 14
`IV.
`PROHIBITION ON NETTING CREDITS OR OFFSETS ............................................ 25
`V.
`ENVIRONMENTAL MITIGATION PROJECT ........................................................... 25
`VI.
`CIVIL PENALTY ........................................................................................................... 27
`VII.
`RESOLUTION OF CIVIL CLAIMS .............................................................................. 28
`VIII.
`PERIODIC REPORTING ............................................................................................... 31
`IX.
`REVIEW AND APPROVAL OF SUBMITTALS ......................................................... 33
`X.
`STIPULATED PENALTIES .......................................................................................... 34
`XI.
`FORCE MAJEURE ........................................................................................................ 42
`XII.
`DISPUTE RESOLUTION .............................................................................................. 46
`XIII.
`PERMITS ........................................................................................................................ 48
`XIV.
`INFORMATION COLLECTION AND RETENTION.................................................. 50
`XV.
`NOTICES ........................................................................................................................ 51
`XVI.
`SALES OR TRANSFERS OF OPERATIONAL OR OWNERSHIP INTERESTS ...... 54
`XVII.
`XVIII. EFFECTIVE DATE ........................................................................................................ 54
`XIX.
`RETENTION OF JURISDICTION ................................................................................ 55
`XX.
`MODIFICATION ........................................................................................................... 55
`XXI.
`GENERAL PROVISIONS ............................................................................................. 55
`XXII.
`SIGNATORIES AND SERVICE ................................................................................... 58
`XXIII.
`PUBLIC COMMENT/AGENCY REVIEW ................................................................... 58
`XXIV. TERMINATION ............................................................................................................. 59
`XXV.
`26 U.S.C. SECTION 162(f)(2)(A)(ii) IDENTIFICATION ............................................ 61
`XXVI.
`FINAL JUDGMENT ...................................................................................................... 62
`
`APPENDIX A -- ENVIRONMENTAL MITIGATION PROJECT
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ii
`
`

`

`Case 2:10-cv-13101-BAF-RSW ECF No. 282, PageID.8913 Filed 07/22/20 Page 3 of 75
`
`
`
`
`A.
`
`Plaintiff, the United States of America (“United States”), on behalf of the United
`
`States Environmental Protection Agency (“EPA”), filed a complaint in this action on August 5,
`
`2010. The Court granted Plaintiff-Intervenor Sierra Club’s motion to intervene on November 23,
`
`2010. The United States and Sierra Club (collectively “Plaintiffs”) later amended their
`
`complaints, and the Court granted leave to file the amended complaints (“Complaints”) on April
`
`9, 2014. The Complaints allege violations of the Clean Air Act (”CAA” or “the Act”) against
`
`DTE Energy and Detroit Edison Company (“Defendants”).
`
`
`
`B.
`
`The Complaints sought injunctive relief and civil penalties pursuant to Sections
`
`113(b) and 167 of the Act 42, U.S.C. §§ 7413(b) and 7477, alleging that Defendants violated: (a)
`
`the Prevention of Significant Deterioration (“PSD”) provisions of the Act, 42 U.S.C. §§ 7470-
`
`7492; (b) the nonattainment New Source Review (“Nonattainment NSR”) provisions of the Act,
`
`42 U.S.C. §§ 7501-7515; (c) applicable federal PSD and Nonattainment NSR regulations; and
`
`(d) the State Implementation Plan adopted by the State of Michigan and approved by EPA
`
`pursuant to Section 110 of the Act, 42 U.S.C. § 7410 (“Michigan SIP”). The Complaints allege
`
`that, inter alia, Defendants made major modifications to major emitting facilities, and failed to
`
`obtain the necessary permits and install and operate the controls necessary under the Act to
`
`reduce sulfur dioxide (“SO2”) and/or oxides of nitrogen (“NOx”), at certain electricity generating
`
`stations located in Michigan, and that such emissions damage human health and the
`
`environment.
`
`
`
`C.
`
`Statement of the United States: The Complaints alleged major modifications at
`
`several of Defendants’ units, including a major modification at Monroe Unit 2 in 2010. While
`
`the Consent Decree resolves that claim and releases Defendants from any liability for it, none of
`
`
`
`1
`
`

`

`Case 2:10-cv-13101-BAF-RSW ECF No. 282, PageID.8914 Filed 07/22/20 Page 4 of 75
`
`
`the relief in this Consent Decree is attributable to the United States’ Monroe Unit 2 2010 claim.
`
`It is the position of the United States that this is an appropriate exercise of its prosecutorial
`
`discretion in light of the specific circumstances of this case. In 2017, EPA issued a policy
`
`memorandum noting that the 2013 and 2017 appellate decisions in this case “have created
`
`uncertainty regarding the applicability of NSR permitting requirements in circumstances where
`
`the owner or operator of an existing major stationary source projects that proposed construction
`
`will not cause an increase in actual emissions that triggers NSR requirements” and concluding
`
`that it would therefore no longer pursue cases factually similar to the 2010 Monroe Unit 2 claim.
`
`See EPA Administrator, Memorandum Regarding New Source Review Preconstruction
`
`Permitting Requirements (Dec. 7, 2017). The Department in its independent judgment as a
`
`matter of prosecutorial discretion, has decided to apply EPA’s rationale to the 2010 Monroe Unit
`
`2 claim as well as take to heart the litigation history, which may implicate cases such as General
`
`Elec. Co. v. EPA, 53 F.3d 1324 (D.C. Circ. 1995). The specific circumstances described above
`
`are not raised by the other claims in the Complaints.
`
`
`
`D.
`
`Defendants opted to retire St. Clair Unit 1 and have permanently ceased operation
`
`of that unit as of March 31, 2019.
`
`
`
`E.
`
`Defendants do not admit any liability to Plaintiffs arising out of the transactions
`
`or occurrences alleged in the Complaints.
`
`
`
`F.
`
`The Parties recognize, and the Court by entering this Consent Decree finds, that
`
`this Consent Decree has been negotiated by the Parties in good faith and will avoid further
`
`litigation among the Parties and that this Consent Decree is fair, reasonable, and in the public
`
`interest.
`
`
`
`2
`
`

`

`Case 2:10-cv-13101-BAF-RSW ECF No. 282, PageID.8915 Filed 07/22/20 Page 5 of 75
`
`
`
`
`NOW, THEREFORE, with the consent of the Parties, it is hereby ORDERED,
`
`ADJUDGED, AND DECREED as follows:
`
`
`
`I. JURISDICTION AND VENUE
`
`1.
`
`This Court has jurisdiction over this action, the subject matter herein, and the
`
`Parties consenting hereto, pursuant to 28 U.S.C. §§ 1331, 1345, 1355, and 1367, and pursuant to
`
`Sections 113, 167, and 304 of the Act, 42 U.S.C. §§ 7413, 7477, and 7604. Venue is proper in
`
`this District pursuant to Sections 113(b) and 304(c) of the Act, 42 U.S.C. §§ 7413(b) and
`
`7604(c), and 28 U.S.C. §§ 1391(b) and (c). For purposes of this Decree, or any action to enforce
`
`this Decree, Defendants consent to (i) the Court’s jurisdiction over this Decree and any such
`
`action and over Defendants and (ii) venue in in this judicial district. Except as expressly
`
`provided for herein, this Consent Decree shall not create any rights in or obligations of any party
`
`other than the Parties to this Consent Decree. Except as provided in Section XXIII (Public
`
`Comment) of this Consent Decree, the Parties consent to entry of this Consent Decree without
`
`further notice. Notwithstanding the foregoing, should this Consent Decree not be entered by this
`
`Court, then the waivers and consents set forth in this Section I (Jurisdiction and Venue) shall be
`
`null and void and of no effect.
`
`
`
`II. APPLICABILITY
`
`2.
`
`Upon entry, the provisions of this Consent Decree shall apply to and be binding
`
`upon the United States, Sierra Club, and Defendants and their respective successors, assigns, or
`
`other entities or persons otherwise bound by law.
`
`
`
`3
`
`

`

`Case 2:10-cv-13101-BAF-RSW ECF No. 282, PageID.8916 Filed 07/22/20 Page 6 of 75
`
`
`
`3.
`
`Defendants shall provide a copy of this Consent Decree to all vendors, suppliers,
`
`consultants, contractors, agents, and other entities 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 ensure that all work
`
`they are required to undertake is performed in accordance with the requirements of this Consent
`
`Decree. In any action to enforce this Consent Decree, except as expressly provided herein (e.g.,
`
`Section XII (Force Majeure)), 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.
`
`
`
`III. DEFINITIONS
`
`4.
`
`Every term expressly defined by this Section shall have the meaning given that
`
`term herein. Every other term used in this Consent Decree that is also a term used under the Act
`
`or in a regulation implementing the Act, including regulations approved as part of the Michigan
`
`SIP, shall mean in this Consent Decree what such term means under the Act or those regulations.
`
`a.
`
`A “30-Day Rolling Average Emission Rate” for a Unit shall be expressed
`
`as lbs/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 29 Operating Days; second, sum the total heat input to the Unit in mmBTU during the
`
`Operating Day and the previous 29 Operating Days; and third, divide the total number of pounds
`
`of the pollutant emitted during the 30 Operating Days by the total heat input during the 30
`
`Operating Days. A new 30-Day Rolling Average Emission Rate shall be calculated for each new
`
`
`
`4
`
`

`

`Case 2:10-cv-13101-BAF-RSW ECF No. 282, PageID.8917 Filed 07/22/20 Page 7 of 75
`
`
`Operating Day. Each 30-Day Rolling Average Emission Rate shall include all emissions of the
`
`applicable pollutant that occur during all periods within any Operating Day, including emissions
`
`from startup, shutdown, and Malfunction.
`
`b.
`
`A “24-Hour Rolling Average Emission Rate” for a Unit shall be expressed
`
`as lbs/mmBTU and calculated in accordance with the following procedure: first, sum the total
`
`pounds of the pollutant emitted from the Unit during an operating hour and the previous 23
`
`operating hours; second, sum the total heat input to the Unit in mmBTU during the operating
`
`hour and the previous 23 operating hours; and third, divide the total number of pounds of the
`
`pollutant emitted during the 24 operating hours by the total heat input during the 24 operating
`
`hours. A new 24-Hour Rolling Average Emission Rate shall be calculated for each new
`
`operating hour.
`
`c.
`
`“Baghouse” means a full stream (fabric filter or membrane) particulate
`
`emissions control device. In this context, full stream means that it captures the entire stream of
`
`exhaust gas with no concurrent bypass.
`
`d.
`
`“Belle River” means DTE’s Belle River Power Plant consisting of two
`
`electric utility steam-generating units designated as Unit 1 (638 MW) and Unit 2 (602 MW) and
`
`related equipment, located in East China Township, Michigan.
`
`e.
`
` “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.
`
`
`
`5
`
`

`

`Case 2:10-cv-13101-BAF-RSW ECF No. 282, PageID.8918 Filed 07/22/20 Page 8 of 75
`
`
`
`f.
`
`“Capital Expenditures” means all capital expenditures, as defined by
`
`Generally Accepted Accounting Principles (“GAAP”), as those principles exist at the Date of
`
`Entry of this Consent Decree, excluding the cost of installing or upgrading pollution control
`
`devices.
`
`g.
`
`“CEMS” or “Continuous Emission Monitoring System,” means, for
`
`obligations involving the monitoring of NOx, SO2, and PM emissions 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.
`
`h.
`
`“Clean Air Act,” “CAA,” or “Act” means the federal Clean Air Act, 42
`
`U.S.C. §§ 7401-7671q, and its implementing regulations.
`
`i.
`
`“Complaints” shall mean the amended complaints filed by the United
`
`States and Sierra Club in this case on April 9, 2014, and May 22, 2014, respectively.
`
`j.
`
`“Consent Decree” means this Consent Decree, including Appendix A,
`
`which is hereto incorporated into this Consent Decree.
`
`k.
`
`“Continuously Operate” or “Continuous Operation” means that when a
`
`pollution control technology or combustion control is required to be continuously used at a Unit
`
`pursuant to this Consent Decree (including, but not limited to, SCR, FGD, ESP, Baghouse, or
`
`Low NOx Combustion System), it shall be operated at all times such Unit is in operation (except
`
`as otherwise provided by Section XII (Force Majeure)), consistent with the technological
`
`limitations, manufacturers’ specifications, good engineering and maintenance practices, and
`
`good air pollution control practices for minimizing emissions (as defined in 40 C.F.R. §
`
`60.11(d)) for such equipment and the Unit.
`
`
`
`6
`
`

`

`Case 2:10-cv-13101-BAF-RSW ECF No. 282, PageID.8919 Filed 07/22/20 Page 9 of 75
`
`
`
`l.
`
`“Date of Entry” means the date this Consent Decree is entered by the
`
`Court or a motion to enter the Consent Decree is granted, whichever occurs first, as recorded on
`
`the Court’s docket.
`
`m.
`
`“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 Eastern District of
`
`Michigan.
`
`Decree.
`
`n.
`
`o.
`
`p.
`
`“Day” means calendar day unless otherwise specified in this Consent
`
`“Defendants” or “DTE” mean DTE Energy and Detroit Edison Company.
`
`“Electrostatic Precipitator” or “ESP” means a device for removing
`
`particulate matter from combustion gases by imparting an electric charge to the particles and
`
`then attracting them to a metal plate or screen of opposite charge before the combustion gases are
`
`exhausted to the atmosphere.
`
`q.
`
`“Emission Rate” for a given pollutant means the number of pounds of that
`
`pollutant emitted per million British thermal units of heat input (lb/mmBTU), measured in
`
`accordance with this Consent Decree.
`
`r.
`
`“Environmental Mitigation Project” or “Project” means the project set
`
`forth in Section VI (Environmental Mitigation Project) and Appendix A of this Consent Decree,
`
`and any other project undertaken for the purpose of fulfilling Defendants’ obligations under
`
`Section VI and Appendix A and approved for that purpose by EPA pursuant to Section X
`
`(Review and Approval of Submittals).
`
`s.
`
`“EPA” means the United States Environmental Protection Agency.
`
`
`
`7
`
`

`

`Case 2:10-cv-13101-BAF-RSW ECF No. 282, PageID.8920 Filed 07/22/20 Page 10 of 75
`
`
`
`t.
`
`“Flue Gas Desulfurization System” or “FGD” means a pollution control
`
`device that removes sulfur compounds from a flue gas stream, including an absorber or absorbers
`
`utilizing lime or limestone, or a sodium based material, for the reduction of SO2 emissions.
`
`u.
`
` “Fossil Fuel” means any hydrocarbon fuel, including but not limited to
`
`coal, metallurgical coke, petroleum coke, petroleum oil, natural gas, or any other fuel made or
`
`derived from the foregoing.
`
`v.
`
`“Greenhouse Gases” means the air pollutant defined at 40 C.F.R. §
`
`86.1818-12(a) as of the Date of Lodging of this Consent Decree as the aggregate group of six
`
`greenhouse gases: carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
`
`perfluorocarbons, and sulfur hexafluoride. This definition continues to apply even if 40 C.F.R. §
`
`86.1818-12(a) is subsequently revised, stayed, vacated or otherwise modified.
`
`w.
`
`x.
`
`units of heat input.
`
` “KW” means Kilowatt or one thousand watts net.
`
`“lb/mmBTU” means pounds of a pollutant per million British thermal
`
`y.
`
` “Low NOx Combustion System” means burners and associated
`
`combustion air control equipment, including Overfire Air (if installed at the Unit), which control
`
`mixing characteristics of Fossil Fuel and oxygen, thus restraining the formation of NOx during
`
`combustion of fuel in the boiler.
`
`z.
`
`“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.
`
`
`
`8
`
`

`

`Case 2:10-cv-13101-BAF-RSW ECF No. 282, PageID.8921 Filed 07/22/20 Page 11 of 75
`
`
`
`aa.
`
`bb.
`
`“MW” means a megawatt or one million watts.
`
`“Michigan SIP” means the Michigan State Implementation Plan, and any
`
`amendments thereto, as approved by EPA pursuant to Section 110 of the Act, 42 U.S.C. § 7410.
`
`cc.
`
`“Monroe” means DTE’s Monroe Power Plant consisting of four electric
`
`utility steam-generating units designated as Unit 1 (764 MW), Unit 2 (772 MW), Unit 3 (773
`
`MW), and Unit 4 (765 MW) and related equipment, located in Monroe, Michigan. Consistent
`
`with the preamble to this agreement, all relief granted herein with respect to Monroe Unit 2 is not
`
`attributable to the United States’ 2010 claim relating to Monroe Unit 2.
`
`dd.
`
` “Natural Gas” means natural gas received directly or indirectly through a
`
`connection to an interstate pipeline transporting natural gas governed by a tariff approved by the
`
`Federal Energy Regulatory Commission. The Parties recognize that Natural Gas is expected to
`
`contain no more than 0.5 grains of sulfur per 100 standard cubic feet of Natural Gas.
`
`ee.
`
`“Netting” shall mean the process of determining whether a particular
`
`physical change or change in the method of operation of a major stationary source results in a
`
`“net emissions increase” or “net significant emissions increase” as those terms are defined at 40
`
`C.F.R. § 52.21(b)(3)(i) and (ii) and in the Michigan SIP.
`
`ff.
`
`gg.
`
`“NOX” means oxides of nitrogen.
`
`“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 established under the Clean Air Act or the Michigan SIP; provided, however, that with
`
`respect to any such program that first applies to emissions occurring after December 31, 2018, a
`
`“NOx Allowance” shall include an allowance created and allocated under such program only for
`
`
`
`9
`
`

`

`Case 2:10-cv-13101-BAF-RSW ECF No. 282, PageID.8922 Filed 07/22/20 Page 12 of 75
`
`
`control periods starting on or after the first anniversary of the Date of Entry of this Consent
`
`Decree.
`
`hh.
`
`“Nonattainment NSR” means the new source review program within the
`
`meaning of Part D of Subchapter I of the Act, 42 U.S.C. §§ 7501-7515 and 40 C.F.R. Part 51,
`
`and corresponding provisions of the federally enforceable Michigan SIP.
`
`ii.
`
`“Operating Day” or “Operating Days” means any calendar day(s) during
`
`which a Unit fires any fuel.
`
`jj.
`
`“Operating Hour” or “Operating Hours” means any clock hour during
`
`which a Unit fires any fuel.
`
`kk.
`
`“Operational or Ownership Interest” means part or all of DTE’s legal or
`
`equitable operational or ownership interest in any operating, non-Retired Unit. The Parties
`
`recognize that under this definition, Section XVII (Sales or Transfers of Operational or
`
`Ownership Interests) of this Consent Decree does not apply to salvage, scrap, or demolition of a
`
`Retired Unit.
`
`ll.
`
`“Over-Fire Air” or “OFA” means an in-furnace staged combustion control
`
`to reduce NOx emissions.
`
`mm.
`
`“Parties” means the United States of America, the Sierra Club, and
`
`Defendants. “Party” means one of the named “Parties.”
`
`nn.
`
`oo.
`
`“PM” means total filterable particulate matter.
`
`“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.
`
`
`
`10
`
`

`

`Case 2:10-cv-13101-BAF-RSW ECF No. 282, PageID.8923 Filed 07/22/20 Page 13 of 75
`
`
`
`pp.
`
`“PM Control Device” means any device, including an ESP or Baghouse,
`
`which reduces emissions of PM.
`
`qq.
`
`“PM Emission Rate” means the number of pounds of PM emitted per
`
`million BTU of heat input (lb/mmBTU).
`
`rr.
`
`“Prevention of Significant Deterioration” or “PSD” means the new source
`
`review program within the meaning of Part C of Subchapter I of the Clean Air Act, 42 U.S.C. §§
`
`7470-7492 and 40 C.F.R. Part 52, and corresponding provisions of the federally enforceable
`
`Michigan SIP.
`
`ss.
`
`“Project Dollars” means Defendants’ expenditures and payments incurred
`
`or made in carrying out the Environmental Mitigation Project identified in Section VI
`
`(Environmental Mitigation Project) of this Consent Decree to the extent that such expenditures
`
`or payments both: (a) comply with the requirements set forth in Section VI (Environmental
`
`Mitigation Project) and Appendix A of this Consent Decree, and (b) constitute Defendants’
`
`direct payments for such project or Defendants’ external costs for contractors, vendors, and
`
`equipment.
`
`tt.
`
` “Refuel” or “Refueled” means the modification of a Unit such that the
`
`modified unit generates electricity solely through the combustion of Natural Gas. Nothing herein
`
`shall prevent the reuse of any equipment at any existing Unit provided that the unit owner applies
`
`for, and obtains, all required permits, including, if applicable, a PSD or Nonattainment NSR
`
`permit.
`
`uu.
`
`“Repower” or “Repowered” means the removal and replacement of the
`
`Unit components such that the replaced unit generates electricity solely through the combustion
`
`
`
`11
`
`

`

`Case 2:10-cv-13101-BAF-RSW ECF No. 282, PageID.8924 Filed 07/22/20 Page 14 of 75
`
`
`of Natural Gas through the use of a combined cycle combustion turbine technology. Nothing
`
`herein shall prevent the reuse of any equipment at any existing unit or new emissions unit,
`
`provided that the Unit owner(s) applies for, and obtains, all required permits, including, if
`
`applicable, a PSD or Nonattainment NSR permit.
`
`vv.
`
`“Retire,” “Retired,” or “Retirement” means to permanently shut down and
`
`cease to operate the Unit, and to comply with applicable state and federal requirements for
`
`permanently ceasing operation of the Unit, including removing the Unit from Michigan’s air
`
`emissions inventory, and amending all applicable permits so as to reflect the permanent
`
`shutdown status of such Unit. The terms “Retire,” “Retired,” or “Retirement” shall not be
`
`construed to apply to electric synchronization motors, capacitors, switch gears, transformers,
`
`interconnection equipment and other non-combustion equipment and activities at the sites of
`
`System Units, regardless of whether such equipment was part of the System Units.
`
`ww.
`
`“Retrofit” means that the Unit must install and Continuously Operate both
`
`an FGD and an SCR, or equivalent pollution control technologies approved by EPA, and achieve
`
`and maintain the following 30-Day Rolling Average Emission Rates:
`
` NOx: 0.080 lb/mmBTU
`
` SO2: 0.060 lb/mmBTU
`
`xx.
`
`“River Rouge” means Defendants’ River Rouge Power Plant consisting of
`
`one electric utility steam-generating unit designated as Unit 3 (276 MW) and related equipment,
`
`located in River Rouge, Michigan.
`
`yy.
`
`“SCR” or “Selective Catalytic Reduction” means an air pollution control
`
`device for reducing NOx emissions in which ammonia (“NH3”) is added to the flue gas and then
`
`
`
`12
`
`

`

`Case 2:10-cv-13101-BAF-RSW ECF No. 282, PageID.8925 Filed 07/22/20 Page 15 of 75
`
`
`passed through layers of a catalyst material. The ammonia and NOx in the flue gas stream react
`
`on the surface of the catalyst, forming nitrogen (“N2”) and water vapor.
`
`zz.
`
`“SO2” means sulfur dioxide.
`
`aaa.
`
`“SO2 Allowance” means an authorization to emit a specified amount of
`
`SO2 that is allocated or issued under an emissions trading or marketable permit program of any
`
`kind established under the Clean Air Act or the Michigan SIP; provided, however, that with
`
`respect to any such program that first applies to emissions occurring after December 31, 2018, an
`
`“SO2 Allowance” shall include an allowance created and allocated under such program only for
`
`control periods starting on or after the first anniversary of the Date of Entry of this Consent
`
`Decree.
`
`bbb.
`
`“State” means the State of Michigan.
`
`ccc.
`
`“St. Clair” means, for purposes of this Consent Decree, Defendants’ St.
`
`Clair Power Plant consisting of five electric utility steam-generating units designated as Unit 1
`
`(152 MW), Unit 2 (160 MW), Unit 3 (165 MW), Unit 6 (319 MW), and Unit 7 (452 MW) and
`
`related equipment, located in East China Township, Michigan.
`
`ddd.
`
`“Surrender” or “Surrender of Allowances” means, for purposes of SO2 or
`
`NOx Allowances, permanently surrendering allowances from the accounts administered by EPA
`
`and the State of Michigan, if applicable, so that such allowances can never be used thereafter to
`
`meet any compliance requirements under the CAA, a state implementation plan, or this Consent
`
`Decree.
`
`eee.
`
` “System” means the Belle River, Monroe, River Rouge, St. Clair, and
`
`Trenton Channel facilities as defined herein.
`
`
`
`13
`
`

`

`Case 2:10-cv-13101-BAF-RSW ECF No. 282, PageID.8926 Filed 07/22/20 Page 16 of 75
`
`
`
`fff.
`
`“System-Wide Annual Tonnage Limitation” for a pollutant means the sum
`
`of the tons of the pollutant emitted from all the Units in Defendants’ System including, without
`
`limitations, all tons of that pollutant emitted during periods of startup, shutdown, and
`
`Malfunction, in the designated year.
`
`ggg.
`
`“Title V Permit” means the permit required of major sources pursuant to
`
`Subchapter V of the Act, 42 U.S.C. §§ 7661-7661e.
`
`hhh.
`
`“Trenton Channel” means Defendants’ Trenton Channel Power Plant
`
`consisting of one electric utility steam-generating unit designated as Unit 9 (536 MW) and
`
`related equipment, located in Trenton, Michigan.
`
`iii.
`
` “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 and systems necessary for production
`
`of electricity. An electric steam generating station may be comprised of one or more Units.
`
`
`
`IV. COMPLIANCE REQUIREMENTS
`
`A. Unit NOx and SO2 Requirements
`
`7.
`
`Retrofit/Refuel/Repower Deadlines. By no later than the specific dates set forth
`
`below, Defendants shall Retrofit, Refuel, or Repower the following Units:
`
`Unit Name
`
`Belle River Units 1-2
`River Rouge Unit 3
`
`
`
`Compliance Deadline
`(For Each Individual Unit)
`December 31, 2030
`December 31, 2022
`
`14
`
`

`

`Case 2:10-cv-13101-BAF-RSW ECF No. 282, PageID.8927 Filed 07/22/20 Page 17 of 75
`
`
`
`St. Clair Units 2-3 and 6-7 and Trenton
`Channel Unit 9
`
`December 31, 2022
`
`Notwithstanding the deadlines in the chart in this Paragraph, if the Midcontinent Independent
`
`System Operator (“MISO”) designates Trenton Channel 9 as a System Support Resource in order
`
`to address reliability issues in the area, the compliance deadline for Trenton Channel 9 shall be
`
`December 31, 2023. In addition, if MISO notifies DTE in writing that DTE is constrained from
`
`injecting and delivering the full generation output of the Blue Water Energy Center to the grid,
`
`and this would cause DTE to be short of meeting its Planning Reserve Margin Requirement or
`
`cause grid reliability problems, the compliance deadline for St Clair Units 2-3 and 6-7 and
`
`Trenton Channel 9 shall be December 31, 2023.
`
`8.
`
`Notification. For each Unit listed above, Defendants shall notify Plaintiffs in
`
`writing which option they elect to use for that unit. This notice shall be made at least 365 days
`
`before the compliance deadline listed above or within 30 Days of the Effective Date, whichever
`
`is later.
`
`9.
`
`Emissions Rates. Commencing no later than 60 Operating Days after the
`
`Effective Date, and continuing until the Unit is Retrofit, Refueled, or Repowered, Defendants
`
`shall achieve and maintain the following 30-Day Rolling Average Emission Rates for NOx and
`
`SO2 at each Unit individually:
`
`Unit Name
`
`NOX 30-Day Rolling Average
`Emission Rate
`(For Each Individual Unit)
`
`SO2 30-Day Rolling Average
`Emission Rate
`(For Each Individual Unit)
`
`Belle River Units 1-2
`
`Monroe Units 1-4
`
`0.290
`
`0.090
`
`0.680
`
`0.100
`
`
`
`15
`
`

`

`Case 2:10-cv-13101-BAF-RSW ECF No. 282, PageID.8928 Filed 07/22/20 Page 18 of 75
`
`
`
`
`
`River Rouge Unit 3
`
`St. Clair Unit 2
`
`St. Clair Unit 3
`
`St. Clair Unit 6
`
`St. Clair Unit 7
`
`0.400
`
`0.470
`
`0.470
`
`0.350
`
`0.250
`
`Trenton Channel Unit 9
`
`0.200
`
`0.700
`
`1.000
`
`1.000
`
`1.200
`
`1.200
`
`1.000
`
`10.
`
`Commencing on the Effective Date, Defendants shall Continuously Operate the
`
`following pollution controls and any additional controls installed to comply with Paragraph 7:
`
`Unit Name
`
`NOX Pollution Controls
`
`SO2 Pollution Controls
`
`
`
`FGD
`
`
`
`
`
`
`
`
`Low NOX Combustion System
`Belle River Units
`(including Overfire Air)
`1-2
`SCR
`Monroe Units 1-4
`River Rouge Unit 3 Low NOX Combustion System
`(including Overfire Air)
`Low NOX Combustion System
`(including Overfire Air)
`Low NOX Combustion System
`(including Overfire Air)
`Low NOX Combustion System
`(including Overfire Air)
`
`St. Clair Units 2-3
`
`St. Clair Units 6-7
`
`Trenton Channel
`Unit 9
`
`
`
`
`
`
`
`
`
`16
`
`

`

`Case 2:10-cv-13101-BAF-RSW ECF No. 282, PageID.8929 Filed 07/22/20 Page 19 of 75
`
`
`
`B. System NOx and SO2 Requirements
`
`11.
`
`For each calendar year as specified below, Defendants’ System shall not exceed
`
`the corresponding System-Wide Annual Tonnage Limitation for NOx and SO2 specified below:
`
`Calendar Year
`
`System-Wide Annual Tonnage
`Limitation for NOx
`
`
`System-Wide Annual
`Tonnage Limitation for SO2
`
`2020-2022
`
`2023-2030
`
`2031 and later years
`
`
`
`23,850
`
`15,400
`
`6,400
`
`54,400
`
`31,800
`
`4,650
`
`C. Monitoring of NOx and SO2 Emissions
`
`12.
`
`In determining a 30-Day Rolling Average Emission Rate for NOx or SO2,
`
`
`
`Defendants shall use emission data obtained from a CEMS in accordance with the procedures of
`
`40 C.F.R. Part 75, except that emissions data need not be bias adjusted and the missing data
`
`substitution procedures of 40 C.F.R. Part 75 shall not apply to such determinations. Diluent
`
`capping (i.e., 5% CO2) will be applied to the emission