Case: 2:99-cv-01250-EAS-KAJ Doc #: 438 Filed: 07/17/19 Page: 1 of 38 PAGEID #: 7723
`Case: 2:99-CV-01250-EAS-KAJ DOC #: 438 Filed: 07/17/19 Page: 1 0f 38 PAGEID #: 7723
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF OHIO
`EASTERN DIVISION
`
`Consolidated Cases:
`
`Civil Action No. C2-99—1182
`Civil Action No. C2-99-1250
`
`JUDGE EDMUND A. SARGUS, JR.
`Magistrate Judge Kimberly A. Jolson
`
`)
`
`) ) ) ) ) ) ) ) ) ) ) ) ) ) i
`
`) Civil Action No. C2-04—1098
`)
`JUDGE EDMUND A. SARGUS, JR.
`) Magistrate Judge Kimberly A. Jolson
`
`Civil Action No. 02-05-360
`
`JUDGE EDMUND A. SARGUS, JR.
`Magistrate Judge Kimberly A. Jolson
`
`) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
`
`UNITED STATES OF AMERICA
`
`Plaintiff,
`
`and
`
`STATE OF NEW YORK, ET AL.,
`
`Plaintiff-Intervenors,
`
`V.
`
`ANIERICAN ELECTRIC POWER
`
`SERVICE CORR, ET AL.,
`
`Defendants.
`
`
`OHIO CITIZEN ACTION, ET AL.,
`
`Plaintiffs,
`
`V.
`
`AMERICAN ELECTRIC POWER
`SERVICE CORR, ET AL.,
`
`Defendants.
`
`UNITED STATES OF ANIERICA
`
`Plaintiff,
`
`V.
`
`AMERICAN ELECTRIC POWER
`
`SERVICE CORR, ET AL.,
`
`Defendants.
`
`
`

`

`Case: 2:99-cv-01250-EAS-KAJ Doc #: 438 Filed: 07/17/19 Page: 2 of 38 PAGEID #: 7724
`Case: 2:99-CV-01250-EAS-KAJ DOC #: 438 Filed: 07/17/19 Page: 2 0f 38 PAGEID #: 7724
`
`ORDER
`
`This matter came before the Court on the Parties’ Joint Motion to Enter the Fifth Joint
`
`Modification of Consent Decree (ECF No.). Having reviewed the submissions of all Parties and
`
`being fully advised of the positions therein, the Court hereby GRANTS the Joint Motion and
`
`ORDERS that the following Paragraphs of the Consent Decree entered in this case are modified
`
`as set forth herein.
`
`IT IS SO ORDERED.
`
`74? $0M
`
`DATE
`
`

`

`Case: 2:99-cv-01250-EAS-KAJ Doc #: 438 Filed: 07/17/19 Page: 3 of 38 PAGEID #: 7725
`Case: 2:99-CV-01250-EAS-KAJ DOC #: 438 Filed: 07/17/19 Page: 3 0f 38 PAGEID #: 7725
`
`FIFTH JOINT MODIFICATION TO
`CONSENT DECREE WITH ORDER MODIFYING CONSENT DECREE
`
`WHEREAS, On December 10, 2007, this Court entered a Consent Decree in the above-
`
`captioned matters (Case No. 99-1250, Docket # 363; Case No. 99-1182, Docket # 508).
`
`WHEREAS, Paragraph 199 of the Consent Decree provides that the terms of the Consent
`
`Decree may be modified only by a subsequent written agreement signed by the Plaintiffs and
`
`Defendants. Material modifications shall be effective only upon written approval by the Court.
`
`WHEREAS, pursuant to Paragraph 87 of the Consent Decree (Case No. 99-1250, Docket
`
`# 363), as modified by a Joint Modification to Consent Decree With Order Modim'g Consent
`
`m filed on April 5, 2010 (Case No. 99-1250, Docket # 371), as modified by a Second Joint
`
`Modification to Consent Decree with Order Modifying Consent Decree filed on December 28,
`
`2010 (Case No. 99-1250, Docket # 372), as modified by a Third Joint Modification With Order
`
`Modifying Consent Decree filed on May 14, 2013 (Case No. 99-1182, Docket # 548), and as
`
`modified by an Agreed Entry Approving Fourth Joint Modification to Consent Decree filed on
`
`January 23, 2017 (Case No. 99-1182, Docket # 553), no later than December 31, 2025, the
`
`American Electric Power (AEP) Defendants are required, inter alia, to install and continuously
`
`operate a Flue Gas Desulfiirization (FGD) system on, or Retire, Refuel, or Re-Power one Unit at
`
`the Rockport Plant, and no later than December 31, 2028, the AEP Defendants are required to
`
`install and continuously operate a FGD system on, or Retire, Refuel, or Re-Power the second Unit
`
`at the Rockport Plant.
`
`WHEREAS, the AEP Defendants filed a Motion for Fifth Modification of Consent Decree
`
`in Case No. 99-1182 on July 21, 2017 (Case No. 99-1 182, Docket # 555) and in the related cases
`
`seeking to finther modify the provisions of Paragraph 87 and make other changes.
`
`WHEREAS, the United States, the States, and Citizen Plaintiffs filed memoranda in
`
`

`

`Case: 2:99-cv-01250-EAS-KAJ Doc #: 438 Filed: 07/17/19 Page: 4 of 38 PAGEID #: 7726
`Case: 2:99-CV-01250-EAS-KAJ DOC #: 438 Filed: 07/17/19 Page: 4 0f 38 PAGEID #: 7726
`
`opposition to the motion by the AEP Defendants (Case No. 99-1182, Docket # 571 and 572, and
`
`Case No. 99-1250, Docket # 405) on September 1, 2017.
`
`WHEREAS, the Parties made additional supplemental filings and engaged in settlement
`
`discussions and have reached agreement on a modification to the Consent Decree as set forth
`
`herein.
`
`WHEREAS,
`
`the Parties have agreed, and this Court by entering this Fifth Joint
`
`Modification finds, that this Fifih Joint Modification 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 Clean Air Act, 42 U.S.C. §7401, et seq.; and that entry ofthis Fifth Joint Modification
`
`without further litigation is the most appropriate means ofresolving this matter.
`
`WHEREAS, the Parties agree and acknowledge that final approval of the United States
`
`and entry of this Fifih Joint Modification is subject to the procedures set forth in 28 CFR § 50.7,
`
`which provides for notice of this Fifth Joint Modification 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 Fifih Joint Modification is
`
`inappropriate, improper, or inadequate. No Party will Oppose entry of this Fifth Joint Modification
`
`by this Court or challenge any provision of this Fifth Joint Modification unless the United States
`
`has notified the Parties, in writing, that the United States no longer supports entry ofthe Fifth Joint
`
`Modification.
`
`NOW THEREFORE, for good cause shown, without admission of any issue of fact or law
`
`raised in the Motion or the underlying litigation, the Parties hereby seek to modify the Consent
`
`Decree in this matter, and upon the filing of a Motion to Enter by the United States, move that the
`
`Court sign and enter the following Order:
`
`

`

`Case: 2:99-cv-01250-EAS-KAJ Doc #: 438 Filed: 07/17/19 Page: 5 of 38 PAGEID #: 7727
`Case: 2:99-CV-01250-EAS-KAJ DOC #: 438 Filed: 07/17/19 Page: 5 0f 38 PAGEID #: 7727
`
`Modzfil the provisions of the Consent Decree, as amended by the first four modifications, as
`follows:
`
`Add a new Paragraph 5A that states:
`
`5A.
`
`A “30-Day Rolling Average Emission Rate” for Rockport means, and shall be expressed
`
`as, lb/mmBTU and calculated in accordance with the following procedure: first, sum the total
`
`pounds ofthe pollutant in question emitted fi'om the combined Rockport stack during a Day which
`
`is an Operating Day for either or both Rockport Units, and the previous twenty-nine (29) such
`
`Days; second, sum the total heat input to both Rockport Units in mmBTU during the Day which
`
`was an Operating Day for either or both Rockport Units, and the previous twenty-nine (29) such
`
`Days; and third, divide the total number ofpounds of the pollutant emitted during the thirty (30)
`
`Days which were Operating Days for either or both Rockport Units by the total heat input during
`
`the thirty such Days. A new 30-Day Rolling Average Emission Rate shall be calculated for each
`
`new Day which is an Operating Day for either or both Rockport Units. 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 fi'om both Rockport Units that occur during a period of
`
`Malfunction at either Rockport Unit shall be excluded fiom the calculation of the
`
`30-Day Rolling Average Emission Rate if Defendants provide notice of the
`
`Malfimction to EPA in accordance with Paragraph 159 in Section XIV (Force
`
`Majeure) of this Consent Decree;
`
`b.
`
`Emissions ofNOx and BTU inputs from both Rockport Units that occur during the
`
`fifth and subsequent Cold Start Up Period(s) that occur at a single Rockport 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
`
`

`

`Case: 2:99-cv-01250-EAS-KAJ Doc #: 438 Filed: 07/17/19 Page: 6 of 38 PAGEID #: 7728
`Case: 2:99-CV-01250-EAS-KAJ DOC #: 438 Filed: 07/17/19 Page: 6 0f 38 PAGEID #: 7728
`
`violation ofany applicable 30-Day Rolling Average Emission Rate and Defendants
`
`have installed, operated, and maintained the SCR at the Unit 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) at a single unit 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 802, shall include all emissions and BTUs commencing from the time a single
`
`Rockport Unit is synchronized with a utility electric distribution system through the
`
`time that both Rockport Units cease to combust fossil fuel and the fire is out in both
`
`boilers.
`
`Paragraph 14 is replaced in its entirety and now reads asfollows:
`
`14.
`
`“Continuously Operate” or “Continuous Operation” means that when an SCR, FGD, DSI,
`
`Enhanced DSI, ESP or other NOx Pollution Controls are used at a Unit, except during a
`
`Malfimction, 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.
`
`

`

`Case: 2:99-cv-01250-EAS-KAJ Doc #: 438 Filed: 07/17/19 Page: 7 of 38 PAGEID #: 7729
`Case: 2:99-CV-01250-EAS-KAJ DOC #: 438 Filed: 07/17/19 Page: 7 0f 38 PAGEID #: 7729
`
`Add a new Paragraph 20A that states:
`
`20A.
`
`“Enhanced Dry Sorbent Injection” or “Enhanced DSI” means a pollution control system in
`
`which a dry sorbent is injected into the flue gas prior to the NO): and particulate matter controls in
`
`order to provide additional mixing and improved 802 removal as compared to Dry Sorbent
`
`Injection.
`
`Paragraph 67 is replaced in its entirety and now reads asfollows:
`
`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 NO); in excess of the following Eastern System-Wide Annual
`
`Tonnage Limitations:
`
`
`
`
`
`
`_—
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Limitations for NOx
`
`
`
`
`
`
`
`
`
`
`2015
`
`2018-2020
`
`2029 and each year thereafter
`
`44,000 tons per year
`
`
`
`
`Paragraph 68 is replaced in its entirety and now reads asfollows:
`
`68.
`
`No later than the dates set forth in the table below, Defendants shall
`
`install and
`
`

`

`Case: 2:99-cv-01250-EAS-KAJ Doc #: 438 Filed: 07/17/19 Page: 8 of 38 PAGEID #: 7730
`Case: 2:99-CV-01250-EAS-KAJ DOC #: 438 Filed: 07/17/19 Page: 8 0f 38 PAGEID #: 7730
`
`Continuously Operate SCR on each Unit identified therein, or, if indicated in the table, Retire,
`
`Retrofit, or Re-Power such Unit:
`
`
`
`Amos Unitz
`
`Noxrouuuon Control
`
`
`
`
`
`January 1, zoos
`
`==—._______
`MU}
`SCR
`Retire,
`
`SCR
`
`CR
`
`CR
`
`January 1, 2008
`
`,
`E?3E 9, 5’"U0a94
`
`January 1, 2009
`Date of Entry of this Consent
`Decree
`Retire, Retrofit, or Re-Power Date of Entry of this Consent
`Decree
`Retire, Retrofit, or Re-Power December 31, 2012
`CR
`December 31, 2010
`SCR
`1mm 1, 2009
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Amos Unit 3
`
`Cardinal Unit 3
`Conesville Unit 1
`
`Conesville Unit 2
`
`Conesville Unit 3
`Conesville Unit 4
`
`Mitchell Unit 1
`
`Mitchell Unit 2
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`m0“i
`
`SCR
`
`January 1, 2009
`
`January 1, 2009
`January 1, 2009
`
`Retire, Retrofit, mks-Power
`
`SCR
`SCR
`
`1mm 1, zoos
`
`mm—
`
`
`
`
`
`
`
`
`SCR
`
`
`Rea, Retrofit, «Re-Power
`
`
`
`December 31 2018
`A total of at least 600 MW
`
`
`
`from the following list of
`
`
`Units:
`Spom Units
`1-4,
`
`Clinch River
`units
`1—3,
`
`Tanners Creek Units
`1-3
`
`
`and/or Kammer Units 1-3
`
`Add a new Paragraph 68A that reads asfollows:
`
`68A.
`
`30-Day Rolling Average NOE Emission Rate at Rockport. Beginning on the thirtieth Day
`
`which is an Operating Day for either one or both Rockport Units in calendar year 2021, average
`
`8
`
`

`

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`Case: 2:99-CV-01250-EAS-KAJ DOC #: 438 Filed: 07/17/19 Page: 9 0f 38 PAGEID #: 7731
`
`NOx emissions fi'om the Rockport Units shall be limited to 0.090 lb/mmBTU on a 30-day Rolling
`
`Average Basis at the combined stack for the Rockport Units. Emissions shall be calculated in
`
`accordance with the provisions ofParagraph 5A and reported in accordance with the requirements
`
`of Paragraph J in Appendix B.
`
`Add a new Paragraph 683 that reads asfollows:
`
`68B.
`
`Informational NOx Monitoring. During the ozone seasons (May 1 — September 30) in each
`
`of calendar years 2019 and 2020, prior to the effective date of the 30-Day Rolling Average NOx
`
`Rate at the Rockport Units in Paragraph 68A, the AEP Defendants shall provide an estimate of the
`
`30-day rolling average NOx emissions from Rockport Unit 1, based on NO): concentrations and
`
`percent C02 measured at an uncertified NOx monitor in the duct from Unit 1 before the flue gases
`
`from Rockport Units 1 and 2 combine at the common stack. Hourly NOx rates shall be calculated
`
`for each hour for which valid data is available, using the following equation:
`
`NOx lb/mthu = [(1.194 x 10‘7) x N0x ppm x 1840 scf C02 per thu x 100]/% C02
`
`The monitor shall be calibrated daily and maintained in accordance with good engineering and
`
`maintenance practices. If valid NO): or 002 data is not available for any hour, that hour shall not
`
`be used in the calculation of the informational data provided to Plaintiffs, including periods of
`
`monitor downtime, calibrations, and maintenance.
`
`For informational purposes only, NOX
`
`emission rate data for Rockport Unit 1 on a 30-Day Rolling Average Basis for May — June shall
`
`be reported to Plaintiffs by July 30, and NO): emission rate data for Rockport Unit 1 on a 30-Day
`
`Rolling Average Basis for July — September shall be reported to Plaintiffs by October 30. Nothing
`
`in this Paragraph shall be construed to establish a Unit-specific N0x Emission Rate for Rockport
`
`Unit 1, and these interim reporting obligations are not required to be incorporated into the Title V
`
`permit for the Rockport Plant.
`
`

`

`Case: 2:99-cv-01250-EAS-KAJ Doc #: 438 Filed: 07/17/19 Page: 10 of 38 PAGEID #: 7732
`Case: 2:99-CV-01250-EAS-KAJ DOC #: 438 Filed: 07/17/19 Page: 10 0f 38 PAGEID #: 7732
`
`Paragraph 86 is replaced in its entirety and now reads asfollows:
`
`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 802 in excess of the following Eastern System-Wide Annual
`
`Tonnage Limitations:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Limitations for $02
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Paragraph 87 is replaced in its entirety and now reads asfollows:
`
`87.
`
`No later than the dates set forth in the table below, Defendants shall install and
`
`Continuously Operate an FGD, Dry Sorbent Injection, or Enhanced Dry Sorbent Injection
`
`system on each Unit identified therein, or, ifindicated in the table, Cease Burning Coal, Retire,
`
`10
`
`

`

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`Case: 2:99-CV-01250-EAS-KAJ DOC #: 438 Filed: 07/17/19 Page: 11 0f 38 PAGEID #: 7733
`
`Retrofit, Re-power, or Refuel such Unit:
`
`
`
`
`
`
`
`Big Sandy Unit 2
`
`
`
`
`
`
`
`
`Retrofit, Retire, Re-Power or December 31, 2015
`Refuel
`
`Cardinal Units 1 and 2
`
`December 31, 2008
`
`
`
`
`
`
`
`
`
`
`
`
`
`Upgrade existing FGD and December 31, 2009
`Conesville Units
`
`
`meet a 95% 30—day Rolling
`
`
`Average Removal Efficiency
`
`
`
`
`
`Conesville Unit 6
`Upgrade existing FGD and December31, 2009
`
`meet a 95% 30-day Rolling
`
`
`Average Removal Efficiency
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`and December 15, 2015
`Cease Burning Coal
`Muskingum River Unit 5
`
`
`Retire
`
`
`Or
`
`
`Cease Burning Coal
`and
`
`
`
`December
`31,
`2015,
`Refiiel
`unless
`the Refueling
`
`
`project is not completed
`
`in which case the Unit
`
`
`
`Il
`
`

`

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`
` will be taken out of
`
`service no later
`than
`December 31, 2015, and
`
`will not restart until the
`Refileling
`project
`is
`
`completed.
`The
`refueling project must be
`
`completed by June 30,
`
`2017.
`
` Dry Sorbent Injection
`April 16, 2015
`
` and
`
`
`
`Enhanced
`D81,
`and
`December 31, 2020
`beginning in calendar year
`
`
`2021 meet an Emission Rate
`
`
`of 0. 15 lb/mmBTU of $02 on
`
`a 30-Day Rolling Average
`
`Basis
`at
`the Rockport
`combined stack
`
`
`And
`
`
`
`or Re-
`Retrofit, Refilel,
`
`
`Power, but must satisfy the
`
`
`December 31, 2028
`provisions of Paragraphs 133
`
`
`and 140
`
`
`
`Rockport Unit 2
`
`
` April 16,2015
` Dry Sorbent Injection
`and
`
`
`
` June 1, 2020
`and
`D81,
`Enhanced
`beginning in calendar year
`
`
`2021 meet an Emission Rate
`
`of0.151b/mmBTU ofSOz on
`
`a 30-Day Rolling Average
`
`Basis
`at
`the Rockport
`combined stack
`
`
`Sporn Unit 5
`
`Retire, Retrofit, or Re—power
`
`A total of at least 600 MW from the Retire, Retrofit, or Re-power
`
`following list of Units: Sporn Units
`1-4, Clinch River Units
`1-3,
`
`
`
`December 31, 2013
`
`
`
`December 31, 2018
`
`
`
`
`
`
`
`
`12
`
`

`

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`Case: 2:99-CV-01250-EAS-KAJ DOC #: 438 Filed: 07/17/19 Page: 13 0f 38 PAGEID #: 7735
`
`
`
`Tanners Creek Units 1-3, and/or
`Kammer Units 1-3
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Paragraph 89A is replaced in its entirety and now reads asfollows:
`
`89A. Plant-Wide Annual Tonnage Limitation and 30-Day Rolling Average Emission Rate for
`
`$2 at Rocgort. For each ofthe calendar years set forth in the table below, AEP Defendants shall
`
`limit their total annual SO; emissions from Rockport Units 1 and 2 to the Plant-Wide Annual
`
`Tonnage Limitation for SO; as follows:
`
`
`
`
`Plant-Wide Annual Tonnage Limitation for 802
`
`
`
`28,000 tons per year
`
`
`
`
`
`
`
`
`10,000 tons per year
`
`In addition to the Plant-Wide Annual Tonnage Limitation for 302 at Rockport, beginning on the
`
`thirtieth Day which is an Operating Day for either or both Rockport Units in calendar year 2021,
`
`S02 emissions from the Rockport Units shall be limited to 0.15 lb/mrnBTU on a 30-Day Rolling
`
`Average Basis at the Rockport combined stack (30-Day Rolling Average Emission Rate for SO:
`
`at Rockport). Emissions shall be calculated in accordance with the provisions ofParagraph 5A
`
`and reported in accordance with the requirements ofParagraph J in Appendix B. Nothing in this
`
`Consent Decree shall be construed to prohibit the AEP Defendants from further optimizing the
`
`Enhanced DSI system, utilizing alternative sorbents, or upgrading the SO: removal technology at
`
`13
`
`

`

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`
`the Rockport Units so long as the Units maintain compliance with the 30-day Rolling Average
`
`Emission Rate for $02 at Rockport and the 30-day Rolling Average Emission Rate for NOx at
`
`Rockport.
`
`Paragraph 1271's replaced in its entirety and now reads asfollows:
`
`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, and for an additional
`
`amount not to exceed $6.0 million in 2013. The fitnds 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 by the
`
`States in writing. Notwithstanding the maximum annual fimding limitations above, if the total
`
`costs of the projects submitted in any one or more years is less than the maximum atmual amount,
`
`the difference between the amount requested and the maximum annual amount for that year will
`
`be available for fimding by the Defendants of new and previously submitted projects in the
`
`following years, except that all amounts not requested by and paid to the States within eleven (11)
`
`years after the Date of Entry of this Consent Decree shall expire.
`
`Pursuant to the Fifih Joint Modification Indiana Michigan Power Company (“1&M”) will
`
`provide as restitution or as fiinds to come into compliance with the law $4 million in additional
`
`fimding for the States to support projects identified in Section VIII, Subsection B during the period
`
`from 2019 through 2021. I&M shall provide the funding within seventy-five (75) days of receipt
`
`of a written request for payment and in accordance with instructions from counsel for the States.
`
`14
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`Paragraph 1283 is replaced in its entirety and now reads asfollows:
`
`128B. Citizen Plaintiffs’ Mitigation Projects.
`
`I&M will provide $2.5 million in mitigation
`
`funding as directed by the Citizen Plaintiffs for projects in Indiana that include diesel retrofits,
`
`health and safetyhome repairs, solar water heaters, outdoor wood boilers, land acquisition projects,
`
`and small renewable energy projects (less than 0.5 MW) located on customer premises that are
`
`eligible for net metering or similar interconnection arrangements on or before December 31, 2014.
`
`I&M shall make payments to fund such Projects within seventy-five (75) days after being notified
`
`by the Citizen Plaintiffs in writing of the nature of the Project, the amount of funding requested,
`
`the identity and mailing address of the recipient of the funds, payment instructions, including
`
`taxpayer identification numbers and routing instructions for electronic payments, and any other
`
`information necessary to process the requested payments. Defendants shall not have approval
`
`rights for the Projects or the amount of funding requested, but in no event shall the cumulative
`
`amount of finding provided pursuant to this Paragraph 128B exceed $2.5 million.
`
`In addition to the $2.5 million provided in 2014, pursuant to the Fifth Joint Modification
`
`1&M will provide as restitution or as funds to come into compliance with the law $3.5 million in
`
`funding for Citizen Plaintiffs to support projects that will promote energy efficiency, distributed
`
`generation, and pollution reduction measures for nonprofits, governmental entities, low income
`
`residents and/or other entities selected by Citizen Plaintiffs. 1&M shall provide the $3.5 million
`
`in fimding within seventy-five (75) days ofthe Date of Entry ofthe Fifth Joint Modification of the
`
`Consent Decree by the Court in accordance with instructions from counsel for Citizen Plaintiffs.
`
`Paragraph 133 is replaced in its entirety and new reads asfollows:
`
`133.
`
`Claims Based on Modifications after the Date of Lodging of This Consent Decree. Entry
`
`of this Consent Decree shall resolve all civil claims of the United States against Defendants that
`
`15
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`arise based on a modification commenced before December 31, 2018, or, solely for Rockport Unit
`
`1, before December 3 l, 2028, or, solely for Rockport Unit 2, before June 1, 2020, 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 ofthis Consent Decree, and:
`
`a.
`
`where such modification is commenced at any AEP Eastern System Unit after the
`
`Date of Lodging of the original Consent Decree; or
`
`b.
`
`where such modification is one this Consent Decree expressly directs Defendants
`
`to undertake.
`
`With respect to Rockport Unit 1, the United States agrees that the AEP Defendants’ obligation to
`
`Retrofit, Re-Power, or Refuel Rockport Unit 1 would be satisfied if, by no later than December
`
`31, 2028, the AEP Defendants Retrofit Rockport Unit 1 by installing and commencing continuous
`
`operation of FGD technology consistent with the definition in Paragraph 56 of the Third Joint
`
`Modification ofthe Consent Decree, Re-Power the Unit consistent with the definition in Paragraph
`
`54 of the Consent Decree, or Refuel the Unit consistent with the provisions of Paragraph 53A of
`
`the Third Joint Modification of the Consent Decree.
`
`If the AEP Defendants elect to Retire
`
`Rockport Unit 1 by December 31, 2028, that would also satisfy the requirements ofthis Paragraph
`
`and fulfill the AEP Defendants’ obligations with regard to Rockport Unit 1 under this Consent
`
`Decree. 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 ofthe Date of Lodging of this
`
`Consent Decree, as alleged in the complaints in AEP] and AEP II.
`
`Paragraph 140 is replaced in its entirety and now reads asfollows:
`
`140. With respect to the States and Citizen Plaintiffs, except as specifically set forth in this
`
`Paragraph, the States and Citizen Plaintiffs expressly do not join in giving the Defendants the
`
`16
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`covenant provided by the United States in 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 ofthe original Consent Decree, and reserve their rights, ifany, to bring any actions against
`
`Defendants pursuant to 42 U.S.C. §7604 for any claims arising after the Date of the Lodging of
`
`the original Consent Decree. AEP, the States, and Citizen Plaintiffs also recognize that I&M
`
`informed state regulators in its most recent base rate proceedings that the most realistic date
`
`through which Rockport Unit 1 can be expected to be in operation with any reasonable degree of
`
`certainty is December 2028, and the Indiana Utility Regulatory Commission and the Michigan
`
`Public Service Commission have approved depreciation rates for 1&M’s share of Rockport Unit 1
`
`to be consistent with the retirement of Unit 1 in December 2028. Notwithstanding the existence
`
`of any other compliance options in Paragraphs 87 and 133, AEP Defendants must Retire Rockport
`
`Unit 1 by no later than December 31, 2028. AEP Defendants and the States and Citizen Plaintiffs
`
`agree that Paragraph 140 prevails in any conflict between it and Paragraphs 87 and/or 133.
`
`a.
`
`On or before March 31, 2025, AEP Defendants
`
`shall
`
`submit
`
`to PM
`
`Interconnection, LLC, or any other regional transmission organization with jurisdiction over the
`
`Rockport Units, notification of the planned retirement of Rockport Unit
`
`1 by no later than
`
`December 31, 2028, and a request for such regional transmission organization to evaluate and
`
`identify any reliability concerns associated with such retirement.
`
`Paragraph 1801‘s replaced in its entirety and now reads asfollows:
`
`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
`
`17
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`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 $02 at Clinch River, the
`
`Plant-Wide Annual Tonnage Limitation for $02 at Kammer, and the Plant-Wide Annual Tonnage
`
`Limitation for SO: at Rockport.
`
`Paragraph 182 is repiaced in its entirety and now reads asfollows:
`
`182.
`
`Prior to termination ofthis 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 S02 at Clinch River, the Plant-Wide Annual Tonnage Limitation for 802
`
`at Kammer, and the Plant-Wide Annual Tonnage Limitation for SO: at Rockport, and (c) the
`
`Eastern System-Wide Annual Tonnage Limitations for SO: and NOx. If Defendants do not obtain
`
`enforceable provisions for the Eastern System-Wide Annual Tonnage Limitations for 802 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.
`
`Paragraph 188 is modified as follows to update the information required in order to provide
`required notices under the Consent Decree:
`
`188.
`
`As to the United States:
`
`Case Management Unit
`Environmental Enforcement Section
`
`Environment and Natural Resources Division
`US. Department of Justice
`PO. Box 7611, Ben Franklin Station
`Washington, DC 20044-7611
`DJ# 90-5-2-1-06893
`
`eescdcopy.enrd@usdoj.gov
`
`18
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`
`Phillip Brooks
`Director, Air Enforcement Division
`Office of Enforcement and Compliance Assurance
`U.S. Environmental Protection Agency
`Ariel Rios Building [Mail Code 2242A]
`1200 Pennsylvania Avenue, NW.
`Washington, DC 20460
`Brooks.phillip@§pa.gov
`
`Sara Brenernan
`
`Air Enforcement & Compliance Assurance Branch
`U.S. EPA Region 5
`77 W. Jackson Blvd.
`
`Mail Code AE—18J
`
`Chicago, IL 60604
`Brenemansara
`
`a. ov
`
`and
`
`Carol Amend, Branch Chief
`Air, RCRA & Toxics Branch (3 ED20)
`Enforcement & Compliance Assurance Division
`U.S. EPA, Region 3
`1650 Arch Street
`
`Philadelphia, PA 19103-2029
`Amend.carol@_epa. gov
`
`For all notices to EPA, Defendants shall register for the CDX electronic system and upload such
`notices at httpszlfcdxgov/epa-homeasp.
`
`As to the State of Connecticut:
`
`Lori D. DiBella
`
`Office of the Attorney General
`Environment Department
`55 Elm Street
`
`PO. Box 120
`
`Hartford, CT 06141 -0120
`Lori.dibe11a@ct. gov
`
`As to the State of Mmland:
`
`Frank Courtright
`Program Manager
`Air Quality Compliance Program
`
`19
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`

`

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`Maryland Department of the Environment
`1800 Washington Blvd.
`Baltimore, Maryland 21230
`fcourtiight@mde.state.md.us
`
`and
`
`Matthew Zimmerman
`
`Assistant Attorney General
`Office of the Attorney General
`1800 Washington Boulevard
`Baltimore, MD 21230
`mzimmerman@mde.state.md.us
`
`As to the Commonwealth of Massachusetts:
`
`Christophe Courchesne, Assistant Attorney General
`Office of the Attorney General
`1 Ashburton Place, 18th floor
`Boston, Massachusetts 02108
`Christophe.courchesne@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
`
`and
`
`K. Allen Brooks
`
`Senior Assistant Attorney General
`Office of the Attorney General
`33 Capitol Street
`Concord, New Hampshire 03301
`Allen.brooks@doi.nh.gov
`
`As to the State of New Jersey:
`
`Section Chief
`
`Environmental Enforcement
`
`Dept. of Law & Public Safety
`Division of Law
`
`RJ. Hughes Justice Complex
`25 Market Street
`
`20
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`

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