Commission
|
Registrant;
State of Incorporation;
|
I.R.S.
Employer
|
File
Number
|
Address;
and Telephone Number
|
Identification
No.
|
333-21011
|
FIRSTENERGY
CORP.
|
34-1843785
|
(An
Ohio Corporation)
|
||
76
South Main Street
|
||
Akron,
OH 44308
|
||
Telephone
(800)736-3402
|
||
1-2578
|
OHIO
EDISON COMPANY
|
34-0437786
|
(An
Ohio Corporation)
|
||
c/o FirstEnergy Corp. | ||
76
South Main Street
|
||
Akron,
OH 44308
|
||
Telephone
(800)736-3402
|
||
1-2323
|
THE
CLEVELAND ELECTRIC ILLUMINATING COMPANY
|
34-0150020
|
(An
Ohio Corporation)
|
||
c/o
FirstEnergy Corp.
|
||
76
South Main Street
|
||
Akron,
OH 44308
|
||
Telephone
(800)736-3402
|
||
1-3583
|
THE
TOLEDO EDISON COMPANY
|
34-4375005
|
(An
Ohio Corporation)
|
||
c/o
FirstEnergy Corp.
|
||
76
South Main Street
|
||
Akron,
OH 44308
|
||
Telephone
(800)736-3402
|
||
1-3491
|
PENNSYLVANIA
POWER COMPANY
|
25-0718810
|
(A
Pennsylvania Corporation)
|
||
c/o
FirstEnergy Corp.
|
||
76
South Main Street
|
||
Akron,
OH 44308
|
||
Telephone
(800)736-3402
|
Exhibit
No.
|
Description
|
10.1 | Consent Decree, dated March 18, 2005 |
99.1
|
Press Release
issued by FirstEnergy Corp., dated March 18, 2005
|
99.2
|
Letter to the
Investment Community, dated March 18, 2005
|
FIRSTENERGY CORP.
Registrant
OHIO EDISON COMPANY
Registrant
THE CLEVELAND ELECTRIC
ILLUMINATING COMPANY
Registrant
THE
TOLEDO EDISON COMPANY
Registrant
PENNSYLVANIA
POWER COMPANY
Registrant
|
||
|
|
|
/s/ Harvey L. Wagner | ||
Harvey L. Wagner |
||
Vice President, Controller and
Chief Accounting
Officer
|
UNITED STATES
OF AMERICA, et al.,
|
)
|
|
)
|
||
Plaintiffs,
|
)
|
|
)
|
||
v.
|
)
|
Civil Action
No: 2:99-CV-1181
|
)
|
JUDGE EDMUND
A. SARGUS, JR.
|
|
OHIO EDISON
COMPANY
and
PENNSYLVANIA
|
)
|
|
POWER
COMPANY,
subsidiary of
Ohio Edison
,
|
)
|
|
)
|
||
Defendants.
|
)
|
|
)
|
I.
|
JURISDICTION
AND VENUE
|
2
|
|
II.
|
APPLICABILITY
|
3
|
|
III.
|
DEFINITIONS
|
3
|
|
IV.
|
NO
X
EMISSION
REDUCTIONS AND CONTROLS
|
9
|
|
A.
|
NO
X
Emission
Controls
|
9
|
|
B.
|
Plant-Wide
Annual Cap for NO
X
|
15
|
|
C.
|
Interim
NO
X
Emission
Reductions
|
16
|
|
D.
|
Use of
NO
X
Allowances
|
16
|
|
E.
|
General
NO
X
Provisions
|
19
|
|
V.
|
SO
2
EMISSION
REDUCTIONS AND CONTROLS
|
20
|
|
A.
|
SO
2
Emission
Controls
|
20
|
|
B.
|
Plant-Wide
Annual and Monthly Caps for SO
2
|
26
|
|
C.
|
SO
2
Interim
Emission Reductions
|
27
|
|
D.
|
Surrender of
SO
2
Allowances
|
28
|
|
E.
|
General
SO
2
Provisions
|
30
|
|
VI.
|
PM EMISSION
REDUCTIONS AND CONTROLS
|
31
|
|
A.
|
Demonstration
and Compliance with PM Emission Limit
|
31
|
|
B.
|
PM
Monitoring
|
31
|
|
VII.
|
SUBSTITUTION
OF ECO TECHNOLOGY
|
32
|
|
VIII.
|
PROHIBITION
ON NETTING CREDITS OR OFFSETS FROM REQUIRED
CONTROLS
|
36
|
|
IX.
|
ENVIRONMENTALLY
BENEFICIAL PROJECTS
|
37
|
|
X.
|
CIVIL
PENALTY
|
39
|
|
XI.
|
RESOLUTION OF
CLAIMS
|
39
|
XII.
|
PERIODIC
REPORTING
|
40
|
|
XIII.
|
REVIEW AND
APPROVAL OF SUBMITTALS
|
42
|
|
XIV.
|
STIPULATED
PENALTIES
|
42
|
|
XV.
|
FORCE
MAJEURE
|
46
|
|
XVI.
|
DISPUTE
RESOLUTION
|
49
|
|
XVII.
|
PERMITS
|
50
|
|
XVIII.
|
INFORMATION
COLLECTION AND RETENTION
|
52
|
|
XIX.
|
NOTICES
|
53
|
|
XX.
|
SALES OR
TRANSFERS OF OWNERSHIP INTERESTS
|
56
|
|
XXI.
|
EFFECTIVE
DATE
|
57
|
|
XXII.
|
RETENTION OF
JURISDICTION
|
57
|
|
XXIII.
|
MODIFICATION
|
58
|
|
XXIV.
|
GENERAL
PROVISIONS
|
58
|
|
XXV.
|
GENERAL
PROVISIONS
|
60
|
|
XXVI.
|
PUBLIC
COMMENT
|
60
|
|
XXVII.
|
CONDITIONAL
TERMINATION OF ENFORCEMENT UNDER CONSENT
DECREE
|
61
|
|
XXVIII.
|
FINAL
JUDGMENT
|
62
|
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 and 167 of the Act, 42 U.S.C. §§ 7413
and 7477. 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 Complaint, Ohio Edison
waives
all
objections and defenses that
it
may have to
the Court’
s
jurisdiction
|
II.
|
APPLICABILITY
|
2.
|
Upon entry,
the provisions of this Consent Decree shall apply to and be binding upon
the Plaintiffs and Ohio Edison
and their
successors and assigns, and upon Ohio Edison’s
officers,
employees and agents solely in their capacities as such.
|
3. | Ohio Edison shall provide notice of and access to 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, Ohio Edison shall be responsible for ensuring that all work is performed in accordance with the requirements of this Consent Decree. In any action to enforce this Consent Decree, Ohio Edison shall not assert as a defense the failure of its officers, directors, employees, servants, agents, or contractors to take actions necessary to comply with this Consent Decree, unless Ohio Edison establishes that such failure resulted from a Force Majeure Event, as defined in Paragraph 157. |
III.
|
DEFINITIONS
|
4.
|
“30-Day
Rolling Average Emission Rate” shall be determined in accordance with 40
C.F.R. Part 60, subpart Da, except that in calculating all 30-Day Rolling
Average Emission Rates Ohio Edison:
|
|
A. shall
include all emissions and Btus from startup and shutdown events 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, except as provided by Subparagraph B or
C;
|
|
B. may
exclude emissions of NO
X
and Btus
occurring during the fifth and subsequent Cold Start Up Period(s) that
occur in any 30-Day period if inclusion of such emissions would result in
a violation of any applicable 30-Day Rolling Average Emission Rate, and if
Ohio Edison has installed, operated and maintained the SCR, ECO, or other
approved NO
X
control
technology in question consistent with 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 hours or more.
The emissions to be excluded during the fifth and subsequent Cold Start Up
Period(s) shall be the lesser of: (1) those NO
X
emissions
emitted during the eight-hour period commencing when the unit is
synchronized with a utility electric distribution system and concluding
eight hours later; or (2) those emitted prior to the time that the flue
gas has achieved the SCR operational temperature range as specified by the
catalyst manufacturer; and
|
|
C. may
exclude NO
X
and
SO
2
emissions
and Btus occurring during any period of Malfunction as defined at 40
C.F.R.§ 60.2, provided Ohio Edison (1) makes reasonable best efforts to
correct the Malfunction and (2) provides notice to the United States and
the States in writing containing the information specified in Paragraph
158 of this Consent Decree as soon as practicable, but in no event later
than fourteen (14) business days following the date Ohio Edison first knew
or by the exercise of due diligence should have known of the
Malfunction.
|
5.
|
“Additional
Burger Plant NO
X
Reductions”
shall be expressed as tons of NO
X
and
calculated in accordance with the following procedure: first, sum the
total mmBtu heat input for Burger Units 4 and 5 measured by the CEMS for
the subject year; second, multiply the total mmBtu heat input for Burger
Units 4 and 5 by 0.411 lbs/mmBtu; third, divide the total number of pounds
of NO
X
for Burger
Units 4 and 5 by 2,000 to calculate NO
X
tons for the
subject year; fourth, subtract the sum of the total NO
X
tons for
Burger Units 4 and 5 measured by the CEMS for the subject
year.
|
6.
|
“Additional
Burger Plant SO
2
Reductions”
shall be expressed as tons of SO
2
and
calculated in accordance with the following procedure: first, sum the
total mmBtu heat input for Burger Units 4 and 5 measured by the CEMS for
the subject year; second, multiply the total mmBtu heat input for Burger
Units 4 and 5 by 3.45 lbs/mmBtu; third, divide the total number of pounds
of SO
2
for Burger
Units 4 and 5 by 2,000 to calculate SO
2
tons for the
subject year; fourth, subtract the sum of the total SO
2
tons for
Burger Units 4 and 5 measured by the CEMS for the subject
year.
|
7.
|
“Additional
Eastlake Plant NO
X
Reductions”
shall be expressed as tons of NO
X
and
calculated in accordance with the following procedure: first, sum the
total mmBtu heat input for Eastlake Unit 5 measured by the CEMS for the
subject year; second, multiply the total mmBtu heat input for Eastlake
Unit 5 by 0.894 lbs/mmBtu; third, divide the total number of pounds of
NO
X
for Eastlake
Unit 5 by 2,000 to calculate NO
X
tons for the
subject year; fourth, subtract the sum of the total NO
X
tons for
Eastlake Unit 5 measured by the CEMS for the subject year.
|
8.
|
“Additional
Mansfield Plant SO
2
Reductions”
shall be expressed as tons of SO
2
and
calculated in accordance with the following procedure: first, sum the
total mmBtu heat input for Mansfield Units 1, 2 and 3 measured by the CEMS
for the subject year; second, multiply the total mmBtu heat input for
Mansfield Units 1, 2 and 3 by 0.43 lbs/mmBtu; third, divide the total
number of pounds of SO
2
for
Mansfield Units 1, 2 and 3 by 2,000 to calculate SO
2
tons for the
subject year; fourth, subtract the sum of the total SO
2
tons for
Mansfield Units 1, 2 and 3 measured by the CEMS for the subject
year.
|
9.
|
“Additional
Reductions” means the additional tons reduced at the Burger Plant,
Mansfield Plant, and Eastlake Plant.
|
10.
|
“Annual
Average Removal Efficiency” shall be determined in accordance with 40
C.F.R. Part 60, subpart Da, provided that ASTM fuel sampling and analysis
may be used in lieu of inlet SO
2
emission
monitoring where the inlet sampling location does not meet the minimum
requirements specified in 40 C.F.R. Part 60, Appendix A, EPA Reference
Method 1.
|
11.
|
“Burger
Plant” means the R.E. Burger Plant located near Shadyside,
Ohio.
|
12.
|
“CEMS” or
“Continuous Emission Monitoring System,” means
, for
obligations involving NO
X
and
SO
2
under this
Consent Decree,
the devices
defined in 40 C.F.R. § 72.2 and
|
13.
|
“Consent
Decree” means this Consent Decree and the Appendices hereto, which are
incorporated into this Consent Decree.
|
14.
|
“Design
Removal Efficiency” means the minimum removal efficiency for which a
design is developed for a new or modified air pollution control device,
when operating at full load maximum continuous rating (“MCR”) of the
boiler. The design removal efficiency shall provide the capability of
attaining and maintaining at least the specified removal efficiency at
MCR.
|
15.
|
“Eastlake
Plant
”
means the
Eastlake Plant located near Eastlake, Ohio.
|
16.
|
“Electric-Catalytic
Oxidation” or “ECO” means
a barrier
discharge reactor, wet flue gas desulfurization and wet electrostatic
precipitator (“wet ESP”), which combine to remove multiple pollutants from
flue gas.
|
17.
|
“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.
|
18.
|
“EPA” means
the United States Environmental Protection Agency.
|
19.
|
“ESP” means
electrostatic precipitator, a pollution control device for the reduction
of PM.
|
20.
|
“
FirstEnergy
System”
means,
collectively, the Ohio Edison System, any existing units owned
by a
FirstEnergy subsidiary
, and any new
or existing units that might be built or acquired
by a
FirstEnergy subsidiary, provided that FirstEnergy and/or a subsidiary has
a greater than 50% ownership interest
in such
newly-built or acquired units
.
|
21.
|
“Flash Dryer
Absorber” means a flue gas desulfurization technology employing a
fluidized bed-type absorber utilizing recycled fly ash and lime injection
for SO
2
removal
upstream of a pollution control device for the reduction of
PM.
|
22.
|
“Flue Gas
Desulfurization System” or “FGD” means a pollution control device that
employs flue gas desulfurization technology
, including
absorber(s)
for the
reduction of sulfur dioxide emissions.
|
23.
|
“Fossil Fuel”
means any hydrocarbon fuel, including coal, petroleum coke, petroleum oil,
or natural gas.
|
24.
|
“Induct
Scrubber” means a flue gas desulfurization technology in which an atomized
lime slurry is injected into the ductwork for SO
2
removal
upstream of a pollution control device for the reduction of
PM.
|
25.
|
“KW” means
kilowatt or one thousand Watts.
|
26.
|
“lb/mmBtu”
means
pound of a
pollutant per million British thermal units of heat input.
|
27.
|
“Malfunction”
means malfunction as that term is
defined
under 40
C.F.R. §
60.2.
|
28.
|
“Mansfield
Plant” means the Bruce Mansfield Plant located near Shippingport,
PA.
|
29.
|
“MW” means a
megawatt or one million Watts.
|
30.
|
“Monthly
Cap
” means the
sum of the tons of the pollutant in question emitted during all periods of
operation from Sammis Units 1 through 5 in
a calendar
month, including the pollutants emitted during periods of startup and
shutdown, and Malfunction.
|
31.
|
“NO
X
” means
oxides of nitrogen, measured in accordance with the provisions of this
Consent Decree.
|
32.
|
“NO
X
Allowance”
means an authorization or credit to emit a specified amount of
NO
X
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.
|
34.
|
“Operational
needs” means the allowances needed to comply with federal and/or State
Clean Air Act regulatory requirements for the units at the Sammis Plant
and any other existing, new, and newly acquired unit
in the
FirstEnergy system
.
|
35.
|
“Parties”
means the United States of America; the States of New York, New Jersey and
Connecticut; and Ohio Edison
and
Pennsylvania Power Company
.
“Party”
means one of the
six named
“Parties.”
|
36.
|
“Plant
-
Wide
Annual
Cap
” means the
sum of the tons of the pollutant in question emitted during all periods of
operation from the Sammis Plant in
a calendar
year, including the pollutants emitted during periods of
startup
and
shutdown
, and
Malfunction
.
|
37.
|
“PM” means
total particulate matter, measured in accordance with the provisions of
this Consent Decree.
|
38.
|
“PM Emission
Rate” means pounds of PM emitted per million Btu of heat input (lb/mmBtu),
as measured in
annual
stack tests,
in accordance with the reference methods set forth in 40 C.F.R. Part 60,
Appendix A, Method 5 or Method 5B if allowed by the State of Ohio or local
authority.
|
39.
|
“Prevention
of Significant Deterioration” or “PSD” means the prevention of significant
deterioration of air quality program under Part C of Subchapter I of the
Clean Air Act, 42 U.S.C. §§ 7470 -
7492, and 40
C.F.R. Part 52.
|
40.
|
“Removal
Efficiency” means the percent of an air pollutant removed from flue gas by
an air pollution control device based on the mass emission rate before and
after the air pollution control device.
|
41.
|
“Renewable
Energy Sources” means wind, solar power, or landfill gas or any other
approved
project.
|
42.
|
“Restricted
NO
X
Allowances”
means the NO
X
Allowances
allocated annually to Ohio Edison that were made available for sale,
trade, or transfer after the date of entry of this Consent Decree as a
result of the requirements of this Consent Decree, but the use of which is
restricted by this Consent Decree.
|
43.
|
“Restricted
SO
2
Allowances”
means (1) the SO
2
Allowances
resulting from the one-time Additional Mansfield Plant
Reductions
required by Paragraph 92 for calendar years 2006 of 4,000 tons and for
2007 of 8,000 tons; (2) the SO
2
Allowances
resulting from the one-time SO
2
Interim
Emission Reductions required by Paragraph 97 of 35,000 tons and by
Paragraph 98 of 24,600 tons; and (3) 67,503 SO
2
Allowances
allocated annually to the Sammis Plant beginning January
2011.
|
44.
|
“Sammis
Plant” means the W. H. Sammis Plant, located along the Ohio River on State
Route 7 in the Village of Stratton, Saline Township, Jefferson County,
Ohio.
|
45.
|
“Selective
Catalytic Reduction System” or “SCR” means a pollution control device that
employs selective catalytic reduction technology for the reduction of
NO
X
emissions.
|
46.
|
“SNCR” means
a pollution control device that employs selective non-catalytic reduction,
utilizing ammonia or urea injection in the boiler, for the reduction of
NO
X
emissions.
|
47.
|
“SO
2
” means
sulfur dioxide, measured in accordance with the provisions of this Consent
Decree.
|
48.
|
“SO
2
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.”
|
49.
|
“Super-compliant
NO
X
Allowances”
means those allowances attributable to reductions beyond the requirements
of this Consent Decree and in accordance with Paragraph 76. NO
X
allowances
that become available as a result of emission reductions used to
demonstrate compliance with Paragraph 72 shall not be Super-compliant
NO
X
Allowances.
|
50.
|
“Super-compliant
SO
2
Allowances”
means those allowances attributable to reductions beyond the requirements
of this Consent Decree and in accordance with Paragraph 106.
SO
2
allowances
that become available as a result of emission reductions used to
demonstrate compliance with Paragraph 97 shall not be Super-compliant
SO
2
Allowances.
|
51.
|
“Surrender”
means permanently surrendering allowances from the accounts administered
by EPA for the Ohio Edison System so that such allowances can no longer be
used to meet any compliance requirement under the Clean Air
Act.
|
5
2.
|
“
NO
X
System
-
Wide Annual
Emission Rate
”
means the
annual average emission rate for NO
X
from the
FirstEnergy System during a calendar year calculated in accordance with
the procedures and equation set forth in 40 C.F.R. § 76.11 (d)(1)(ii)(A).
|
IV.
|
NO
X
EMISSION
REDUCTIONS AND CONTROLS
|
A. | NO X Emission Controls |
1. | SCRs on Sammis Units 6 and 7 |
54.
|
Ohio Edison
shall install
an SCR
(or the
equivalent NO
X
control
technology approved by Plaintiffs pursuant to Paragraph 55)
at
either Sammis
Unit 6 or Unit 7 no later than
|
55.
|
With prior
written notice to
and written
approval from
EPA and the
States, Ohio Edison may, in lieu of installing and operating an SCR (or
ECO, if approved pursuant to Section VII) at any unit specified in
Paragraph 54,
install and
operate equivalent NO
X
control
technology, so long as such equivalent NO
X
control
technology is designed for a 90%
Removal
Efficiency
for
NO
X
and achieves
and thereafter maintains
a 30-Day
Rolling
Average
Emission Rate for NO
X
not greater
than 0.100
lb/mmBtu.
|
2. | SNCRs at Sammis Units 1 -7, Eastlake Unit 5 and Burger Units 4-5 |
56.
|
No later than
thirty days after entry of the Consent Decree, Ohio Edison shall
continuously operate each SNCR at Sammis Units 2 and 7 at all times that
each unit the SNCR serves is combusting Fossil Fuel, consistent with good
engineering practices for NO
X
control, to
minimize NO
X
emissions to
the extent practicable. The preceding sentence shall not be construed to
require that Ohio Edison achieve more stringent unit emission rate(s) than
required by this Consent Decree.
No later than
210 days after entry of this Consent Decree, Ohio Edison shall operate the
SNCR so as to achieve and thereafter maintain a 30-Day Rolling Average
Emission Rate for NO
X
of 0.250
lb/mmBtu at Sammis Unit 2.
|
57.
|
Ohio Edison
shall install
an SNCR
(or
equivalent NO
X
control
technology approved pursuant to Paragraph 68) at
either Sammis
Unit 1, Unit 3, or Unit 4, no later than October 31, 2006; and install a
second SNCR at either Sammis Unit 1, Unit 3, or Unit 4
|
58.
|
No later than
December 31, 2007
, Ohio Edison
shall install
an SNCR
(or
equivalent NO
X
control
technology approved pursuant to Paragraph 68) at
Sammis Unit
5. Upon operation of the unit with the installed SNCR and
thereafter,
Ohio Edison
shall continuously operate the SNCR at Sammis Unit 5 at all times that the
unit the SNCR serves is combusting Fossil Fuel, consistent with good
engineering practices for NO
X
control, to
minimize NO
X
emissions to
the extent practicable. The preceding sentence shall not be construed to
require that Ohio Edison achieve more stringent unit emission rate(s) than
required by this Consent Decree.
No later than
180 days after the installation date required above and thereafter, Ohio
Edison shall operate the SNCR so as to achieve and thereafter maintain
a 30-Day
Rolling
Average
Emission Rate for NO
X
of
0.290
lb/mmBtu.
|
59.
|
No later than
June 30, 2005,
Ohio Edison
shall install an SNCR at Sammis Unit 6.
Ohio Edison
shall continuously operate the SNCR at Sammis Unit 6 at all times that the
unit the SNCR serves is combusting Fossil Fuel, consistent with good
engineering practices for NO
X
control, to
minimize NO
X
emissions to
the extent practicable. The preceding sentence shall not be construed to
require that Ohio Edison achieve more stringent unit emission rate(s) than
required by this Consent Decree.
|
60.
|
No later than
December 31, 2006
,
Ohio
Edison
shall
cause the
FirstEnergy System to
install
low
NO
X
burners,
overfired air and SNCR
(or
equivalent NO
X
control
technology approved pursuant to Paragraph 68) at
Eastlake Unit
5. Upon operation of the unit with the installed NO
X
controls
referred to above and thereafter,
Ohio Edison
shall cause the
|
61.
|
If
the
FirstEnergy System
does not
install and commence continuous operation of low NO
X
burners,
overfired air, and SNCR
(or
equivalent NO
X
control
technology approved pursuant to Paragraph 68)
as required
in Paragraph 60, Ohio Edison shall submit
to the
Plaintiffs
for
approval, and implement upon approval, a substitute compliance plan that
would provide for an alternative means of achieving emission reductions
within the FirstEnergy System units located in Ohio and/or Pennsylvania in
the same time frame
through use
of
post-combustion
NO
X
emission
control devices, equivalent to or exceeding the emission reductions that
Ohio Edison anticipated achieving by installation and operation of the
low
NO
X
burners,
overfired air, and SNCR
at Eastlake
Unit 5.
|
62.
|
Ohio Edison
shall cause the FirstEnergy System to achieve Additional Eastlake Plant
NO
X
Reductions
of 11,000 tons of NO
X
per year
commencing in calendar year 2007 provided, however, that this obligation
shall be eliminated upon permanent shutdown in which Eastlake Unit 5 has
been permanently retired from service and has been physically disabled. If
Ohio Edison determines that it will be unable to achieve any portion of
the reductions of 11,000 tons of NO
X
at Eastlake
Unit 5 in any calendar year due to planned or unplanned outages, or any
combination thereof, Ohio Edison shall submit to the Plaintiffs for
approval, and upon approval, shall implement or cause to be implemented, a
substitute compliance plan (“plan”). The plan shall demonstrate how Ohio
Edison will achieve elsewhere in the FirstEnergy System and within the
same year (or if that is not possible, within the next succeeding calendar
year) all the remaining Additional Eastlake Plant NO
X
Reductions.
The plan must identify the plant(s) in Pennsylvania and/or Ohio where any
remaining Additional Eastlake Plant NO
X
Reductions
are to be achieved. Ohio Edison shall use best efforts to submit the plan
no later than 30 days after Ohio Edison determines that it will be unable
to achieve Additional Eastlake Plant NO
X
Reductions,
but in no event later than January 31 of the year following the year in
which
|
63.
|
Subject to
Paragraph 62,
Ohio Edison
shall cause the FirstEnergy System to use reasonable best efforts to
achieve Additional Eastlake Plant NO
X
Reductions
of 11,000 tons of NO
X
per year
commencing in calendar year 2007, but in no case shall the Additional
Eastlake Plant NO
X
Reductions
be less than 10,000 tons in any given year commencing in 2007. In the
event that Ohio Edison expects to be unable to achieve Additional Eastlake
Plant NO
X
Reductions
of at least 11,000 tons of NO
X
in 2007 or
any year thereafter, Ohio Edison shall submit
to the
Plaintiffs for approval, and upon approval, shall implement or cause to be
implemented, a substitute compliance plan
to achieve
elsewhere in the FirstEnergy system and within the same calendar year all
the remaining Additional Eastlake Plant NO
X
Reductions
up to 1,000 tons of NO
X
that will
not be realized that year at the Eastlake Plant. Such a plan must identify
the plants, in Pennsylvania and/or Ohio, and the controls at those plants
where any remaining Additional Eastlake Plant NO
X
Reductions
that will not be realized that year at the Eastlake Plant are to be
achieved.
|
64.
|
No later than
December 31, 2008,
Ohio Edison
shall install
SNCRs
(or
equivalent NO
X
control
technology approved pursuant to Paragraph 68) at
Burger Unit 4
and Unit 5. Upon operation of the unit with the installed SNCR and
thereafter,
Ohio Edison
shall continuously operate each SNCR at the Burger Units 4 and 5 at all
times that each unit the SNCR serves is combusting Fossil Fuel, consistent
with good engineering practices for NO
X
control, to
minimize NO
X
emissions to
the extent practicable. The preceding sentence shall not be construed to
require that Ohio Edison achieve more stringent unit emission rate(s) than
required by this Consent Decree.
|
65.
|
Ohio Edison
shall achieve Additional Burger Plant NO
X
Reductions
of 1,400 tons of NO
X
per year
commencing in calendar year 2009 provided, however, that this obligation
|
66.
|
Subject to
Paragraph 65, Ohio Edison shall use reasonable best efforts to achieve
Additional Burger Plant NO
X
Reductions
of 1,400 tons of NO
X
per year
commencing in calendar year 2009, but in no case shall the Additional
Burger Plant NO
X
Reductions
be less than 1,300 tons in any given year commencing in 2009. In the event
that Ohio Edison expects to be unable to achieve Additional Burger Plant
NO
X
Reductions
of at least 1,400 tons of NO
X
in 2009 or
any year thereafter, Ohio Edison shall submit to the Plaintiffs for
approval, and upon approval implement, a substitute compliance plan to
achieve elsewhere in the FirstEnergy system and within the same calendar
year all the remaining Additional Burger Plant NO
X
Reductions
up to 100 tons of NO
X
that will
not be realized that year at the Burger Plant. Such a plan must identify
the plants, in Pennsylvania and/or Ohio, and the controls at those plants
where any remaining
|
67.
|
No later than
thirty days following entry of this Consent Decree, Ohio Edison shall
complete installation and operation of low NO
X
burners on
Sammis Units
1, 2,
4
, 5, 6, and
7
and
overfired
air on Sammis Units
1, 2,
4, 6 and
7.
No
later than
December 1, 2005,
Ohio Edison
shall complete installation and operation of low NO
X
burners and
overfired air on Sammis Unit 3, and advanced combustion control
optimization with software to minimize NO
x
emissions from
Sammis Units 1 through 5.
.
|
68.
|
With prior
written notice to
and written
approval from
EPA and the
States, Ohio Edison may, in lieu of installing and operating an SNCR at
any unit specified in Paragraphs 56, 57, 58, 60, and 66, install and
operate equivalent NO
X
control
technology, so long as such equivalent NO
X
control
technology achieves and thereafter maintains
a 30-Day
Rolling
Average
Emission Rate for NO
X
not greater
than 0.250
lb/mmBtu
,
or 0.290
lb/mmBtu for Sammis Unit 5.
|
B. | Plant-Wide Annual Cap for NO X |
69.
|
Ohio Edison
shall comply with the following Plant-Wide
Annual
Cap
for the
Sammis Plant for NO
X
, which
applies collectively to all units within the Sammis Plant:
|
For the
Periods Commencing on the Dates Specified Below:
|
Plant
-
Wide
Annual
Cap
For
NO
X
|
July 1,
2005
through
December 31, 2005
|
11,371
tons
|
January 1,
2006
through
December 31, 2006
|
21,251
tons
|
January 1,
2007
through
December 31, 2007
|
20,596
tons
|
January 1,
2008
through
December 31, 2008
|
18,903
tons
|
January 1,
2009
through
December 31, 2009
|
17,328
tons
|
January 1,
2010
through
December 31, 2010
|
17,328
tons
|
January 1,
2011
through
December 31, 2011
|
14,845
tons
|
January 1,
2012
and every
calendar year thereafter
|
11,863
tons
|
70.
|
Compliance
with the
Plant
-
Wide
Annual
Cap
in
Paragraph 69
shall be determined by calculating actual annual emissions during all
periods of operation from the Sammis plant using CEMS. The amount of
NO
X
allowances
in the possession of Ohio Edison shall not be used in determining
compliance with the
Plant
-
Wide
Annual
Cap
in Paragraph
69.
|
71.
|
Periods of
nonoperation of a unit are not violations of a unit specific emission
obligation of this Consent Decree. If Ohio Edison ceases operations for
more than 12 months, the
Plant
-
Wide
Annual
Cap
in Paragraph
69 shall be reduced by one-half of the shutdown unit’s(s’) pro rata
nameplate MW share of the Plant-Wide Annual Cap for the Sammis Plant for
NO
X
, unless Ohio
Edison demonstrates to Plaintiffs that it intends to start up the unit(s)
within the following 12 months and actually starts up in the following 12
months.
|
C. | Interim NO X Emission Reductions |
72.
|
Between July
1, 2005 and no later than December 31, 2010, Ohio Edison shall achieve
reductions in the amount of 2,483 tons of NO
X
using any
combination of the following: (1) using a low sulfur coal at Burger Units
4 and 5; (2) operating the SCRs currently installed at Mansfield Units 1
through 3 during the months of October through April; and/or (3) emitting
fewer tons than the Plant-Wide Annual Cap for NO
X
required
under Paragraph 69 in a given year at the Sammis Plant. For purposes of
determining that amount of reductions achieved at Burger, Ohio Edison
shall use the procedure for determining
Additional
Burger Plant NO
X
Reductions
.
For purposes
of this paragraph, the amount of
NO
X
emission
reductions to be achieved at the Mansfield Plant shall be calculated based
on the decrease from that plant’s 2003 actual emission rate (lb/mmBtu).
|
D. | Use of NO X Allowances |
73.
|
Except as
provided in this Consent Decree, Ohio Edison
shall not
sell, trade, or transfer any
Restricted
NO
X
Allowances.
|
74.
|
Restricted
NO
X
Allowances
resulting from actions taken by Ohio Edison to comply with the
requirements of this Consent Decree may be used by Ohio Edison to meet the
Operational Needs of the plant to which they were allocated but not at any
other plant or
|
Current
FirstEnergy Coal-Fired Units
|
Mansfield
1
|
Mansfield
2
|
Mansfield
3
|
Sammis
1
|
Sammis
2
|
Sammis
3
|
Sammis
4
|
Sammis
5
|
Sammis
6
|
Sammis
7
|
Burger
1
|
Burger
2
|
Burger
3
|
Burger
4
|
Burger
5
|
Ashtabula
5
|
Bay Shore
1
|
Bay Shore
2
|
Bay Shore
3
|
Bay Shore
4
|
Eastlake
1
|
Eastlake
2
|
Eastlake
3
|
Eastlake
4
|
Eastlake
5
|
Lake Shore
18
|
Toronto
5
|
Toronto
6
|
Toronto
7
|
75.
|
If Ohio
Edison installs SCR, ECO if approved pursuant to Section VII, or
equivalent control technology on any unit in the FirstEnergy System that
is not required by this Consent Decree, the difference between the average
annual NO
X
emissions of
the 2 years before the control device is installed and the NO
X
Allowances
allocated to such unit shall no longer be considered Restricted
NO
X
Allowances.
|
76.
|
After Ohio
Edison reports the generation of Super-compliant NO
X
Allowances
in accordance with Section XII (Periodic Reporting), nothing in this
Consent Decree shall preclude Ohio Edison from
selling,
trading, or transferring
these
reported NO
X
Allowances
that become available for sale or trade as a result of:
|
a. | the installation and operation of any NO X pollution control technology or technique that is not otherwise required under this Consent Decree; |
b. | the installation and operation of any SCR (or ECO if approved pursuant to Section VII or other approved equivalent NO X control technology pursuant to Paragraph 55) or SNCR, prior to the date required under this Consent Decree; or |
c. | achievement and maintenance of NO X emission rates that are below the 30-Day Rolling Average Emission Rate of 0.100 lb/mmBtu for Sammis Units 6 and 7, |
77.
|
Except as
provided in Paragraph 121, Ohio Edison
may not
purchase or otherwise obtain
NO
X
Allowances
from another source for purposes of complying with the requirements of
this Consent Decree. However, nothing in this Consent Decree shall prevent
Ohio Edison
from
purchasing or otherwise obtaining NO
X
Allowances
from another source for purposes of complying with state or federal Clean
Air Act requirements to the extent otherwise allowed by law
.
|
78.
|
If Ohio
Edison transfers Restricted NO
X
Allowances
to a unit within the FirstEnergy System not covered by this Consent
Decree, Ohio Edison must provide or cause to provide right of entry as
required by Paragraph 181.
|
E. | General NO X Provisions |
79.
|
In
determining 30-Day Rolling Average Emission Rates for NO
X
, Ohio Edison
shall operate
CEMS
at each
unit
, provided,
however, that due to the common stack CEMS at Sammis Units 1 to 4,
NO
X
pollutant
concentration monitors certified in accordance with 40 C.F.R. Part 60
shall determine the 30-Day Rolling Average Emission Rates for
NO
X
at each of
Sammis Units 1 to 4. In determining compliance with the Plant-Wide Annual
NO
X
Cap, Ohio
Edison shall operate CEMS at each stack (including the common stacks that
serve Sammis Units 1 and 2 and Units 3 and 4).
|
80.
|
If both
primary and secondary CEMS have a missing data event, Ohio Edison shall
use 40 C.F.R. Part 60 to show compliance with a 30-Day Rolling Average
Emission Rate for NO
X
, provided
that Ohio Edison (1) has secondary CEMS installed, and (2) places them in
service within one hour of a missing data event from the primary CEMS but
the secondary CEMS also fails. If Ohio Edison does not meet conditions in
(1) and (2) above, Ohio Edison shall use 40 C.F.R. § 75.33 to determine
compliance with the 30-Day Rolling Average Emission Rate for
NO
X
. If there is
a missing data event, Ohio Edison shall use the data substitution
provisions in 40 C.F.R. § 75.33 to show compliance with the Plant-Wide
Annual Cap for NO
X
.
|
V.
|
SO
2
EMISSION
REDUCTIONS AND CONTROLS
|
A. | SO 2 Emission Controls |
1. | New FGD Installations at Sammis Units 6-7 and Burger Units 4-5 |
81.
|
Ohio Edison
shall install
an FGD
(or
equivalent SO
2
control
technology approved pursuant to Paragraph 84) at each
Sammis Unit
6 and Unit 7 no later than December 31, 2010. Each FGD to be installed by
Ohio Edison under this paragraph shall have at least a 95% Design Removal
Efficiency for SO
2
. Upon
operation of the unit with the installed FGD and thereafter,
Ohio Edison
shall continuously operate each FGD at Sammis Units 6 and 7 at all times
that each unit the FGD serves is combusting Fossil Fuel, consistent with
good engineering practices for SO
2
control, to
minimize SO
2
emissions to
the extent practicable. The preceding sentence shall not be construed to
require that Ohio Edison achieve more stringent unit emission rate(s) than
required by this Consent Decree.
No later than
180 days after the installation date required above and thereafter, Ohio
Edison shall operate each FGD so as to achieve and thereafter maintain a
30-Day Rolling Average Emission Rate for SO
2
of 0.130
lb/mmBtu.
|
82.
|
Subject to
Paragraph 83 below, no later than December 31, 2010, Ohio Edison shall
install and commence continuous operation of wet FGDs or ECO (or
equivalent
SO
2
control
technology
approved
pursuant to
Paragraph 85) on Burger Units 4 and 5, which
shall have at
least a 95% Design Removal
Efficiency
. Ohio Edison
shall achieve
Additional
Burger Plant SO
2
Reductions
of
25,000 tons
of
SO
2
per year
commencing on
or before calendar year 2011 provided, however, that this obligation shall
be eliminated upon permanent shutdown in which one or more of the Burger
units is permanently retired from service and has been physically
disabled. If Ohio Edison determines that it will be unable to achieve any
portion of the reductions of 25,000 tons of SO
2
at the
Burger Plant in any calendar year due to planned or unplanned outages, or
any combination thereof, Ohio Edison shall submit to the Plaintiffs for
approval, and upon approval, shall implement or cause to be implemented, a
substitute compliance plan (“plan”). The plan shall demonstrate how Ohio
Edison will achieve elsewhere in the
|
83.
|
No later than
December 31, 2008, Ohio Edison shall elect either to satisfy the emission
control requirements of Paragraph 82 for Burger Units 4 and 5,
or:
|
a. | Shut down Burger Units 4 and 5 no later than December 31, 2010; or |
b. | Repower Burger Units 4 and 5 no later than December 31, 2012, including through construction of circulating fluidized bed boilers or other clean coal technologies of equivalent environmental performance that at a minimum achieve and maintain a 30-Day Rolling Average Emission Rate not greater than 0.100 lb/mmBtu for SO 2 or a Removal Efficiency of at least ninety-five percent (95%) for SO 2 ; a 30-Day Rolling Average Emission Rate not greater than 0.100 lb/mmBtu for NO X ; and a PM Emission Rate not greater than 0.015 lb/mmBtu. In measuring the PM Emission Rate, Ohio Edison shall conduct periodic stack tests in accordance with 40 C.F.R. Part 60, Appendix A, Method 5, or Method 5B if allowed by the State of Ohio or local authority, or alternative methods requested by Ohio Edison and approved by EPA. For units that are required to be equipped with SO 2 control equipment and that are subject to the percent removal efficiency requirements of this Consent Decree, the outlet SO 2 Emission Rate and the inlet SO 2 Emission Rate shall be determined based on the data generated in accordance with 40 C.F.R. Part 75 (using SO 2 CEMS data from both the inlet and outlet of the |
84.
|
With prior
written notice to
and written
approval from
EPA and the
States, Ohio Edison may, in lieu of installing and operating wet FGDs at
Sammis Units 6 and 7 (or ECO, if approved pursuant to Section VII),
install and operate equivalent SO
2
control
technology at Sammis Units 6 and 7 so long as such equivalent
SO
2
control
technology is designed for at least a 95%
removal
efficiency for SO
2
and achieves
and thereafter maintains a 30-Day Rolling Average Emission Rate for
SO
2
not greater
than 0.130 lb/mmBtu.
|
85.
|
With prior
written notice to
and written
approval from
EPA and the
States, Ohio Edison may, in lieu of installing and operating wet FGDs or
ECO at Burger Units 4 and 5, install and operate equivalent SO
2
control
technology so long as such equivalent SO
2
control
technology is designed for at least a 95%
Removal
Efficiency
for
SO
2
.
|
2. | Flash Dryer Absorber at Sammis Unit 5 |
86.
|
No later than
December 31, 2008, Ohio Edison shall install a Flash Dryer Absorber or ECO
(or
equivalent SO
2
control
technology approved pursuant to Paragraph 90)
at Sammis
Unit 5, which shall have at least a 50%
Design
Removal Efficiency for SO
2
.
Upon
operation of the unit with the installed Flash Dryer or ECO and
thereafter,
Ohio Edison
shall continuously operate the Flash Dryer at Sammis Unit 5 at all times
that the unit the Flash Dryer
or
ECO
serves is
combusting Fossil Fuel, consistent with good engineering practices for
SO
2
control, to
minimize SO
2
emissions to
the extent practicable. The preceding sentence shall not be construed to
require that Ohio Edison achieve more stringent unit emission rate(s) than
required by this Consent Decree.
No later than
180 days after the installation date required above and thereafter, Ohio
Edison shall operate the Flash Dryer Absorber or ECO so as to achieve and
thereafter maintain a
30-Day
Rolling Average
Emission Rate
for SO
2
of 1.100
lb/mmBtu. If Ohio Edison cannot install the Flash Dyer (or ECO, if so
elected) on Sammis Unit 5 because of a failure to obtain a necessary
permit, Ohio Edison shall submit
to the
Plaintiffs for approval, and implement upon approval, a substitute
compliance plan that would provide for an alternative means of achieving
emission reductions within the FirstEnergy System units located in Ohio
and/or Pennsylvania in the same time frame through use of
post-
|
87.
|
With prior
written notice to
and written
approval from
EPA and the
States, Ohio Edison may, in lieu of installing and operating a Flash Dryer
Absorber or ECO at Sammis Unit
5, install
and operate equivalent SO
2
control
technology so long as such equivalent SO
2
control
technology has at least a 50%
Design
Removal Efficiency
and attains a
30-Day
Rolling Average Emission Rate for SO
2
of 1.100
lb/mmBtu.
|
88.
|
No later than
July 1, 2007, Ohio Edison may seek written approval from the EPA and the
States of a plan to install and operate an improved SO
2
control
technology at Sammis Unit 5 by no later than December 31, 2010. If Ohio
Edison demonstrates that the improved SO
2
control
technology is designed to meet a 75% or greater Design Removal Efficiency,
Plaintiffs will approve the plan to install and operate an improved
SO
2
control
technology, in lieu of installing and operating a Flash Dryer Absorber or
ECO at Sammis Unit 5. If Plaintiffs approve the plan, Ohio Edison shall
implement and complete construction of the improved SO
2
control
technology no later than December 31, 2010.
No later than
180 days after the installation date required above and thereafter,
Ohio Edison
shall achieve and maintain at Sammis Unit 5 a 30-Day Rolling Average
Emission Rate for SO
2
as defined
by the following formula:
|
|
In no event
shall the 30-Day Rolling Average Emission Rate requirement for
SO
2
be greater
than 0.550 lb/mmBtu or below 0.130 lb/mmBtu for Sammis Unit
5.
|
3. | Induct Scrubbing at Sammis Units 1-4 |
89.
|
Ohio Edison
shall install an Induct Scrubber (or equivalent SO
2
control
technology approved pursuant to Paragraph 90) at
Sammis Unit
1, Unit 2, Unit 3, or Unit 4 no later than September 30, 2008; and install
a second Induct Scrubber at either Sammis Unit 1, Unit 2, Unit 3, or Unit
4 no later than December 31, 2008; and install two additional Induct
Scrubbers at Sammis Unit 1, Unit 2, Unit 3 or Unit 4 no later than
December 31,
|
90.
|
With prior
written notice to
and written
approval from
EPA and the
States, Ohio Edison may, in lieu of installing and operating Induct
Scrubbers at Sammis Units 1 through 4, install and operate equivalent
SO
2
control
technology so long as such equivalent SO
2
control
technology is designed for at least a 50%
removal
efficiency for SO
2
and
a 30-Day
Rolling Average Emission Rate for SO
2
of 1.100
lb/mmBtu.
|
4. | FGD Upgrades for Mansfield Units 1-3 |
91.
|
No later than
the dates specified below, Ohio Edison shall
upgrade the
FGDs currently installed at
Mansfield
Units 1, 2 and 3 according to the following schedule:
|
Mansfield
Unit
|
Upgrade
Date
|
Unit
1
|
December 31 ,
2005
|
Unit
2
|
December 31,
2006
|
Unit
3
|
October 31,
2007
|
92.
|
Ohio Edison
shall achieve Additional Mansfield Plant SO
2
Reductions
on or before the following dates:
|
Calendar
Year
|
Additional
Mansfield Plant SO
2
Reductions
(tons per year)
|
2006
|
4,000
|
2007
|
8,000
|
2008 and
every calendar year thereafter
|
12,000
|
|
This
obligation shall be eliminated upon permanent shutdown in which one or
more of the Mansfield units is permanently retired from service and has
been physically disabled. If Ohio Edison determines that it will be unable
to achieve any portion of the reductions of 12,000 tons of SO
2
at the
Mansfield Plant in any calendar year due to planned or unplanned outages,
or any combination thereof, Ohio Edison shall submit to the Plaintiffs for
approval, and upon approval, shall implement or cause to be implemented, a
substitute compliance plan (“plan”). The plan shall demonstrate how Ohio
Edison will achieve elsewhere in the FirstEnergy System and within the
same year (or if that is not possible, within the next succeeding calendar
year) all the remaining Additional Mansfield Plant SO
2
Reductions.
The plan must identify the plant(s) in Pennsylvania and/or Ohio where any
remaining Additional Mansfield Plant SO
2
Reductions
are to be achieved. Ohio Edison shall use best efforts to submit the plan
no later than 30 days after Ohio Edison determines that it will be unable
to achieve Additional Mansfield Plant SO
2
Reductions,
but in no event later than January 31 of the year following the year in
which Ohio Edison makes such determination.
For purposes
of this paragraph, the amount of Additional Mansfield Plant
SO
2
Reductions
to be achieved at such other FirstEnergy plant(s) shall be calculated
based on the decrease from that plant’s 2003 actual emission rate
(lb/mmBtu).
Compliance
with the approved plan shall be considered compliance with the Additional
Mansfield Plant SO
2
Reductions
requirement. The terms of this
|
B. | Plant-Wide Annual and Monthly Caps for SO 2 |
93.
|
Ohio Edison
shall comply with the following
Plant
-
Wide
Annual Cap
for the Sammis Plant for SO
2
, which
applies to all units collectively within the Sammis
Plant:
|
For the
Periods Commencing on the Dates Specified Below:
|
Plant-Wide
Annual Cap for SO
2
|
July 1, 2005
through December 31, 2005
|
58,000
tons
|
January 1,
2006 through December 31, 2006
|
116,000
tons
|
January 1,
2007 through December 31, 2007
|
116,000
tons
|
January 1,
2008 through December 31, 2008
|
114,000
tons
|
January 1,
2009 through December 31, 2009
|
101,500
tons
|
January 1,
2010 through December 31, 2010
|
101,500
tons
|
January 1,
2011 and every calendar year thereafter
|
29,900
tons
|
94.
|
Ohio Edison
shall comply with the following Monthly Caps, which applies to Sammis
Units 1 through 5 collectively:
|
a. | May 1, 2010 to September 30, 2010: |
Calendar
Months
|
Sammis Units
1 through 5 Monthly Cap for SO
2
|
May, July,
August
|
3,242
tons
|
June,
September
|
3,137
tons
|
Calendar
Months
|
Sammis Units
1 through 5 Monthly Cap for SO
2
|
May, July,
August
|
2,533
tons
|
June,
September
|
2,451
tons
|
Calendar
Months
|
Sammis Units
1 through 5 Monthly Cap for SO
2
|
May, July,
August
|
2,533
tons
|
June,
September
|
2,451
tons
|
95.
|
Compliance
with the Plant-wide Annual and Monthly Caps in Paragraphs 93 and 94 shall
be determined by calculating actual annual or monthly emissions from the
Sammis plant using
CEMS
in
accordance with the reference methods specified in 40 C.F.R. Part 75
except as provided for in Paragraphs 80 and 109 relating to data
substitution provisions.
The
SO
2
Allowances
in the possession of Ohio Edison shall not be used in determining
compliance with the Plant-wide Annual and Monthly Caps in Paragraphs
93 and
94.
|
96.
|
Periods of
non-operation of a unit are not violations of a unit specific emission
obligation of this Consent Decree. If Ohio Edison ceases operations for
more than 12 months, the
Plant
-
Wide
Annual Cap in
Paragraph 93 shall be reduced by one-half of the shutdown unit’s(s’) pro
rata nameplate MW share of the Plant-Wide Annual Cap for the Sammis Plant
for SO
2
unless Ohio
Edison demonstrates to Plaintiffs that it intends to start up the unit(s)
within the following 12 months and actually starts up in the following 12
months.
|
C. | SO 2 Interim Emission Reductions |
97.
|
Beginning on
January 1, 2006, and ending on December 31, 2010, Ohio Edison shall
achieve reductions of SO
2
emissions in
the amount of 35,000 tons by achieving reductions of
SO
2
emissions in
the amount of 7,000 tons per year on a rolling average basis during the
applicable five-year period through the use of low sulfur coal at Burger
Units 4 and 5. For purposes of determining the amount of reductions
achieved at Burger
|
98.
|
No later than
December 31, 2007, Ohio Edison shall submit to the Plaintiffs for
approval, and upon approval, shall implement or cause to be implemented a
plan to achieve a reduction of SO
2
emissions
from the FirstEnergy System in the amount of 24,600 tons by or before
December 31, 2010. The plan must identify the plant(s) in Pennsylvania
and/or Ohio where the SO
2
reductions
will be achieved. The plan may provide that some or all of the 24,600-ton
reduction will be achieved through emitting fewer tons than the Plant-Wide
Annual Cap for SO
2
required
under Paragraph 93 in a given year at the Sammis Plant. For purposes of
determining any amount of the 24,600-ton reduction achieved at Mansfield
and/or Burger, Ohio Edison shall use the procedure for determining
Additional Burger Plant SO
2
Reductions
and Additional Mansfield Plant SO
2
Reductions.
If emission reductions from other FirstEnergy plants are used to achieve
the SO
2
emission
reductions of 24,600 tons, or a portion thereof,
the amount of
SO
2
Interim
Emission Reductions to be achieved at such other FirstEnergy plant(s)
shall be calculated based on the decrease from that plant’s 2003 actual
emission rate (lb/mmBtu).
|
D. | Surrender of SO 2 Allowances |
99.
|
Beginning on
January 1, 2006 and every year thereafter,
Ohio
Edison
may use,
sell or transfer any Restricted SO
2
Allowances
only to satisfy the Operational Needs at the Sammis Plant,
Burger Plant,
Mansfield Plant
and/or the
Operational Needs of existing and new units within the
FirstEnergy
System that
are equipped with emission controls for SO
2
that are
operated year-round and that meet an
Annual
Average
Removal Efficiency of
96%
or a
Annual
Average
Emission Rate of
0.100
lb/mmBtu for
SO
2
(“SO
2
Emission
Control Standards”).
|
100.
|
For calendar
years 2006 through 2017, Ohio Edison
may
accumulate
for
its own use
Restricted SO
2
Allowances
for use at the Sammis Plant,
Burger Plant,
and Mansfield Plant
, and for use
at
units
within the
FirstEnergy
System that
are equipped with “SO
2
Emission
Control Standards.” Notwithstanding this provision, however:
|
1. | Ohio Edison cannot use, sell or transfer Restricted SO 2 Allowances to meet the Operational Needs of an existing unit equipped with “SO 2 Emission Control Standards” |
2. | If Ohio Edison , in advance of compliance with this Consent Decree, sells or transfers to a third party SO 2 Allowances that, if such SO 2 Allowances had not been sold would be classified as Restricted SO 2 Allowances, Ohio Edison cannot use Restricted SO 2 Allowances to meet the Operational Needs of the Sammis Plant or any other plant that is allowed to use Restricted SO 2 Allowances under this Consent Decree until it first buys back or re-transfers all of those sold or transferred SO 2 Allowances and uses them to meet the Operational Needs of that unit. |
101.
|
If Ohio
Edison installs an FGD, ECO if approved pursuant to Section VII, or
equivalent control technology on any unit in the FirstEnergy System that
is not required by this Consent Decree, the difference between the average
annual SO
2
emissions of
the 2 years before the control device is installed and the SO
2
Allowance
allocation of such unit shall be deducted and no longer be considered
Restricted SO
2
Allowances.
|
103.
|
Ohio
Edison
shall
surrender Restricted SO
2
Allowances by
the use of applicable United States Environmental Protection Agency Acid
Rain Program Allowance Transfer Form or transfer to a nonprofit third
party selected by Ohio Edison for surrender.
|
104.
|
If any
Restricted SO
2
Allowances
are transferred directly to a third party, Ohio Edison shall include a
description of such transfer in the next report submitted to the
Plaintiffs pursuant to Section XII (Periodic Reporting) of this Consent
Decree. Such report shall: (i) provide the identity of the non-profit
third-party recipient(s) of the Restricted SO
2
Allowances
and a listing of the serial numbers of the transferred SO
2
Allowances;
and (ii) include a certification by the third-party recipient(s) stating
that the recipient will not sell, trade, or otherwise exchange any of the
allowances and will not use any of the Restricted SO
2
Allowances
to meet any obligation imposed by any environmental law. No later than the
next Section XII periodic report due 12 months after the first report due
after the
|
105.
|
The
requirements in Paragraphs 99-102 of this Consent Decree pertaining to
Ohio
Edison
’s use and
surrender of Restricted SO
2
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.
|
106.
|
After Ohio
Edison reports the generation of Super-compliant SO
2
Allowances
in accordance with Section XII (Periodic Reporting), nothing in this
Consent Decree shall preclude Ohio Edison from selling, trading, or
transferring these reported Super-compliant SO
2
Allowances
that become available for sale or trade as a result of:
|
a.
|
activities
that occur prior to the date of entry of this Consent Decree;
|
b.
|
Ohio Edison’s
achieving
SO
2
emissions at
Sammis
Plant
that are
bel
ow the 30-Day
Rolling Average Emission Rate of 0.130 lb/mmBtu for Sammis Units 6 and 7
and the 30-Day Rolling Average Emission Rate of 1.100 lb/mmBtu for Sammis
Units 1 through 5 (or the applicable rate for Sammis Unit 5 as determined
under Paragraph 88), and the applicable Plant-wide Annual Cap
of 29,900
tons
; or
|
c.
|
the
installation and operation of SO
2
pollution
controls at units covered under this Consent Decree prior to the dates
required under Section V (SO
2
Emission
Reductions and Controls) of this Consent Decree
.
|
107.
|
If Ohio
Edison
transfers
Restricted SO
2
Allowances
to a unit within the
FirstEnergy
System
not covered
by this Consent Decree, Ohio Edison must provide or cause to provide right
of entry as required by Paragraph 181.
|
E. | General SO 2 Provisions |
108.
|
In
determining 30-Day Rolling Average Emission Rates for SO
2
, Ohio Edison
shall operate CEMS at each unit; provided, however, that due to the common
stacks CEMS at Sammis Units 1 to 4, SO
2
pollutant
concentration monitors certified in accordance with
|
109.
|
If both
primary and secondary CEMS have a missing data event, Ohio Edison shall
use 40 C.F.R. Part 60 to show compliance with a 30-Day Rolling Average
Emission Rate for SO
2
, provided
that Ohio Edison (1) has secondary CEMS installed, and (2) places them in
service within one hour of a missing data event from the primary CEMS but
the secondary CEMS also fails. If Ohio Edison does not meet conditions in
(1) and (2) above, Ohio Edison shall use 40 C.F.R. § 75.33 to determine
compliance with the 30-Day Rolling Average Emission Rate for
SO
2
. If there is
a missing data event, Ohio Edison shall use the data substitution
provisions in 40 C.F.R. § 75.33 to show compliance with the Plant-Wide
Annual Caps and Monthly Caps for SO
2
.
|
VI.
|
PM
EMISSION REDUCTIONS AND CONTROLS
|
A. | Demonstration and Compliance with PM Emission Limit |
110.
|
No later than
January 1, 2010, Ohio Edison shall achieve and maintain a PM Emission Rate
of no greater than 0.030 lb/mmBtu at Sammis Units 6 and 7.
|
111.
|
Ohio Edison
shall continuously operate each ESP at Sammis Units 6 and 7 at all times
that each unit the ESP serves is combusting Fossil Fuel, consistent with
good engineering practices for PM control, to minimize PM emissions to the
extent practicable.
The
preceding sentence shall not be construed to require that Ohio Edison
achieve more stringent unit emission rate(s) than required by this Consent
Decree.
|
B. | PM Monitoring |
112.
|
By
no
later than
December 31, 2005,
and
continuing annually thereafter, Ohio Edison shall conduct PM performance
testing on Sammis Units 6 and 7. Such annual performance tests may be
satisfied by stack tests conducted in a given year, in accordance with
Ohio Edison’s permit from the State of Ohio.
|
113.
|
In
determining the PM Emission Rate, Ohio Edison shall use the reference
methods specified in
40 C.F.R.
Part 60, Appendix A, Method
5, or Method
5B if allowed by the
|
VII.
|
SUBSTITUTION
OF ECO TECHNOLOGY
|
114.
|
Overview
of ECO.
The Parties
recognize the significant potential environmental and economic benefits
that may be available if Electro-Catalytic Oxidation (“ECO”) pollution
control technology, which is currently being demonstrated at Ohio Edison’s
Burger Plant, becomes sufficiently reliable and effective to enable it to
be used as substitute technology for control of nitrogen oxide, sulfur
dioxide and particulate matter emissions from Sammis Units 6 and 7 in
accordance with the requirements of this Consent Decree. ECO uses a form
of wet scrubber technology to control
SO
2
and a form
of wet electrostatic precipitator technology to control PM, and it is a
promising technology to control NO
X
. ECO is
anticipated to have the additional environmental benefits of controlling
mercury, preventing a visible stack plume, and producing a commercially
valuable fertilizer that minimizes waste disposal requirements, none of
which is required by this Consent Decree or sought in this action. ECO is
expected to be at least as effective as the conventional technology
required by Sections V and VI of this Consent Decree in reducing emissions
of sulfur dioxide and particulate matter; further development of the ECO
technology will be required before it can provide the level of reduction
of nitrogen oxides required by this Consent Decree. The performance goals
for the ECO technology include emission rates of 0.010 lb/mmBtu for
particulate matter, 98% removal of sulfur dioxide, 90% removal of nitrogen
oxide, and 90% removal of mercury from power plant emissions. If the ECO
technology achieves these goals, installation of that technology at Sammis
Units 6 and 7 will provide greater reduction of emissions of pollutants
specified by this Consent Decree than the conventional technology, at a
potentially lower cost with the added benefits of significant reduction of
mercury emissions.
|
115.
|
Demonstration
Requirements for Substitution of ECO Control Technology on Sammis Units 6
and 7
. No later
than December 31, 2007, Ohio Edison may seek Plaintiffs’ approval to
install ECO control technology on both Sammis Units 6 and 7 by December
|
a.
|
has achieved
the reliability criterion set forth in Paragraph 116 below on a consistent
basis for a period of no less than 180 consecutive calendar days that ends
within a year of seeking approval;
|
b.
|
has met the
emission reduction requirements for SO
2
and PM set
forth in Paragraph 117 below continuously,
i.e.
at least 95%
of the time that the control equipment is running;
and
|
c. |
for at least
a 135 consecutive calendar day test period, has achieved a 30-Day Rolling
Average Emission Rate of NO
X
such that
operation of ECO at both Sammis Units 6 and 7 would reduce total
NO
X
emissions by
at least ten percent (10%) more than the 30-Day Rolling Average Emission
Rate for a single SCR at either Sammis Unit 6 or 7 as required in
Paragraph 54 of this Consent Decree for 95% of the time that the control
equipment is running at the Burger plant or any other plant in full-scale
commercial operation.
|
116.
|
Reliability
Criteria
. The
reliability criterion for Plaintiffs’ approval of the substitution of the
ECO technology on Sammis Units 6 and 7, for purposes of Paragraph 115.a.,
is 95% availability,
i.e.
Ohio Edison
must demonstrate that the ECO control itself has not caused outages on the
unit(s) on which it has been installed more than 5% of the time those
units were in operation or called upon to operate.
|
117.
|
Emission
Reduction Requirements for SO
2
and
PM
. The
SO
2
and PM
emission reduction requirements for demonstration of ECO technology under
this paragraph shall be the limitations set forth in this Consent Decree
for the emission of such pollutants from Sammis Units 6 and 7. The
limitation for
SO
2
emissions
from Units 6 and 7, as provided in Paragraph 81 of this Consent Decree, is
a 30-Day Rolling Average Emission Rate for
|
118.
|
Plaintiffs’
Review and Approval
. Plaintiffs
shall review Ohio Edison’s proposal for substitution of ECO technology on
Sammis Units 6 and 7 in accordance with Section XIII of this Consent
Decree (Review and Approval of Submissions) and this paragraph, as
follows:
|
a. |
Substitution of ECO Technology From December 31, 2010 to December 31,
2011
. If Ohio
Edison demonstrates that ECO has met the requirements of
Paragraph 115, Plaintiffs will approve the substitution of ECO
controls at Sammis Units 6 and 7 in lieu of the requirements of Sections
IV and V of this
Consent Decree that one SCR and two conventional FGDs be installed
by December 31, 2010.
|
b.
|
Dispute
Resolution
. If
Plaintiffs do not grant their approval, Ohio Edison may seek dispute
resolution from the Court pursuant to Section XVI of this Consent Decree.
Ohio Edison shall have the burden of demonstrating that ECO meets the
approval criteria of Paragraph 115. If Plaintiffs do not agree that ECO
meets the requirements of Paragraph 115, Plaintiffs nonetheless reserve
the right to grant their approval if, based on the facts and circumstances
then appearing, including but not limited to engineering concerns
involving scale-up and reliability, they conclude that there is a
substantial likelihood that ECO will meet the requirements of this Consent
Decree at the Sammis plant on a reliable and consistent basis. If the
criteria set forth in Paragraph 115 are not met and Plaintiffs do not
otherwise grant approval in accordance with the preceding sentence, such
denial shall not be reviewable and not subject to dispute.
|
119.
|
Adjustment
of Installation Dates
. In the
event that Plaintiffs approve the installation of ECO on both Sammis Units
6 and 7, or the Court reverses Plaintiffs’ denial of approval, the
schedule and requirements for installation of controls at Sammis Units 6
and 7 shall be adjusted as follows: Ohio Edison shall install ECO control
technology on Units 6 and 7 by December 31, 2010. This shall be in lieu of
the requirements of Sections IV and V of this Consent Decree to install
two FGDs and one SCR on those units by that date. By December 31, 2010,
Ohio Edison shall complete such engineering for installation of
|
120.
|
At all times
that ECO is installed, Ohio Edison shall use reasonable best efforts to
meet a 30-Day Rolling Average Emission Rate of 0.100 lb/mmBtu for
NO
X
at Sammis
Units 6 and 7. Reasonable best efforts shall include operation of SNCR and
any other NO
X
controls,
consistent with good engineering practices, at Sammis Units 6 and 7. The
preceding two sentences shall not be construed to require that Ohio Edison
achieve a more stringent unit emission rate than required by this Consent
Decree.
|
121.
|
Penalties
and Makeup Tons for Failure to Achieve NO
X
Emission
Limitations Between December 31, 2010 and December 31,
2011
. If Ohio
Edison elects to install ECO technology on Sammis Units 6 and 7 and fails
to achieve the emission limitation for NO
X
of 0.100
lb/mmBtu on a 30-day rolling average basis as required under this Consent
Decree, it shall be subject to the stipulated penalties requirements of
Section XIV of this Consent Decree. If Ohio Edison fails to achieve a
30-Day Rolling Average Emission Rate for
NO
X
of 0.100
lb/mmBtu or the Plant-Wide Annual Cap for NO
X
provided
under Section IV of this Consent Decree, Ohio Edison, in addition to
paying stipulated penalties under Section XIV of this Consent Decree,
shall purchase and retire NO
X
credits from
the market equivalent to 1.25 times the excess tons emitted by any
violation. The assessment of stipulated penalties in accordance with this
paragraph is not subject to the Dispute Resolution procedures of Section
XVI of this Consent Decree. In order to assure that the makeup tons are
obtained from an area that is upwind from and impacts the air quality in
Plaintiffs’ States to the maximum extent practicable, Ohio Edison further
agrees to seek to purchase such credits from facilities in Ohio or
Pennsylvania, and to pay up to a 5% premium for such credits if
necessary.
|
122.
|
Evaluation
. By July 31,
2011, Ohio Edison shall submit a certified report to Plaintiffs and the
Court demonstrating that ECO has continuously met the emission limitation
requirements of Sections IV, V, and VI of this Consent Decree for
emissions from Sammis Units 6 and 7,
i.e.
, 30-Day
Rolling Average Emission Rate of 0.130 lb/mmBtu for SO
2
, 0.030
lb/mmBtu for PM and 30-Day Rolling Average Emission Rate of 0.100 lb/mmBtu
for NO
X,
for 98% of
the time that the control equipment is running following a
|
123.
|
Final
Approval of ECO or Installation of SCRs
. If
Plaintiffs agree that Ohio Edison’s report, submitted pursuant to the
preceding paragraph, demonstrates that the ECO and the combination of
other pollution control technologies installed on Sammis Units 6 and 7
have continuously met the 30-Day Rolling Average Emission Rate of 0.130
lb/mmBtu for SO
2
, 30-Day
Rolling Average Emission Rate of 0.100 lb/mmBtu for NO
X
, and PM
Emission Rate of 0.030 lb/mmBtu at Sammis Units 6 and 7 as required by
this Consent Decree, and has proven to be reliable, installation of SCRs
shall not be required on Units 6 and 7. If Plaintiffs do not agree that
Ohio Edison has made and adequately supported this demonstration for
NO
X
, Ohio Edison
shall install SCRs on Units 6 and 7 as expeditiously as possible, but in
no event later than December 31, 2011. Any dispute as to whether Ohio
Edison has made the required demonstration shall be subject to the Dispute
Resolution procedures of Section XVI of this Consent Decree. Until the
SCRs are installed, Ohio Edison shall continue to operate the ECO and
other pollution control technologies to maximize reductions of emissions
from Sammis Units 6 and 7, consistent with good engineering
practices.
|
VIII.
|
PROHIBITION
ON NETTING CREDITS OR OFFSETS FROM REQUIRED
CONTROLS
|
124. | Emission reductions generated by Ohio Edison 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 under the Clean Air Act’s PSD program. |
125.
|
Nothing in
this Consent Decree is intended to preclude the emission reductions
generated under this Consent Decree from being considered by EPA as
creditable contemporaneous emission decreases for the purpose of
attainment demonstrations submitted pursuant to Section 110 of the Act, 42
U.S.C. § 7410, or in determining impacts on NAAQS
,
PSD
increment
, visibility,
air quality related values, or any other air quality impact
assessment
.
|
IX.
|
ENVIRONMENTALLY
BENEFICIAL PROJECTS
|
126.
|
Ohio Edison
shall fund and/or implement the Environmentally Beneficial Projects
(“Projects”) described in this Section in compliance with the terms of
this Consent Decree.
In funding
and/or implementing the Projects, Ohio Edison shall expend moneys and/or
implement Projects cumulatively valued at $25 million as allocated below.
|
127.
|
All plans and
reports prepared by Ohio Edison pursuant to the requirements of this
Section of the Consent Decree shall be publicly available electronically
without charge.
|
128. | Ohio Edison shall certify for each Project that Ohio Edison is not otherwise required by law to perform the Project, that Ohio Edison is unaware of any other person who is required by law to perform the Project, and that Ohio Edison will not use any Project, or portion thereof, to satisfy any obligations that it may have under other applicable requirements of law in effect at the time of lodging of this Consent Decree. |
129.
|
Cash
Contribution to States
: The States
shall jointly submit environmentally beneficial projects to Ohio Edison
for funding in amounts not to exceed $2 million per calendar year for up
to five (5) years following the entry of the Consent Decree beginning as
early as calendar year 2005. The funds for these projects will be
apportioned by and among the States, and Ohio Edison shall not have
approval rights for the projects or the apportionment. Ohio Edison shall
pay proceeds as designated by the States in accordance with the
environmentally beneficial projects submitted for funding each year within
75 calendar days after being notified in writing by the States.
Notwithstanding the $2 million and 5-year limitations above, if the total
costs of the projects submitted in any one or more years are less than $2
million, the difference between that amount and $2 million will be
available for funding by Ohio Edison of new or previously submitted
projects in the following years, except that all amounts not designated by
the States within ten (10) years after entry of this Consent Decree shall
expire.
|
130.
|
Renewable
Energy Development Projects
. Within
three and a half years after entry of this Consent Decree, Ohio Edison
shall provide proof to the Plaintiffs that it has entered into one or more
contracts with providers of wind energy for purchase of at least 93
megawatts if federal tax credits are applicable to a project (or 23
megawatts if federal tax credits are not applicable). These renewable
energy development projects have a net
|
131.
|
With
Plaintiffs’ written approval, Ohio Edison may, in lieu of some or all of
the wind projects under Paragraph 130, enter into contract(s) for
electricity from new landfill gas projects in New Jersey, Connecticut, or
New York.
|
132.
|
Allegheny
County Project(s)
. Ohio Edison
shall provide to the Allegheny County Clean Air Fund $400,000 for
municipal clean energy projects, as more fully described in Appendix A.
Ohio Edison shall pay proceeds as designated by Allegheny County within 75
calendar days after being notified in writing by Allegheny
County.
|
133.
|
National
Park Service Project(s)
. The
National Park Service shall submit to Ohio Edison a plan for using
$215,000 in accordance with the Park System Resource and Protection Act,
16 U.S.C. § 19jj, for a project or projects to improve air quality by
addressing air quality and/or air deposition issues in and about the
Shenandoah National Park. Ohio Edison shall not have approval rights for
the plan or these projects. Ohio Edison shall transfer the sum of $215,000
to the Natural Resource Damage and Assessment Fund (instructions to be
provided in the National Park Service plan) within 75 calendar days after
receipt of the plan.
|
134.
|
Ohio Edison
agrees that neither it, its affiliates nor the project developer shall
sell, transfer, or otherwise use any renewable energy credits or any other
benefits from the purchase power agreements for the wind and/or landfill
gas projects undertaken (except for the federal tax credit if applicable)
under any law or program enacted, adopted or promulgated on or before the
date of lodging of the Consent Decree and any re-enacted or amended
versions of such programs that come into effect thereafter, including, but
not limited to, the Renewable Portfolio Standards enacted in Connecticut,
New York, New Jersey and Pennsylvania.
|
X.
|
CIVIL
PENALTY
|
135.
|
Within thirty
(30) calendar days after entry of this Consent Decree, Ohio Edison shall
pay to the United States a civil penalty in the amount of $8.5 million.
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 2003v02237 and DOJ Case Number
90-5-2-1-06894 and the civil action case name and case number of this
action. The costs of such EFT shall be Ohio Edison’s responsibility.
Payment shall be made in accordance with instructions provided to Ohio
Edison 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, Ohio
Edison shall provide notice of payment, referencing the USAO File Number,
the DOJ Case Number, and the civil action case name and case number, to
the Department of Justice and to EPA in accordance with Section XIX
(Notices) of this Consent Decree.
|
136.
|
Failure to
timely pay the civil penalty shall subject Ohio Edison 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 Ohio Edison
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.
|
137.
|
Payments made
pursuant to this Section are penalties within the meaning of Section
162(f) of the Internal Revenue Code, 26 U.S.C. §
162(f), and
are not tax-deductible expenditures for purposes of federal
law.
|
XI.
|
RESOLUTION
OF CLAIMS
|
138.
|
Entry of this
Consent Decree shall resolve all civil claims of the Plaintiffs that arose
from any modifications that commenced at Sammis Units 1 through 7 prior to
the date of lodging of this Consent Decree (including but not limited to
those modifications alleged in the Complaint in this civil action) under
Parts C or D of Subchapter I of the Clean Air Act, under the New Source
Performance Standard program of Section 111 of the Clean Air Act, or under
the relevant provisions of the federally approved and enforceable Ohio
State Implementation Plan (Ohio Admin. Code Chapter 3745-31).
|
139.
|
Entry of this
Consent Decree also shall resolve all civil claims of the United States
under Parts C or D of Subchapter I of the Clean Air Act and regulations
promulgated as of the date of lodging of this Consent Decree, where such
claims are based on a modification, completed before December 31, 2012,
that this Consent Decree directs Ohio Edison to undertake.
|
140.
|
Upgrades
of Units 6 and 7.
The United
States agrees that, in conjunction with the installation of emission
controls on Sammis Units 6 and 7 pursuant to this Consent Decree, Ohio
Edison may make modifications to one or both of those units that increase
each of their maximum hourly emission rates by up to 10%, provided
that:
|
a.
|
any
modifications for each unit occur simultaneously with, or no more than one
year after, the installation and operation of the last of the controls as
required under this Consent Decree for that unit, pursuant to Paragraphs
54, 81, and 118;
|
b.
|
Ohio Edison
is in compliance with all of the requirements of the Consent Decree for
installation of emission controls pursuant to Paragraphs 54, 81, and 118,
and for achieving and maintaining levels of emissions reductions pursuant
to Paragraphs 69 and 93 (Plant-Wide Annual Caps for NO
X
and
SO
2
);
and
|
c.
|
the
modifications for each unit, either individually or collectively, do not
increase the maximum hourly emission rate of each unit for NO
X
or
SO
2
(as measured
by 40 C.F.R. § 60.14(b) and (h)) by more than 10%.
|
|
If
modifications occur in compliance with this paragraph, the United States
agrees not to assert any claims for these modifications under Parts C and
D of Subchapter I of the Clean Air Act, seeking the installation of
additional NO
X
,
SO
2
, and PM
pollution controls on Units 6 and 7, other than those required by this
Consent Decree. Nothing herein shall affect Ohio Edison’s obligations
under Ohio law, including any permitting requirements.
|
XII.
|
PERIODIC
REPORTING
|
141.
|
Beginning
forty-five
(
45
) days after
the end of the first full calendar quarter following the entry of this
Consent Decree, continuing on a semi-annual basis until December 31,
2015,
Ohio Edison
shall submit to EPA and the States a
periodic
report
in
compliance with Appendix B
.
|
142.
|
In any
periodic
report
submitted pursuant to this Section, Ohio Edison may incorporate by
reference information previously submitted under its Title V permitting
requirements, provided that Ohio Edison attaches the Title V permit report
(or pertinent portions of such report) and provides a specific reference
to the provisions of the Title V permit report that are responsive to the
information required in the periodic progress report.
|
143.
|
In addition
to the
periodic
reports
required pursuant to this Section, Ohio Edison shall provide a written
report to Plaintiffs of the following violations of the requirements of
this Consent Decree:
(1) the
30-Day Rolling
Average
Emission Rates,
(2) PM
Emission Rates, (3) Annual and Monthly Caps, (4) Additional and Interim
Reductions, and (5) Restricted SO
2
Allowance
surrender within ten (10) business days of when Ohio Edison knew
or should
have known of any such violation. In this report, Ohio Edison shall
explain to the best of its knowledge the cause or causes of the violation
and all measures taken or to be taken by Ohio Edison to prevent such
violations in the future.
Pursuant to
Section XXVII (Conditional Termination of Enforcement Under Consent
Decree), when provisions of the Consent Decree are included in Title V
Permits, the deviation reports required under applicable Title V
regulations shall be deemed to satisfy all requirements of this paragraph.
|
144.
|
Each Ohio
Edison report shall be signed by Ohio Edison's Manager, Environmental
Reporting and Compliance or, in his or her absence, Ohio Edison's Vice
President of Environmental, or higher ranking official, and shall contain
the following certification:
|
his
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.
|
XIII.
|
REVIEW AND
APPROVAL OF SUBMITTALS
|
145.
|
Ohio Edison
shall submit each plan, report, or other submission to EPA and the States
on or before the date that document is required or allowed to be submitted
for review or approval pursuant to this Consent Decree. Plaintiffs shall
within ninety (90) days of receipt of a plan, report, or other submission
approve or decline to approve it and provide written comments. Plaintiffs’
failure to respond within ninety (90) days shall not be construed as an
approval or a disapproval of the submission, a wavier of the right to
review the submission, or a basis to excuse compliance with the Consent
Decree. Within sixty (60) days of receiving written comments from
Plaintiffs, Ohio Edison shall either: (a) revise the submittal consistent
with the written comments and provide the revised submittal for final
approval to Plaintiffs; or (b) submit the matter for dispute resolution,
including the period of informal negotiations, under Section XVI (Dispute
Resolution) of this Consent Decree.
|
146.
|
Upon receipt
of Plaintiffs’ final approval of the submittal or upon completion of the
submittal pursuant to dispute resolution, Ohio Edison shall implement the
approved submittal in accordance with the schedule specified therein.
|
XIV.
|
STIPULATED
PENALTIES
|
147.
|
For any
failure by Ohio Edison to comply with the terms of this Consent Decree,
and subject to the provisions of Sections XV (Force Majeure) and XVI
(Dispute Resolution) of this Consent Decree, Ohio Edison shall pay, within
thirty (30) days after receipt of written demand to Ohio Edison 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 X (Civil Penalty) of this
Consent Decree
|
$10,000
|
Consent
Decree Violation
|
Stipulated
Penalty
(Per day per
violation, unless
otherwise
specified)
|
Consent
Decree Violation
|
Stipulated
Penalty
(Per day per
violation, unless
otherwise
specified)
|
148.
|
Violation of
a
30-Day
Rolling Average
Emission Rate
is a
violation
on every day
on which the average is based
. Violation
of the Plant-Wide
Annual Cap or
Sammis Units 1 through 5 Monthly Cap is a single violation.
|
149.
|
Where a
violation of a 30-Day Rolling Average Emission Rate (for the same
pollutant and from the same source) recurs within periods of less than
thirty (30) days, Ohio Edison shall not pay a daily stipulated penalty for
any day of the recurrence for which a stipulated penalty has already been
paid.
|
150.
|
Ohio Edison
shall not be assessed or required to pay any stipulated penalties for any
day on which a unit is not operated for failure to comply with a
unit-specific requirement under this Consent Decree.
|
151.
|
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. Nothing in this
Consent Decree shall prevent the simultaneous accrual of separate
stipulated penalties for separate violations of this Consent
Decree.
|
152.
|
Ohio Edison
shall pay all stipulated penalties to the United States within thirty (30)
days of receipt of written demand to Ohio Edison from the United States,
and shall continue to make such payments every thirty (30) days thereafter
until the violation(s) no longer continues, unless Ohio Edison elects
within 20 days of receipt of written demand to Ohio Edison from the United
States to dispute the accrual of stipulated penalties in accordance with
the provisions in Section XVI (Dispute Resolution) of this Consent Decree.
|
153.
|
Stipulated
penalties shall continue to accrue as provided in accordance with
Paragraph 151 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 XVI (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, Ohio Edison 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 accrued interest, except as provided in
Subparagraph 153.c.;
|
c.
|
If the
Court’s decision is appealed by any Party, Ohio Edison shall, within
fifteen (15) days of receipt of the final appellate court decision, pay
all accrued stipulated penalties determined to be owing, together with
accrued interest.
|
|
or purposes
of this paragraph, the accrued stipulated penalties agreed by the Parties,
or determined by the Plaintiffs through Dispute Resolution, to be owing
may be less than the stipulated penalty amounts set forth in Paragraph
147.
|
154.
|
All
stipulated penalties shall be paid in the manner set forth in Section X
(Civil Penalty) of this Consent Decree.
|
155.
|
Should Ohio
Edison 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.
|
156. | The stipulated penalties provided for in this Consent Decree shall be in addition to any other rights, remedies, or sanctions available to any Plaintiff by reason of Ohio Edison’s 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, Ohio Edison shall be allowed a credit for stipulated penalties paid against any statutory penalties also imposed for such violation. |
XV.
|
FORCE
MAJEURE
|
157.
|
For purposes
of this Consent Decree, including but not limited to Paragraphs 69, 93,
and 94 (Plant-Wide Annual Cap and Monthly Cap), a “Force Majeure Event”
shall mean an event that has been or will be caused by circumstances
beyond the control of Ohio Edison, its contractors, or any entity
controlled by Ohio Edison that delays compliance with any provision of
this Consent Decree or otherwise causes a violation of any provision of
this Consent Decree despite Ohio Edison’s
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
|
158.
|
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
Ohio Edison intends to assert a claim of Force Majeure, Ohio Edison shall
notify the United States and the States in writing as soon as practicable,
but in no event later than
fourteen
(
14
) business
days following the date Ohio Edison 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, Ohio
Edison 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 Ohio Edison to prevent or minimize the delay or violation, the
schedule by which Ohio Edison proposes to implement those measures, and
Ohio Edison’s rationale for attributing a delay or violation to a Force
Majeure Event. Ohio Edison shall adopt all reasonable measures to avoid or
minimize such delays or violations.
Ohio Edison
shall be deemed to know of any circumstance which Ohio Edison, its
contractors, or any entity controlled by Ohio Edison knew or should have
known.
|
159.
|
Failure to
Give Notice
. If Ohio
Edison fails to comply with the notice requirements in Paragraph 158, the
Plaintiffs may void Ohio Edison’s claim for Force Majeure as to the
specific event for which Ohio Edison has failed to comply with such notice
requirement
.
|
160.
|
Plaintiffs’
Response
. The
Plaintiffs shall notify Ohio Edison in writing regarding Ohio Edison’s
claim of Force Majeure within twenty (20) business days of receipt of the
notice provided under Paragraph 158. 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. In such circumstances, an appropriate
modification shall be made pursuant to Section XXIII (Modification) of
this Consent Decree.
|
161.
|
Disagreement
. If the
Plaintiffs do not accept Ohio Edison’s claim of Force Majeure, or if the
Parties cannot agree on the length of the delay actually caused by the
Force Majeure
|
162.
|
Burden of
Proof
. In any
dispute regarding Force Majeure, Ohio Edison 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. Ohio Edison shall also bear the burden of proving
that Ohio Edison gave the notice required by Paragraph 158 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.
|
163.
|
Events
Excluded
.
Unanticipated or increased costs or expenses associated with the
performance of Ohio Edison’s obligations under this Consent Decree shall
not constitute a Force Majeure Event.
|
164.
|
Potential
Force Majeure Events
. The Parties
agree that, depending upon the circumstances related to an event and Ohio
Edison’s 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;
coal
supply
interruption; acts of God; acts of war or terrorism; and orders by a
government official, government agency, or other regulatory body acting
under and authorized by applicable law that directs Ohio Edison to supply
electricity in response to a system-wide (state-wide or regional)
emergency.
Depending
upon the circumstances and Ohio Edison’s 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 Ohio Edison and Ohio Edison has
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.
|
165.
|
As part of
the resolution of any matter submitted to this Court under Section XVI
(Dispute Resolution) of this Consent Decree regarding a claim of Force
Majeure, the Parties 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 United States and the
States or approved by the Court. Ohio Edison shall be liable for
stipulated penalties for its failure thereafter to complete the work in
accordance with the extended or modified
schedule.
|
XVI.
|
DISPUTE
RESOLUTION
|
166.
|
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.
|
167.
|
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.
|
168.
|
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) calendar 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).
|
169.
|
If the
disputing Parties are unable to reach agreement during the informal
negotiation period, the Plaintiffs shall provide Ohio Edison with a
written summary of their position
|
170.
|
Where the
nature of the dispute is such that a more timely resolution of the issue
is required, the time periods set out in this Section may be shortened
upon motion of one of the Parties to the dispute.
|
171.
|
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.
|
172.
|
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. Ohio Edison shall be
liable for stipulated penalties for its failure thereafter to complete the
work in accordance with the extended or modified schedule, provided that
Ohio Edison 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.
|
173.
|
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 169, the disputing Parties shall state their respective
positions as to the applicable standard of law for resolving the
particular dispute.
|
XVII.
|
PERMITS
|
174.
|
Unless
expressly stated otherwise in this Consent Decree, in any instance where
otherwise applicable law or this Consent Decree requires Ohio Edison to
secure a permit to authorize construction or operation of any device,
including all preconstruction, construction, and operating permits
required under state law, Ohio Edison shall make such application in a
timely manner. The United States will use its best efforts to
expeditiously review all permit applications submitted by Ohio Edison in
order to meet the requirements of this Consent
Decree.
|
175.
|
When permits
are required as described in Paragraph 174, Ohio Edison shall complete and
submit applications for such permits to the appropriate authorities to
allow sufficient time for all legally required processing and review of
the permit request, including requests for additional information by the
permitting authorities. Any failure by Ohio Edison to submit a timely
permit application for any unit in the Ohio Edison System shall bar any
use by Ohio Edison of Section XV (Force Majeure) of this Consent Decree,
where a Force Majeure claim is based on permitting delays.
|
176.
|
Title V
Permits
. Whenever
Ohio Edison applies for Title V Permit(s) or for amendment(s) to existing
Title V Permit(s) to include any of the requirements of this Consent
Decree in such permit, Ohio Edison shall send, at the same time, a copy of
such application to each Plaintiff. Also, upon receiving a copy of any
permit proposed for public comment as a result of such application, Ohio
Edison shall promptly send a copy of such proposal to each Plaintiff,
thereby allowing for timely participation in any public comment
opportunity.
|
177.
|
Title V
Permits Enforceable on Their Own Terms
.
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 directly enforceable
under this Consent Decree, though any term or limit established by or
under this Consent Decree shall be enforceable under this Consent Decree
regardless of whether such term has or will become part of a Title V
Permit subject to the limits of Section XXVII (“Conditional Termination of
Enforcement Under Consent Decree”).
|
178.
|
Consent
Decree Requirements To Be Proposed for Inclusion in Title V
Permits
. Whenever
Ohio Edison applies for Title V Permit(s), or for amendment(s) to existing
Title V Permit(s) to include any of the requirements of this Consent
Decree in such permit, Ohio Edison shall include in such application all
“applicable requirements” (as defined in the Title V program regulations)
including but not limited to (1) unit specific emission rates, (2)
Plant-Wide Annual and Monthly Sammis Caps, (3) Additional and Interim
Reductions and (4) SO
2
Allowance
surrender requirements and NO
X
Allowance
restrictions. The NO
X
Allowance
restrictions that are based upon the FirstEnergy System-Wide Emission Rate
required in Paragraph 74 shall be incorporated into the Sammis facility
Title V permit.
|
179.
|
New Source
Review Permits
. This
Consent Decree shall not be construed to require Ohio Edison to apply for
or obtain a permit pursuant to the New Source Review requirements of Parts
C and D of Title I of the Act.
|
180.
|
If Ohio
Edison sells or transfers to an entity unrelated to Ohio Edison (“Third
Party Purchaser”) part or all of its ownership interest in a unit in the
Ohio Edison System (“Ownership Interest”) covered under this Consent
Decree, Ohio Edison shall comply with the requirements of Paragraph 178
with regard to that unit prior to any such sale or transfer unless,
following any such sale or transfer, Ohio Edison remains the holder of the
Title V permit for such facility.
|
XVIII.
|
INFORMATION
COLLECTION AND RETENTION
|
181.
|
Any
authorized representative of the Plaintiffs, including their attorneys,
contractors, and consultants, upon presentation of credentials, shall have
a right of entry upon the premises of
Sammis,
Mansfield, Burger, Eastlake, and any facility that Ohio Edison
must
provide or
cause to
provide
right of entry as required by Paragraphs 78 and 98,
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 Plaintiffs in accordance with the
terms of this Consent Decree;
|
c.
|
obtaining
samples and, upon request, splits of any samples taken by Ohio Edison or
its representatives, contractors, or consultants; and
|
d.
|
assessing
Ohio Edison’s compliance with this Consent Decree.
|
182.
|
Ohio Edison
shall retain, and instruct its contractors and agents to preserve, all
non-identical copies of all records and documents (including records and
documents in electronic form) now in its or its contractors’ or agents’
possession or control, and that directly relate to Ohio Edison’s
performance of its obligations under this Consent Decree, until December
31, 2020. This record retention requirement shall apply regardless of any
corporate document retention policy to the contrary.
|
183.
|
All
information and documents submitted by Ohio Edison 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
|
184.
|
Nothing in
this Consent Decree shall limit the authority of the Plaintiffs to conduct
tests and inspections at facilities covered under this Consent Decree
under Section 114 of the Act, 42 U.S.C. § 7414, or any other applicable
federal or state laws, regulations or
permits.
|
XIX.
|
NOTICES
|
185.
|
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:
|
186.
|
All
notifications, communications or submissions made pursuant to this Section
shall be sent either by: (a) overnight mail or delivery service; (b)
certified or registered mail, return receipt requested; or (c) electronic
transmission, unless the recipient is not able to review the transmission
in electronic form. All notifications, communications and transmissions
(a) sent by overnight, certified or registered mail shall be deemed
|
187.
|
Any Party may
change either the notice recipient or the address for providing notices to
it by serving the other Parties with a notice setting forth such new
notice recipient or address.
|
188.
|
If Ohio
Edison
proposes to
sell or transfer part or all of its ownership interest in any of its real
property or operations subject to this Consent Decree (“Ownership
Interest”) to an entity unrelated to
FirstEnergy
(“Third
Party Purchaser”), it shall advise the Third Party Purchaser 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 XIX (Notices) no later than thirty (30) days before closing.
|
189.
|
At the time
of sale or transfer of an Ownership Interest (but in no case later than
ten (10) days after closing) Ohio Edison shall move the Court for a
modification of this Consent Decree to make the purchaser or transferee a
party to this Consent Decree and jointly and severally liable with Ohio
Edison for all requirements of this Consent Decree that are applicable to
the transferred or purchased Ownership Interests. Until the Court approves
the modification of the Consent Decree, Ohio Edison shall remain fully
liable for compliance with the Consent Decree notwithstanding the sale or
transfer.
|
190.
|
This Consent
Decree shall not be construed to impede the transfer of any Ownership
Interests between Ohio Edison
and/or
FirstEnergy
and any Third Party Purchaser as long the requirements of this Consent
Decree are met. This Consent Decree shall not be construed to prohibit a
contractual allocation - as between Ohio Edison and
/or First
Energy and
any Third
Party Purchaser of Ownership Interests - of the burdens of compliance with
this Consent Decree
, provided
that both Ohio Edison and such Third Party Purchaser shall remain jointly
and severally liable for the obligations of the
|
191.
|
If the
Plaintiffs agree that the conditions of Paragraph 189 are satisfied and
determine in their sole and unreviewable discretion that a transfer of
liability and obligations is justified upon consideration of the Third
Party Purchaser’s technical capability, financial capability, and recent
history of environmental compliance,
Plaintiffs,
Ohio
Edison
,
and/or
the Third
Party Purchaser
that has
become a party to this Consent Decree pursuant to Paragraph 189 may move
the Court for a modification that relieves Ohio Edison of its liability
under this
Consent Decree for the obligations of the Consent Decree applicable to the
transferred or purchased Ownership Interests and makes the Third Party
Purchaser solely liable for all requirements under the Consent Decree that
are applicable to the transferred Ownership Interests.
|
192.
|
Unless and
until such modification relieving Ohio Edison of liability for the
obligations and liabilities associated with the transferred Ownership
Interest is entered by the Court, Ohio Edison shall remain liable for all
the requirements of this Consent Decree, including those that may
be
applicable
to the purchased or transferred Ownership Interests.
|
193.
|
Notwithstanding
the foregoing, however, Ohio Edison shall
not assign,
and shall
not be
released from, any obligation under this Consent Decree that is not
specifically
applicable
to the
purchased or transferred Ownership Interests, including the obligations
set forth in Sections IX (
Environmentally
Beneficial
Projects)
and X (Civil Penalty)
.
|
XXI.
|
EFFECTIVE
DATE
|
194.
|
The effective
date of this Consent Decree shall be the date upon which this Consent
Decree is entered by the Court.
|
XXII.
|
RETENTION
OF JURISDICTION
|
195.
|
Continuing
Jurisdiction
. The Court
shall retain jurisdiction of this case after 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.
|
XXIII.
|
MODIFICATION
|
196.
|
The terms of
this Consent Decree may be modified only by a subsequent written agreement
signed by all Parties
. Where the
modification constitutes a material change to any term of this Consent
Decree, it shall be effective only upon approval by the Court.
|
XXIV.
|
GENERAL
PROVISIONS
|
197. |
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 emission rates set forth herein do not
relieve Ohio Edison from any obligation to comply with other state and
federal requirements
under the Clean Air Act, including Ohio Edison’s obligation to satisfy any
state modeling requirements set forth in the Ohio State Implementation
Plan.
|
198.
|
This Consent
Decree does not apply to any claim(s) of alleged criminal
liability.
|
199.
|
In any
subsequent administrative or judicial action initiated by the United
States for injunctive relief or civil penalties relating to the facilities
covered by the Complaint in this action, Ohio Edison 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 the
Plaintiffs in the subsequent proceeding were brought, or should have been
brought, in the instant case; provided, however, that nothing in this
paragraph is intended to, or shall, affect the validity of Section XI
(Resolution of Claims) of this Consent Decree.
|
200.
|
Ohio Edison
shall be bound by the law and/or regulations under Parts C & D of
Subchapter I of the Clean Air Act in effect at the time of any physical
change in, or change in the method of operation of, a stationary source.
|
201.
|
Except as
specifically provided by this Consent Decree, nothing in this Consent
Decree shall relieve Ohio Edison of its obligation to comply with all
applicable federal, state, and local laws and regulations, nor
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.
|
202. | 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. |
203.
|
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. 8315 (Feb. 27, 1997)) concerning the use of data for any purpose
under the Act, generated either by the reference methods specified herein
or otherwise.
|
204.
|
Each limit
and/or other requirement established by or under this Consent Decree is a
separate, independent requirement.
|
205.
|
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.
Ohio Edison
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.
Ohio Edison
shall report data to the number of significant digits in which the
standard or limit is expressed.
|
206.
|
This Consent
Decree does not limit, enlarge or affect the rights of any Party to this
Consent Decree as against or on behalf of any third parties. Entry of this
Consent Decree shall be solely for purposes of resolving this case and
does not affect any other claims, including any claims by third parties.
Entry of this Consent Decree as a final judgment shall not be considered
binding on Ohio Edison in litigation with third parties. Except as
provided in Paragraph 178, no portion of this Consent Decree or any prior
rulings or orders in this case shall be enforceable by any person or
entity other than the Parties. Ohio Edison’s settlement of this case
without exercising its right of appeal shall not be
|
207.
|
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 supercedes 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.
|
208.
|
Each Party to
this action shall bear its own costs and attorneys’ fees.
|
XXV.
|
SIGNATORIES
AND SERVICE
|
209.
|
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.
|
210.
|
This Consent
Decree may be signed in counterparts, and such counterpart signature pages
shall be given full force and effect.
|
211.
|
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.
|
XXVI.
|
PUBLIC
COMMENT
|
212.
|
The Parties
agree and acknowledge that final approval by the United States and entry
of this Consent Decree is subject to the procedures of 28 C.F.R. § 50.7,
which provides for notice of the 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. Ohio Edison 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 Ohio Edison, in
writing, that the United States no longer supports entry of the Consent
Decree.
|
|
XXVII.
CONDITIONAL TERMINATION OF ENFORCEMENT UNDER CONSENT
DECREE
|
213.
|
Termination
as to Completed Tasks.
As soon as
Ohio Edison completes a construction project or any other requirement of
this Consent Decree that is not ongoing or recurring, Ohio Edison may, by
motion to this Court, seek termination of the provision or provisions of
this Consent Decree that imposed the requirement.
|
214.
|
Conditional
Termination of Enforcement Through the Consent Decree.
After Ohio
Edison:
|
a.
|
has
successfully completed construction, and has maintained operation, of all
pollution controls as required by this Consent Decree;
|
b.
|
has 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 Section XVII (Permits) of this Consent Decree;
and
|
c.
|
certifies
that the date is later than December 31, 2015;
|
|
Ohio Edison
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 Ohio Edison’s 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.
|
215.
|
Resort to
Enforcement under this Consent Decree.
Notwithstanding Paragraph 214, 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, such
requirement may be enforced under the terms of this Consent Decree at any
time.
|
XXVIII.
|
FINAL
JUDGMENT
|
216.
|
Upon approval
and entry of this Consent Decree by the Court, this Consent Decree shall
constitute a final judgment in the above-captioned matter between the
Plaintiffs and Ohio Edison.
|
SO ORDERED,
THIS _____ DAY OF ________________, 2005.
|
|
______________________________________
UNITED STATES
DISTRICT COURT JUDGE
|
THOMAS L. SANSONETTI |
|
Assistant
Attorney General
|
|
Environment
and Natural Resources Division
|
|
United States
Department of Justice
|
|
CATHERINE R.
MCCABE
|
|
Deputy
Chief
|
|
Environmental
Enforcement Section
|
|
Environment
and Natural Resources Division
|
|
United States
Department of Justice
|
|
ARNOLD S.
ROSENTHAL
|
|
Senior
Counsel
|
|
Environmental
Enforcement Section
|
|
Environment
and Natural Resources Division
|
|
United States
Department of Justice
|
|
JEROME W.
MACLAUGHLIN
|
|
Trial
Attorney
|
|
Environmental
Enforcement Section
|
|
Environment
and Natural Resources Division
|
|
United States
Department of Justice
|
THOMAS V. SKINNER |
|
Acting
Assistant Administrator
|
|
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
|
|
RICHARD
ALONSO
|
|
Attorney
Advisor
|
|
Air
Enforcement Division
|
|
Office of
Enforcement and Compliance Assurance
|
|
United States
Environmental Protection Agency
|
BHARAT MATHUR |
|
Acting
Regional Administrator
|
|
U.S.
Environmental Protection Agency
|
|
Region
5
|
|
JOHN C.
MATSON
|
|
Associate
Regional Counsel
|
|
U.S.
Environmental Protection Agency
|
|
Region
5
|
ELIOT SPITZER |
|
Attorney
General
|
|
State of New
York
|
|
PETER
LEHNER
|
|
Assistant
Attorney General
|
|
State of New
York
|
|
ROBERT
ROSENTHAL
|
|
Assistant
Attorney General
|
|
State of New
York
|
PETER C. HARVEY |
|
Attorney
General
|
|
State Of New
Jersey
|
|
KEVIN P.
AUERBACHER
|
|
Deputy
Attorney General
|
|
State of New
Jersey
|
|
JEAN P.
REILLY
|
|
Deputy
Attorney General
|
|
State of New
Jersey
|
RICHARD BLUMENTHAL |
|
Attorney
General
|
|
State of
Connecticut
|
|
KIMBERLY P.
MASSICOTTE
|
|
Assistant
Attorney General
|
|
State of
Connecticut
|
|
LORI D.
DIBELLA
|
|
Assistant
Attorney General
|
|
State of
Connecticut
|
RICHARD H.
MARSH
|
|
Senior Vice
President and Chief Financial Officer
|
|
Ohio Edison
Company and Pennsylvania Power Company
|
|
E. DONALD
ELLIOTT
|
|
CARRIE F.
JENKS
|
|
Willkie Farr
& Gallagher LLP
|
|
ROBERT L.
BRUBAKER
|
|
JAMES A.
KING
|
|
JAMES B.
HADDEN
|
|
Porter,
Wright, Morris & Arthur LLP
|
|
MICHAEL L.
HARDY
|
|
Thompson Hine
LLP
|
A.
|
A 52 kW-DC
rated Grid Connected Solar Power System, described below. This project
shall be installed on the roof of the Monument Hill Building, 808 Ridge
Avenue, Pittsburgh, PA 15212-6097. This environmentally beneficial project
is estimated to prevent the emission of 68.5 tons of CO
2
, 0.38 tons
of SO
2
, and 0.10
tons of NO
X
per year of
operation.
|
B.
|
Project
Parameters:
|
C.
|
Specific
components include:
|
1.
|
528 Solar
Power Industries M100 100 watt modules (SPI-M100) designed to meet “World
Class” quality, reliability and performance requirements, and UL 1703 and
IEC 612215 certification requirements. The SPI-M100 modules include 150mm
square multi-crystalline solar cells, PECVD antireflective coating, heavy
duty anodized aluminum frames, tempered low iron front cover glass, EVA
encapsulation and
|
2.
|
Twenty-four
(24) 2500 watt SunnyBoy inverters, model 2500U, housed in NEMA 4X
stainless steel outdoor enclosures, with an efficiency of at least 90% at
maximum output. The Sunny Boy inverters must include DC and AC disconnects
to isolate the inverters from the photovoltaic array and grid,
respectively.
|
3.
|
Twenty-four
(24) SunnyBoy PC options to monitor each inverter’s performance, to be
connected to the central PC.
|
4.
|
One (1) Sunny
Control Lite Unit
|
5.
|
Twenty-four
(24) 250V safety switches
|
6.
|
One 250 Amp
AC Load Center
|
7.
|
One (1)
RS-485 Cable
|
8.
|
Twenty-four
(24) Cutler Hammer Heavy Duty Disconnect Switches (30A
dc)
|
9.
|
Twenty-four
(24) Lightning Surge Arrestors
|
10.
|
One (1)
UniRac Roof Mount System, including mounting
hardware
|
11.
|
Thirty
thousand (30,000) feet of Use 2 wire
|
12.
|
One (1)
personal computer and display monitor
|
13.
|
Two (2)
Installation and Operations manuals
|
D.
|
Payments to
fund this project shall be made to the order of the Allegheny County Clean
Air Fund, and submitted to the following
address:
|
I. | Semi-annual Reporting Requirements |
A. | Installation of NO X and SO 2 Removal Equipment |
1. | If construction is not underway, the construction schedule, dates of contract execution, and major component delivery; |
2. | If construction is underway, the estimated percent of installation and estimated construction completion date; and |
3. | Once construction is complete, the date of final installation and of acceptance testing. |
B. | 30-Day Rolling Average Emission Rates for NO X and SO 2 |
1.
|
Report a
NO
X
and
SO
2
30-Day
Rolling Average Emission Rate (lb/mmBtu), as defined in Paragraph 4, for
each operating day of a Sammis unit commencing on the thirtieth day after
30-Day Rolling Average Emission Rates become
applicable.
|
2.
|
Within the
first report that identifies a 30-Day Rolling Average Emission Rate
(lb/mmBtu) at least five (5) example calculations (including hourly CEMS
data in electronic format for the calculation) used to determine the
30-Day Rolling Average Emission Rate. If at any time Ohio Edison changes
the methodology used in determining the 30-Day Rolling Average Emission
Rate, Ohio Edison shall explain the change and the reason for using the
new methodology.
|
3.
|
Report all
deviations from any 30-Day Rolling Average Emission Rate in lb/mmBtu. Ohio
Edison shall identify any corrective actions taken in response to such
deviation.
|
4.
|
Commencing
when a unit becomes subject to a 30-Day Rolling Average Emission Rate,
Ohio Edison shall also report:
|
a.
|
The date and
time that the unit initially combusts any
fuel;
|
b.
|
The date and
time that the unit is synchronized with a utility electric distribution
system;
|
c.
|
The date and
time that the fire is extinguished in the 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 (1) is eight hours after the unit is
synchronized with a utility electric distribution system, or (2) the flue
gas has reached the SCR operational temperature range specified by the
catalyst manufacturer.
|
C. | PM Emission Rates |
1.
|
Commencing
when a PM Emission Rate becomes applicable, report the PM Emission Rate
(lb/mmBtu) as defined in Paragraph 38, for Sammis Units 6 and 7.
|
2.
|
For Sammis
Units 6 and 7, attach a copy of the executive summary and results of any
stack test to the next semi-annual report submitted.
|
3.
|
Report all
deviations from the PM Emission Rate in lb/mmBtu. Ohio Edison shall
identify any corrective actions taken in response to such deviations.
|
D. | Plant-Wide Annual Cap and Monthly Cap |
1.
|
Commencing
when the Plant-Wide Annual Caps becomes applicable, report the applicable
NO
X
and
SO
2
Plant-Wide
Annual Caps (tons) as defined in Paragraph 36, for the Sammis Plant.
|
2.
|
Commencing
when the Monthly Cap becomes applicable, report the applicable
SO
2
Monthly Cap
(tons) as defined in Paragraph 30, for Sammis Units 1-5.
|
3.
|
Deviations
shall be reported once per year in the semi-annual report following the
end of each calendar year. Ohio Edison shall identify the cause and any
corrective actions, if necessary, taken for each deviation from the
Plant-Wide Annual Caps and Monthly Cap reported
above.
|
E. | Additional Reductions shall be reported once per year in the semi-annual report following the end of each calendar year. |
1.
|
Commencing in
calendar year 2008, report the amount of Additional Eastlake Plant
NO
X
Reductions
(tons) achieved for the applicable year for the Eastlake Plant and, if
applicable, for each plant in addition to the Eastlake Plant where any
remaining Additional Eastlake Plant
NO
X
Reductions
are achieved.
|
2.
|
Commencing in
calendar year 2010, report the amount of Additional Burger Plant
NO
X
Reductions
(tons) achieved for the applicable year at the Burger Plant and, if
applicable, for each plant in addition to the Burger Plant where any
remaining Additional Burger Plant
NO
X
Reductions
are achieved.
|
3.
|
Commencing in
calendar year 2011, unless Ohio Edison elects to satisfy the options for
the Burger Plant in accordance with Paragraph 83.a. and b., report the
amount of Additional Burger Plant
SO
2
Reductions
achieved for the applicable year at the Burger Plant and, if applicable,
for each plant in addition to the Burger Plant where any remaining
Additional Burger Plant
SO
2
Reductions
are achieved.
|
a.
|
If Ohio
Edison elects to permanently shut down Burger Units 4 and 5 pursuant to
Paragraph 83.a., Ohio Edison shall provide proof that the units are in
fact shut down.
|
b.
|
If Ohio
Edison elects to repower Burger Units 4 and 5 pursuant to Paragraph 83.b.,
the 30-Day Rolling Average Emission Rates for
NO
X
and
SO
2
and the PM
Emission Rate as defined in Paragraphs 4 and 38.
|
4.
|
Commencing in
calendar year 2006, report the amount of Additional Mansfield Plant
SO
2
Reductions
(tons) achieved for the applicable year at the Mansfield Plant and, if
applicable, for each plant in addition to the Mansfield Plant where any
remaining Additional Mansfield Plant
SO
2
Reductions
are achieved and performance test data or CEMS data (or combination of
CEMS data and coal sampling) equivalent to the sampling period of a
performance test demonstrating that each FGD at Mansfield Units 1, 2, and
3 achieved a 95% Removal Efficiency in accordance with Paragraph
91.
|
F. | Interim Reductions for NO X and SO 2 |
G. | Surrender of Restricted SO 2 Allowances |
1.
|
Beginning in
2018, report the Restricted
SO
2
Allowances
surrendered to EPA pursuant to Paragraph 102 and documentation verifying
such surrender.
|
2.
|
If Ohio
Edison surrenders any Restricted
SO
2
Allowances
to a third party:
|
a.
|
Include a
description of the transfer in accordance with the provisions of Paragraph
104;
|
b.
|
No later than
the next semi-annual report due 12 months after the report containing in
the information in a. above, include a statement that the third party
permanently surrendered the
SO
2
Allowances
to EPA within one year after Ohio Edison transferred the
SO
2
Allowances
to the third party; and
|
c.
|
Report the
amount of Restricted
SO
2
Allowances
transferred and the units to which Ohio Edison transfers Restricted
SO
2
Allowances
pursuant to Paragraph 100.
|
H. | Generation of Super-Compliant Allowances |
I. | NO X System-Wide Annual Emission Rate |
J. | Environmentally Beneficial Projects |
1.
|
Cash
Contributions for Environmentally Beneficial Projects. Report the payment
of proceeds and amounts of proceeds for these projects made pursuant to
Paragraphs 129, 132, and 133.
|
2.
|
Renewable
Energy Development Projects. Report the execution of each purchase power
contract pursuant to Paragraph 130, including the amount of megawatts to
be purchased over a 20-year period; the location and description of the
renewable energy development project; and the date of commencement of
operation of any renewable energy development
project.
|
II. | Deviation Reports |
In addition to the reporting requirements under Paragraph 143, a summary of all deviations from the requirements of the Consent Decree that occurred during the reporting period identifying the date and time that the deviation occurred, the date and time the deviation was corrected, the cause and any corrective actions, if necessary, taken for each deviation, and the date that the deviation was initially reported under Paragraph 143. |
III. | Ohio Edison Submissions |
A | list of all plans or submissions and the date submitted to the Plaintiffs for the reporting period, identifying if any are pending the review and approval of the Plaintiffs. |
FirstEnergy
Corp.
|
For
Release: March 18, 2005
|
76 South Main
Street
|
|
Akron, OH
44308
|
|
www.firstenergycorp.com
|
|
News
Media Contact:
|
Investor
Relations Contact:
|
Ellen
Raines
|
Kurt
Turosky
|
(330)
384-5808
|
(330)
384-5500
|
EXHIBIT
99.2
|
|
Terrance
G. Howson
|
|
Vice
President
|
|
Investor
Relations
|
|
FirstEnergy
Corp.
|
|
76 S. Main
Street
|
|
Akron, Ohio
44308
|
|
Tel
973-401-8519
|
|
March 18,
2005
|
l
|
Cash
contributions of up to $10 million to the three states ($2 million
annually for 5 years) for environmentally beneficial
projects,
|
l |
Within three
and a half years, FirstEnergy will enter into one or more 20-year
contracts having a net present value of $14.385 million with providers of
wind energy. These contracts will be with facilities located in
Pennsylvania, New Jersey and/or western New York. With Plaintiffs’ written
approval, in lieu of some or all of the wind projects,
contracts may
be entered into for electricity from new landfill gas projects in New
Jersey, Connecticut, or New York.
|
l |
The remaining
$615,000 will be spent for environmental projects for the Allegheny County
Clean Air Fund and the National Park
Service.
|
2005
|
$
|
35
|
||
2006
|
$
|
85
|
||
2007
|
$
|
135
|
||
2008
|
$
|
175
|
||
2009
|
$
|
310
|
||
2010
|
$
|
225
|
||
2011
|
$
|
85
|
||
Total | $ | 1,050 |
Very truly yours, | ||
|
|
|
Terrance G.
Howson
Vice
President - Investor Relations
|
||