Consent Decree: Tennessee Valley Authority (Pdf)

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Consent Decree: Tennessee Valley Authority (Pdf) UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE __________________________________________ STATE OF ALABAMA AND THE ) ALABAMA DEPARTMENT OF ) ENVIRONMENTAL MANAGEMENT, ) COMMONWEALTH OF KENTUCKY, ) STATE OF NORTH CAROLINA ex rel. ) ATTORNEY GENERAL ROY COOPER, ) and STATE OF TENNESSEE, ) ) Plaintiffs, ) ) ) v. ) ) ) JUDGE __________________ TENNESSEE VALLEY AUTHORITY ) ) Civil Action No. ____________ ) Defendant ) ) ) __________________________________________) __________________________________________ NATIONAL PARKS CONSERVATION ) ASSOCIATION, INC., SIERRA CLUB, and ) OUR CHILDREN’S EARTH FOUNDATION, ) ) Plaintiffs, ) ) ) v. ) ) ) JUDGE __________________ TENNESSEE VALLEY AUTHORITY ) ) Civil Action No. ____________ ) Defendant ) __________________________________________) CONSENT DECREE TABLE OF CONTENTS I. JURISDICTION AND VENUE ................................................................................................. 6 II. PARTIES BOUND .................................................................................................................... 7 III. COMPLIANCE PROGRAM ................................................................................................... 7 A. DEFINITIONS ...................................................................................................................... 7 B. NOx EMISSION REDUCTIONS AND CONTROLS ........................................................ 21 C. SO2 EMISSION REDUCTIONS AND CONTROLS ......................................................... 29 D. PM EMISSION REDUCTIONS AND CONTROLS ......................................................... 37 E. PROHIBITION ON NETTING OR OFFSETS FROM REQUIRED CONTROLS ........... 44 F. ENVIRONMENTAL MITIGATION PROJECTS .............................................................. 51 G. CIVIL PENALTY ............................................................................................................... 55 H. RESOLUTION OF CLAIMS AGAINST TVA .................................................................. 56 I. PERIODIC REPORTING ..................................................................................................... 58 J. REVIEW AND APPROVAL OF SUBMITTALS ............................................................... 59 K. STIPULATED PENALTIES .............................................................................................. 60 L. PERMITS ............................................................................................................................ 65 IV. COORDINATION OF OVERSIGHT AND ENFORCEMENT ........................................... 69 V. FORCE MAJEURE ................................................................................................................ 76 VI. DISPUTE RESOLUTION ..................................................................................................... 81 VII. INFORMATION COLLECTION AND RETENTION ........................................................ 83 VIII. NOTICES ............................................................................................................................ 85 i IX. SALES OR TRANSFERS OF OPERATIONAL OR OWNERSHIP INTERESTS ............. 87 X. EFFECTIVE DATE ................................................................................................................ 90 XI. RETENTION OF JURISDICTION ....................................................................................... 90 XII. MODIFICATION ................................................................................................................. 90 XIII. GENERAL PROVISIONS .................................................................................................. 90 XIV. SIGNATORIES AND SERVICE ....................................................................................... 94 XV. PUBLIC COMMENT .......................................................................................................... 94 XVI. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER DECREE ................. 95 XVI. FINAL JUDGMENT .......................................................................................................... 96 APPENDIX A – REPORTING REQUIREMENTS APPENDIX B – EMISSION LIMITATIONS FOR NEW CC/CT UNITS EXHIBIT 1 – FEDERAL FACILITIES COMPLIANCE AGREEMENT EXHIBIT 2 – PROPOSED CONSENT AGREEMENT AND FINAL ORDER ii WHEREAS, the States of Alabama, North Carolina, and Tennessee and the Commonwealth of Kentucky (collectively the “States”), have jointly filed a complaint for injunctive relief and civil penalties pursuant to Ala. Code § 22-22A-5(18), (19), Ky. Rev. Stat. §§ 224.99-010 to -020, Tenn. Code Ann. §§ 68-201-111, -115(b)(5), -117, and Section 304 of the Clean Air Act (the “Act”), 42 U.S.C. § 7604, alleging that Defendant Tennessee Valley Authority (“TVA”) made major modifications to major emitting facilities, and failed to obtain the necessary permits and install the controls necessary under the Prevention of Significant Deterioration (“PSD”) and Nonattainment New Source Review (“Nonattainment NSR”) provisions of the Act and the federally approved and enforceable State Implementation Plans (“SIPs”) for Alabama, Kentucky, and Tennessee, to reduce emissions of oxides of nitrogen (NOx), sulfur dioxide (SO2), and/or particulate matter (“PM”); further alleging related claims under the New Source Performance Standards, minor new source review (“minor NSR”), and Title V programs; and further alleging that such emissions damage human health and the environment; WHEREAS, National Parks Conservation Association, Sierra Club, and Our Children’s Earth Foundation (collectively the “Citizen Plaintiffs”) have jointly filed a complaint for injunctive and declaratory relief and civil penalties pursuant to the federal Clean Air Act, 42 U.S.C. §§ 7401 through 7671q, alleging that TVA made major modifications to major emitting facilities and failed to obtain the necessary permits and install the controls necessary under the PSD and Nonattainment NSR provisions of the Act and the EPA-approved SIPs for the States of Alabama and Tennessee, and the Commonwealth of Kentucky to reduce emissions of NOx, SO2, 1 and/or PM and further alleging related claims under the New Source Performance Standards and minor NSR; WHEREAS, on November 10, 2004, the State of North Carolina gave notice to TVA and other required parties, pursuant to Section 304 of the Act, 42 U.S.C. § 7604, of its intent to sue TVA regarding the same alleged violations that EPA had alleged in an administrative compliance order that EPA had issued to TVA first on November 3, 1999, and which was subsequently amended several times, including on April 10, 2000, WHEREAS, on October 30, 2000, December 13, 2000, July 21, 2003, and September 30, 2008, to the extent it was necessary, the Citizen Plaintiffs gave notice to TVA and other required parties pursuant to Section 304 of the Act, 42 U.S.C. § 7604, of their intent to sue TVA regarding the claims alleged in their complaint; WHEREAS, the States’ complaint alleges, inter alia, claims upon which relief can be granted against TVA pursuant to Ala. Code § 22-22A-5(18), (19), Ky. Rev. Stat. §§ 224.99-010 to -020, Tenn. Code Ann. §§ 68-201-111, -115(b)(5), -117, Section 304 of the Act, 42 U.S.C. § 304, and 28 U.S.C. § 1355; WHEREAS, the Citizen Plaintiffs’ complaint alleges claims upon which relief can be granted against TVA pursuant to the Clean Air Act’s PSD program, 42 U.S.C. §§ 7470-7492, Nonattainment NSR program, 42 U.S.C. §§ 7501-7515, New Source Performance Standards, 42 U.S.C. § 7411, NSPS Subparts A and Da, 40 C.F.R. § 60.1 et seq., 40 C.F.R. § 60.40a et seq., minor NSR, the EPA-approved SIPs for the States of Tennessee and Alabama, and the Commonwealth of Kentucky, and 28 U.S.C. § 1355; 2 WHEREAS, EPA issued an administrative compliance order to TVA pursuant to Sections 113 and 167 of the Act, 42 U.S.C. §§ 7413, 7477, alleging that TVA violated, inter alia, the PSD and Nonattainment NSR programs of the Act, its implementing regulations, and the relevant SIPs at several of the coal-fired electric generating units that TVA owns and operates when it made certain physical changes without obtaining the necessary permits and installing the controls necessary to reduce emissions of NOx, SO2, and PM; WHEREAS, in the administrative compliance order, EPA directed TVA to come into compliance with the Act; WHEREAS, the United States Environmental Appeals Board (“EAB”) issued a Final Order on Reconsideration in In re Tennessee Valley Auth., 9 E.A.D 357 (EAB 2000), in which it found that TVA had violated the PSD and Nonattainment NSR programs of the Act, its implementing regulations, and the relevant SIPs, and directed TVA to come into compliance with the Act; WHEREAS, TVA petitioned for review of the administrative compliance order and the EAB’s Final Order on Reconsideration in the United States Court of Appeals for the Eleventh Circuit, which concluded that EPA’s administrative proceedings, and the Act provisions under which the order was issued, violated due process, Tennessee Valley Auth. v. Whitman, 336 F.3d 1236, 1244, 1260 (11th Cir. 2003), cert. denied, 541 U.S. 1030 (2004); Brief for Respondent in Opposition to a Writ of Certiorari (“Brief for Respondent”) at 4, National Parks Conservation Ass’n et al. v. Tennessee Valley Auth., 554 U.S. 917 (2008) (No. 07-867), and which then held that the unconstitutionality of the Clean Air Act provision meant that EPA’s order was not a 3 “final agency action” and
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