United States of America v. Westar Energy, Inc.

Filing 67

CONSENT DECREE: See Decree for details. Signed by District Judge Julie A. Robinson on 3/26/10.(mb)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA, Plaintiff, and STATE OF KANSAS Plaintiff-Intervenor, v. WESTAR ENERGY, INC. Defendant.

) ) ) ) ) ) ) ) ) ) ) Civil Action No. 09-CV-2059 JAR/DJW ) ) ) ) )

CONSENT DECREE

TABLE OF CONTENTS I. JURISDICTION AND VENUE ...................................................................................................2 II. APPLICABILITY .......................................................................................................................3 III. DEFINITIONS ...........................................................................................................................3 IV. NOX EMISSION REDUCTIONS AND CONTROLS............................................................10 A. B. C. D. E. F. Installation and Operation of NOx Emissions Controls ......................................10 Election To Install Second SCR ..........................................................................11 Use and Surrender of NOx Allowances.............................................. 13 Super-Compliance Allowances ...........................................................................14 Method for Surrender of NOx Allowances .........................................................14 NOx Monitoring Provisions ................................................................................15

V. SO2 EMISSION REDUCTIONS AND CONTROLS ..............................................................16 A. B. C. D. E. F. Plant-Wide 12-Month Rolling Tonnage Limitation for SO2 ...............................16 SO2 Emission Controls ........................................................................................16 Use and Surrender of SO2 Allowances ................................................................16 Super-Compliance Allowances ...........................................................................17 Method for Surrender of SO2 Allowances...........................................................17 SO2 Monitoring Provisions..................................................................................19

VI. PM EMISSION REDUCTIONS AND CONTROLS..............................................................19 A. B. C. Optimization of Existing PM Control Devices ...................................................19 PM Emission Rates..............................................................................................20 PM Emissions Monitoring ...................................................................................20

VII. PROHIBITION ON NETTING CREDITS OR OFFSETS FROM REQUIRED CONTROLS ....................................................................................................................23 VIII. ENVIRONMENTAL MITIGATION PROJECTS ...............................................................24 IX. CIVIL PENALTY ...................................................................................................................26

X. RESOLUTION OF CERTAIN CIVIL CLAIMS .....................................................................27 XI. PERIODIC REPORTING .......................................................................................................28 XII. REVIEW AND APPROVAL OF SUBMITTALS ................................................................31 XIII. STIPULATED PENALTIES ................................................................................................31 XIV. FORCE MAJEURE ..............................................................................................................39 XV. DISPUTE RESOLUTION .....................................................................................................42 XVI. PERMITS..............................................................................................................................43 XVII. INFORMATION COLLECTION AND RETENTION ......................................................45 XVIII. NOTICES ...........................................................................................................................46 XIX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS ...............................................48 XX. EFFECTIVE DATE ...............................................................................................................50 XXI. RETENTION OF JURISDICTION ......................................................................................50 XXII. MODIFICATION ................................................................................................................50 XXIII. GENERAL PROVISIONS.................................................................................................50 XXIV. SIGNATORIES .................................................................................................................53 XXV. PUBLIC COMMENT .........................................................................................................53 XXVI. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER DECREE ...............54 XXVII. FINAL JUDGMENT ........................................................................................................55

WHEREAS, the United States of America ("the United States"), on behalf of the United States Environmental Protection Agency ("EPA"), filed a Complaint against Westar Energy, Inc. ("Westar") pursuant to Sections 113(b) and 167 of the Clean Air Act (the "Act"), 42 U.S.C. §§ 7413(b) and 7477, for injunctive relief and civil penalties for alleged violations of: (a) the Prevention of Significant Deterioration provisions in Part C of Subchapter I of the Act, 42 U.S.C. §§ 7470-92; (b) (c) Title V of the Act, 42 U.S.C. § 7661 et seq.; and the federally-enforceable State Implementation Plan developed by the State of Kansas; at the Jeffrey Energy Center, a coal-fired power plant located in Pottawatomie County, Kansas; WHEREAS, in its Complaint, Plaintiff alleges, inter alia, that Westar failed to obtain the necessary permits and install the controls necessary under the Act to reduce its sulfur dioxide ("SO2"), nitrogen oxides ("NOx"), and/or particulate matter ("PM") emissions, and that Westar failed to obtain an operating permit under Title V of the Act that reflects applicable requirements imposed under Part C of Subchapter I of the Act for each of the coal-fired electric generating units at the Jeffrey Energy Center; WHEREAS, the Complaint alleges claims upon which relief can be granted against Westar under Sections 113 and 167 of the Act, 42 U.S.C. §§ 7413 and 7477, and 28 U.S.C. § 1355; WHEREAS Westar has denied and continues to deny the violations alleged in the Complaint; maintains that it has been and remains in compliance with the Act and is not liable for civil penalties or injunctive relief; and states that it is agreeing to the obligations imposed by this Decree solely to avoid the costs and uncertainties of litigation and to improve the environment;

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WHEREAS, EPA provided Westar and the State of Kansas with actual notices of violations pertaining to Westar's alleged violations, in accordance with Section 113(a)(1) and (b) of the Act, 42 U.S.C. § 7413(a)(1) and (b); WHEREAS, the Parties anticipate that the installation and operation of pollution control equipment pursuant to this Consent Decree will achieve significant reductions in SO2, NOx and PM emissions and thereby improve air quality; WHEREAS, the United States, the State of Kansas, and Westar have agreed, and the Court by entering this Consent Decree finds that this Consent Decree has been negotiated in good faith and at arms length; that this settlement is fair, reasonable, consistent with the goals of the Act, in the best interest of the Parties and in the public interest; and that entry of this Consent Decree without further litigation is the most appropriate means of resolving this matter; and WHEREAS, the United States, the State of Kansas, and Westar have consented to entry of this Consent Decree without trial of any issue; NOW, THEREFORE, without any admission of fact or law, and without any admission of the violations alleged in the Complaint, notice of violation and otherwise; it is hereby ORDERED, ADJUDGED, AND DECREED as follows: I. JURISDICTION AND VENUE 1. This Court has jurisdiction over this action, the subject matter herein, and the

Parties consenting hereto, pursuant to 28 U.S.C. §§ 1331, 1345, and 1355, and 1367, and 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, Westar waives all objections and defenses that it may have to the Court's jurisdiction over this action, to the Court's jurisdiction over Westar, and to venue in this District. Westar shall not challenge the terms of this Consent Decree 2

or this Court's jurisdiction to enter and enforce this Consent Decree. Except as expressly provided for herein, this Consent Decree shall not create any rights in any party other than the United States and Westar. Except as provided in Section XXV (Public Comment) of this Consent Decree, the Parties consent to entry of this Consent Decree without further notice. II. APPLICABILITY 2. Upon entry, the provisions of this Consent Decree shall apply to and be binding

upon the United States, the State of Kansas, and Westar, its successors and assigns, and Westar's officers, employees, and agents solely in their capacities as such. 3. Westar shall provide 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, Westar 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, Westar 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 Westar establishes that such failure resulted from a Force Majeure Event, as defined in Paragraph 132 of this Consent Decree. III. DEFINITIONS 4. 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.

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5.

A "30-Day Rolling Average Unit Emission Rate" for a Unit means an emission

limit expressed in lb/mmBTU and calculated in accordance with the following procedure: first, sum the total pounds of the pollutant in question emitted from the Unit during an Operating Day and the previous twenty-nine (29) Operating Days; second, sum the total heat input to the Unit in mmBTU during the Operating Day and during the previous twenty-nine (29) Operating Days; and third, divide the total number of pounds of the pollutant emitted during the thirty (30) Operating Days by the total heat input during the thirty (30) Operating Days. A new 30-Day Rolling Average Unit Emission Rate shall be calculated for each new Operating Day. Each 30-Day Rolling Average Unit Emission Rate shall include all emissions that occur during all periods of operation within an Operating Day, including Startup, Shutdown and Malfunction. 6. A "30-Day Rolling Average Unit Removal Efficiency" for SO2 means, and shall be

expressed as, the percent reduction in the mass of SO2 achieved by a Unit's FGD system over a 30-Operating Day period and shall be calculated as follows: step one, sum the total pounds of SO2 emitted from the Unit during the current Operating Day and the previous twenty-nine (29) Operating Days as measured at the outlet of the FGD system for that Unit; step two, sum the total pounds of SO2 delivered to the inlet of the FGD system for the Unit during the current Operating Day and the previous twenty-nine (29) Operating Days as measured at the inlet to the FGD system for that Unit; step three, subtract the outlet SO2 emissions calculated in step one from the inlet SO2 emissions calculated in step two; step four, divide the difference calculated in step three by the inlet SO2 emissions calculated in step two; and step five, multiply the quotient calculated in step four by 100 to express the emission limit removal efficiency percentage. A new 30-day Rolling Average Unit Removal Efficiency shall be calculated for each new Operating Day, and shall include all emissions that occur during all periods within each Operating Day, including Startup, Shutdown, and Malfunction. 4

7.

"CEMS" or "Continuous Emission Monitoring System" means, for obligations

involving monitoring of NOx and SO2 emissions under this Consent Decree, the devices defined in 40 C.F.R. § 72.2, the inlet SO2 lb/mmBtu monitors, and the computer system for recording, calculating, and storing data and equations required by this Consent Decree. 8. "Clean Air Act" or "Act" means the federal Clean Air Act, 42 U.S.C.

§§7401-7671q, and its implementing regulations. 9. "Consent Decree" or "Decree" means this Consent Decree and the Appendix

hereto, which is incorporated into this Consent Decree. 10. "Day" means a calendar day unless expressly stated to be a Business Day.

"Business Day" means a day other than a Saturday, Sunday or federal holiday. 11. "Electrostatic Precipitator" or "ESP" means a device for removing particulate

matter from combustion gases by imparting an electric charge to the particles and then attracting them to a metal plate or screen of opposite charge before the combustion gases are exhausted to the atmosphere. 12. "Emission Rate" means the number of pounds of pollutant emitted per million

BTU of heat input ("lb/mmBTU") measured in accordance with this Consent Decree. 13. 14. "EPA" means the United States Environmental Protection Agency. "Forced Outage" means, for the purpose of Paragraph 35, an unplanned outage

caused by a component failure or other breakdown that requires the SCR-controlled Unit be removed from service before the end of the next weekend. A common cause of forced outages is boiler tube failure. 15. "Flue Gas Desulfurization System," or "FGD," means a pollution control device

that employs flue gas desulfurization technology for the reduction of sulfur dioxide.

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16.

"Fossil Fuel" means natural gas, petroleum, coal, and any form of solid, liquid, or

gaseous fuel derived from such materials for the purpose of creating useful heat. 17. "JEC" means the Jeffrey Energy Center located near St. Marys, Kansas, consisting

of the following coal-fired Units: Unit 1 (720 MW), Unit 2 (720 MW) and Unit 3 (720 MW). 18. 19. heat input. 20. "Low NOx Combustion System" means burners and associated combustion air "KDHE" means Kansas Department of Health and Environment. "lb/mmBTU" means one pound of a pollutant per million British thermal units of

control equipment, including overfire air, for combusting pulverized coal, which control mixing characteristics of the pulverized coal and oxygen, lower the combustion rate, lower oxygen concentration and heat temperature during the initial phase of combustion, and thereby restrain the formation of NOx created by both the nitrogen content of the pulverized coal and by heat. 21. "Malfunction" means any sudden, infrequent, and not reasonably preventable

failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner. Failures that are caused in part by poor maintenance or careless operation are not Malfunctions. 22. 23. "MW" means a megawatt or one million Watts. "National Ambient Air Quality Standards" or "NAAQS" means national ambient

air quality standards that are promulgated pursuant to Section 109 of the Act, 42 U.S.C. § 7409. 24. "Netting" shall mean the process of determining whether a particular physical

change or change in the method of operation of a major stationary source results in a net emissions increase, as that term is defined at 40 C.F.R. § 52.21(b)(3)(i) and at K.A.R. 28-19-350 of the Kansas SIP.

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25.

"NOx" means oxides of nitrogen, measured at the boiler stack in accordance with

the provisions of this Consent Decree. 26. "NOx Allowance" means any allowance, authorization or credit to emit a specified

amount of NOx that is allocated or issued under an emissions trading or marketable permit program of any kind established under the Act or a State Implementation Plan. The Parties acknowledge that at the time of lodging of this Consent Decree no NOx Allowance program is applicable to any Unit at JEC. 27. "Nonattainment NSR" means the nonattainment area New Source Review program

under Part D of Subchapter I of the Act, 42 U.S.C. §§ 7501-7515, and the federal regulations codified at 40 C.F.R. Part 51, and the federally approved provisions of the Kansas SIP, K.A.R. 28-19-16 through 28-19-16m. 28. 29. JEC Unit. 30. "Parties" means Westar, the United States of America, and the State of Kansas, and "Operating Day" means any Day on which a Unit fires Fossil Fuel. "Ownership Interest" means all or part of Westar's legal or equitable interest in any

"Party" means any one of the three named "Parties." 31. 32. "Plaintiff" means the United States of America. "Plaintiff-Intervenor" or "Intervenor" means the State of Kansas through the

Kansas Department of Health and Environment. 33. "Plant-Wide 30-Day Rolling Average Emission Rate" means an emission limit

expressed in lb/mmBTU and calculated in accordance with the following procedure: first, sum the total pounds of the pollutant in question emitted from all JEC Units during a Plant-Wide Operating Day and the previous twenty-nine (29) Plant-Wide Operating Days; second, sum the total heat input to all JEC Units in mmBTU during the Plant-Wide Operating Day and during the 7

previous twenty-nine (29) Plant-Wide Operating Days; and third, divide the total number of pounds of the pollutant emitted during the thirty (30) Plant-Wide Operating Days by the total heat input during the thirty (30) Plant-Wide Operating Days. A new Plant-Wide 30-Day Rolling Average Emission Rate shall be calculated for each new Plant-Wide Operating Day. Each Plant-Wide 30-Day Rolling Average Emission Rate shall include all emissions that occur during all periods of operation within a Plant-Wide Operating Day, including Startup, Shutdown and Malfunction. 34. "Plant-Wide 12-Month Rolling Tonnage" means the sum of the tons of the

pollutant in question emitted from all three JEC Units in the most recent complete month and the previous eleven (11) months. A new Plant-Wide 12-Month Rolling Tonnage shall be calculated for each new complete month in accordance with the provisions of this Consent Decree. Each Plant-Wide 12-Month Rolling Tonnage shall include all emissions of NOx and SO2 that occur during all periods of operation, including Startup, Shutdown and Malfunction. 35. "Plant-Wide Operating Day" means a day on which any JEC Unit fires Fossil Fuel,

except that any day during which a Unit equipped with an SCR is not firing Fossil Fuel due to a Forced Outage or a Scheduled Outage for that Unit shall not be included as a Plant-Wide Operating Day. 36. "PM" means filterable particulate matter, as measured in accordance with the

requirements of this Consent Decree. 37. "PM Emission Rate" means the number of pounds of PM emitted per million BTU

of heat input (lb/mmBTU), as measured in annual stack tests in accordance with 40 C.F.R. Part 60, App. A, Method 5, 5B (filterable portion only), or 17. 38. "PM CEMS" or "PM Continuous Emission Monitoring System" means, for

obligations involving the monitoring of PM emissions under this Consent Decree, the equipment 8

that samples, analyzes, measures, and provides, by readings taken at frequent intervals, an electronic and/or paper record of PM emissions. 39. "Project Dollars" means Westar's expenditures and payments incurred or made in

carrying out the Environmental Mitigation Projects identified in Section VIII (Environmental Mitigation Projects) of this Consent Decree to the extent that such expenditures or payments both: (a) comply with the requirements set forth in Section VIII (Environmental Mitigation Projects) of this Consent Decree and (b) constitute Westar's direct payments for such projects, or Westar's external costs for contractors, vendors, and equipment. 40. "PSD" means Prevention of Significant Deterioration within the meaning of Part C

of Subchapter I of the Clean Air Act, 42 U.S.C. §§ 7470 - 7492, the federal regulations codified at 40 C.F.R. Part 51.166, and the federally approved provisions of the Kansas SIP, K.A.R. 28-19-350. 41. "Scheduled Outage" means, for the purpose of Paragraph 35, an outage that is

planned in advance for the purposes of maintenance or repairs of the SCR-controlled Unit, and, excludes time periods when the Unit is not operating due to a lack of demand or economic considerations. 42. "Selective Catalytic Reduction System" or "SCR" means a pollution control device

that employs selective catalytic reduction technology for the reduction of NOx emissions. 43. "Selective Non-Catalytic Reduction System" or "SNCR" means a pollution control

device for the reduction of NOx emissions that utilizes ammonia or urea injection or a functionally similar material into the boiler. 44. 45. "Shutdown" means the cessation of operation of any Unit for any purpose. "SO2" means sulfur dioxide, measured at the boiler stack in accordance with the

provisions of this Consent Decree. 9

46.

"SO2 Allowance" means an authorization or credit to emit a specified amount of

SO2 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 the Kansas State Implementation Plan. 47. 48. "Startup" means the setting in operation of any Unit for any purpose. "Title V Permit" means the permit required of Westar's JEC under Subchapter V

of the Act, 42 U.S.C. §§ 7661-7661e. 49. "Unit" means, solely for the purposes of this Consent Decree, collectively, the

boiler coal pulverizers, the boiler that produces steam for the steam turbine including pollution control equipment, the steam turbine and the generator. IV. NOX EMISSION REDUCTIONS AND CONTROLS A. Installation and Operation of NOx Emissions Controls 1. 50. Optimization of Low NOx Combustion Systems at JEC Units 1 and 3

No later than ninety (90) days after entry of this Consent Decree, Westar shall

implement a plan to optimize NOx emission reductions from the existing Low NOx Combustion Systems at JEC Units 1 and 3. Beginning on December 31, 2011, and continuing thereafter, Westar shall continuously operate the Low NOx Combustion Systems at JEC Units 1 and 3 so as to achieve and maintain a 30-Day Rolling Average Unit Emission Rate for NOx of no greater than 0.180 lb/mmBTU. 2. 51. Installation and Operation of Low NOx Combustion System at JEC Unit 2

Westar shall install a new Low NOx Combustion System at JEC Unit 2 no later

than December 31, 2011. As soon as practicable, but in no event later than December 31, 2011, Westar shall continuously operate the new Low NOx Combustion System at JEC Unit 2 so as to achieve and maintain a 30-Day Rolling Average Unit Emission Rate for NOx of no greater than 0.180 lb/mmBTU. 10

52.

Westar shall continuously operate the Low NOx Combustion Systems at each JEC

Unit, at all times that the Units they serve are in operation, consistent with the technological limitations, manufacturers' specifications, and good engineering and maintenance practices for the Low NOx Combustion Systems for minimizing emissions to the extent practicable. 3. 53. Installation and Operation of New SCR

Westar shall install and commence operation of an SCR on one of the JEC Units

no later than December 31, 2014. No later than one hundred and twenty (120) days after installation, and continuing thereafter, Westar shall continuously operate the SCR on that Unit so as to achieve and maintain a 30-Day Rolling Average Unit Emission Rate for NOx of no greater than 0.080 lb/mmBTU. 54. No later than one hundred and twenty (120) days after installation, and continuing

thereafter, Westar shall continuously operate the SCR at all times that the Unit it serves is in operation, consistent with the technological limitations, manufacturers' specifications, and good engineering and maintenance practices for the SCR for minimizing emissions to the extent practicable. B. 55. Election To Install Second SCR No later than ninety (90) days after entry of this Consent Decree, Westar shall

begin testing, evaluating, and analyzing the NOx emission reductions that Westar would achieve from the installation of SNCR and other NOx reduction technologies at JEC. 56. No later than December 31, 2012, Westar shall elect to either (a) install a second

SCR on one of the other JEC Units or (b) meet a 0.100 lb/mmBTU Plant-Wide 12-Month Rolling Average Emission Rate for NOx. Westar shall notify EPA and KDHE in writing of its election no later than December 31, 2012. If Westar elects to install a second SCR, Westar's notice to EPA and KDHE shall identify which JEC Unit will be equipped with the second SCR. 11

57.

If Westar elects not to install a second SCR at JEC pursuant to Paragraph 56,

Westar shall comply with the requirements in Paragraph 58. Otherwise, Westar shall comply with the requirements in Paragraph 59. 1. 58. shall: a. achieve and thereafter maintain a Plant-Wide 30-Day Rolling Average Emission Rate for NOx at JEC of 0.100 lb/mmBtu no later than one hundred and twenty (120) days after installation of the SCR required by Paragraph 53; and b. achieve, maintain and comply with a Plant-Wide 12-Month Rolling Tonnage limitation for NOx at JEC of 9600 tons by December 31, 2014. 2. 59. shall: a. install an SCR on the JEC Unit identified in the written election submitted to EPA and KDHE and commence operation of the SCR no later than December 31, 2016. No later than ninety (90) days after installation, and continuing thereafter, Westar shall continuously operate the SCR on that Unit so as to achieve and maintain a 30-Day Rolling Average Unit Emission Rate for NOx of no greater than 0.070 lb/mmBTU. No later than ninety (90) days after installation, and continuing thereafter, Westar shall continuously operate the SCR at all times that the Unit it serves is in operation, consistent with the technological limitations, manufacturers' 12 Requirements If Westar Elects To Install Second SCR Requirements If Westar Elects Not To Install Second SCR

If Westar elects not to install a second SCR pursuant to Paragraph 56, Westar

If Westar elects to install a second SCR at JEC pursuant to Paragraph 56, Westar

specifications, and good engineering and maintenance practices for the SCR for minimizing emissions to the extent practicable; and b. achieve, maintain and comply with the Plant-Wide 12-Month Rolling Tonnage limitations for NOx set forth below at JEC by the following dates: Compliance Date December 31, 2014 December 31, 2016 and each year thereafter C. Use and Surrender of NOx Allowances 60. Westar shall not use NOx Allowances to comply with any requirement of this Plant-Wide 12-Month Rolling Tonnage Limitation For NOx 12,400 tons 9,600 tons

Consent Decree, including by claiming compliance with any emission limitation required by this Consent Decree by using, tendering, or otherwise applying NOx Allowances to offset any excess emissions. 61. Westar shall surrender all NOx Allowances allocated to JEC that Westar does not

need in order to meet its own federal and/or state Clean Air Act regulatory requirements for JEC. NOx Allowances allocated to JEC may be used by JEC to meet its own federal and/or state Clean Air Act regulatory requirements for the JEC Units. The requirements of this Paragraph shall apply in the first calendar year in which the program allocates allowances to the JEC Units and requires annual retirement to offset NOx emissions in that calendar year, and continuing annually thereafter, consistent with the program's schedule for annual retirement. 62. Nothing in this Consent Decree shall prevent Westar from purchasing or otherwise

obtaining NOx Allowances from another source for purposes of complying with federal and/or state Clean Air Act regulatory requirements to the extent otherwise allowed by law.

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63.

The requirements in this Consent Decree pertaining to Westar's use and surrender

of NOx Allowances are permanent injunctions not subject to any termination provision of this Consent Decree. D. Super-Compliance Allowances 64. Provided that Westar is in compliance with the applicable Plant-Wide 12-Month

Rolling Tonnage limitation for NOx, nothing in this Consent Decree shall preclude Westar from selling or transferring NOx Allowances allocated to JEC that become available for sale or trade solely as a result of achievement and maintenance of an Emission Rate below: a. The Plant-Wide 30-Day Rolling Average NOx Emission Rate if Westar

elects not to install a second SCR pursuant to Paragraph 56; or b. The 30-Day Rolling Average Unit Emission Rates if Westar elects to install

a second SCR pursuant to Paragraph 56. E. 65. Method for Surrender of NOx Allowances Westar shall surrender, or transfer to a non-profit third party selected by Westar for

surrender, all NOx Allowances required to be surrendered annually pursuant to Paragraph 61 within 45 days from receipt of annual deduction reports from EPA. Any surrender need not include the specific NOx Allowances that were allocated to Westar, so long as Westar surrenders NOx allowances that are from the same or earlier year and that are equal to the number required to be surrendered under this Subsection. 66. If any NOx Allowances required to be surrendered under this Consent Decree are

transferred directly to a non-profit third party, Westar shall include a description of such transfer in the next report submitted to EPA and KDHE pursuant to Section XI (Periodic Reporting) of this Consent Decree. Such report shall: (i) identify the non-profit third party recipient(s) of the NOx Allowances and list the serial numbers of the transferred NOx Allowances; and (ii) include a 14

certification by the non-profit third party recipient(s) stating that the recipient(s) will not sell, trade, or otherwise exchange any of the allowances and will not use any of the NOx Allowances to meet any obligation imposed by any environmental law. No later than the third periodic report due after the transfer of any NOx Allowances, Westar shall include a statement that the non-profit third party recipient(s) surrendered the NOx Allowances for permanent surrender to EPA within one (1) year after Westar transferred the NOx Allowances to them. Westar shall not have complied with the NOx Allowance surrender requirements of this Paragraph until all third party recipient(s) have actually surrendered the transferred NOx Allowances to EPA. F. 67. NOx Monitoring Provisions In determining the Plant-Wide 30-Day Rolling Average Emission Rate and 30-Day

Rolling Average Unit Emission Rate for NOx, Westar shall use CEMS in accordance with the procedures of 40 C.F.R. Part 75, except that: (1) NOx emissions data need not be bias adjusted, (2) for any CEMS with a span less than 100 parts per million ("ppm"), the calibration drift and out-of-control criteria in Procedure 1, section 4.3 of Part 60, Appendix F shall apply in lieu of the low emitter specifications in Part 75, Appendix B, section 2.1, (3) for any CEMS with a span less than or equal to 30 ppm the exemption from the Part 75 linearity check will not apply and either the Part 75 linearity check or the cylinder gas audit described in Procedure 1, section 5.1.2 of Part 60, Appendix F shall be performed on a quarterly basis, and (4) for any Unit controlled by SCR, an annual relative accuracy test audit shall meet, at a minimum, a relative accuracy of less than 20% or an accuracy of less than 0.015 lb/mmBtu (expressed as the difference between the monitor mean and the reference value mean). 68. For purposes of calculating the Plant-Wide 12-Month Rolling Tonnage limitation

for NOx, Westar shall use CEMS in accordance with the procedures specified in 40 C.F.R. Part 75. 15

V. SO2 EMISSION REDUCTIONS AND CONTROLS A. 69. Plant-Wide 12-Month Rolling Tonnage Limitation for SO2 Beginning 90 days after entry of this Consent Decree, Westar shall achieve,

maintain and comply with a Plant-Wide 12-Month Rolling Tonnage limitation for SO2 at JEC of 6,600 tons. B. 70. SO2 Emission Controls No later than ninety (90) days after entry of this Consent Decree, Westar shall

commence continuous operation of FGDs at all three JEC Units so as to achieve and thereafter maintain, a 30-Day Rolling Average Unit Removal Efficiency for SO2 of at least ninety-seven percent (97%) or a 30-Day Rolling Average Unit Emission Rate for SO2 of no greater than 0.070 lb/mmBTU. 71. No later than ninety (90) days after entry of this Consent Decree and continuously

thereafter, Westar shall operate each FGD covered under this Consent Decree at all times that the Unit it serves is in operation, consistent with the technological limitations, manufacturers' specifications, and good engineering and maintenance practices for the FGD for minimizing emissions to the extent practicable. C. 72. Use and Surrender of SO2 Allowances Except as may be necessary to comply with Section XIII (Stipulated Penalties),

Westar shall not use SO2 Allowances to comply with any requirement of this Consent Decree, including by claiming compliance with any emission limitation required by this Consent Decree by using, tendering, or otherwise applying SO2 Allowances to offset any excess emissions. 73. Beginning in calendar year 2011, and continuing each calendar year thereafter,

Westar shall surrender all SO2 Allowances allocated to JEC for that calendar year that Westar does not need in order to meet its own federal and/or state Clean Air Act regulatory requirements 16

for JEC. SO2 Allowances allocated to JEC may be used by JEC to meet its own federal and/or state Clean Air Act regulatory requirements for the JEC Units. 74. Nothing in this Consent Decree shall prevent Westar from purchasing or otherwise

obtaining SO2 Allowances from another source for purposes of complying with federal and/or state Clean Air Act regulatory requirements to the extent otherwise allowed by law. 75. The requirements in this Consent Decree pertaining to Westar's use and surrender

of SO2 Allowances are permanent injunctions not subject to any termination provision of this Consent Decree. D. 76. Super-Compliance Allowances Provided that Westar is in compliance with the Plant-Wide 12-Month Rolling

Tonnage limitation for SO2 nothing in this Consent Decree shall preclude Westar from selling or transferring SO2 Allowances allocated to JEC that become available for sale or trade solely as a result of: a. the installation and operation of any SO2 pollution control technology or technique that is not otherwise required by, or necessary to maintain compliance with, any provision of this Consent Decree, and is not otherwise required by law; or b. achievement and maintenance of an Emission Rate below the applicable 30-Day Rolling Average Unit Emission Rate or 30-Day Rolling Average Unit Removal Efficiency for SO2. E. 77. Method for Surrender of SO2 Allowances Westar shall surrender, or transfer to a non-profit third party selected by Westar for

surrender, all SO2 Allowances required to be surrendered pursuant to Paragraph 73 within 45 days from receipt of SO2 Allowances Annual Deduction Reports from EPA. Any surrender need not 17

include the specific SO2 Allowances that were allocated to Westar, so long as Westar surrenders SO2 Allowances that are from the same or earlier year and that are equal to the number required to be surrendered under this Subsection. 78. If any SO2 Allowances required to be surrendered under this Consent Decree are

transferred directly to a non-profit third party, Westar shall include a description of such transfer in the next report submitted to EPA and KDHE pursuant to Section XI (Periodic Reporting) of this Consent Decree. Such report shall: (i) identify the non-profit third party recipient(s) of the SO2 Allowances and list the serial numbers of the transferred SO2 Allowances; and (ii) include a certification by the non-profit third party recipient(s) stating that the recipient(s) will not sell, trade, or otherwise exchange any of the allowances and will not use any of the SO2 Allowances to meet any obligation imposed by any environmental law. No later than the third periodic report due after the transfer of any SO2 Allowances, Westar shall include a statement that the non-profit third party recipient(s) surrendered the SO2 Allowances for permanent surrender to EPA in accordance with the provisions of Paragraph 79 within one (1) year after Westar transferred the SO2 Allowances to them. Westar shall not have complied with the SO2 Allowance surrender requirements of this Paragraph until all third party recipient(s) have actually surrendered the transferred SO2 Allowances to EPA. 79. For all SO2 Allowances required to be surrendered, Westar or the third party

recipient(s) (as the case may be) shall first submit an SO2 Allowance transfer request form to EPA's Office of Air and Radiation's Clean Air Markets Division directing the transfer of such SO2 Allowances to the EPA Enforcement Surrender Account or to any other EPA account that EPA may direct in writing. As part of submitting these transfer requests, Westar or the third party recipient(s) shall irrevocably authorize the transfer of these SO2 Allowances and identify by name

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of account and any applicable serial or other identification numbers or station names the source and location of the SO2 Allowances being surrendered. F. 80. SO2 Monitoring Provisions In determining the 30-Day Rolling Average Unit Emission Rate and the 30-Day

Rolling Average Unit Removal Efficiency for SO2, Westar shall use CEMS in accordance with the procedures of 40 C.F.R. Part 75, except that: (1) SO2 emissions data need not be bias adjusted, (2) for any CEMS with a span less than 100 ppm, the calibration drift and out-of-control criteria in Procedure 1, section 4.3 of Part 60, Appendix F shall apply in lieu of the low emitter specifications in Part 75, Appendix B, section 2.1, (3) for any CEMS with a span less than or equal to 30 ppm the exemption from the Part 75 linearity check will not apply and either the Part 75 linearity check or the cylinder gas audit described in Procedure 1, section 5.1.2 of Part 60, Appendix F shall be performed on a quarterly basis, and (4) an annual relative accuracy test audit shall meet, at a minimum, a relative accuracy of less than 20% or an accuracy of less than 0.015 lb/mmBtu (expressed as the difference between the monitor mean and the reference value mean). 81. For purposes of calculating the Plant-Wide 12-Month Rolling Tonnage limitation

for SO2, Westar shall use CEMS in accordance with the procedures specified in 40 C.F.R. Part 75. VI. PM EMISSION REDUCTIONS AND CONTROLS A. 82. Optimization of Existing PM Control Devices Beginning thirty (30) days after entry of this Consent Decree, and continuing

thereafter, Westar shall operate each ESP and FGD system on each JEC Unit to maximize PM emission reductions at all times when the Unit is in operation. Consistent with the technological limitations, manufacturers' specifications, and good engineering and maintenance practices for each control device, Westar shall: (a) energize and maintain power levels to each section of the ESPs; (b) operate an automatic control system on each ESP to assure that the plate-cleaning and 19

discharge-electrode-cleaning systems and associated performance parameters, including cycle time, cycle frequency, rapper-vibrator intensity, and number of strikes per cleaning event, maximize the overall PM collection efficiency; and (c) inspect and repair any failed ESP sections, openings in control equipment casings, ductwork and expansion joints to minimize air leakage during the next planned Unit outage or unplanned outage of sufficient length. 83. No later than December 31, 2013, Westar shall rebuild the ESPs on Units 1 and 2.

Within two hundred seventy (270) days after rebuilding the ESPs, Westar shall complete performance testing, in accordance with the methods in Paragraph 86, to demonstrate that the Units are meeting the 0.030 lb/mmBtu PM Emissions Rate. The PM performance testing completed by Westar to update its CAM plans for Units 1 and 2 may be used to demonstrate that the PM Emissions Rate in Paragraph 84 is being met, as long as such performance testing is conducted in accordance with Paragraph 86. B. 84. PM Emission Rates No later than thirty (30) days from the date of entry of this Consent Decree, and

continuing thereafter, Westar shall continuously operate the ESPs and FGD system at each JEC Unit so that each Unit achieves and maintains a PM Emission Rate of no greater than 0.030 lb/mmBTU as demonstrated by the stack testing required by Paragraph 85. C. PM Emissions Monitoring a. 85. PM Stack Tests

Beginning in calendar year 2011, and continuing in each calendar year thereafter,

Westar shall conduct a PM stack test at each JEC Unit. The annual stack test requirement imposed on each JEC Unit by this Paragraph may be satisfied by stack tests conducted by Westar as part of enhancing or redeveloping its CAM plans or as required by its permits from the State of

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Kansas for any year that such stack tests are required under the permits, as long as such testing is conducted in accordance with Paragraph 86. 86. The reference methods and procedures (filterable portion only) for performing PM

stack tests and for determining compliance with the PM Emission Rate shall be those specified in 40 C.F.R. Part 60, Appendix A-3, Reference Method 5B or alternative stack tests or methods that are requested by Westar and approved by EPA and KDHE. Each test shall consist of three separate runs performed under representative operating conditions not including periods of Startup, Shutdown, or Malfunction. The sampling time for each run shall be at least 120 minutes and the volume of each run shall be 1.70 dry standard cubic meters (60 dry standard cubic feet). Westar shall calculate the PM Emission Rate from the stack test results in accordance with 40 C.F.R. § 60.8(f). The results of each PM stack test shall be submitted to EPA and KDHE within sixty (60) days of completion of each test. 87. Beginning in calendar year 2011, and continuing in each calendar year thereafter

until termination of this Consent Decree, Westar shall also conduct a PM stack test for condensable PM at each JEC Unit using the reference methods and procedures set forth at 40 C.F.R. Part 51, Appendix M, Method 202. Each test shall consist of three separate runs performed under representative operating conditions not including periods of Startup, Shutdown, or Malfunction. The sampling time for each run shall be at least 120 minutes and the volume of each run shall be 1.70 dry standard cubic meters (60 dry standard cubic feet). Westar shall calculate the number of pounds of condensable PM emitted per million BTU of heat input (lb/mmBTU) from the stack test results in accordance with 40 C.F.R. § 60.8(f). The results of the PM stack test conducted pursuant to this Paragraph shall not be used for the purpose of determining compliance with the PM Emission Rates required by this Consent Decree. Westar

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shall submit the results of each PM stack test required by this Paragraph to EPA and KDHE within sixty (60) days of completion of each test. b. 88. PM CEMS

No later than December 31, 2011, Westar shall install, correlate, maintain, and

operate a PM CEMS on one JEC Unit as specified below. The PM CEMS shall comprise a continuous particle mass monitor measuring particulate matter concentration, directly or indirectly, on an hourly average basis and a diluent monitor used to convert the concentration to units expressed in lb/mmBTU. The PM CEMS must be appropriate for the anticipated stack conditions and capable of measuring PM concentrations on an hourly average basis. Westar shall maintain, in an electronic database, the hourly average emission values produced by the PM CEMS in lb/mmBTU. Except for periods of monitor Malfunction, maintenance, or repair, Westar shall continuously operate the PM CEMS at all times when the Unit it serves is operating. 89. No later than ninety (90) days before the installation of the PM CEMS, Westar

shall submit to EPA and KDHE for review and approval pursuant to Section XII (Review and Approval of Submittals) of this Consent Decree a plan for the installation and correlation of the PM CEMS. 90. No later than forty-five (45) days before the installation of the PM CEMS, Westar

shall submit to EPA and KDHE for review and approval pursuant to Section XII (Review and Approval of Submittals) of this Consent Decree a proposed Quality Assurance/Quality Control ("QA/QC") protocol that shall be followed in correlating such PM CEMS. In developing both the plan for installation and correlation of the PM CEMS and the QA/QC protocol, Westar shall use the criteria set forth in 40 C.F.R. Part 60, Appendix B, Performance Specification 11, and Appendix F, Procedure 2. Following approval by EPA of the plans and protocol, in consultation

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with KDHE, Westar shall thereafter operate each PM CEMS in accordance with the approved plans and QA/QC protocol. c. 91. PM Reporting

Following the installation of the PM CEMS, Westar shall begin and continue to

report, pursuant to Section XI (Periodic Reporting), the data recorded by the PM CEMS, expressed in lb/mmBTU on a 3 hour rolling average basis in electronic format to EPA. 92. Although stack testing shall be used to determine compliance with the PM

Emission Rate established by this Consent Decree, data from the PM CEMS shall be used, at a minimum, to monitor progress in reducing PM emissions. 93. Nothing in this Consent Decree is intended to, or shall, alter or waive any

applicable law (including but not limited to any defenses, entitlements, challenges, or clarifications related to the Credible Evidence Rule, 62 Fed. Reg. 8314 (Feb. 24, 1997)) concerning the use of data for any purpose under the Act. VII. PROHIBITION ON NETTING CREDITS OR OFFSETS FROM REQUIRED CONTROLS 94. Emission reductions at JEC that result from actions to be taken by Westar after

entry of this Consent Decree to comply with the requirements of this Consent Decree shall not be considered as a creditable contemporaneous emission decrease for the purpose of obtaining a netting credit or offset under the Clean Air Act's Nonattainment NSR and PSD programs. 95. The limitations on the generation and use of netting credits or offsets set forth in

Paragraph 94 above do not apply to emission reductions achieved by any JEC Unit that are greater than those required under this Consent Decree. For purposes of this Paragraph, emission reductions from a JEC Unit are greater than those required under this Consent Decree if they result from Westar compliance with federally-enforceable emission limits that are more stringent

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than those limits imposed on JEC Units under this Consent Decree and under applicable provisions of the Clean Air Act or the Kansas State Implementation Plan. 96. Nothing in this Consent Decree is intended to preclude the emission reductions

generated under this Consent Decree from being considered by the State of Kansas or EPA as creditable contemporaneous emission decreases for the purpose of attainment demonstrations submitted pursuant to § 110 of the Act, 42 U.S.C. § 7410, or in determining impacts on NAAQS, PSD increment, or air quality related values, including visibility, in a Class I area. VIII. ENVIRONMENTAL MITIGATION PROJECTS 97. Westar shall implement the Environmental Projects ("Projects") described in

Appendix A in compliance with the approved plans and schedules for such Projects and other terms of this Consent Decree. Westar shall submit plans for the Projects to the United States and KDHE for review and approval pursuant to Section XII (Review and Approval of Submittals) of this Consent Decree in accordance with the schedules set forth in Appendix A. In implementing the Projects, Westar shall spend no less than $6 million in Project Dollars in accordance with the schedule provided in Appendix A. 98. Westar shall maintain, and present to the United States and KDHE, upon request,

all documents to substantiate the Project Dollars expended and shall provide these documents to the United States within thirty (30) days of a request by the United States or KDHE for the documents. 99. All plans and reports prepared by Westar pursuant to the requirements of this

Section of the Consent Decree shall be publicly available without charge. 100. Westar shall certify, as part of each plan submitted to the United States and KDHE

for any Project, that Westar is not otherwise required by law to perform the Project described in the plan, that Westar is unaware of any other person who is required by law to perform the 24

Project, and that Westar will not use any Project, or portion thereof, to satisfy any obligations that it may have under other applicable requirements of law, including any applicable renewable portfolio standards. 101. Westar shall use good faith efforts to secure as much benefit as possible for the

Project Dollars expended, consistent with the applicable requirements and limits of this Consent Decree. 102. If Westar elects (where such an election is allowed) to undertake a Project by

contributing funds to another person or instrumentality that will carry out the Project, that person or instrumentality must in writing: (a) identify its legal authority for accepting such funding and (b) identify its legal authority to conduct the Project for which Westar contributes the funds. Regardless of whether Westar elects (where such election is allowed) to undertake a Project by itself or to do so by contributing funds to another person or instrumentality that will carry out the Project, Westar acknowledges that it will receive credit for the expenditure of such funds as Project Dollars only if Westar demonstrates that the funds have been actually spent by either Westar or by the person or instrumentality receiving them, and that such expenditures met all requirements of this Consent Decree. 103. 104. Westar shall comply with the reporting requirements described in Appendix A. Within sixty (60) days following the completion of each Project required under

this Consent Decree, Westar shall submit to the United States and KDHE a report that documents the date that the Project was completed, Westar's results of implementing the Project, including the emission reductions or other environmental benefits achieved, and the Project Dollars expended by Westar in implementing the Project.

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105.

Westar shall not financially benefit to a greater extent than any other member of

the general public from the sale or transfer of technology obtained in the course of implementing any Project. 106. Project Dollar credit given for any Project shall reflect Westar's net cost in

implementing the Project, except for payments to Westar from a co-owner of JEC or from MidKansas Electric Company (MKEC) or its successor or assign pursuant to the purchase power agreement between Westar and MKEC dated August 11, 2006, for their pro rata share (each an 8% share at the time of the execution of this Consent Decree) of Project Dollars. 107. Beginning one (1) year after entry of this Consent Decree, Westar shall provide the

United States and KDHE with semi-annual updates concerning the progress of each Project. IX. CIVIL PENALTY 108. No later than thirty (30) days from the date of entry of this Consent Decree, Westar

shall pay to the United States a civil penalty in the amount of $2.75 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 2009v00090 and DOJ Case Number 90-5-2-1-08242 and the civil action case name and case number of this action. The costs of such EFT shall be Westar's responsibility. Payment shall be made in accordance with instructions provided to Westar by the Financial Litigation Unit of the U.S. Attorney's Office for the District of Kansas. Any funds received after 2:00 p.m. EDT shall be credited on the next business day. At the time of payment, Westar 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 XVIII (Notices) of this Consent Decree.

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109.

No later than thirty (30) days from the date of entry of this Consent Decree, Westar

shall pay to the Intervenor a civil penalty of $250,000 by certified or corporate check made payable to the Kansas Department of Health and Environment and sent to the following address: Mr. Vick Cooper Bureau of Air Kansas Department of Health and Environment 1000 SW Jackson, Suite 310 Topeka, Kansas 66612-1366. 110. Failure to timely pay the civil penalty shall subject Westar 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 Westar 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. 111. 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. X. RESOLUTION OF CERTAIN CIVIL CLAIMS 112. Entry of this Consent Decree shall resolve all civil claims of the United States and

Intervenor against Westar that arose from any modifications commenced at JEC before the date of lodging of this Consent Decree, including but not limited to those modifications alleged in the United States' Complaint in this civil action, in the Notice of Violation issued to Westar on January 22, 2004, and in the Complaint In Intervention filed by the State of Kansas under: a. b. Part C of Subchapter I of the Clean Air Act, 42 U.S.C. §§ 7470 to 7492; Standards of Performance for New Stationary Sources Program, 42 U.S.C. §§ 7411 and 40 C.F.R. § 60.14 and K.A.R. 28-19-720;

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c.

The federally-approved and enforceable Prevention of Significant Deterioration program of the Kansas State Implementation Plan, K.A.R. 28-19-350;

d.

Sections 502(a) and 504(a) of the Clean Air Act, §§ 7661 to 7661f and K.A.R. 28-19-500 through 518, but only to the extent that such claims are based on Westar's failure to obtain an operating permit that reflects applicable requirements imposed under Part C of Subchapter I of the Clean Air Act; and

e.

The federally-approved and enforceable Construction Permit program of the Kansas State Implementation Plan, K.A.R. 28-19-300 through 304.

The claims resolved for purposes of this Paragraph under Part C of Subchapter I of the Clean Air Act shall not include claims based upon carbon dioxide ("CO2") even if CO2 becomes regulated under Part C of Subchapter I of the Clean Air Act after the date of lodging of this Consent Decree. XI. PERIODIC REPORTING 113. After entry of this Consent Decree, Westar shall submit to the United States and

KDHE a periodic report, within sixty (60) days after the end of each half of the calendar year (January through June and July through December). The report shall include the following information: a. all information necessary to determine compliance with the requirements of the following Paragraphs of this Consent Decree: Paragraphs 50 through 68 concerning NOx emissions and monitoring, and the surrender of NOx Allowances; Paragraphs 69 through 81 concerning SO2 emissions and monitoring, and the surrender of SO2 Allowances; and Paragraphs 82 28

through 87 concerning PM emissions and monitoring. Westar shall include in these reports all data for which the bias adjustment factor has been excluded pursuant to Paragraphs 67 and 80; b. all data recorded by the PM CEMS as required by Paragraph 91, and all periods of monitor Malfunction, maintenance, and/or repair as provided in Paragraph 88; c. all information relating to Super-Compliant NOx and SO2 Allowances that Westar claims to have generated in accordance with Paragraphs 64 and 76 through compliance beyond the requirements of this Consent Decree; d. all information indicating that the installation and commencement of operation for a pollution control device may be delayed, including the nature and cause of the delay, and any steps taken by Westar to mitigate such delay; and e. all information relating to the NOx Offset Requirements pursuant to Paragraph 121. 114. In any periodic report submitted pursuant to this Section (Periodic Reporting),

Westar may incorporate by reference information previously submitted under its Title V permitting requirements, provided that Westar attaches the Title V permit report (or the 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 report. 115. In addition to the report required by Paragraph 114, if Westar violates or deviates

from any provision of this Consent Decree, Westar shall submit to the United States and KDHE a report on the violation or deviation within ten (10) Business Days after Westar knew or should have known of the event. In the report, Westar shall explain the cause or causes of the violation 29

or deviation and any measures taken or to be taken by Westar to cure the reported violation or deviation or to prevent such violation or deviation in the future. If at any time, the provisions of this Consent Decree are included in Title V Permits, consistent with the requirements for such inclusion in this Consent Decree, then the deviation reports required under applicable Title V regulations shall be deemed to satisfy all the requirements of this Paragraph. 116. Each Westar report shall be signed by Westar's Title V Responsible Official for

JEC, or his or her equivalent or designee of at least the rank of Vice President, and shall contain the following certification: This information was prepared either by me or under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my evaluation, or the direction and my inquiry of the person(s) who manage the system, or the person(s) directly responsible for gathering the information, I hereby certify under penalty of law that, to the best of my knowledge and belief, this information is true, accurate, and complete. I understand that there are significant penalties for submitting false, inaccurate, or incomplete information to the United States. 117. If any NOx or SO2 Allowances are surrendered to any non-profit third party

pursuant to Sections IV (NOx Emissions Reductions and Controls) and V (SO2 Emissions Reductions and Controls), the non-profit third party's certification shall be signed by a managing officer of the non-profit third party and shall contain the following language: I certify under penalty of law that _____________ [name of non-profit third party] will not sell, trade, or otherwise exchange any of the allowances and will not use any of the allowances to meet any obligation imposed by any

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environmental law. I understand that there are significant penalties for making misrepresentations to or misleading the United States. XII. REVIEW AND APPROVAL OF SUBMITTALS 118. Westar shall submit each plan, report, or other submission to EPA and KDHE

whenever such a document is required to be submitted for review or approval pursuant to this Consent Decree. EPA, in consultation with KDHE, may approve the submittal or decline to approve it and provide written comments. Within sixty (60) days of receiving written comments from EPA, in consultation with KDHE, Westar shall either: (a) revise the submittal consistent with the written comments and provide the revised submittal for final approval to EPA, in consultation with KDHE; or (b) submit the matter for dispute resolution, including the period of informal negotiations, under Section XV (Dispute Resolution) of this Consent Decree. 119. Upon receipt of EPA's final approval of the submittal, or upon completion of the

submittal pursuant to dispute resolution, Westar shall implement the approved submittal in accordance with the schedule specified therein. XIII. STIPULATED PENALTIES 120. For any failure by Westar to comply with the terms of this Consent Decree, and

subject to the provisions of Sections XIV (Force Majeure) and XV (Dispute Resolution), Westar shall pay, within thirty (30) days after receipt of written demand to Westar by the United States, the following stipulated penalties to the United States:

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

Stipulated Penalty $10,000 per day

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b. Failure to comply with any applicable 30-Day Rolling Average Unit Emission Rate for NOx or SO2, 30-Day Rolling $2,500 per day per violation Average Unit Removal Efficiency for SO2, Plant-Wide 30-Day Rolling Average Emission Rate or Emission Rate for PM, where the violation is less than 5% in excess of the limits set forth in this Consent Decree c. Failure to comply with any applicable 30-Day Rolling Average Unit Emission Rate for NOx or SO2, 30-Day Rolling $5,000 per day per violation Average Unit Removal Efficiency for SO2, Plant-Wide 30-Day Rolling Average Emission Rate or Emission Rate for PM, where the violation is equal to or greater than 5% but less than 10% in excess of the limits set forth in this Consent Decree d. Failure to comply with any applicable 30-Day Rolling $10,000 per day per violation Average Unit Emission Rate for NOx or SO2, 30-Day Rolling Average Unit Removal Efficiency for SO2, Plant-Wide 30-Day Rolling Average Emission Rate or Emission Rate for PM, where the violation is equal to or greater than 10% in excess of the limits set forth in this Consent Decree e. Failure to comply with a Plant-Wide 12-Month Rolling $5,000 per ton for the first 100 Tonnage limitation for SO2 tons, and $10,000 per ton for each additional ton above 100 tons, plus the surrender of SO2 Allowances in an amount equal to two times the number of tons by which the limitation was exceeded. f. Failure to comply with a Plant-Wide 12-Month Rolling $5,000 per ton for the first 100 Tonnage limitation for NOx tons, and $10,000 per ton for each additional ton above 100 tons, plus offset NOx emissions in an amount that is at least equal to the number of tons by which the limitation was exceeded, in accordance with the requirements of Paragraph 121, below g. Failure to install, commence operation, or continue $10,000 per day per violation operation of the NOx, SO2, and PM pollution control devices during the first 30 days, $37,500 on any Unit per day per violation thereafter h. Failure to install or operate CEMS as required by this Consent Decree $1,000 per day per violation

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i. Failure to conduct annual stack tests of PM emissions, as required in Paragraph 85 j. Failure to apply for any permit required by Section XVI k. Failure to timely submit, modify, or implement, as approved, the reports, plans, studies, analyses, protocols, or other submittals required by this Consent Decree l. Using, selling, or transferring SO2 Allowances, except as permitted by this Consent Decree

$5,000 per day per violation $1,000 per day per violation $750 per day per violation during the first ten days, $1,000 per day per violation thereafter the surrender, pursuant to the procedures set forth in this Consent Decree, of SO2 Allowances in an amount equal to four times the number of SO2 Allowances used, sold, or transferred in violation of this Consent Decree

m. Using, selling or transferring NOx Allowances except as the surrender, pursuant to the permitted by this Consent Decree procedures set forth in this Consent Decree, of NOx Allowances in an amount equal to four times the number of NOx Allowances used, sold, or transferred in violation of this Consent Decree n. Failure to surrender an SO2 Allowance as required by this (a) $37,500 per day plus (b) Consent Decree $1,000 per SO2 Allowance o. Failure to demonstrate the third-party surrender