### Case 1:12-cv-03307-RPM Document 19 Filed 08/28/13 USDC Colorado Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1: 12-cv-03307-RPM WILDEARTH GUARDIANS, Plaintiff,
vs. GINA McCARTHY, in her official capacity as ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant.



### NOTICE OF LODGING
PlaintiffWildEarth Guardians and Defendant Gina McCarthy, in her official capacity as Administrator ofthe United States Environmental Protection Agency ("EPA"), hereby give notice ofthe lodging ofa proposed Consent Decree to resolve all claims in this litigation. The proposed Consent Decree accompanies this Notice. For the reasons explained below, the parties respectfully request that the Court 

### not sign or enter the proposed Consent Decree at this time. Clean Air Act section 113(g) requires that notice ofthis proposed Consent Decree be given to the public through publication in the 

### Federal Register, and that the public shall have a reasonable opportunity to comment on the proposed Consent Decree. 42 U.S.C. § 7413(g). Congress specifically required that EPA provide at least 30 days for public comment. 

### !d. Ifany comments are received on the proposed Consent Decree, then the Administrator ofEPA orthe Attorney General, as appropriate, must consider those comments and determine whether they

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Dated: August 28, 2013 ASHLEY D. WILMES WildEarth Guardians 680 West Hickory Street Louisville, CO 80027 (859) 312-4162 awilmes@wildearthguardians.org FOR DEFENDANT ADMINISTRATOR GINA McCARTHY: ROBERT G. DREHER Acting Assistant Attorney General Environment and Natural Resources Division By: Is/DanielPinkston DANIEL PINKSTON Environmental Defense Section Environment and Natural Resources Division United States Department ofJustice South Terrace, Suite 370 999 18th Street Denver, Colorado 80202 (303) 844-1804 daniel.pinkston@,usdoj.gov

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### Case 1:12-cv-03307-RPM Document 19-1 Filed 08/28/13 USDC Colorado Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLORADO Civil ActionNo. 1:12-cv-03307 WILDEARTH GUARDIANS Plaintiff, 

### v. GINA McCARTHY, inherofficial capacity as ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Defendant.
CONSENT DECREE
This Consent Decree is entered into by PlaintiffWildEarth Guardians ("Guardians"), and by Defendant GinaMcCarthy, inher official capacity as Administrator ofthe United States Environmental Protection Agency, and the Environmental Protection Agency (collectively "EPA"). WHEREAS, Guardians filed this actionpursuant to section 304(a)(2) ofthe Clean Air Act ("CAA''), 42 U.S.C. § 7604(a)(2), alleging that EPAfailed to take action on certain State Implementation Plan ("SIP") submissions from the State ofColorado within the time frame required by CAA section 110(k)(2), 42 U.S.C. § 7410(k)(2). The complaint further sought to compel EPA to take final action onthese submissions by a date certain; WHEREAS, Guardians filed an amended and supplemental complaintpursuantto CAA section 304(a)(2), 42 U.S.C. 

### § 7604(a)(2), alleging thatEPA failed to take action on additional

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5. By September 16,2013, EPA shall sign a notice offmal action to approve, disapprove, approve in part and disapprove inpart, or conditionally approve the State of Colorado's proposed SIP revision for maintenance ofPM10 levels in Canon City, Colorado, which Colorado submitted to EPA on or about June 18, 2009. 6. By September 16, 2013, EPA shall sign a notice offmal action to approve, disapprove, approve inpart and disapprove inpart, or conditionally approve the State of Colorado's proposed SIP revision. to the maintenance plan for carbon monoxide in Colorado Springs, Colorado, which Colorado submittedto EPA on or about March 31, 2010. 7. By September 16, 2013, EPA shall sign a notice offinal action to approve, disapprove, approve in part and disapprove in part, or conditionally approve the State of Colorado's proposed SIP revision to the maintenance plan for carbon monoxide in Greeley, Colorado, which Colorado submitted to EPA on orabout March 31, 2010. 8. By October 7, 2013, EPA shall sign a notice offinal action to approve, disapprove, approve in part and disapprove inpart, or conditionally approve the State ofUtah's proposed SIP revision regarding Utah's greenhouse gas tailoring rule, which Utah submitted to EPA on or about April14, 2011. 9. By October 16, 2013, EPA shall sign a notice offinal action to approve, disapprove, approve inpart and disapprove inpart, orconditionally approve the State of Colorado's proposed SIP revision for defining PM2.s as a regulated pollutant under Regulation 3, which Colorado submitted to EPA on or about May 25,2011. 10. By October 16,2013, EPA shall sign a notice offinal action to approve, disapprove, approve inpart and disapprove in part, or conditionally approve the State of

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16. ByJanuary 31, 2014, EPA shall sign a notice off1-nal action to approve, disapprove, approve in part and disapprove 

### in part, or conditionally approve the State of Colorado'sproposed SIP revision dealing with its greenhouse gas tailoring rule, which Colorado submitted to EPA on or about May 25, 2011. 17. By February 28, 2014, EPA shall sign a notice offinal action to approve, disapprove, approve in part and disapprove in part, or conditionally approve the State ofSouth Dakota's proposed SIP revisionregarding South Dakota's greenhouse gas tailoring rule, which South Dakota submittedto EPA on or about June 20, 2011. 18. ByMay 9, 2014, EPA shall sign a notice offinal action to approve, disapprove, approve in part and disapprove in part, or conditionally approve the State ofSouthDakota's proposed SIP revision for the state's new source review permitting changes, which South Dakota submitted to EPA on or about June 20,2011. 19. By May 9, 2014, EPA shall sign a notice offinal action to approve, disapprove, approve in part and disapprove in part, or conditionally approve the State ofSouthDakota's proposed SIP revision ofthe state's general rule and new source reviewpermitting changes, which South Dakota submitted to EPA onor about June 14,2010. 20. Foilowing signature ofthe notice ofany final rulemaking referenced above, EPA shall promptly submitthe notice for review and publicationbythe Office ofthe Federal Register. EPA agrees to provide notice to Guardians by email as set forth in Paragraph 27 upon signature ofthe notice offinal action and upon submission ofthe notice to the Office ofthe Federal Register. 21. The deadlines in Paragraphs 5-19 may be extended by written stipulation executed by counsel for EPA and Guardians and filed with the Court. Any other extension ofthe
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24. Nothing inthis Consent Decree shall be construed as an admission ofany issue of fact orlaw orto waive or limit any claim or defense, on any grounds, related to any final action EPA may take with respect to the proposed SIP revisions identified 

### inparagraphs 5-19 ofthis Consent Decree. 25. Nothing 

### inthis Consent Decree shall be construedto conferuponthe district court jurisdictionto review any final decision made by EPApursuantto this Consent Decree. Nothing 

### in this ConsentDecree shall be construed to confer uponthe district courtjurisdictionto review any issues that are withinthe exclusivejurisdiction ofthe United States Court ofAppeals pursuant to CAA section 307(b)(l) and 505, 42 U.S.C. §§ 7607(b)(l), 766ld. Nothing inthis Consent Decree shall be construed to waive any remedies or defenses the Parties may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(l). 26. The Parties recognize and acknowledge that the obligations imposed upon EPA under this ConsentDecree can onlybe undertaken using appropriated funds legally available for such purpose. No provision ofthis ConsentDecree shall be interpreted as orconstitute a commitment or requirement that EPA obligate orpay funds in contravention ofthe AntiDeficiency Act, 31 U.S.C. § 1341, or any other applicable provision oflaw. 27. Any notices required orprovided for bythis Consent Decree shall be made in writing and sentviae-mail to the following: For Guardians: Ashley Wilmes awilmes@wildearthguardians.org Stuart Wilcox swilcox@wildearthguardians.org



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opportunity for commentpursuantto CAA section 113(g), 42 U.S.C. § 7413(g). EPA will promptly deliver a public notice ofthis Consent Decree to the Federal Register for publication andpublic comment after lodging this Consent Decree withthe Court. Afterthis Consent Decree has undergone an opportunity for notice and comment, EPA's Administrator and the Attorney General, as appropriate, will promptly consider any such written comments in determining whether to withdraw or withhold consent to this Consent Decree, in accordance with section 113(g) ofthe Clean AirAct. Ifthe Administrator or the Attorney General elects notto withdraw or withhold consentto this Consent Decree, the Parties will promptly file a motionthat requests the Court to enterthis ConsentDecree. Ifthe Administratororthe Attorney General elects to withhold consent to this Consent Decree pursuant to CAA section 113(g), 42 U.S.C. 

### § 7413(g), EPA shall promptly advise Plaintiff. Ifa motionto enterthe Consent Decree is not filed within 90 days after the notice is published in the Federal Register, anyparty may file dispositive motions inthis matter. 32. It is hereby expressly understood and agreed that this Consent Decree wasjointly drafted bythe Parties and that any and all rules ofconstructionto the effect that ambiguity is construed against the drafting party shall be inapplicable in anydispute concerningthe terms, meaning, orinterpretation ofthis Consent Decree. 33. The undersignedrepresentatives ofeachParty certify that they are fully authorized bythe Partythey represent to bind that Party to the terms ofthis Consent Decree. SO ORDERED this_day of
____2013.

United States District Judge

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### Dated:
____ _

Dated: 

# r/'J..I"/**~I]** I • 

### By: SO AGREED: FOR PLAINTIFF WILDEARTH GUARDIANS

STUART WILCOX, Esq. WildEarth Guardians 1840 Vine St. #5 Denver, CO 80206 (720) 331-0385 swilcox@wildearthguardians.org ASHLEY WILMES, Esq. WildEarth Guardians 680 W. Hickory St. Louisville, CO 80027 (859) 312-4162 awilmes@wildearthguardians.org

FOR DEFENDANTS EPA AND AND GINA McCARTHY:
ROBERT G. DREHER Acting Assistant Attorney General 

### Ev::rnt

# i**~urces lli~sion**  FfANIEL PINKSTON Environmental Defense Section Environment and Natural Resources Division U.S. Department ofJustice 999 18th Street South Terrace, Suite 370 Denver, CO 80202 (303) 844-1804 daniel.pinkston@usdoj.gov

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