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 

Plaintiff WildEarth Guardians and Defendant Gina McCarthy, in her official capacity as 

Administrator ofthe United States Environmental Protection Agency ("EPA"), hereby give 

notice ofthe lodging of a 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. If any 

comments are received on the proposed Consent Decree, then the Administrator of EPA or the 

Attorney General, as appropriate, must consider those comments and determine whether they 
Case 1:12-cv-03307-RPM Document 19 Filed 08/28/13 USDC Colorado Page 3 of 4 

Dated: August 28, 2013 

ASHLEY D. WILMES 

WildEarth Guardians 

680 West Hickory Street 

Louisville, CO 80027 

(859) 312-4162 

awi lmes@wi ldearthguardians.org 

FOR DEFENDANT ADMINISTRATOR GINA 

McCARTHY: 

ROBERT G. DREHER 

Acting Assistant Attorney General 

Environment and Natural Resources Division 

By: Is/ Daniel Pinkston 

DANIEL PINKSTON 

Environmental Defense Section 

Environment and Natural Resources Division 

United States Department of Justice 

South Terrace, Suite 370 

999 18th Street 

Denver, Colorado 80202 

(3 03) 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 

FOR THE DISTRICT OF COLORADO 

Civil Action No. 1 :12-cv-03307 

WILDEARTH GUARDIANS 

Plaintiff, 

v. 

GINA McCARTHY, in her official capacity as 

ADMINISTRATOR, 

UNITED STATES ENVIRONMENTAL 

PROTECTION AGENCY 

Defendant. 

CONSENT DECREE 

This Consent Decree is entered into by Plaintiff WildEarth Guardians ("Guardians"), and 

by Defendant Gina McCarthy, in her official capacity as Administrator of the United States 

Environmental Protection Agency, and the Environmental Protection Agency (collectively 

"EPA"). 

WHEREAS, Guardians filed this action pursuant to section 304(a)(2) of the Clean Air 

Act ("CAA''), 42 U.S.C. § 7604(a)(2), alleging that EPA failed to take action on certain State 

Implementation Plan ("SIP") submissions from the State of Colorado 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 on these submissions by a date certain; 

WHEREAS, Guardians filed an amended and supplemental complaint pursuant to CAA 

section 304(a)(2), 42 U.S.C. § 7604(a)(2), alleging that EPA failed to take action on additional 
Case 1:12-cv-03307-RPM Document 19-1 Filed 08/28/13 USDC Colorado Page 3 of 11 

5. By September 16,2013, EPA shall sign a notice offmal action to approve, 

disapprove, approve in part and disapprove in part, 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 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 Colorado 

Springs, Colorado, which Colorado submitted to EPA on or about March 31, 2010. 

7. By September 16, 2013, EPA shall sign a notice of final 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 or about March 31, 2010. 

8. By October 7, 2013, EPA shall sign a notice of final action to approve, 

disapprove, approve in part and disapprove in part, or conditionally approve the State of Utah'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 of final action to approve, 

disapprove, approve in part and disapprove in part, or conditionally 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 of final action to approve, 

disapprove, approve in part and disapprove in part, or conditionally approve the State of 

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16. By January 31, 2014, EPA shall sign a notice of f1-nal action to approve, 

disapprove, approve in part and disapprove in part, or conditionally approve the State of 

Colorado's proposed 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 of final action to approve, 

disapprove, approve in part and disapprove in part, or conditionally approve the State of South 

Dakota's proposed SIP revision regarding South Dakota's greenhouse gas tailoring rule, which 

South Dakota submitted to EPA on or about June 20, 2011. 

18. By May 9, 2014, EPA shall sign a notice of final action to approve, disapprove, 

approve in part and disapprove in part, or conditionally approve the State of South Dakota'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 of final action to approve, disapprove, 

approve in part and disapprove in part, or conditionally approve the State of South Dakota's 

proposed SIP revision of the state's general rule and new source review permitting changes, 

which South Dakota submitted to EPA on or about June 14,2010. 

20. Foil owing signature of the notice of any final rulemaking referenced above, EPA 

shall promptly submit the notice for review and publication by the Office of the Federal Register. 

EPA agrees to provide notice to Guardians by email as set forth in Paragraph 27 upon signature 

of the notice of final action and upon submission of the notice to the Office of the 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 of the 

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24. Nothing in this Consent Decree shall be construed as an admission of any issue of 

fact or law or to 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 in paragraphs 5-19 of this 

Consent Decree. 

25. Nothing in this Consent Decree shall be construed to confer upon the district court 

jurisdiction to review any final decision made by EPA pursuant to this Consent Decree. Nothing 

in this Consent Decree shall be construed to confer upon the district court jurisdiction to review 

any issues that are within the exclusive jurisdiction of the United States Court of Appeals 

pursuant to CAA section 307(b)(l) and 505, 42 U.S.C. §§ 7607(b)(l), 766ld. Nothing in this 

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 Consent Decree can only be undertaken using appropriated funds legally available for 

such purpose. No provision of this Consent Decree shall be interpreted as or constitute a 

commitment or requirement that EPA obligate or pay funds in contravention of the AntiDeficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law. 

27. Any notices required or provided for by this Consent Decree shall be made in 

writing and sent via e-mail to the following: 

For Guardians: 

Ashley Wilmes 

awilmes@wildearthguardians.org 

Stuart Wilcox 

swilcox@wildearthguardians.org 

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opportunity for comment pursuant to CAA section 113(g), 42 U.S.C. § 7413(g). EPA will 

promptly deliver a public notice of this Consent Decree to the Federal Register for publication 

and public comment after lodging this Consent Decree with the Court. After this 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) of the Clean Air Act. If the Administrator or the Attorney General elects not to 

withdraw or withhold consent to this Consent Decree, the Parties will promptly file a motion that 

requests the Court to enter this Consent Decree. If the Administrator or the 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. If a motion to enter the Consent Decree is not 

filed within 90 days after the notice is published in the Federal Register, any party may file 

dispositive motions in this matter. 

32. It is hereby expressly understood and agreed that this Consent Decree was jointly 

drafted by the Parties and that any and all rules of construction to the effect that ambiguity is 

construed against the drafting party shall be inapplicable in any dispute concerning the terms, 

meaning, or interpretation of this Consent Decree. 

33. The undersigned representatives of each Party certify that they are fully 

authorized by the Party they represent to bind that Party to the terms of this 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) 3 31-03 85 

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 of Justice 

999 18th Street 

South Terrace, Suite 370 

Denver, CO 80202 

(303) 844-1804 

daniel.pinkston@usdoj .gov 

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