1 

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 of the United States Environmental Protection Agency (AEPA@), hereby give 

notice of the 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 of this 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. Id. 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 1 of 4
2 

should withdraw their consent to the proposed Consent Decree. Id. The parties acknowledge 

this requirement in paragraph 31 of the proposed Consent Decree. EPA is preparing the notice, 

which will be promptly transmitted to the Office of the Federal Register for publication. 

Once the notice-and-comment period is completed, EPA will inform the Court and 

Plaintiff as to whether the Administrator and/or the Attorney General has determined to 

withdraw consent to the proposed Consent Decree or to proceed with entry of the proposed 

Consent Decree. 

Defendant is simultaneously filing an unopposed motion to extend her time within which 

to answer or otherwise respond to the complaint until the earlier of (a) fourteen days after 

Defendant gives notice that the EPA Administrator and/or the Attorney General, after 

consideration of public comments on the proposed Consent Decree, is withdrawing consent to 

the proposed Consent Decree or (b) fourteen days after the Court denies a motion to enter the 

proposed Consent Decree. The Court should not sign or enter the proposed Consent Decree at 

this time. 

Respectfully submitted, 

FOR PLAINTIFF WILDEARTH GUARDIANS: 

Dated: August 28, 2013 /s/ Stuart Nicholas Wilcox

 STUART NICHOLAS WILCOX 

 WildEarth Guardians 

 1536 Wynkoop Street 

 Suite 301 

 Denver, CO 80202 

 (303) 573-4898 

 Stuart.wilcox5@gmail.com

 

Case 1:12-cv-03307-RPM Document 19 Filed 08/28/13 USDC Colorado Page 2 of 4
3 

 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 

Dated: August 28, 2013 By: /s/ 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 

(303) 844-1804 

daniel.pinkston@usdoj.gov

Case 1:12-cv-03307-RPM Document 19 Filed 08/28/13 USDC Colorado Page 3 of 4
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 CERTIFICATE OF SERVICE 

I hereby certify that I served the foregoing NOTICE OF LODGING CONSENT 

DECREE by Electronic Filing using the Court’s CM/ECF system, which will send notice of such 

filing via email to all counsel of record. 

Said filing was made on or before the date set forth below. 

Dated: August 28, 2012 By: /s/ Daniel Pinkston 

Environmental Defense Section 

United States Department of Justice 

Case 1:12-cv-03307-RPM Document 19 Filed 08/28/13 USDC Colorado Page 4 of 4
1N 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 1 of 11
SIP submissions from the States of Colorado, North Dakota, South Dakota, and Utah within the

time frame required by CAA section 110(k)(2), 42 U.S.C. § 7410(k)(2). The complaint fuxther

sought to compel EPA to take final action on these submissions by a date certain;

WHEREAS, Guardians and EPA (collectively, the "Parties") wish to effectuate a

settlement of the above-captioned cases without expensive and protracted litigation, and without

a litigated resolution of any issue of law or fact;

WHEREAS, the Parties consider this Consent Decree to be an adequate and equitable

resolution of the claims in the above-captioned case and consent to entry of this Consent Decree;

and

WHEREAS, the Court, by entering this Consent Decree, finds that this Consent Decree is

fair, reasonable, in the public interest, and consistent with the CAA, 42 U.S.C. §§ 7401 

NOW THEREFORE, before the taking of testimony, without trial or determination of

any issue of fact or law, and upon the consent of the Parties, it is hereby ORDERED,

ADJUDGED, and DECREED that:

This Court has subject matter jurisdiction over the claims set forth in Guardians'

Amended and Supplemental Complaint and to order the relief contained in this Consent Decree.

2. Venue is proper in the United States District Court for the District of Colorado.

Guardians and EPA shall not challenge the terms of this Consent Decree or this

Court's jurisdiction to enter and enforce this Consent Decree. This Consent Decree constitutes a

complete and final resolution of all claims that have been asserted in the Complaint.

4. This Consent Decree shall become effective upon the date of its entry by the

Court. If for any reason the Court does not enter this Consent Decree, the obligations set forth in

this Decree are null and void.

Case 1:12-cv-03307-RPM Document 19-1 Filed 08/28/13 USDC Colorado Page 2 of 11
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 for maintenance of PMIO 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 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 Colorado

Springs, Colorado, which Colorado submitted to EPA on or about Maxch 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.

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 April 14, 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 PM2.5 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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Case 1:12-cv-03307-RPM Document 19-1 Filed 08/28/13 USDC Colorado Page 3 of 11
Colorado's proposed SIP revision for increasing stationary source emissions fees under

Regulation 3, which Colorado submitted to EPA on or about June 18, 2009.

11. By December 2, 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 maintenance of PMIO levels in Telluride, Colorado, which

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

12. By December 2, 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 changing transportation conformity rules to reflect changes

in federal transportation legislation under Regulation 10, which Colorado submitted to EPA on

or about June 18, 2009.

13. By December 20, 2013, EPA shall sign a notice of final action to take action on

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

of Colorado's proposed SIP revision for maintenance of PMIO levels in Aspen, Colorado, which

Colorado submitted to EPA on or about May 25, 2011.

14. By December 20, 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 North

Dakota's proposed SIP revision for ambient air quality standards for 502, NOX, and Lead, and

State Permit Rule Revisions, which North Dakota submitted to EPA on or about April 14, 2011.

15. By January 31, 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

Colorado's proposed SIP revision for maintenance of PMIO levels in Pagosa Springs, Colorado,

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

Case 1:12-cv-03307-RPM Document 19-1 Filed 08/28/13 USDC Colorado Page 4 of 11
16. By January 31, 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

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. Following 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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Case 1:12-cv-03307-RPM Document 19-1 Filed 08/28/13 USDC Colorado Page 5 of 11
deadlines in Paragraphs 5-19 or modification of this Consent Decree may be approved by the

Court upon motion made pursuant to the Federal Rules of Civil Procedure by any Party to this

Consent Decree and upon consideration of any response by the non-moving Parties and reply by

the moving party.

22. The United States agrees to pay Guardians as full settlement of all claims for

attorneys' fees, costs, and expenses incurred in this litigation through the date of lodging this

Consent Decree, under any authority, the sum of $7,120.00, as soon as reasonably practicable

following entry of this Consent Decree, by electronic funds transfer to a bank account identified

by Guardians. Guardians agrees to accept $7,120:00 in full satisfaction of any and all claims for

costs and attorneys' fees with respect to this case, except that Guardians reserves the right to

seek fees pursuant to 42 U.S.C. § 7604(d) for any additional work performed after the lodging of

this Consent Decree, including attorneys' fees for extensions of any deadlines in Paragraphs 5-19

requested by EPA and costs and attorney's fees for enforcement of the Consent Decree in the

future. Nothing in this Paragraph shall be construed as an admission or concession by EPA that

Guardians is entitled to or eligible for recovery of any costs or attorneys' fees, and EPA reserves

all defenses with respect to any future fee claim. The amount of attorneys' fees or rates under

this Paragraph shall have no precedential value in any future fee claim.

23. Nothing in this Consent Decree shall be construed to limit or modify any

discretion accorded EPA by the CAA or by general principles of administrative law in taking the

actions which are the subject of this Consent Decree, including the discretion to alter, amend, or

revise any responses or final actions contemplated by this Consent Decree. EPA's obligation to

perform the actions specified by Paragraphs 5-19 by the time specified therein does not

constitute a limitation or modification of EPA's discretion within the meaning of this paragraph.

:~

Case 1:12-cv-03307-RPM Document 19-1 Filed 08/28/13 USDC Colorado Page 6 of 11
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)(1) and 505, 42 U.S.C. §§ 7607(b)(1), 7661d. 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)(1).

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(cr~,wildearth~uardians.org

Stuart Wilcox

swilcox o,wildearth~uardians.org

7

Case 1:12-cv-03307-RPM Document 19-1 Filed 08/28/13 USDC Colorado Page 7 of 11
For EPA:

Daniel Pinkston

daniel.pinkston~a usdoigov

Elyana Sutin

Sutin.elyana e,epa.~ov

Steve Odendahl

Odendahl. steve(a~epa. gov

Susmita Dubey

Dubey.susmita(a)ep, a•gov

28. In the event of a dispute among the Parties concerning the interpretation or

implementation of any aspect of this Consent Decree, the disputing Party shall provide the other

Party with a written notice outlining the nature of the dispute and requesting informal

negotiations. If the Parties cannot reach an agreed-upon resolution within ten business days after

receipt of the notice, any Party may move the Court to resolve the dispute.

29. No motion or other proceeding seeking to enforce this Consent Decree or for

contempt of court shall be properly filed unless the Party seeking to enforce this Consent Decree

has followed the procedure set forth in Paragraph 28.

30. The Court shall retain jurisdiction to determine and effectuate compliance with

this Consent Decree, to resolve any disputes thereunder, and to consider any requests for costs of

litigation (including reasonable attorneys' fees). After EPA's obligations under Paragraphs 5

through 19 have been completed, this consent decree shall be terminated. The Parties may either

jointly notify the Court that the Consent Decree should be terminated and the case dismissed, or

EPA may so notify the Court by motion, and Plaintiff shall have twenty days in which to respond

to such motion.

31. The Parties agree and acknowledge that before this Consent Decree can be

finalized and entered by the Court, EPA must provide notice in the Federal Register and an

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Case 1:12-cv-03307-RPM Document 19-1 Filed 08/28/13 USDC Colorado Page 8 of 11
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

diapositive 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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Case 1:12-cv-03307-RPM Document 19-1 Filed 08/28/13 USDC Colorado Page 9 of 11
Dated:

Dated:

SO AGREED:

FOR PLAINTIFF WILDEARTH GUARDIANS

~~~~1~ ~

STUART WILCOX, Esq.

WildEarth Guazdians

1840 Vine St. #5

Denver, CO 80206

(720) 331-0385

swilcox(a7,~wildeaxthguardians.org

ASHLEY WILMES, Esq.

WildEarth Guardians

680 W. Hickory S~

Louisville, CO 80027

(859) 312-4162

awilmes(a vLvildearth~ardians.org

FAR DEFENDANTS EPA AND

AND GINA McCARTHY:

ROBERT G. DREHER

Acting Assistant Aftorney General

Environment and Natural Resources Division

DANIEL PINKSTON

Environmental Defense Section

Environment and Natural Resources Division

LT.S. Department of Justice

999 18~' Street

.South Terrace, Suite 370

Denver, CO $0202

(303)844-1804

daniel.pinkston~a~usdo,~ .gov

10

Case 1:12-cv-03307-RPM Document 19-1 Filed 08/28/13 USDC Colorado Page 10 of 11
Dated:

SO AGREED:

FOR PLAINTIFF WILDEARTH GUARDIANS

STUART WILCOX, Esq.

WildEarth Guardians

1840 Vine St. #5

Denver, CO 80206

(720) 331-0385

swilcox(a~wildearthguardians.or~

ASHLEY WILMES, Esq.

WildEarth Guardians

680 W. Hickory St.

Louisville, CO 80027

(859) 312-4162

awilmes e,wildearthguardians.org

FOR DEFENDANTS EPA AND

AND G1NA McCARTHY:

ROBERT G. DREHER

Acting Assistant Attorney General

Environment an Natural Resources Division

Dated: if 2-~" 1~'~,~ By:

ANIEL PINKSTON

Environmental Defense Section

Environment and Natural Resources Division

U.S. Department of Justice

999 18~' Street

South Terrace, Suite 370

Denver, CO 80202

(303) 844-1804

daniel.pinkston(a~~,usdoj. ov

10

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