IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO

Civil Action No. 09-cv-02148-REB-MJW

WILDEARTH GUARDIANS,

Plaintiff,

v.

LISA JACKSON, in her official capacity as Administrator of the Environmental Protection

Agency,

Defendant.

 

CONSENT DECREE

 

WHEREAS, on October 22, 2009, Plaintiff WildEarth Guardians filed its Amended

Complaint in this action against Lisa Jackson, in her official capacity as Administrator of the

United States Environmental Protection Agency (“Defendant” or “EPA”);

WHEREAS, Plaintiff alleges that EPA has failed to take action to approve or disapprove

a number of State Implementation Plan (“SIP”) submissions from the States of Colorado,

Montana, Utah and New Mexico within the time frame required by section 110(k)(2), of the

Clean Air Act (“CAA”), 42 U.S.C. § 7410(k)(2);

WHEREAS, if the Parties were to litigate Plaintiff’s claims, EPA would raise

jurisdictional defenses to some of the claims in the Amended Complaint, and the Parties have

therefore decided to settle those claims through a separate settlement agreement which is not a

part of this Consent Decree;

WHEREAS, in this Consent Decree Plaintiff and Defendant have agreed to a proposed

settlement of the remaining claims in the Amended Complaint without admission of any issue of

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fact or law, which they consider to be a just, fair, adequate and equitable resolution of such

claims; and

WHEREAS, it is in the interest of the public, the parties and judicial economy to resolve

the issues addressed by this Consent Decree without protracted litigation.

NOW, THEREFORE, it is hereby ORDERED, ADJUDGED AND DECREED as

follows: 

1. This Court has subject matter jurisdiction over the claims set forth in the

Amended Complaint that are resolved in this Consent Decree, and it has jurisdiction to order the

relief contained in this Consent Decree.

2. Venue lies in the District of Colorado.

3. Plaintiff and Defendant shall not challenge the terms of this Consent Decree or

this Court’s jurisdiction to enter and enforce this Consent Decree. Upon entry, no person not a

party to this case shall challenge the terms of this Consent Decree. This Consent Decree

constitutes a complete and final resolution of all claims asserted in the Amended Complaint,

other than those claims which are resolved by the separate Settlement Agreement between the

Parties resolving those claims in the Amended Complaint for which EPA would assert a

jurisdictional defense.

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.

5. Exhibits A and B to this Consent Decree consist of tables identifying the SIP

submissions subject to this Consent Decree and the specific deadline for EPA action on each

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such SIP submission. For example, under Exhibit A, SIP submission 1, December 31, 2010, is

the deadline for EPA to sign a notice of final action on the State of Colorado’s April 12, 2004,

SIP submission of Colorado Regulation 3, concerning the definition of attainment/maintenance

area and reporting requirements on condensate tanks. EPA shall sign a notice of final action

approving in whole, partially approving and partially disapproving, or disapproving in whole

each SIP submission by the respective deadline set forth in Exhibit A or Exhibit B for each

specific SIP submission.

6. Exhibits A and B to this Consent Decree also contain dates by which EPA will

sign a notice of proposed action with respect to some, but not all, of the SIP submissions subject

to this Consent Decree. For example, June 30, 2011, is the deadline for EPA to sign a notice of

proposed action under Exhibit A, SIP submission 4, but there is no deadline for EPA to sign a

notice of proposed action under Exhibit A, SIP submission 1. Solely with respect to those SIP

submissions for which Exhibit A or Exhibit B contain a deadline for EPA to sign a notice of

proposed action, EPA shall sign a notice of proposed action for the specific SIP submission by

the specific deadline provided in Exhibit A or Exhibit B. If no deadline is provided in Exhibit A

or Exhibit B for EPA to sign a notice of proposed action for any specific SIP submission, then

EPA is not obligated under this Consent Decree to sign a notice of proposed action by any

particular date. However, regardless of the date by which EPA signs a notice of proposed action 

for any specific SIP submission, EPA remains obligated to sign a notice of final action for each

SIP submission by the respective deadline provided in Exhibits A or B unless that deadline is

extended under Paragraphs 9 or 17. 

7. If this Consent Decree is not entered until after any specific deadline for EPA

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action set forth in Exhibit A or Exhibit B, then the deadline for EPA action shall be 20 days after

entry of this Consent Decree with respect to such specific past deadline.

8. Within 15 business days following signature on each notice required by

Paragraphs 5, 6 and 7, and as set forth in Exhibits A and B, EPA shall deliver the notice to the

Office of the Federal Register for publication. 

9. The deadlines in Paragraphs 5, 6 and 7 may be extended for a period of 60 days or

less by written stipulation executed by counsel for Plaintiff and Defendant and filed with the

Court. Any other extension to the deadlines in Paragraph 5, 6 and 7, or any other modification to

this Consent Decree, may be approved by the Court upon motion made pursuant to the Federal

Rules of Civil Procedure by either Party to this Consent Decree and upon consideration of any

response by the non-moving Party and reply by the moving Party.

10. EPA’s obligation to take any action required in Paragraphs 5 and 6 by the

deadlines set forth in Exhibits A and B to this Consent Decree (or Paragraph 7, if applicable)

shall become null and void if the underlying SIP submission to which the deadline corresponds

is withdrawn in writing by the relevant State prior to the relevant deadline. EPA shall provide

WildEarth Guardians with a copy of any written notice of withdrawal prior to the relevant

deadline. In addition, the Parties recognize that EPA may receive additional SIP submissions

that may relate to the SIP submissions covered by this Consent Decree. It is possible that EPA

may need to consider the relevance of a particular additional SIP submission to a SIP submission

covered by this Decree prior to the time that EPA takes action on the SIP submission covered by

this Decree. If EPA believes it will need to delay action on any SIP submission covered by this

Decree beyond the deadline provided in Exhibit A or B due to an additional SIP submission by

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the relevant State, then EPA shall confer with Plaintiff, and any such deadline extension shall be

handled under Paragraphs 9 and 17 to this Consent Decree. Proposed deadline extensions for

any other reason shall likewise be handled under Paragraphs 9 and 17 to this Consent Decree. 

11. EPA agrees to settle Plaintiff’s claim for attorneys’ fees and costs by paying

$16,000.00 as soon as reasonably practicable after entry of this Consent Decree. This amount

shall be paid by Fed Wire Electronic Funds Transfer to WildEarth Guardians’ Counsel Robert

Ukeiley, P.S.C. pursuant to payment instructions provided by Robert Ukeiley. Plaintiff agrees to

provide counsel for Defendant all necessary information for processing the electronic funds

transfer within five (5) business days of receipt of the Court’s order entering this Consent

Decree. Plaintiff agrees to accept payment of $16,000.00 in full satisfaction of any and all

claims for attorneys’ fees and costs with respect to this case incurred up until the time of entry of

this Consent decree by the Court. EPA does not concede that Plaintiff will be entitled to fees for

any efforts after the time of entry of this Consent Decree, and EPA reserves all defenses with

respect to any such efforts and any related fee claim. The fees paid under this Paragraph shall

have no precedential value in any future fee claim.

12. The Court shall retain jurisdiction to determine and effectuate 

compliance with this Consent Decree, to rule upon any motions filed in accordance with

Paragraph 9 of this Consent Decree, and to resolve any disputes in accordance with Paragraph 17

of this Consent Decree. Once EPA has taken all of the actions called for in Paragraphs 5, 8 and

11 of this Consent Decree, this Decree shall be terminated and the claims resolved in this

Consent Decree, which are all claims asserted in the Amended Complaint other than those

resolved by the separate Settlement Agreement between the Parties, shall be dismissed with

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prejudice. The Parties may either jointly notify the Court that the Decree should be terminated

and the claims dismissed, or EPA may so notify the Court by motion. If EPA notifies the Court

by motion, then Plaintiff shall have twenty days in which to respond to such motion.

13. Except as provided herein, nothing in this Consent Decree shall be construed to

limit or modify any discretion accorded EPA by the Clean Air Act or by general principles of

administrative law in taking the actions which are the subject of this Consent Decree.

14. The Parties agree and acknowledge that final approval and entry of this proposed

Consent Decree are subject to the requirements of Clean Air Act § 113(g), 42 U.S.C. § 7413(g). 

That subsection provides that notice of this proposed Decree be given to the public, that the

public shall have a reasonable opportunity to make any comments, and that the Administrator or

the Attorney General, as appropriate, must consider those comments in deciding whether to

consent to this Consent Decree. EPA shall submit public notice of this Consent Decree to the

Federal Register for publication and public comment within 15 days of execution of this

Agreement by the Parties. After this Consent Decree has undergone an opportunity for notice

and comment, the Administrator and/or the Attorney General, as appropriate, shall 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 CAA. If the federal government

elects not to withdraw or withhold consent to this Consent Decree, the Parties shall promptly file

a motion that requests the Court to enter this Consent Decree.

15. Nothing in the terms of this Consent Decree shall be construed to waive any

remedies Plaintiff may have under section 307(b)(1) of the Clean Air Act, 42 U.S.C. §

7607(b)(1), with respect to any future challenges to the final actions called for in Paragraph 5.

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16. Nothing in this Consent Decree shall be construed to provide this Court with

jurisdiction over any future challenges by Plaintiff or any other person or entity not a party to

this litigation with respect to the final actions called for in Paragraph 5. 

17. In the event of a dispute between the Parties concerning the interpretation or

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

Party to confer and attempt to reach an agreement on the disputed issue. If the Parties cannot

reach an agreed-upon resolution, then either Party may move the Court to resolve the dispute. 

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

drafted by Plaintiff and Defendant 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. This Consent Decree shall be

governed and construed under the laws of the United States.

19. The obligations imposed upon EPA under this Consent Decree may only be

undertaken using appropriated funds. No provision of this Decree shall be interpreted as or

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

20. The undersigned representative of each Party certifies that he is

fully authorized to consent to the Court’s entry of the terms and conditions of this Consent

Decree.

21. Any written notices or other written communications between the Parties

contemplated under this Consent Decree shall be sent to the undersigned counsel at the addresses

listed in the signature blocks below unless written notice of a change in counsel and/or address is

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provided.

Respectfully submitted,

IGNACIA S. MORENO

Assistant Attorney General

Dated: 2/1/2010 s/David A. Carson 

DAVID A. CARSON

United States Department of Justice

Environment and Natural Resources 

Division

1961 Stout Street - 8th Floor

Denver, Colorado 80294

(303) 844-1349

david.a.carson@usdoj.gov

COUNSEL FOR DEFENDANT

Dated: 1/20/2010 s/James J. Tutchton 

JAMES J. TUTCHTON

WildEarth Guardians

1536 Wynkoop St., Suite 301

Denver, Colorado 80202

(720) 301-3843

jtutchton@wildearthguardians.org

s/Robert Ukeiley 

Law Office of Robert Ukeiley

435R Chestnut Street, Suite 1

Berea, Kentucky 40403

(859) 986-5402

rukeiley@igc.org

COUNSEL FOR PLAINTIFF

Upon consideration of the foregoing, the Court hereby finds that this Consent Decree is 

fair, reasonable, consistent with the Clean Air Act and in the public interest, and the Court

Case 1:09-cv-02148-REB-MJW Document 19-2 Filed 02/01/2010 USDC Colorado Page 8 of 15
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hereby enters this Consent Decree. 

IT IS SO ORDERED.

Date: 

United States District Judge

Case 1:09-cv-02148-REB-MJW Document 19-2 Filed 02/01/2010 USDC Colorado Page 9 of 15
EXHIBIT A

Page 1 of 4

Colorado SIPs

Item

No.

Governor’s

Letter Date

Title/Description Signature on

Proposed

Action 

Signature on

Final Action

1. 04/12/2004 Reg. 3

Definition of

attainment/maintenance

area and reporting

requirement on

condensate tanks

None 12/31/2010

2. 07/11/2005 Reg. 3

To incorporate NSR

reforms including

related APEN revisions

a. NSR reform

component

b. APEN components

06/30/2011

None

12/30/2011

02/28/2011

3. 08/08/2006 Reg. 11

Deletes final emission

limits.

12/30/2011 06/29/2012

4. 08/01/2007 Reg. 1, incinerators

Revises Reg. 1 to update

state testing

requirements.

06/30/2011 12/30/2011

5. 08/01/2007 Reg. 3

VOC definition, list of

HAPs, APEN revisions

a. VOC def. and list of

HAPs

b. APEN components

None

None

03/31/2011

02/28/2011

6. 08/01/2007 Reg. 4

Masonry heaters test

protocol

None 12/31/2010 

Case 1:09-cv-02148-REB-MJW Document 19-2 Filed 02/01/2010 USDC Colorado Page 10 of 15
EXHIBIT A

Page 2 of 4

Colorado SIPs, continued

Item

No.

Governor’s

Letter Date

Title/Description Signature on

Proposed

Action 

Signature on

Final Action

7. 06/20/2003;

08/08/2006

Part A, Section II of Reg.

3

APEN Requirements and

Exemptions

None 02/28/2011

8. 06/20/2003 Reg 3 and Common

Provisions

Revisions to definitions,

etc.

None 12/31/2010

9. 07/31/2002 Reg. 1

Clarifications to remove

obsolete provisions and

make it conform to

credible evidence

provisions

None 09/30/2010

10. 08/08/2006 Reg. 1

Revisions to opacity

provisions

06/30/2011 12/30/2011

11. 08/08/2006 Reg. 3

NSR reform. 

Corrections to 2005 Reg.

3 revisions.

06/30/2011 12/30/2011

Case 1:09-cv-02148-REB-MJW Document 19-2 Filed 02/01/2010 USDC Colorado Page 11 of 15
EXHIBIT A

Page 3 of 4

Montana SIPs

Item

No.

Governor’s

Letter Date

Title/Description Signature on

Proposed

Action 

Signature on

Final Action

12. 05/28/2003 Subchapter 7

Permit, Construction and

Operation of Air

Contaminant Sources

None 03/31/2011

13. 03/09/2004 Subchapter 7

Permit, Construction and

Operation of Air

Contaminant Sources

None 03/31/2011 

14. 10/25/2005 ARM 17.8.767

Minor NSR None 03/31/2011

15. 03/29/2006 NSR equivalency demo

For NSR reform 06/30/2011 12/30/2011

16. 06/26/2006 Lincoln County PM2.5

control program

woodstove and other

control measures

None 12/31/2010

17. 10/16/2006 ARM 17.8.743 

Oil and gas permitting

rule revisions

None 02/28/2011

18. 10/16/2006 ARM 17.8.759

Minor NSR None 03/31/2011

19. 11/01/2006 ARM 17.8.1701 – 1705,

1710 – 1713, 744

Oil and gas permitting

rule revisions

None 02/28/2011

20. 10/28/2002;

08/20/2003;

08/25/2004

Stack Height Rules –

17.8.401-403

Stack Height Rule

revisions

06/30/2011 12/30/2011

21. 04/18/2003 Open Burning Rules

Revisions to Open

Burning Rules

06/30/2011 12/30/2011

Case 1:09-cv-02148-REB-MJW Document 19-2 Filed 02/01/2010 USDC Colorado Page 12 of 15
EXHIBIT A

Page 4 of 4

Utah SIPs

Item

No.

Governor’s

Letter Date

Title/Description Signature on

Proposed

Action 

Signature on

Final Action

22. 09/15/2006 R307-401, 410, 413

NSR rules 06/30/2011 12/30/2011

Case 1:09-cv-02148-REB-MJW Document 19-2 Filed 02/01/2010 USDC Colorado Page 13 of 15
EXHIBIT B

Page 1 of 2

New Mexico SIPs

Item

No.

Governor’s

Letter Date 

Title/Description Signature on

Proposed Action

Signature on

Final Action 

1. 12/10/2007 NM St 110(a)(1,2)

Infrastructure SIP 

None 07/01/2011

2.

07/27/2007 

NM Pt99 Transportation

conformity 

None 12/31/2010 

3. 05/02/2007 NM Sunland Park None 07/01/2011 

4. 11/02/2006 Transportation

Conformity 

None 12/31/2010 

5.

11/02/2006 

NM Pt03; National

ambient Air Quality

Standards 

None 07/01/2011 

6. 04/25/2005 NM Mexico Pt73

Emissions Inventory 

None 01/02/2011

7. 04/25/2005 NM St Air Quality

Control Act 

None 07/01/2011 

8. 12/01/2003 NM State Pt73

Emissions Inventory 

None 01/02/2011

9. 05/02/2007 NM St Pt 84 Acid Rain 04/01/2012 10/01/2012

10. 11/02/2006 NM St Pt 72

Construction Permits 

04/01/2012 10/01/2012

11. 11/02/2006 Pt 70 (OPP) 04/01/2012 10/01/2012

12. 04/25/2005 NM Pt 75 Construction

Permit Fees 

04/01/2012 10/01/2012

13. 04/25/2005 NM St Pt 72

Construction Permit 

04/01/2012 10/01/2012

Case 1:09-cv-02148-REB-MJW Document 19-2 Filed 02/01/2010 USDC Colorado Page 14 of 15
EXHIBIT B

Page 2 of 2

Bernalillo County SIPs

Item

No.

Governor’s

Letter Date 

Title/Description Signature on

Proposed Action

Signature on

Final Action 

14. 12/11/2007 Nm Ber Cty

Infrastructure

SIP

04/01/2012 10/1/2012

15. 05/24/2006 Pts 102 Oxy Fuels None 1/2/2011

16. 07/08/2005 Transportation

Conformity None 12/31/2010

17. 05/02/2003 Transportation

Conformity

None 12/31/2010

18. 02/02/2007 Pt 2 Fees 06/30/2011 12/30/2011

19. 09/07/2004 Pt 2 Fees 06/30/2011 12/30/2011

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