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### 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 toresolve 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 42 

### should withdraw their consent tothe 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 proposedConsent Decree or to proceed with entry of the proposed Consent Decree. Defendant is simultaneously filing an unopposedmotion 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 proposedConsent Decree, is withdrawing consent to the proposed Consent Decree or (b) fourteen daysafter 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 43 

### 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 44 

### 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 41N 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 ofthe United States Environmental Protection Agency,and the Environmental Protection Agency (collectively "EPA"). WHEREAS,Guardians filed this action pursuant to section 304(a)(2)ofthe 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 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 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 11SIP 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 ofthe above

-captioned cases without expensive and protracted litigation, and without
a litigated resolution ofany issue oflaw or fact; WHEREAS,the Parties consider this Consent Decree to be an adequate and equitable resolution ofthe claims in the above

-captioned case and consent to entry ofthis 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 oftestimony, without trial or determination of any issue offact or law, and upon the consent ofthe 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 ofthis Consent Decree or this Court's jurisdiction to enter and enforce this Consent Decree. This Consent Decree constitutes a complete and final resolution ofall claims that have been asserted in the Complaint. 4. This Consent Decree shall become effective upon the date ofits entry by the Court. Iffor 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 offinal action to approve,

disapprove, approve in part and disapprove in part, or conditionally approve the State of Colorado's proposed SIP revision for maintenance ofPMIO 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 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 Colorado Springs, Colorado, which Colorado submitted to EPA on or about Maxch 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 or about March 31, 2010.

By October 7, 2013,EPA shall sign a notice offinal action to approve, disapprove,approve in part and disapprove in part, 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 April 14, 201 1. 9. By October 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 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 offinal action to approve, disapprove, approve in part and disapprove in part, or conditionally approve the State of

3 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 offinal action to approve, disapprove, approve in part and disapprove in part, or conditionally approve the State of Colorado's proposed SIP revision for maintenance ofPMIO 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 offinal 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 offinal 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 offinal action to approve, disapprove, approve in part and disapprove in part, or conditionally approve the State ofNorth 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 offinal action to approve, disapprove, approve in part and disapprove in part, or conditionally approve the State of Colorado's proposed SIP revision for maintenance ofPMIO 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 offinal 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 offinal 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 offinal 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 offinal action to approve,disapprove, approve in part and disapprove in part, or conditionally approve the State of South Dakota's proposed SIP revision ofthe 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 ofthe notice ofany final rulemaking referenced above,EPA shall promptly submit the notice for review and publication by the 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

5 Case 1:12-cv-03307-RPM Document 19-1 Filed 08/28/13 USDC Colorado Page 5 of 11deadlines in Paragraphs 5-19 or modification ofthis 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 ofany 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 ofthis Consent Decree,by electronic funds transfer to a bank account identified by Guardians. Guardians agrees to accept $7, 120:00 in full satisfaction ofany 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 ofthe 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 ofany 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 ofthis 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 ofEPA's discretion within the meaning ofthis paragraph.

:~ 

### Case 1:12-cv-03307-RPM Document 19-1 Filed 08/28/13 USDC Colorado Page 6 of 1124. Nothing in this Consent Decree shall be construed as an admission ofany 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 ofthis 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 ofthe United States Court ofAppeals 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 ofthis Consent Decree shall be interpreted as or constitute a commitment or requirement that EPA obligate or pay funds in contravention ofthe 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

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### Case 1:12-cv-03307-RPM Document 19-1 Filed 08/28/13 USDC Colorado Page 7 of 11For 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 ofa dispute among the Parties concerning the interpretation or implementation ofany aspect ofthis Consent Decree,the disputing Party shall provide the other Party with a written notice outlining the nature ofthe dispute and requesting informal negotiations. Ifthe Parties cannot reach an agreed-upon resolution within ten business days after receipt ofthe 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 ofcourt 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 8 

### Case 1:12-cv-03307-RPM Document 19-1 Filed 08/28/13 USDC Colorado Page 8 of 11opportunity for comment pursuant to 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 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)ofthe 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. Ifa 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 ofthis Consent Decree. 33. The undersigned representatives ofeach Party certify that they are fully authorized by the Party they 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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### Case 1:12-cv-03307-RPM Document 19-1 Filed 08/28/13 USDC Colorado Page 9 of 11Dated:

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 ofJustice 999 18~'Street .South Terrace, Suite 370 Denver,CO $0202 (303)844-1804 daniel.pinkston~a~usdo,~.gov

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### Case 1:12-cv-03307-RPM Document 19-1 Filed 08/28/13 USDC Colorado Page 10 of 11Dated: 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 ofJustice 999 18~' Street South Terrace, Suite 370 Denver, CO 80202 (303)844-1804 daniel.pinkston(a~~,usdoj. ov

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