UNI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF WI SCONSI N SI ERRA CLUB,

Plaintiff,
v. LIS A JACKSON, Administrator of the United States Environmental Protection Agency ,

Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. 0 9
- cv - 0751

CONSENT DECREE WHEREAS, Plaintiff Sierra Club filed this action pursuant to section 304(a)(2) of the Clean Air Act (“CAA”), 42 U.S.C. § 7604(a)(2), alleging that Defendant Lisa Jackson, Administrator of the United States Environmental P rotection Agency (“EPA”), failed to perform a duty mandated by

CAA section 505(b)(2), 42 U.S.C. § 7661d(b)(2), to grant or deny , within 60 day s, an administrative petition submitted by Plaintiff requesting that EPA object to a Title V Operating Permit issu ed by the Wisconsin Department of Natural Resources to Wisconsin Public Service Corporation’s J.P. Pulliam Generating Station (“Pulliam”) in Green Bay , Wisconsin. WHEREAS, Plaintiff and EPA (collectively the “Parties”) wish to effectuate a settlement of t he above
- captioned case without expensive and protracted litigation. WHEREAS, the Parties consider this Decree to be an adequate and equitable resolution of the claims in the above
- captioned case. WHEREAS, the Court, by entering this Decree, finds that th is Decree is fair, reasonable, in the public interest, and consistent with the CAA, 42 U.S.C. §§ 7401 et seq .2

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: 1. This Court has subject matter jurisdiction over the claims set forth in the Complaint related to Plaintiff’s administrative petition on the Pulliam permit and to order the relief contained in this Decree. Venue is proper in the United States District Court for the Western District of Wisconsin. 2. By

June 4, 2010, or within 20 day s after the entry date of this Consent Decree, whichever date is later, EPA shall sign its response to the administrative petiti on dated June 25, 2009, regarding the Title V permit for Pulliam that was submitted to EPA by Plaintiff. 3. Within 15 business day s following signature of such response(s), EPA shall: a) deliver notice of such action on the Pulliam permit to the Office of the Fe deral Register for prompt publication; and b) transmit EPA’s determination, if an objection in whole or in part, to the Wisconsin Department of Natural Resources, 101 S. Webster Street, PO Box 7921, Madison, WI53707
- 7921, (608) 261
- 4380 (Fax), pursuant to 40 C.F.R. § 70.7(g)(1). 4. The United States agrees to pay Plaintiff as full settlement of all claims for attorney s’ fees, costs, and expenses incurred, under any authority , the sum of $2,624.71 as soon as reasonably

practicable following entry of this Decr ee, by

electronic funds transfer to a bank account identified by

Plaintiff. Nothing in this paragraph shall be construed as an admission or3

concession by

EPA that Plaintiff is entitled to or eligible for recovery of any costs or attorney s’ fees. 5. Subjec t to paragraph 6 of this Decree, any provision of this Decree may be modified by

the Court upon (a) written stipulation of the Parties, or (b) a motion of any party to this Decree, pursuant to the Federal Rules of Civil Procedure, and upon consideration of any response by

the non
- moving party

to this Decree. 6. The Parties may

ex tend the deadline in Paragraph 2 by 30 day s or less by

written stipulation executed by

counsel for the Parties and filed with the Court. Extensions greater than 30 day s may

be gran ted pursuant to Paragraph 5. 7. Plaintiff and EPA shall not challenge the terms of this Decree or this Court’s jurisdiction to enter and enforce this Decree. Subject to paragraphs 5 and 6 of this Decree, upon entry , no party

shall challenge the terms of this Decree. 8. Nothing in this 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 Decree, including the discretion to alter , amend or revise any responses or final actions contemplated by this Decree. EPA’s obligation to perform the actions specified in Paragraph 2
- 4 by the time specified therein does not constitute a limitation or modification of EPA’s discretion within the meaning of this paragraph. 9. Nothing in this Decree shall be construed as an admission of any issue of fact or law nor to waive or limit any claim or defense, on any grounds, related to any

final action EPA may take with respect to the Title V Operating P ermit for Pulliam.4

10. Nothing in this Decree shall be construed to confer upon the district court jurisdiction to review any final decision made by

EPA pursuant to this Decree. Nothing in this 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 Courts of Appeals pursuant to CAA section 307(b)(1) and 505, 42 U.S.C. § 7607(b)(1), 7661d. Nothing in this Decree shall be construed to waive any

remedies o r defenses the Parties may have under CAA Section 307(b)(1), 42 U.S.C. § 7607(b)(1). 11. The Parties recognize and acknowledge that the obligations imposed upon EPA under this Decree can only be undertaken using appropriated funds legally available for suc h purpose. No provision of this Decree shall be interpreted as or constitute a commitment or requirement that the United States obligate or pay funds in contravention of the Anti
- Deficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law. The possibility exists that circumstances outside the reasonable control of EPA could delay compliance with the deadline established in Paragraph 2. Such situations include, but are not limited to, a government shut
- down such as occurred in 1995 and 1996 , or catastrophic environmental events requiring immediate and/or time
- consuming response by EPA. Should a delay

occur due to such circumstances, any

resulting failure to meet the deadline set forth herein shall not constitute a failure to comply

with the terms of this Consent Decree, and any deadlines occurring within one hundred twenty

(120) day s of the termination of the circumstances causing the delay shall be extended one day

for each day

of the circumstances causing the delay . EPA will provide Plain tiff with notice as soon as is reasonably possible under the circumstances in the event that EPA invokes this provision of the Consent Decree and will provide Plaintiff with an explanation of5

EPA’s basis for invoking this provision. Plaintiff may challeng e the invocation of this provision of the Consent Decree under the dispute resolution terms of this Consent Decree. 12. Any

notices required or provided for by this Decree shall be made in writing, via facsimile or other means, and sent to the following: F or Plaintiff

: DAVI D BENDER McGillivray

Westerberg & Bender, LLC 305 S. Paterson Street Madison, WI53703 Tel: (608) 310 3560 Fax: (608) 310
- 3561 bender@mwbattorney s.com For Defendant : JERED L IN DSAY Environmental Defense Section Environment & Natural Re sources Division P.O. Box 23986 Washington, D.C. 20026
- 3986 Tel: (202) 514
- 9277 Fax: (202) 514
- 8865 Jered.L indsay @usdoj.gov AMY HUANG BRANNI NG U.S. Environmental Protection Agency Office of General Counsel 1200 Pennsy lvania Ave., N.W. Washington, DC 204 60 Tel: (202) 564
- 1744 Branning.Amy @epamail.epa.gov 13. Inthe event of a dispute between the Parties concerning the interpretation or implementation of any

aspect of this Decree, the disputing Party shall provide the other Party with a written notice ou tlining the nature of the dispute and requesting informal negotiations. I f6

the Parties cannot reach an agreed
- upon resolution within ten (10) business day s after receipt of the notice, any

party may move the Court to resolve the dispute. 14. No motion or other proceeding seeking to enforce this Decree or for contempt of Court shall be properly

filed unless Plaintiff has followed the procedure set forth in Paragraph 13, and provided EPA with written notice received at least 10 business day s before the filin g of such motion or proceeding. 15. The Court shall retain jurisdiction to determine and effectuate compliance with this Decree. When EPA’s obligations under Paragraphs 2
- 4 have been completed, this case shall be dismissed with prejudice. The Parties sh all file the appropriate notice with the Court so that the Clerk may

close the file. 16. 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 opp ortunity

for comment pursuant to CAA section 113(g), 42 U.S.C. § 7413(g). EPA will promptly submit a public notice of this Consent Decree to the Federal Register for publication and public comment after lodging this Agreement with the Court. After this C onsent Decree has undergone an opportunity for notice and comment, the 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, i n accordance with section 113(g) of the CAA. I f 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.7

17. 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 Decree. SO ORDERED on this day of 2010.

________________________ _____ UNI TED STATES DI STRI CT JUDGE
SO AGREED: FOR PL AI

NTI FF

_______________________________ DAVI D BENDER McGillivray , Westerberg & Bender LLC 305 S. Paterson Street Madison, WI53703 Tel: (608) 310
- 3560 Fax: (608) 310
- 3561 bender@mwbattorney s.com
DAT ED:8

FOR DEFENDANT IG NACI A S. MORENO Assistant Attorney

General Env. & Natural Resources Division

_____________________________ JERED J. L IN DSAY Environmental Defense Se ction Environment & Natural Resources Division United States Department of Justice P.O. Box 23986 Washington, D.C. 20026
- 3986 Phone (202) 514
- 9277 Fax (202) 514
- 8865 Jered.lindsay @usdoj.gov DATED: Of Counsel f

or Defendant: AMY HUANG BRANNI NG U.S. Environmental Protection Agency Office of General Counsel 1200 Pennsy lvania Ave., N.W. Washington, DC 20460 Tel: (202) 564
- 1744