UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

SIERRA CLUB,

Plaintiff,

v.

LISA JACKSON, Administrator of the United 

States Environmental Protection Agency,

Defendant.

)

)

)

)

)

)

)

)

)

)

)

Case No. 09-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 Protection 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 

days, an administrative petition submitted by Plaintiff requesting that EPA object to a Title V 

Operating Permit issued 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 the 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 this 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 days after the entry date of this Consent Decree, 

whichever date is later, EPA shall sign its response to the administrative petition dated June 25, 

2009, regarding the Title V permit for Pulliam that was submitted to EPA by Plaintiff.

3. Within 15 business days following signature of such response(s), EPA shall:

a) deliver notice of such action on the Pulliam permit to the Office of the Federal 

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, WI 53707-7921, (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 

attorneys’ fees, costs, and expenses incurred, under any authority, the sum of $2,624.71 as soon 

as reasonably practicable following entry of this Decree, by electronic funds transfer to a bank 

account identified by Plaintiff. Nothing in this paragraph shall be construed as an admission or 
3

concession by EPA that Plaintiff is entitled to or eligible for recovery of any costs or attorneys’ 

fees.

5. Subject 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 extend the deadline in Paragraph 2 by 30 days or less by written 

stipulation executed by counsel for the Parties and filed with the Court. Extensions greater than 

30 days may be granted 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 Permit 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 or 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 such 

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) days 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 Plaintiff 

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 of 
5

EPA’s basis for invoking this provision. Plaintiff may challenge 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:

For Plaintiff:

DAVID BENDER

McGillivray Westerberg & Bender, LLC

305 S. Paterson Street

Madison, WI 53703

Tel: (608) 310 3560

Fax: (608) 310-3561

bender@mwbattorneys.com

For Defendant:

JERED LINDSAY

Environmental Defense Section

Environment & Natural Resources Division

P.O. Box 23986

Washington, D.C. 20026-3986

Tel: (202) 514-9277

Fax: (202) 514-8865

Jered.Lindsay@usdoj.gov

AMY HUANG BRANNING

U.S. Environmental Protection Agency

Office of General Counsel

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

Tel: (202) 564-1744

Branning.Amy@epamail.epa.gov

13. In the 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 outlining the nature of the dispute and requesting informal negotiations. If 
6

the Parties cannot reach an agreed-upon resolution within ten (10) business days 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 days before the filing 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 shall 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 

opportunity 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 Consent 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, in accordance with section 113(g) of the 

CAA. 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. 
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.

_____________________________

UNITED STATES DISTRICT JUDGE

SO AGREED:

FOR PLAINTIFF

_______________________________

DAVID BENDER

McGillivray, Westerberg & Bender LLC

305 S. Paterson Street

Madison, WI 53703

Tel: (608) 310-3560

Fax: (608) 310-3561

bender@mwbattorneys.com

DATED: 
8

FOR DEFENDANT IGNACIA S. MORENO

 Assistant Attorney General

 Env. & Natural Resources Division

_____________________________

JERED J. LINDSAY

Environmental Defense Section

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 for Defendant:

AMY HUANG BRANNING

U.S. Environmental Protection Agency

Office of General Counsel

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

Tel: (202) 564-1744