IN THE UNITED STATES DI STRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 10

- cv - 01672

- RPM WI LDEARTH GUARDIANS,

Plaintiff,

v. LISA JACKSON, in her official capacit y as Administrator, United States Environmental Protection Agency ,

Defen dant.

_____________________________________________________________________________ CONSENT DECREE

______________________________________________________________________________ This Consent Decree (“Consent Decree”) is entered into by Plaintiff WildEarth Guardians (“WildEarth”) and by Defendant Lisa Jackson, in her official capacity as Administrator of the United States Environmental Protection Agency (“EPA”). WHEREAS, WildE arth 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 perform a duty mandated by CAA section 505(b)(2), 42 U.S.C. § 7661d(b)(2), to grant or den y, within 60 days, three administrative petitions (the “Petitions”) submitted by WildEarth. The Petitions re quested that EPA object to Title V Operating Permits issued by the Colorado Department of Public Health and Environment, Air Pollution Division, to the Public Service Compan y of Colorado to operate the Pawnee power plant in Morgan County , Colorado, the Val mont power plant in Boulder County , Colorado, and the Cherokee power plant in Denver, Colorado;2

WHEREAS, WildEarth and EPA (collectivel y, the “Parties”) wish to effectuate a settlement of the above

- captioned case without expensive and protracted litigati on, 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 WH EREAS, 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 et seq
. 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 Amended Complaint related to WildEarth’s Petitions and to order the relief contained in this Consent Decree. Venue is proper in the United States District Court for the District of Colorado. 2. By June 30, 2011, or within 20 day s after the entry date of this Consent Decree, whichever date is later, EPA sha ll sign its response to the petition addressing the Title V operating permit for the Pawnee power plant. Thereafter, EPA shall deliver the notice of its action to the Office of the Federal Register for publication. 3. By September 30, 2011, or within 2 0 day s after the entry date of this Consent Decree, whichever date is later, EPA shall sign its response to the petition addressing the Title V operating permit for the Valmont power plant. Thereafter, EPA shall deliver the notice of its action to the Off

ice of the Federal Register for publication.3

4. By October 31, 2011, or within 20 day s of the entry date of this Consent Decree, whichever date is later, EPA shall sign its response to the petition addressing the Title V operating permit for the Cheroke e power plant. Thereafter, EPA shall deliver the notice of its action to the Office of the Federal Register for publication. 5. The United States agrees to pay WildEarth as full settlement of all claims for attorney s’ fees, costs, and expenses incurred , under an y authority, the sum of $2,600 as soon as reasonabl y practicable following entry of this Consent Decree, b y electronic funds transfer to a bank account identified by WildEarth. WildEarth agrees to accept $ 2,600 in full satisfaction of any and a ll claims for costs and attorney s’ fees with respect to the case, except that WildEarth reserves the right to seek fees for enforcement of the Consent Decree in the future. EPA does not concede that WildEarth will be entitled to fees for an y efforts b y Wi ldEarth to enforce the Consent Decree in the future, and EPA reserves all defenses with respect to such enforcement efforts and an y related fee claim. The fees under this Paragraph shall have no precedential value in any future fee claim. 6. Any provisi on of this Consent Decree may be modified by

(a) written stipulation of the Parties with notice to the Court, or (b) b y the Court following motion of any part y to this Consent Decree, pursuant to the Federal Rules of Civil Procedure, and upon consideration of an y response b y the non

- moving part y. 7. WildEarth and EPA shall not challenge the terms of this Consent Decree or this Court’s jurisdiction to enter and enforce this Consent Decree. 8. Nothing in this Consent Decree shall be construed to limit or modify any discretion accorded EPA b y the CAA or b y general principles of administrative law in taking the actions which are the subject of this Consent Decree, including the discretion to alter, amend, or revise4

any responses or final actions contemplated by this Consent Decree. EPA’s obligation to perform the actions specified by Paragraphs 2, 3, and 4 by the times specified does not constitute a limitation or modification of EPA’s discretion within the meaning of this paragraph. 9. Nothing in this Con sent 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 Title V Operating Permits for the Pawnee, Valmont, and Cherok ee power plants. 10. 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 c onstrued to waive an y 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 Consent Decree can onl y be undertaken using ap propriated funds legally available for such purpose. No provision of this Consent 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. 12. Any notices required or provided for by this Consent Decree shall be made in writing, via facsimile or other means, and sent to the following:5

For WildEarth : Samantha Ruscavage

- Barz WildEarth Guardi ans 312 Montezuma Ave. Santa Fe, NM 87501 (505) 988

- 9126 x1158 sruscavagebarz@wildearthguardians.org
For EPA : Alan Greenberg Environmental Defense Section Environment and Natural Resources Divi sion U.S. Department of Justice 1961 Stout Street, 8 th Floor Denver, CO 80294 (303) 844

- 1366 alan.greenberg@usdoj.gov Richard H. Vetter Office of General Counsel U.S. EPA Mail Drop D205

- 01 Research Trian gle Park, NC 27711 (919) 541

- 2127 vetter.rick@epa.gov Ely ana Sutin Office of Regional Counsel USEPA Region 8 1595 Wy nkoop Street Mail Code: 8RC Denver, CO 80202

- 1129 (303) 312

- 6899 sutin.ely ana@epa.gov Sara Laumann Office of Regional Counsel USEPA Region 8 1595 Wy nkoop Street Mail Code: 8RC Denver, CO 80202

- 1129 (303) 312

- 6443 laumann.sara@epa.gov6

13. In the ev ent 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 neg otiations. If the Parties cannot reach an agreed

- upon resolution within ten business day s after receipt of the notice, an y Party may move the Court to resolve the dispute. 14. No motion or other proceeding seeking to enforce this Consent Decree or for
c ontempt of court shall be properl y filed unless WildEarth has followed the procedure set forth in Paragraph 13, and provided EPA with written notice received at least ten business day s before the filing of such motion or proceeding. 15. The Court shall r etain jurisdiction to determine and effectuate compliance with this Consent Decree, to rule upon any motions filed in accordance with Paragraph 6 of this Consent Decree, and to resolve any disputes in accordance with Paragraph 1 3 of this Consent Decree. When EPA’s obligations under Paragraphs 2, 3, 4 and 5 have been completed, this case shall be terminated and the case dismissed with prejudice. The Parties may either jointly

notify the Court that the Consent Decree should be terminated and the case dismis sed, or EPA may so notify the Court by motion, and Plaintiff shall have twent y days in which to respond to such motion. 16. The Parties agree and acknowledge that before this Consent Decree can be finalized and entered b y the Court, EPA must provide noti ce in the Federal Register and an opportunity for comment pursuant to CAA section 113(g), 42 U.S.C. § 7413(g). EPA will deliver a public notice of this Consent Decree to the Federal Register for publication and public comment after lodging this Consent De cree 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 to7

withdraw or withho ld 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 request s the Court to enter this Consent Decree. 17. It is hereby

expressly

understood and agreed that this Consent Decree was jointly drafted b y Wildearth and EPA and that an y and all rules of construction to the effect that ambiguit y is construed against the drafting part y s hall be inapplicable in any dispute concerning the terms, meaning, or interpretation of this Consent Decree. 18. 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 20 ,

United States District Judge8 SO AGREED: FOR PLAI

NTIFF: /s/ Samantha Ruscavage

- Barz SAMANTHA RUSCAVAGE

- BARZ, Esq. WildEarth Guardians 312 Montezuma Ave. Santa Fe, NM 87501 (505) 988

- 9126 x1158 sruscavagebarz@wildearthguardians.org DATED: September 24 , 2010

FOR DEFENDANT: IGNACIA S. MORENO Assistant Attorney

General Environment and Natural Resources Division By : /s / Alan D. Greenberg ALAN D. GREENBERG Environmental Defense Section Environment and Natural Resources Division U.S. Department of Justice 1961 Stout Street, 8 th Floor Denver , CO 80294 (303) 844

- 1366 alan.greenberg@usdoj.gov DATED: __________, 2010