1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

____________________________________ WILDEARTH GUARDIANS , ) ) Plaintiff, ) ) Case No. 1:11

- cv
- 00461

- JCH v. ) ) LISA JACKSON, in her official c apacity ) as Administrator, United States ) Environmental Protection Agency, ) ) Defendant. ) ____________________________________)
CONSENT DECREE WHEREAS, Plaintiff WildEarth Guardians filed this action pursuant to section 304(a)(2)
of t he Clean Air Act (“CAA”), 42 U.S.C. § 7604(a)(2), alleging that Defendant Lisa Jackson, in her official capacity as Administrator, United States Environmental Protection Agency (“EPA”), failed to perform a non

- discretionary duty under CAA § 505(b)(2), 42 U .S.C. § 7661d(b)(2), to grant or deny a petition submitted by WildEarth Guardians requesting that EPA object to a CAA permit issued by the New Mexico Environmental Department, Air Quality Bureau (“NMED”) to Public Service Company of New Mexico to operate t he S an Juan Generating S tation, a coal

- fired power plant located in San Juan County, New Mexico ; WHEREAS, Plaintiff and EPA (collectively “the Parties”) wish to effect a settlement of
the above

- captioned matter 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 matter; WHEREAS, the Court, by entering this Decree, finds that the Decree is fair, reasonable, in the public interest, and consist ent 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,
A DJUDGED, and DECREED that:
1. No later th an February 15, 2012 , or within 30 days of the entry of this Consent
D ecree, whichever is later, EPA shall sign a decision or decisions, pursuant to 42 U.S.C. § 7661d(b)(2), taking final action on Plaintiff ’ s CAA Title V petition on the San Juan Generatin g Station Title V Permit (“Permit”).
2. Following signature of such response to Plaintiff’s petition, EPA shall

e xpeditiously deliver notice of such action on the Permit to the Office of the Federal Register for publication.
3. The United States, on beha lf of EPA, agrees to pay Plaintiff in full settlement of all claims for attorneys’ fees, costs, and expenses incurred as of the date this Consent Decree
becomes final under Paragraph 14 the sum of $1,000.00, as soon as reasonably practicable, by
electronic funds transfer in accordance with instructions provided to the undersigned defense counsel by counsel for the Plaintiff. Nothing in this paragraph shall be construed as an admission or concession by EPA that Plaintiff is entitled to or eligible for recov ery of any costs or attorneys’ fees.
4

. Any provision of this Decree may be modified by (a) written stipulation of the Parties with notice to the Court, or (b) by the Court following motion of any party to this Decree, pursuant to the Federal Rules of Civ il Procedure, and upon consideration of any response by the

non
- moving party.3 5

. Plaintiff and EPA shall not challenge the terms of this Decree or this Court ’ s jurisdiction to enter and enforce this Decree. Upon entry, no party shall challenge the terms of
this Decree.
6. 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

w hich are the subject of this Decree, including discretion to alte r, amend, or revise any responses or final actions contemplated by this Decree. E PA’s obligation to perform the actions specified
i n Paragraph 1 by the time specified therein does not constitute a limitation or modification of
EPA’s discretion within the meaning of this paragraph.
7. 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 Permit.
8. Nothin g 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 iss ues that are within the exclusive jurisdiction of the United States Court of Appeals pursuant to CAA

s ection 307 (b)(1), 42 U.S.C. § 7607(b)(1). Nothing in the terms of this Decree shall be construed to waive any remedies or defenses the Parties may have u nder CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1).
9. The obligations imposed upon EPA under this Decree can only be undertaken

u sing appropriated funds. No provision of this Decree shall be interpreted as or constitute a commitment or requirement that EPA obligate or pay funds in contravention of the Anti

D eficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law.4 1 0

. Any notices required or provided for by this Decree shall be made in writing, via
facsimile or other means and sent to t he following:
For Plaintiffs: Samantha Ruscavage

- Barz WildEarth Guardians 312 Montezuma Avenue Santa Fe, NM 87501 Tel: (505) 988

- 9126 x1158 Fax: (505) 989

- 8623 sruscavagebarz@wildearthguardians.org
For Defendants: Stephanie Talbert United States Departmen t of Justice Environmental Defense Section P.O. Box 23986 Washington, D.C. 20026

- 3896 Tel: (202) 514

- 514

- 2617 Fax: (202) 514

- 8865 stephanie.talbert@usdoj.gov
Susan Stahle U.S. Environmental Protection Agency Office of General Counsel (2344A) 1200 Pennsylv ania Ave., N.W. Washington, D.C. 20460 Tel: (202) 564

- 1272 Fax: (202) 564

- 5603 stahle.susan@epa.gov
1 1

. 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

w ith a written notice outlining the nature of the dispute and requesting informal negotiations. If 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.5 1 2

. No motion or other proceeding seeking to enforce this Decree or for contempt of Court shall be filed unless the Plaintiff has followed the procedure set forth in Paragraph 11.
1 3

. The Court shall retain jurisdiction to determine and effect compliance with this
Decree. When EPA’s obligations under this Decree have been completed, the above

- captioned matter shall be dismissed with prejudice. The Parties shall file the a ppropriate notice with the
Court so that the Clerk m ay close the file.
1 4

. 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 shall promptly submit a public notice of this 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 c omment, the Administrator a nd/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 fe deral government elects not to withdraw or withhold consent to this Consent Decree, the Parties promptly shall file a motion that requests the Court to enter
this Consent Decree.
1 5

. It is hereby expressly understood and agreed that this Consent Decree wa s jointly drafted by WildE arth and EPA 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 Dec ree.
1 6

. The undersigned representatives of each Party certify that they are fully

a uthorized by the Party they represent to bind that Party to the terms of this Decree.6 SO ORDERED on this

___ day of

_________________ , 2011.

_______________________________ THE HON. JUDITH C. HERRERA UNITED STATES DISTRICT JUDGE
SO AGREED:

FOR PLAINTIFFS /s/_ Samantha Ruscavage

- Barz

______ SAMANTHA RUSCAVAGE

- BARZ WildEarth Guardians 312 Montezuma Avenue Santa Fe, NM 87501 Tel: (505) 988

- 9126 x1158 Fax: (505) 989

- 8 623 sruscavagebarz@wildearthguardians.org
FOR DEFENDANTS
IGNACIA C. MORENO Assistant Attorney General Environment & Natural Resources Division
/s/ Stephanie J. Talbert

____________ STEPHANIE J. TALBERT United States Department of Justice Environmental Defense Sectio n P.O. Box 23986 Washington, D.C. 20026

- 3986 Tel: (202) 514

- 2617 Fax: (202) 514

- 8865 stephanie.talbert @usdoj.gov Date: August 28, 2011