### UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

___________________ ___________________ ) National Parks Conservation Association, ) Minnesota Center for Environmental ) Advocacy, Friends of the Boundary Waters, ) Voyageurs National Park Association, ) Civil No.: 12-3043 (RHK/JSM) Fresh Energy, and Sierra Club, ) ) Plaintiffs, ) ) v. ) ) United States Environmental Protection ) Agency, and Gina McCarthy in he r official ) capacity as EPA Administrator, ) ) Defendants. )

_____________ _______________ __________ ) CONSENT DECREE This Consent Decree is entered into by Plaintiffs National Parks Conservation Association, (“Plaintiffs”), a nd by Defendant United States E nvironmental Protection Agency and Gina McCarthy, in her official capacity as Administrator of EPA (collectively “EPA” or “the Administrator”). WHEREAS, on October 21, 2009, the Department of Interior certified to EPA that air pollutant emissions from Xcel Energy’s co al-fired Sherburne C ounty Generating Station (“Sherco”) were reasonably attributable to vi sibility impairment in Minnesota’s Voyageurs National Park, and Michigan’s Is le Royale National Park; WHEREAS, on December 5, 2012, Plaintiffs file d their complaint in this action alleging that the Administrator had failed to perform her mandatory duty to promulgate a federal reasonably attributable visibility impairment be st available retrofit t echnology (“RAVI BART”)-2- determination for Sherco without unreasonable de lay since the Department of the Interior’s October 21, 2009 certification; WHEREAS, on February 1, 2013, Defendants file d their answer in this action denying that the Administrator has a mandatory duty to promulgate RAVI BART for Sherco in response to the Department of the Interior’s Oct ober 21, 2009 certification because EPA has not determined that visibility impairment at one or mo re Class I areas is reasonably attributable to emissions from Sherco. WHEREAS, Plaintiffs and EPA (collectivel y, the “Parties”) wish to effectuate a settlement of the above-captioned case without e xpensive and protracted litigation, and without a litigated resolution of an y issue of law or fact; WHEREAS, the Parties consider this Consen t 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 WHEREAS, the Court, by entering this Consen t Decree, finds that th is Consent Decree is fair, reasonable, in the public in terest, and consistent with the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401 et seq

. NOW THEREFORE, before the taking of te stimony, without trial or determination of any issue of fact or law, and upon the consen t 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 and to order the relief containe d in this Consent Decree.
2. Venue is proper in the United States Distri ct Court for the District of Minnesota.-3- 3. Plaintiffs and Defendants shall not challe nge in Court the terms of this Consent Decree or the Court’s jurisdiction to enter and enforce this Consent Decree. This Consent Decree constitutes a complete and fi nal resolution of all claims asserted in the Complaint.
4. This Consent Decree shall beco me effective upon the date of its entry by the Court. If for any reason the Court does not enter this Consent Decree, the obligations set forth in this Consent Decree are null and void. 5. EPA agrees that source-specific emission limitations representing Best Available Retrofit Technology (“BART”) for the Sherco facility will satisfy the requirements of 40 C.F.R. § 51.302(c)(4)(iii) and (iv) (“BART for Sherco”).
6. EPA shall sign a notice of final rulemaking action on or before August 31, 2015, in which it determines under 40 C.F.R. § 51.302( c)(4)(i) whether visibility impairment in Voyageurs National Park a nd Isle Royale National Park is reasonably attributable to Sherco. If EPA determines that visibili ty impairment in Voyageurs National Park or Isle Royale National Park is reasonably attributable to Sherco, then EPA’s final rulemaking shall also include EPA’s final determination of BART for Sherco. If, however, EPA determines that visibility impairment in neither Voyageurs National Park or Isle Royale National Park is reasonably attributable to Sherco, then BART for Sherco is not required.
7. The Parties agree that if, on or before August 31, 2015, EPA signs a notice of final rulemaking action in which it either approve s a State Implementation Plan (“SIP”) or promulgates a Federal Implementation Plan (“FIP”) under 40 C.F.R. § 51.308 (“Regional Haze Rule”) that in cludes a final determination of BART for Sherco, then-4- EPA’s obligation to sign a notice of final rulemaking action as described under Paragraph 6 shall be null and void.
8. EPA shall sign a notice of proposed rule making action on or before February 27, 2015, for the final actions(s) described in Paragraph 6 (and 7) above.
9. The Parties agree that, if EPA signs a notic e of final rulemaking action in either the manner described in Paragraph 6 or Para graph 7, then any duty EPA may have under 42 U.S.C. § 7491 to act in response to the Department of Interior’s October 21, 2009 certification letter will be satisfied.
10. The deadline in Paragraphs 6, 7 and 8 may be extended for a period of 60 days or less by written stipulation executed by counsel fo r EPA and Plaintiffs and filed with the Court. Any other extension of a deadline in Paragraphs 6, 7 and 8 may be approved by the Court upon motion made pursuant to th e Federal Rules of Civil Procedure by EPA and upon consideration of any res ponse by Plaintiffs and reply by EPA.
11. If this Consent Decree is not entered un til after any specific deadline for EPA action set forth herein, then the deadline for EPA ac tion shall be 30 days after entry of this Consent Decree with respect to such deadline.
12. Plaintiffs and EPA have resolved any claim Plaintiffs have for their costs of litigation (including attorneys’ fees) incurred in this matter up to and including the date this Consent Decree is lodged with the Court. Plai ntiffs reserve their right to enforce such agreement, and to seek litigation costs fo r any work performed after the lodging of this Consent Decree. EPA does not concede th at Plaintiffs will be entitled to fees for any work performed after the lodging of the Consent Decr ee, and the parties reserve all claims and defenses with respect to a ny future costs of litigation claim.-5- 13. No later than fifteen (15) business days following signature by the Administrator or his delegatee of the notice of any fina l rulemaking referenced above, EPA shall deliver the notice to the Office of the Fede ral Register for review and publication. Following such delivery to the Office of the Federal Register, EPA shall not take any action (other than is necessary to correct any typographical errors or other errors in form) to delay or otherwise interfere with public ation of such notice in the Federal Register. EPA shall make available to Plai ntiffs copies of the notices referenced herein within five business days follow ing signature by the Ad ministrator or his delegatee.
14. Nothing in this Consent Decree shall be c onstrued to limit or modify any discretion accorded EPA by the CAA or by general prin ciples of administrative law in taking the actions which are the subject of this 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 6 and 7 does not constitute a limitation or modifi cation of EPA’s discretion within the meaning of this Paragraph. 15. Nothing in this Consent Decree shall be c onstrued as an admission of any issue of fact or law or to waive or limit any clai m or defense, on any grounds, related to any final action EPA may take pursuan t to this Consent Decree.
16. Nothing in this Consent Decree shall be c onstrued to confer upon the district court jurisdiction to review any final decision made by EPA pursuant to this Consent Decree. Nothing in this C onsent Decree shall be construe d to confer upon the district court jurisdiction to review any issues that are within the exclusive jurisdiction of the-6- United States Court of Appeals pursuan t to 42 U.S.C. §§ 7607(b)(1) and 7661d. Nothing in this Consent Decree shall be cons trued to waive any remedies or defenses the Parties may have under 42 U.S.C. § 7607(b)(1).
17. The Parties recognize and acknowledge that the obligations imposed upon EPA under this Consent Decree can only be underta ken using appropriated funds legally available for such purpose. No provision of this Consent Decree shall be interpreted as or constitute a commitment or requir ement 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.
18. If a lapse in EPA’s appropria tions occurs within one hundr ed and twenty (120) days prior to the deadline in Paragraphs 6, 7 or 8 in this Decree, that deadline shall be extended automatically one day for each day of delay caused by the lapse in appropriations. If EPA determines that a dditional time is needed due to a lapse in appropriations, nothing in this paragra ph shall preclude EPA from seeking an additional extension, either by st ipulation or court order, purs uant to the procedures of Paragraph 10. 19. Any notices required or provide d for by this Consent Decree shall be made in writing and sent via e-mail to the following: For Plaintiffs : Kevin Reuther kreuther@mncenter.org Reed Zars rzars@lariat.org-7- For EPA : Matthew Marks David A. Carson marks.matthew@epa.gov david.a.carson@usdoj.gov
20. In the event of a disput e among the Parties concerni ng the interpretation or implementation of any aspect of this C onsent Decree, the disputing Party shall provide the other Party with a written noti ce outlining the nature of the dispute and requesting informal negotiations. If the Parties cannot re ach an agreed-upon resolution, any Party may move the Court to resolve the dispute.
21. No motion or other proceeding seeking to enforce this Consent Decree or for contempt of court shall be properly filed unless the Party seeki ng to enforce this Consent Decree has followed the pro cedure set forth in Paragraph 20.
22. The Court shall retain jurisdiction to dete rmine and effectuate compliance with this Consent Decree, to resolve any disputes thereunder, and to consider any future requests for costs of litigati on (including reasonab le attorneys’ fees). After EPA’s obligations under this Consen t Decree have been completed, EPA may move to have this Consent Decree terminated. Plaintiffs shall have 14 days in which to respond to such motion.
23. The Parties agree and acknowledge that before this Consent Decree can be finalized and entered by the Court, EPA must provide notice in the Federa l Register and an opportunity for comment pursuant to 42 U.S. C. § 7413(g). EPA will deliver a public notice of this Consent Decree to the Fe deral Register for publication and public comment within fifteen (15) business days after lodging this Cons ent Decree with the Court. After this Consent Decree ha s undergone an opportunity for notice and comment, EPA’s Administrator and the A ttorney General, as appropriate, will-8- promptly consider any such written comment s in determining whet her to withdraw or withhold 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, EPA will promptly file a motion that requests the Court to enter this Consent Decree and Plaintiffs will not oppose the motion. If EPA has not moved for entry of this Consent Decree within 120 days after the notice is published in the Federal Regist er, the Parties shall confer as to EPA’s anticipated timeframe for moving to enter th e Decree. If the pa rties are unable to agree as to the reasonableness of EPA’s an ticipated timeframe for moving to enter the Decree after such consultation, or if EPA or the Attorney General withdraw or withhold consent to this Cons ent Decree, any party may file dispositive motions in this matter. In the event the Plaintiff(s) file a dispositive motion referred to in this Paragraph, the Plaintiff(s) sh all withdraw such filed moti on promptly after EPA files a motion to enter this Consent Decree.
24. It is hereby expressly understood and agr eed that this Consent Decree was jointly drafted by the Parties and that any and all rules of constr uction to the effect that ambiguity is construed agains t the drafting party shall be inapplicable in any dispute concerning the terms, meaning, or inte rpretation of this Consent Decree. 25. The undersigned certify that they are fully au thorized by the Party or Parties they-9- represent to bind that Party or those Parties to the term s of this Consent Decree.

SO ORDERED this day of 20____.

HON. RICHARD H. KYLE United States District Judge
SO AGREED: For Plaintiffs National Parks Conservation Association and Sierra Club
/s/ REED ZARS Attorney at Law 910 Kearney Street Laramie, WY 82070 (307) 745-7979 rzars@lariat.org Dated: 6/24/2014
For Plaintiffs Minnesota Center for Environmental Advocacy, Friends of the Boundary Waters, Voyagers National Park Association, and Fresh Energy /s/ KEVIN REUTHER Minnesota Center for Environmental Advocacy 26 E. Exchange St., Suite 206 St. Paul, MN. 55101-1667 (651) 287-4861 kreuther@mncenter.org Dated: 6/24/2014-10- FOR DEFENDANTS
SAM HIRSCH Acting Assistant Attorney General David A. Carson United States Department of Justice Environment and Natural Resources Division 999 18th Street South Terrace - Suite 370 Denver, CO 80202 (303) 844-1349 david.a.carson@usdoj.gov Dated: 6/24/2014