1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 1:13-cv-02748-RBJ WILDEARTH GUARDIANS, Plaintiff, v. GINA McCARTHY, in her official capacity as Administrator of the United States Environmental Protection Agency, Defendant, and STATE OF OKLAHOMA, OKLAHOMA DEPARTMENT OF ENVIRONMENTAL QUALITY, and STATE OF WYOMING, Defendant-Intervenors.

NOTICE OF LODGING

Plaintiff WildEarth Guardians and Defendant Gina McCarthy, in her official capacity as Administrator of the United States Environmental Protection Agency (“EPA”), hereby give notice of the lodging of a proposed Consent Decree to resolve all claims in this litigation. The proposed Consent Decree accompanies this Notice. For the reasons explained below, the parties respectfully request that the Court not sign or enter the proposed Consent Decree at this time. Case 1:13-cv-02748-RBJ Document 48 Filed 08/25/14 USDC Colorado Page 1 of 122 Clean Air Act section 113(g) requires that notice of this proposed Consent Decree be given to the public through publication in the Federal Register , and that the public shall have a reasonable opportunity to comment on the proposed Consent Decree. 42 U.S.C. § 7413(g). Congress specifically required that EPA provide at least 30 days for public comment. Id. If any comments are received on the proposed Consent Decree, then the Administrator of EPA or the Attorney General, as appropriate, must consider those comments and determine whether they should withdraw their consent to the proposed

Consent Decree. Id . The parties acknowledge this requirement in Paragraph 12 of the proposed Consent Decree. EPA is preparing the notice, which will be promptly transmitted to the Office of the Federal Register for publication. Once the notice-and-comment period is completed, EPA will inform the Court, Plaintiff, and Intervenors as to whether the Administrator and/or the Attorney General has determined to withdraw consent to the proposed Consent Decree or to proceed with entry of the proposed Consent Decree. If not, the parties will proceed to move for entry of the proposed Consent Decree. The Court should not sign or enter the proposed Consent Decree at this

time. Respectfully submitted,

COUNSEL FOR PLAINTIFF: Dated: August 25, 2014 /s/ Roberta Traverso-Estes CO Bar. No. 43906 3356 Stuart St Denver, CO 80212 (503) 453-3360 Rtraversoestes@gmail.com Case 1:13-cv-02748-RBJ Document 48 Filed 08/25/14 USDC Colorado Page 2 of 123 /s/ Samantha Ruscavage-Barz NM Bar. No. 23276 WildEarth Guardians 516 Alto Street Santa Fe, NM 87501 (505) 401-4180 sruscavagebarz@wildearthguardians.org

COUNSEL FOR DEFENDANT EPA:

SAM HIRSCH Acting Assistant Attorney General Environment and Natural Resources Division

Dated: August 25, 2014 By: /s/ Daniel Pinkston DANIEL PINKSTON Environmental Defense Section Environment and Natural Resources Division U.S. Department of Justice 999 18 th Street, South Terrace, Suite 370 Denver, CO 80202 (303) 844-1804 daniel.pinkston@usdoj.gov

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing NOTICE OF LODGING was served on all counsel of record through the Court’s ECF system on this 25th day of August 2014.

/s/ Daniel Pinkston Case 1:13-cv-02748-RBJ Document 48 Filed 08/25/14 USDC Colorado Page 3 of 12

# PROPOSED

CONSENT DECREE Case 1:13-cv-02748-RBJ Document 48 Filed 08/25/14 USDC Colorado Page 4 of 121 

### IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 1:13-cv-02748-RBJ WILDEARTH GUARDIANS, Plaintiff, v. GINA McCARTHY, in her official capacity as Administrator of the United States Environmental Protection Agency,

Defendant.

CONSENT DECREE

This Consent Decree (“Consent Decree”) is entered into by Plaintiff WildEarth Guardians (“Guardians”) and by Defendant Gina McCarthy, in her official capacity as Administrator of the United States Environmental Protection Agency (“EPA”).

RECITALS A. Plaintiff Guardians filed its Compla int in this ma tter on October 8, 2013. In the Complaint, brought as a citizens’ suit under the Clean Air Act, 42 U.S.C. § 7604, Plaintiff alleged that Defendant EPA failed to perform nondiscretiona ry duties to make findings that the States of Colorado, Idaho, New Mexico, Oklahoma, Ore gon, South Dakota, Utah, Washington, and Wyoming had failed to submit required “State Im plementation Plans” (“SIPs”) regarding the “National Ambient Air Quality Standard ” (“NAAQS”) adopted by EPA for 1-hour NO 2 in 2010. 75 Fed. Reg. 6474 (Feb. 9, 2010). Case 1:13-cv-02748-RBJ Document 48 Filed 08/25/14 USDC Colorado Page 5 of 122 B. On January 24, 2014, Plaintiff filed its “Amended Complaint for Declaratory and Injunctive Relief” (“Amended Complaint”). The Amended Complaint added the States of Alaska

and Hawaii to the list of States that had not timely submitted NO 2 NAAQS SIPs. In its prayer for relief, Plaintiff sought (i) a declaratory judgment that Defendant EPA failed to perform a nondiscretionary duty to make findings that the St ates listed above had not timely submitted SIPs regarding the 1-hour NO 2 NAAQS issued by EPA in 2010; (ii) an order requiring EPA to make such findings by a date certain; (iii) Plaintif f’s reasonable costs of litigation pursuant to 42 U.S.C. § 7604(d); and (iv) a dete rmination that the Court will re tain jurisdiction over this matter to ensure compliance with the Court’s orders. C. The State of Oklahoma, the Oklahoma De partment of Environmental Quality, and the State of Wyoming moved to intervene, and their intervention was granted by the Court on February 11, 2014, and Februa ry 26, 2014, respectively. D. Intervenor State of Wyoming submitted a 1-hour NO 2 NAAQS SIP to EPA for approval on January 24, 2014, and Intervenor State of Oklahoma submitted a 1-hour NO 2 NAAQS SIP to EPA for approval on March 10, 2 014. In addition, New Mexico submitted a 1-

hour NO 2 NAAQS SIP to EPA for approval on March 27, 2014; Idaho made such a SIP submission to EPA on September 16, 2013; Oregon on December 27, 2013; South Dakota on October 29, 2013; Utah on December 12, 2012; Colo rado on March 7, 2013; and Hawaii made such a submission on April 4, 2014. E. As of the date of lodging of this Cons ent Decree with the Court, EPA has not yet made a finding of failure to submit for any State rega rding infrastructure SIPs for the 2010 1-hour NO 2 NAAQS. F. Guardians and EPA have agreed to sett lement of this case without any admission of Case 1:13-cv-02748-RBJ Document 48 Filed 08/25/14 USDC Colorado Page 6 of 123 any issue of fact or law, which se ttlement they consider to be a just, fair, adequate, and equitable

resolution of the claims raised in this action. G. It is in the interest of the public, th e parties, and judicial economy to resolve the

issues in this action with out protracted litigation. H. The Court, by entering this Consent Decr ee, finds that this Consent Decree is fair, reasonable, in the public interest, and consiste nt with the Clean Air Act, 42 U.S.C. §§ 7401 et

seq . AGREEMENT AND ORDER 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 as follows: 1. The Court has subject matter jurisdicti on over the claims set forth in the Amended Complaint and to order the relief contained in this Consent Decree. 2. Venue is proper in the United States Di strict Court for the District of Colorado. 3. Guardians and EPA shall not challenge the terms of this Consent Decree or the Court’s jurisdiction to enter and enforce this Consen t Decree. This Consent Decree constitutes a complete and final resolution of all claims that have been asserted or that could have been asserted in the Amended Complaint regard ing any alleged EPA failure to perform a nondiscretionary duty to make findings that a State has failed to submit a 1-hour NO 2 NAAQS SIP, except as set forth in the second clause of the first sentence of Paragraph 5 below.

4. This Consent Decree will b ecome effective upon the date of its entry by the Court. If for any reason the Court does not enter the Consen t Decree, the obligations set forth in this

Decree are null and void. Case 1:13-cv-02748-RBJ Document 48 Filed 08/25/14 USDC Colorado Page 7 of 124 5. On or before November 15, 2014, EPA shall sign for publication in the Federal Register a finding of failure to submit all or portions of the SIP revisions required under CAA Sections 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (I), (J), (K), (L), and (M) with regard to

the 2010 NO 2 NAAQS with regard to the States of Alas ka and Washington; however, in light of the decision by the United States Supreme Court in Environmental Protection Agency v. EME Homer City Generation, L.P. , 134 S.Ct. 1584 (2014), the parties ag ree that this Consent Decree does not address any claim by Guardians that Stat es are required to submit SIPs relating to the

2010 1-hour NO 2 NAAQS that include provisions relati ng to 42 U.S.C. § 7410(a)(2)(D)(i)(I). Within ten business days following signature of the finding, EPA will send the notice to the Federal Register for re view and publication. 6. The deadline in Paragraph 5 may be extended by written st ipulation executed by

counsel for EPA and Guardians and filed with the Court. Any othe r extension of the deadline in Paragraph 5 or modification of this Consent Decree may be approved by the Court upon motion and pursuant to the Federal Rule s of Civil Procedure by any part y to the Consent Decree and upon consideration of any response by the non-m oving party to the Consent Decree and reply by the moving party. 7. If a lapse in appropriations occurs within 60 days prior to the deadline set forth in Paragraph 5, that deadline shall be extended automatica lly one day for each day of the lapse in appropriations. Nothing in this Paragraph shall preclude EPA from seeking an additional extension, either by stipulation or Court order, pursuant to the procedures of Paragraph 6. 8. The parties agree that the State of Wyoming submitted the required infrastructure SIP on January 24, 2014, and therefore EPA shall not in clude Wyoming in any finding of failure to submit required by Paragraph 5 of this Consent Decree. The parties agree that the State of Case 1:13-cv-02748-RBJ Document 48 Filed 08/25/14 USDC Colorado Page 8 of 125 Oklahoma submitted the required infrastructure SIP provisions on March 10, 2014, and therefore EPA shall not include Oklahoma in the finding of failure to submit required by Paragraph 5 of

this Consent Decree. 9. The United States agrees to pay Guardi ans as full settlement of all claims for attorneys’ fees, costs, and expe nses incurred in this litigation through the date of lodging this Consent Decree, under any author ity, the sum of $10,905.00, as soon as reasonably practicable following entry of this Consent Decree, by electr onic funds transfer to a bank account identified by Guardians. Guardians agrees to accept $10,905.00 in full satisfaction of any and all claims for costs and attorneys’ fees with resp ect to this case, except that Guar dians reserves the right to seek fees pursuant to 42 U.S.C. § 7604(d) for any additi onal work performed afte r the lodging of this Consent Decree, including attorneys’ fees for any extensions of the deadline set forth in Paragraph 5 requested by EPA and costs and atto rneys’ fees for enforcement of the Consent Decree in the future. Nothing in this Paragraph shall be construed as an admission or concession by EPA that Guardians is entitled to or eligible fo r recovery of any costs or attorneys’ fees, and EPA reserves all defenses with respect to any futu re fee claim. The amount of attorneys’ fees or rates under this Paragraph shall have no pr ecedential value in any future fee claim. 10. The Court shall retain ju risdiction to determine and eff ectuate compliance with this Consent Decree and to resolve any disputes in accordance with Paragraph 14 of this Consent

Decree. Once EPA has taken the actions called for in Paragraphs 5 and 8 of this Consent Decree,

this Decree shall be terminated and the case dism issed with prejudice, ex cept that the portion of

Plaintiff’s claim related to EPA’s failure to make a finding of failure to submit with regards to section 110(a)(2)(D)(i)(I) of the CAA shall be dismissed without prejudice. The Parties may either jointly notify the Court that the Decree should be terminated a nd the case dismissed, or Case 1:13-cv-02748-RBJ Document 48 Filed 08/25/14 USDC Colorado Page 9 of 126 EPA may so notify the Court by motion. If EP A notifies the Court by motion, then Guardians shall have twenty (20) days in which to respond. 11. Except as provided herein, nothing in th is Consent Decree shall be construed to limit or modify any discretion accorded EPA by the CA A or by general principles of administrative law in taking the actions which are the subject of this Consent Decree, in cluding the discretion to alter, amend, or revise any responses or final actions contemplated by this Consent Decree. EPA’s obligation to perform the actions specifi ed by Paragraph 5 by the time specified therein

does not constitute a limitation or modification of EPA's discretion within the meaning of this Paragraph. 12. The parties agree and acknowledge that final approval and entr y of this proposed Consent Decree are subject to the requirement s of 42 U.S.C. § 7413(g). That subsection provides that notice of this propos ed Decree be given to the public and that the public shall have a reasonable opportunity to comment. EPA will pr omptly deliver a public notice of this Consent Decree to the Federal Register for publication and public comme nt after lodging this Consent

Decree with the Court. After this Consent D ecree has undergone an opportunity for notice and comment, EPA’s Administrator and the Attorney General shall promptly consider any such written comments in determining whether to w ithdraw or withhold cons ent to this Consent Decree, in accordance with 42 U.S.C. § 7413(g). If the Administrator or the Attorney General

elects not to withdraw or withhol d consent to this Consent Decree, the Parties shall promptly file a motion that requests the Court to enter this Cons ent Decree. If the Administrator or Attorney

General elects to withdraw or withhold consent to this Consent Decree pursuant to 42 U.S.C. § 7413(g), EPA shall promptly advise Plaintiff. 13. Nothing in the terms of this Consen t Decree shall be construed to waive any Case 1:13-cv-02748-RBJ Document 48 Filed 08/25/14 USDC Colorado Page 10 of 127 remedies Guardians may have under CAA § 307(b)(1 ), 42 U.S.C. § 7607(b)(1), with respect to any future challenges to the final action called for in Paragraph 5, and nothing in this Consent Decree shall be construed to create any such remedy. 14. Nothing in this Consent Decree sha ll be construed to provide the Court with jurisdiction over any challe nges by Guardians, or any other pers on or entity not a party to this litigation, with respect to the fina l action called for in Paragraph 5. 15. In the event of a dispute between th e parties concerning th e interpretation or implementation of any aspect of this Consent D ecree, the disputing Party shall provide the other Party with a written notice outlini ng the nature of the dispute a nd requesting the other party to confer and attempt to reach an agreement on the di sputed issue. If the Parties cannot reach an agreed-upon resolution, then either Party may move the Court to resolve the dispute. No motion or other proceeding seeking to enforce this Consen t Decree or for contempt of court shall be filed unless the Party seeking to enfo rce this Consent Decree has follo wed the procedure set forth in this Paragraph. 16. It is hereby expressly understood and agr eed that this Consent Decree was drafted by Guardians and EPA jointly, and that any and all ru les of construction to the effect that ambiguity is construed against the drafting party shall be in applicable in any disput e concerning the terms, meaning, or interpretation of this Consent Decr ee. This Consent Decree shall be governed and

construed under the laws of the United States. 17. The obligations imposed upon EPA under this Consent Decree may only be undertaken using appropriated f unds. No provision of this Decr ee shall be interpreted as, or constitute a commitment or requirement that, EPA will obligate funds in contravention of the Anti-deficiency Act, 31 U.S.C. § 1341, or any other applicable law or regulation. Case 1:13-cv-02748-RBJ Document 48 Filed 08/25/14 USDC Colorado Page 11 of 128 18. The undersigned representative of each Party certifies that she or he is fully authorized to consent to the Court’s entry of the terms and conditions of this Consent Decree. 19. Any written notice or other written comm unication between the parties contemplated

under this Consent Decree shall be sent to the undersigned counsel at the email addresses listed in the signature blocks below unless written notic e of a change in counsel and/or address is provided. SO ORDERED this ___ day of ______ 2014.

BY THE COURT:

_______________________________ United States District Judge

FOR PLAINTIFF:

Dated: August 25, 2014 /s/ Roberta Traverso-Estes Roberta Traverso-Estes 3356 Stuart St Denver, Colorado 80212 Tel: (503) 453-3360 RTraversoEstes@gmail.com

FOR DEFENDANT:

SAM HIRSCH Acting Assistant Attorney General Environment and Natura l Resources Division Dated: August 25, 2014 By: /s/ Daniel Pinkston DANIEL PINKSTON Environmental Defense Section Environment and Natura l Resources Division United States Department of Justice 999 18 th Street, South Terrace, Suite 370 Denver, Colorado 80202 Tel: (303) 844-1804 Daniel.Pinkston@usdoj.gov Case 1:13-cv-02748-RBJ Document 48 Filed 08/25/14 USDC Colorado Page 12 of 12