IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SOUTHERN ALLIANCE FOR

CLEAN ENERGY and

ENVIRONMENTAL IN~'EGI2ITY

PROJECT,

Plaintiffs,

v.

LISA P. JACKSON, in her

official capacity as Administrator,

United States Environmental

Protection Agency,

Defendant.

Casc No. 12-~V-00338-ESI~

Ion. Mien S. l~uvelle

CONSENT DECREE

WHF.,REAS, Plaintiffs Southern Alliance fox Clean Energy and Enviroxunental Integrity

Project filed their Complaint (Civil Case No. 12-CV-1814) on March 2, 2012, pursuant to

Section 304(a) of the Clean Air Act ("Act"), 42 U.S.C. § 7604(a);

WHEREAS, Plaintiffs allege that Defendant Lisa P. Jackson, in her official capacity as

Administrator of the United States Environmental Protection Agency (hereinafter "EPA"), has

failed to perform a nondiscretionary duty pursuant to section 505(b}(2} of the Act, 42 U.S.C.

7b61d(b)(2}, to grant or deny, within b0 days after it was filed, a petition dated February 28,

2011 ("Shawnee Petition"), requesting that EPA object to proposed Title V operating pezmit

No. V-09-002-R1 for the Tennessee Vat.ley Authority's Fossil Plant issued by the

Commonwealth of Kentucky ("Shawnee Permit");
WHEREAS, the Shawnee Petition superseded and constructively withdrew an earlier

petition dated December 16, 2010, in which Plaintiffs requested that EPA object to the

Shawnee Permit;

WHEREAS, Plaintiffs and the EPA (collectively "the Parties") wish to effectuate a

settlement in the above-captioned matter without expensive and protracted litigation;

WHEREAS, the Parties consider this Consent Decree ("Decree") to be an adequate and

equitable resolution of the claims in the above-captioned matter; and

WHEREAS, the Court, by entering this Decree, finds that the Decree is fair, reasonable,

in the public interest, and consistent with the Act, 42 U.S.C, ~§ 7401 et seq.

NOW THEREFORE, before the taking of testimony, without trial or deternunation of

any issue of fact or law, and upon the consent of the Parties, it is hereby

ORDERED, ADJUDGED, and DECREED that:

This Court has subject matter jurisdiction over the claims set forth in the

Complaint and to order the relief contained in this Decree. Venue is proper in the 'United States

District Court for the District of Columbia.

2. On or before September 1, 2012, EPA shall sign its response to the Shawnee

Petition. EPA shall promptly deli~•er notice of this action to the Office of the Federal Register

for publicarion. Following such transmission, EPA shall not take any step (other than as

necessary to correct any typographical or other errors in form} to delay or otherwise interfere

with publication of such notice in the Federal Register.

3. If EPA's icspanse to the Shawnee Petition includes the granting of any portion

of the Shawnee Petition in whole or in part, EPA also shall promptly n~ansmit it to the
Kentucky Energy and Environment Cabinet, Department for Environmental Protection,

Division of Air Quality, 200 Fair Oaks Lane, First Floor, Frankfort, KY 40601.

4. Any provision of this Decree may be modified by: (a) written stipulation of the

Panties with notice to the Court; or (b) the Court following 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 and any reply.

5. Plaintiffs and the EPA shall not challenge the terms of this Decree or this

Court's jurisdiction to enter and enforce this Decree..

6. The deadline for filing a motion for costs of litigation (including attorneys' fees)

for activities performed prior to the execution of this Decree is hereby extended unti160 days

after this Decree is entered by the Court. During this time, the Parties shall seek. to resolve

infoi7nally any claim for costs of litigation (including attorneys' fees) and if they cannot, will

submit that issue to The Court for resolution. Nothing in this paragraph shall be construed as an

admission or concession by the EPA that Plaintiffs are entitled to or eligible for recovery of any

costs or attorneys' fees.

7. Nothing in this Decree shall be construed to limit or modify any discretion

accorded EPA by the Act 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 oz• final actions contemplated by this Decree. EPA's obligation to perform the actions

specified rn Paragraph 2 by the time specified therein does not constitute a limitation or

modification of EPA's discretion within the meaning of this paragraph.
8. 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 Shawnee Permit.

9. 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 Section

307(b)(1) of the Act, 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 under Section 307(b)(1) of

the Act, 42 U.S.C. § 7607(b)(1).

10. The obligations imposed on EPA under this Decree can only be undertaken

using 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 AntiDeficiency Act, 31 U.S.C. § 1341, or any other applicable federal statute. 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 iirunediate 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 Decree, and any deadlines occun-ing 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

Plaintiffs with notice as soon as is reasonably possible under the circumstances in the event that
EPA invokes this provision of the Decree and will provide Plaintiffs with an explanation of

EPA's basis for invoking this provision. Plaintiffs may challenge the invocation of this

provision of the Decree under the dispute resolution terms of this Decree.

I 1. 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 Plaintiffs:

Jennifer Peterson

Environmental Integrity Project

One Thomas Circle, Suite 900

Washington, DC 20036

Telephone: (202) 263-4453

Fax: (202) 296-8822

Email: JPeterson@environmentalintegrityproject.org

For Defendants:

Heather E. Lange

Environmental Defense Section

:Environment and Natural Resources Division

United States Department of Justice

P.O. Box 7611

Washington, D.C. 20044

Attn: DJ # 9052419208

Telephone; (202) 514-4206

Fax: (202) 514-8865

Email: Heather.Gange@usdoj.gov

Vera Karnytak

United States EPA Region 4

61 Forsyth St., S.W.

Atlanta, GA 30303

Telephone: (404) 562-9589

Email: Kornylak.Vera a.epa.gov

Gretchen Graves

United States EPA

Office of General Counsel

1200 Pennsylvania Avenue, NW

Washington DC 20460

Telephone: (202) 564-5581
Email: Graves.Gretchen(aepa.gov

or such other person as either Party may subsequently identify in writing to the other Party.

12. 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

the Parties cannot reach an agreed-upon resolution within thirty (30) days after receipt of the

notice, any Party may move the Court to resolve the dispute. No motion or other proceeding

seeking to enforce this Decree or for contempt of Court shall be properly filed unless Plaintiffs

have followed the procedure set forth in this Paragraph, and provided EPA with written notice

received at least ten (10} business days before the filing of such motion.

13. The Parties agree and acknowledge that before this Decree can be finalized and

entered by the Court, EPA must provide notice in the Federal Register and an opportunity for

comment pursuant to Clean Air Act section 113(8), 42 U.S.C. § 74130;). After this Decree has

undergone an opportunity for notice and comment, the Administrator and/or the Attorney

General, as appropriate, shall promptly consider any such written comments in determining

whether to withdraw or withhold consent to this Decree, in accordance with section 113(g) of

the Clean Air Act. If the federal government elects not to withdraw or withhold consent to this

Decree, the Parties shall promptly file a motion that requests the Court to enter this Decree.

14. The Court shall retain jurisdiction to determine and effectuate compliance with

this Decree. When EPA's obligations under Paragraph 2 have been completed, and Plaintiffs'

claims for costs of litigation have been resolved pursuant to the process described in Paragraph

6, the above-captioned matter shall be dismissed with prejudice. EPA shall fle an appropriate

notice with the Court so that the Clerk may close the f le.
15. 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.

Respectfully submitted,

Ignacia S. ivloreno

Assistant Attorney General

United States Department of Justice

Environment and Natural Resources Division

Dated: , 2012 By: ,~~%~`~l ~/~-

Heather E. Gange

Environmental Defense Section

D.C. Bar No. 452619

U.S. Department of Justice

P.O. Box 7611

Washington, D.C. 20044

Voice: (202) 514-4206

Fax: (2Q2) 514-8865

Email: Heather.GangeLusdoj.gov

Cot.rnsel, for EPA

Dated: ~rl'i~~,` ~ . 2U 12 °. ~~~~~ ~~

~, ~'3 nni.fer Peerson J

Environmental Integrity Project

One Thomas Circle, Suite 900

Washington, DC 20036

Telephone: (202) 263-4453

Fax: (202) 2~6-8822

Email: JPeterson@environmentalintegrity

project.org

Counsel for Plcrintzffs

~~ 012I~EIZ~i~: , 2012

Hon. Ellen S. Huvelle

United States District Judge