IN	THE	UNITED	STATES	DISTRICT	COURT	

FOR	THE	DISTRICT	OF	WYOMING	

STATE	OF	WYOMING,	 	 	 )	

	 	 	 	 	 	 )	

	 	 Plaintiff,	 	 	 )	

	 	 	 	 	 	 )	

	 v.	 	 	 	 	 )	 No.		2:14‐cv‐00042‐NDF	

	 	 	 	 	 	 )	

GINA	McCARTHY,	in	her	official	capacity	 )	

as	Administrator	of	the	United	States	 )	

Environmental	Protection	Agency,	 	 )	

	 	 	 	 	 	 )	

	 	 Defendant.	 	 	 )	

CONSENT	DECREE	

	 This	Consent	Decree	(“Decree”)	is	entered	into	by	Plaintiff	State	of	Wyoming	

(“Wyoming”)	and	Defendant	Gina	McCarthy,	in	her	official	capacity	as	Administrator	

of	the	United	States	Environmental	Protection	Agency	(“EPA”).	

RECITALS	

	 A.	 On	March	27,	2008,	pursuant	to	the	Clean	Air	Act	(“CAA”),	EPA	

promulgated	a	revised	National	Ambient	Air	Quality	Standard	for	ozone	with	an	8‐

hour	concentration	limit	of	0.075	parts	per	million	(“8‐Hour	Ozone	NAAQS”).		73	

Fed.	Reg.	16,436	(Mar.	27,	2008).			

	 B.	 Pursuant	to	42	U.S.C.	§	7407(d)(1)(B),	on	May	21,	2012,	effective	July	

20,	2012,	EPA	designated	the	Upper	Green	River	Basin	area	of	Wyoming	as	

“nonattainment”	for	the	8‐Hour	Ozone	NAAQS.		77	Fed.	Reg.	30,088,	30,157‐58,	

codified	at	40	C.F.R.	§	81.351.	

	 C.	 For	nonattainment	areas,	States	are	required	to	submit	state	

implementation	plan	(“SIP”)	revisions,	including	a	requirement	for	permits	for	the	

Case 2:14-cv-00042-NDF Document 16-1 Filed 09/29/14 Page 1 of 9
2	

construction	and	operation	of	new	or	modified	major	stationary	sources	located	in	

the	nonattainment	area.		42	U.S.C.	§	7502(c)(5).			

	 D.	 On	or	about	May	10,	2011,	before	the	formal	designation	of	the	Green	

River	Basin	Area	as	nonattainment	for	the	8‐Hour	Ozone	NAAQS,	Wyoming	

submitted	a	nonattainment	new	source	review	implementation	plan	(“NNSR	SIP”)	to	

EPA	for	approval.			

	 E.	 Pursuant	to	42	U.S.C.	§	7410(k)(1)(B),	the	NNSR	SIP	was	deemed	

complete	by	operation	of	law	on	or	about	November	11,	2011.			Under	42	U.S.C.	§	

7410(k)(2),	EPA	is	required	to	act	upon	a	SIP	submission	within	one	year	after	the	

submission	is	determined	to	be	complete	by	the	Administrator	or	as	a	matter	of	law.	

	 F.	 EPA	has	not	approved,	disapproved,	given	conditional	approval,	or	

approved	in	part	and	disapproved	in	part	the	NNSR	SIP.	

	 G.	 Pursuant	to	CAA	section	304(b),	42	U.S.C.	§	7604(b),	on	or	about	

November	27,	2013,	the	Attorney	General	of	the	State	of	Wyoming	submitted	a	

“Notice	of	Intent	to	Sue	EPA	for	its	Failure	to	Act	on	Wyoming’s	Non‐Attainment	

New	Source	Review	State	Plan	Submission	as	Required	by	42	U.S.C.	§	7410(k)(2)”	

(“Notice	of	Intent”)	to	EPA	Administrator	Gina	McCarthy,	stating	that	EPA	had	failed	

to	perform	a	nondiscretionary	duty	to	act	on	the	NNSR	SIP	within	one	year	of	the	

date	it	was	deemed	complete	by	operation	of	law.	

	 H.	 On	February	25,	2014,	more	than	60	days	after	service	of	the	Notice	of	

Intent	on	EPA,	Wyoming	filed	its	Complaint	in	this	case.				In	the	Complaint,	

Wyoming	alleges	that	EPA	has	failed	to	perform	a	nondiscretionary	duty	within	the	

meaning	of	the	CAA	citizens’	suit	provision,	CAA	section	304(a)(2),	42	U.S.C.	§	

Case 2:14-cv-00042-NDF Document 16-1 Filed 09/29/14 Page 2 of 9
3	

7604(a)(2),	by	failing	to	act	on	the	NNSR	SIP.		Wyoming	prayed	for	a	declaration	

that	EPA	has	violated	a	nondiscretionary	duty	to	act	on	the	NNSR	SIP,	for	an	order	

requiring	EPA	to	approve,	disapprove,	or	partially	approve	and	disapprove	the	

NNSR	SIP,	and	for	an	award	of	litigation	costs	pursuant	to	CAA	section	304(d),	42	

U.S.C.	§	7604(d).	

	 I.	 The	Parties	wish	to	effectuate	a	settlement	of	this	case	without	

expensive	and	protracted	litigation,	and	without	a	litigated	resolution	of	any	issue	of	

law	or	fact.	

	 J.	 The	Parties	consider	this	Decree	to	be	an	adequate	and	equitable	

resolution	of	the	claims	of	this	case	and	consent	to	entry	of	this	Decree.	

	 K.	 The	Court,	by	entering	this	Decree,	finds	that	this	Decree	is	fair,	

reasonable,	in	the	public	interest,	and	consistent	with	the	Clean	Air	Act.	

GENERAL	PROVISIONS	

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

determination	of	any	issue	of	law	or	fact,	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	

Wyoming’s	Complaint	and	to	order	the	relief	contained	in	this	Decree.		Venue	is	

proper	in	the	United	States	District	Court	for	the	District	of	Wyoming.	

	 2.	 Wyoming	and	EPA	shall	not	challenge	the	terms	of	this	Decree	or	this	

Court’s	jurisdiction	to	enter	and	enforce	this	Decree.		This	Decree	constitutes	a	

complete	and	final	resolution	of	all	claims	that	have	been	asserted	in	the	Complaint,	

including	any	claims	for	costs	and	fees	under	any	provision	of	law.		

Case 2:14-cv-00042-NDF Document 16-1 Filed 09/29/14 Page 3 of 9
4	

	 3.	 This	Decree	shall	become	effective	upon	the	date	of	its	entry	by	the	

Court.		If	for	any	reason	the	Court	does	not	enter	this	Decree,	the	obligations	set	

forth	in	this	Decree	are	null	and	void.	

	 4.	 On	or	before	December	12,	2014,	the	appropriate	EPA	official	will	sign	

a	notice	of	final	action	to	approve,	disapprove,	approve	in	part	and	disapprove	in	

part,	or	conditionally	approve,	the	NNSR	SIP.	

	 5.	 Within	fifteen	business	days	following	the	signature	of	the	notice	of	a	

final	rulemaking	pursuant	to	Paragraph	4	above,	EPA	shall	submit	the	notice	for	

review	and	publication	by	the	Office	of	the	Federal	Register.		

	 6.	 The	deadline	in	Paragraph	4	may	be	extended	by	written	stipulation	

executed	by	counsel	for	Wyoming	and	for	EPA	and	filed	with	the	Court.		Any	other	

request	for	an	extension	of	the	deadline	in	Paragraph	4	may	be	approved	by	the	

Court	upon	motion	made	by	any	Party	to	this	Decree	for	good	cause	shown	and	

upon	consideration	of	any	response	and	any	reply.		Any	other	provision	of	this	

Decree	may	also	be	modified	by	the	Court	for	good	cause	shown	and	upon	

consideration	of	any	response	by	a	non‐moving	Party	and	any	reply.	

	 7.	 If	an	EPA	lapse	in	appropriations	occurs	within	120	days	prior	to	the	

deadline	set	forth	in	Paragraph	4,	that	deadline	shall	be	extended	automatically	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	by	Court	

order,	pursuant	to	the	procedures	of	Paragraph	6.	

Case 2:14-cv-00042-NDF Document 16-1 Filed 09/29/14 Page 4 of 9
5	

	 8.	 Wyoming	does	not	seek	payment	of	litigation	costs	pursuant	to	CAA	

section	304(d),	42	U.S.C.	§	7604(d),	or	any	other	provision	of	law,	and	waives	any	

such	claim	relating	to	this	case.	

	 9.	 Nothing	in	this	Consent	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	action	that	is	the	subject	of	this	Decree,	including	the	discretion	to	

alter,	amend,	or	revise	any	responses	or	final	actions	contemplated	by	this	Decree.		

EPA’s	obligation	to	perform	the	actions	specified	by	Paragraph	4	by	the	time	

specified	therein	does	not	constitute	a	limitation	or	modification	of	EPA’s	discretion	

within	the	meaning	of	this	paragraph.	

	 10.	 Nothing	in	this	Decree	shall	be	construed	as	an	admission	of	any	issue	

of	fact	or	law	nor	to	waive	or	limit	any	claim,	remedy,	or	defense,	on	any	grounds,	

related	to	any	final	action	EPA	may	take	with	respect	to	the	EPA	action	identified	in	

Paragraph	4.	

	 11.	 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	Court	of	Appeals	pursuant	to	the	CAA,	42	U.S.C.	§§	7607(b)(1),	7661d.		

Nothing	in	this	Decree	shall	be	construed	to	waive	any	claims,	remedies,	or	defenses	

the	Parties	may	have	under	42	U.S.C.	§	7607(b)(1).	

	 12.	 The	Parties	recognize	and	acknowledge	that	the	obligations	imposed	

upon	EPA	under	this	Decree	can	only	be	undertaken	using	appropriated	funds	

Case 2:14-cv-00042-NDF Document 16-1 Filed 09/29/14 Page 5 of 9
6	

legally	available	for	such	purpose.		No	provision	of	this	Decree	shall	be	interpreted	

or	constitute	a	commitment	or	requirement	that	EPA	obligate	or	pay	funds	in	

contravention	of	the	Anti‐Deficiency	Act,	31	U.S.C.	§	1341,	or	any	other	applicable	

provision	of	law.	

	 13.	 Any	notices	required	or	provided	for	by	this	Decree	shall	be	made	in	

writing	and	sent	via	email	to	the	following:	

	 	 For	Wyoming:			

	 	 Jeremiah	I.	Williamson	

	 	 Wyoming	Attorney	General’s	Office	

	 	 Jeremiah.williamson@wyo.gov

	 	 For	EPA:	

	 	 Daniel	Pinkston	

	 	 Environmental	Defense	Section	

	 	 U.S.	Dept.	of	Justice	

	 	 Daniel.pinkston@usdoj.gov

	 	 Nicholas	Vassallo	

	 	 U.S.	Attorney’s	Office	

	 	 Nick.vassallo@usdoj.gov

			

	 	 Elyana	Sutin	

	 	 Office	of	Regional	Counsel	

	 	 EPA	Region	8	

	 	 Sutin.elyana@epa.gov

		

	 14.	 In	the	event	of	a	dispute	among	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.		The	Parties	shall	meet	and	confer	in	

order	to	attempt	to	resolve	the	dispute.		If	the	Parties	cannot	reach	an	agreed‐upon	

Case 2:14-cv-00042-NDF Document 16-1 Filed 09/29/14 Page 6 of 9
7	

resolution	within	ten	business	days	after	receipt	of	the	notice,	any	Party	may	move	

the	Court	to	resolve	the	dispute.	

	 15.	 No	motion	or	other	proceeding	seeking	to	enforce	this	Decree	or	for	

contempt	of	court	shall	be	properly	filed	unless	the	Party	seeking	to	enforce	this	

Decree	has	first	exhausted	the	procedure	set	forth	in	Paragraph	14.	

	 16.	 The	Court	shall	retain	jurisdiction	to	determine	and	effectuate	

compliance	with	this	Decree	and	to	resolve	any	disputes	thereunder.		After	EPA’s	

obligations	under	Paragraphs	4	and	5	have	been	completed,	this	Decree	shall	be	

terminated.		The	Parties	may	either	jointly	notify	the	Court	that	the	Decree	should	

be	terminated	and	the	case	dismissed,	or	EPA	may	notify	the	Court	by	motion,	and	

Wyoming	shall	have	twenty	days	to	respond	to	such	motion.	

	 17.	 The	Parties	agree	and	acknowledge	that	final	approval	and	entry	of	

this	proposed	Decree	are	subject	to	the	requirements	of	CAA	section	113(g),	42	

U.S.C.	§	7413(g).		That	subsection	provides	that	notice	of	this	proposed	Decree	be	

given	to	the	public	and	that	the	public	shall	have	a	reasonable	opportunity	to	

comment.		EPA	will	promptly	deliver	a	public	notice	of	this	Decree	to	the	Office	of	

the	Federal	Register	for	publication	and	public	comment	after	lodging	this	Decree	

with	the	Court.		After	this	Decree	has	undergone	an	opportunity	for	notice	and	

comment,	EPA’s	Administrator	and/or	the	United	States	Attorney	General,	as	

appropriate,	shall	promptly	consider	any	written	comments	in	determining	whether	

to	withdraw	or	withhold	consent	to	this	Decree,	in	accordance	with	CAA	section	

113(g),	42	U.S.C.	§	7413(g).		If	the	Administrator	and/or	the	Attorney	General	elects	

not	to	withdraw	or	withhold	consent	to	this	Decree,	the	Parties	shall	promptly	file	a	

Case 2:14-cv-00042-NDF Document 16-1 Filed 09/29/14 Page 7 of 9
8	

motion	that	requests	the	Court	to	enter	this	Decree.		If	the	Administrator	and/or	

Attorney	General	elects	to	withdraw	or	withhold	consent	to	this	Decree,	pursuant	to	

CAA	section	113(g),	42	U.S.C.	§	7613(g),	EPA	shall	promptly	advise	Wyoming.	

	 18.	 It	is	hereby	expressly	understood	and	agreed	that	this	Decree	was	

jointly	drafted	by	the	Parties	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	Decree.	

	 19.	 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.	

	 SO	ORDERED	this	___	day	of	______________________	2014.	

						 ________________________________________________	

	 	 	 	 	 	 United	States	District	Judge	

	 	 	 	 	 	 SO	AGREED:	

							

	 	 	 	 	 	 FOR	PLAINTIFF	STATE	OF	WYOMING:	

Dated:	September	29,	2014	 	 	 /s/ Jeremiah I. Williamson		 	

	 	 	 	 	 	 MICHAEL	J.	McGRADY		

	 	 	 	 	 	 (Wyo.	State	Bar	No.	6‐4099)	

	 	 	 	 	 	 JEREMIAH	I.	WILLIAMSON	

	 	 	 	 	 	 (Wyo.	State	Bar	No.	7‐4748)	

	 	 	 	 	 	 Wyoming	Attorney	General’s	Office	

						 123	State	Capitol	

	 	 	 	 	 	 Cheyenne,	Wyoming	82002	

						(307)	777‐6946	

						 mike.mcgrady@wyo.gov

jeremiah.williamson@wyo.gov

							

	 	

Case 2:14-cv-00042-NDF Document 16-1 Filed 09/29/14 Page 8 of 9
9	

	 	 	 	 	 	 FOR	DEFENDANT	GINA	McCARTHY:	

	 	 	 	 	 	 SAM	HIRSCH	

	 	 	 	 	 	 Acting	Assistant	Attorney	General	

	 	 	 	 	 	 Environment	and	Natural	Resources		

	 	 	 	 	 	 	 Division	

Dated:	September	29,	2014	 	 By:	 /s/ Daniel Pinkston		 	 	

	 	 	 	 	 	 DANIEL	PINKSTON	

	 	 	 	 	 	 Environmental	Defense	Section	

	 	 	 	 	 	 Environment	and	Natural	Resources	

	 	 	 	 	 	 	 Division	

	 	 	 	 	 	 U.S.	Dept.	of	Justice	

						 999	18th	Street	

	 	 	 	 	 	 South	Terrace,	Suite	370	

	 	 	 	 	 	 Denver,	Colorado		80202	

						(303)	844‐1804	

						 daniel.pinkston@usdoj.gov			 	

			

	 	 	 	 	 	 CHRISTOPHER	A.	CROFTS	

	 	 	 	 	 	 United	States	Attorney	

Dated:	September	29,	2014	 	 By:	 /s/ Nicholas Vassallo		 	 	

	 	 	 	 	 	 NICHOLAS	VASSALLO	

	 	 	 	 	 	 Assistant	United	States	Attorney	

	 	 	 	 	 	 District	of	Wyoming	

	 	 	 	 	 	 P.O.	Box	668	

	 	 	 	 	 	 Cheyenne,	Wyoming		82003‐0668	

						(307)	772‐2124	

						 nick.vassallo@usdoj.gov

							

	 	

Case 2:14-cv-00042-NDF Document 16-1 Filed 09/29/14 Page 9 of 9