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	St ate	of	Wyoming (“Wyoming”)	and	Defendant	Gina	M cCarthy,	in	her	official	capaci ty	as	Administrator

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

RECITALS A.	 On	March	27,	2008,	pursuant	to	the	Clean	Air	Act	(“CAA”),	E PA promulgated	a	revised	National	A mbient	Air	Quality	Standard	for ozone	with	an	8‐

hour	concentration	limit	of	0.0 75	parts	per	million	(“8‐Hour	Oz one	NAAQS”).		73 Fed.	Reg.	16,436	(Mar.	27,	2008). B.	 Pursuant	to	42	U.S.C.	§	7407(d)(1)(B),	on	May	21,	2012,	eff ective	July 20,	2012,	EPA	designated	the	Uppe r	Green	River	Basin	area	of	Wy oming	as “nonattainment”	for	the	8‐Hour	Ozone	NAAQS.		77	Fed.	Reg.	30,08 8,	30,157‐58, codified	at	40	C.F.R.	§	81.351. C.	 For	nonattainment	areas,	States	are	required	to	submit	stat e 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 92 construction	and	operation	of	ne w	or	modified	major	stationary sources	located	in the	nonattainment	area.		42	U.S.C.	§	7502(c)(5). D.	 On	or	about	May	10,	2011,	bef ore	the	formal	designation	of the	Green River	Basin	Area	as	nonattainment	for	the	8‐Hour	Ozone	NAAQS,	W yoming submitted	a	nonattainment	new	so urce	review	implementation	plan (“NNSR	SIP”)	to EPA	for	approval. E.	 Pursuant	to	42	U.S.C.	§	7410(k)(1)(B),	the	NNSR	SIP	was	dee med complete	by	operation	of	law	on	or	about	November	11,	2011.			U nder	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	c omplete	by	the	Administrator	or as	a	matter	of	law. F.	 EPA	has	not	approved,	disappr oved,	given	conditional	approv al,	or approved	in	part	and	disappr oved	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	Admi nistrator	Gina	McCarthy,	statin g	that	EPA	had	failed to	perform	a	nondiscretionary	du ty	to	act	on	the	NNSR	SIP	withi n	one	year	of	the date	it	was	deemed	complete	by	operation	of	law. H.	 On	February	25,	2014,	more	th an	60	days	after	service	of	th e	Notice	of Intent	on	EPA,	Wyoming	filed	its Complaint	in	this	case.				In the	Complaint, Wyoming	alleges	that	EPA	has	fai led	to	perform	a	nondiscretiona ry	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 93 7604(a)(2),	by	failing	to	act	on	the	NNSR	SIP.		Wyoming	prayed for	a	declaration

that	EPA	has	violated	a	nondiscre tionary	duty	to	act	on	the	NNS R	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	wi thout expensive	and	protracted	litigation,	and	without	a	litigated	re solution	of	any	issue	of

law	or	fact. J.	 The	Parties	consider	this	Decree	to	be	an	adequate	and	equi table

resolution	of	the	claims	of	this case	and	consent	to	entry	of	t his	Decree. K.	 The	Court,	by	entering	this	Decree,	finds	that	this	Decree is	fair, reasonable,	in	the	public	interest,	and	consistent	with	the	Cle an	Air	Act.

GENERAL	PROVISIONS NOW	THEREFORE,	before	the	takin g	of	testimony,	without	trial	o r determination	of	any	issue	of	la w	or	fact,	and	upon	the	consent of	the	Parties,	it	is hereby	ORDERED,	ADJUDGED,	and	DECREED	that: 1.	 This	Court	has	subject	matte r	jurisdiction	over	the	claims set	forth	in Wyoming’s	Complaint	and	to	order	the	relief	contained	in	this	D ecree.		Venue	is proper	in	the	United	States	Dist rict	Court	for	the	District	of Wyoming. 2.	 Wyoming	and	EPA	shall	not	challenge	the	terms	of	this	Decre e	or	this Court’s	jurisdiction	to	enter	a nd	enforce	this	Decree.		This	De cree	constitutes	a complete	and	final	resolution	of all	claims	that	have	been	asse rted	in	the	Complaint, including	any	claims	for	costs	a nd	fees	under	any	provision	of law. Case 2:14-cv-00042-NDF Document 16-1 Filed 09/29/14 Page 3 of 94 3.	 This	Decree	shall	become	eff ective	upon	the	date	of	its	ent ry	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	officia l	will	sign a	notice	of	final	action	to	appr ove,	disapprove,	approve	in	par t	and	disapprove	in part,	or	conditionally	a pprove,	the	NNSR	SIP. 5.	 Within	fifteen	business	days following	the	signature	of	the notice	of	a final	rulemaking	pursuant	to	Par agraph	4	above,	EPA	shall	submi t	the	notice	for review	and	publication	by	the	Of fice	of	the	Federal	Register. 6.	 The	deadline	in	Paragraph	4	may	be	extended	by	written	stip ulation 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	Pa rty	to	this	Decree	for	good	cau se	shown	and upon	consideration	of	any	respon se	and	any	reply.		Any	other	pr ovision	of	this Decree	may	also	be	modified	by	th e	Court	for	good	cause	shown	a nd	upon consideration	of	any	response	by a	non‐moving	Party	and	any	rep ly. 7.	 If	an	EPA	lapse	in	appropriations	occurs	within	120	days	pr ior	to	the deadline	set	forth	in	Paragraph 4,	that	deadline	shall	be	exten ded	automatically	one day	for	each	day	of	the	lapse	in appropriations.		Nothing	in	th is	paragraph	shall preclude	EPA	from	seeking	an	addi tional	extension,	either	by	st ipulation	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 95 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,	in cluding	the	discretion	to alter,	amend,	or	revise	any	responses	or	final	actions	contempl ated	by	this	Decree. EPA’s	obligation	to	perform	the actions	specified	by	Paragraph 4	by	the	time specified	therein	does	not	const itute	a	limitation	or	modificat ion	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	l imit	any	claim,	remedy,	or	defe nse,	on	any	grounds, related	to	any	final	action	EPA may	take	with	respect	to	the	EP A	action	identified	in Paragraph	4. 11.	 Nothing	in	this	Decree	sha ll	be	construed	to	confer	upon	t he	District Court	jurisdiction	to	review	any	final	decision	made	by	EPA	pur suant	to	this	Decree. Nothing	in	this	Decree	shall	be	construed	to	confer	upon	the	Di strict	Court jurisdiction	to	review	any	issues	that	are	within	the	exclusive jurisdiction	of	the United	States	Court	of	Appeals	pu rsuant	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	a cknowledge	that	the	obligations imposed upon	EPA	under	this	Decree	can	only	be	undertaken	using	appropr iated	funds Case 2:14-cv-00042-NDF Document 16-1 Filed 09/29/14 Page 5 of 96 legally	available	for	such	purpos e.		No	provision	of	this	Decre e	shall	be	interpreted or	constitute	a	commitment	or	req uirement	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	a mong	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	t he	nature	of	the dispute	and	requesting	informal	negotiations.		The	Parties	shal l	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 97 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	proceedin g	seeking	to	enforce	this	Decr ee	or	for contempt	of	court	shall	be	prope rly	filed	unless	the	Party	seek ing	to	enforce	this Decree	has	first	exhausted	the	procedure	set	forth	in	Paragraph 14. 16.	 The	Court	shall	retain	juri sdiction	to	determine	and	effec tuate compliance	with	this	Decree	and	to	resolve	any	disputes	thereun der.		After	EPA’s obligations	under	Paragraphs	4	a nd	5	have	been	completed,	this Decree	shall	be

terminated.		The	Part ies	may	either	jointly	notify	the	Court	th at	the	Decree	should

be	terminated	and	the	case	dismi ssed,	or	EPA	may	notify	the	Cou rt	by	motion,	and Wyoming	shall	have	twenty	days	to	respond	to	such	motion. 17.	 The	Parties	agree	and	ackno wledge	that	final	approval	and entry	of this	proposed	Decree	are	subject to	the	requirements	of	CAA	sec tion	113(g),	42 U.S.C.	§	7413(g).		That	subsecti on	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	deliv er	a	public	notice	of	this	Dec ree	to	the	Office	of the	Federal	Register	for	publica tion	and	public	comment	after	l odging	this	Decree

with	the	Court.		After	this	Decr ee	has	undergone	an	opportunity for	notice	and comment,	EPA’s	Administrator	and/ or	the	United	States	Attorney General,	as appropriate,	shall	promptly	consi der	any	written	comments	in	de termining	whether to	withdraw	or	withhold	consent	to	this	Decree,	in	accordance	w ith	CAA	section 113(g),	42	U.S.C.	§	7413(g).		If the	Administrator	and/or	the	A ttorney	General	elects

not	to	withdraw	or	withhold	conse nt	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 98 motion	that	requests	the	Court	t o	enter	this	Decree.		If	the	Ad ministrator	and/or Attorney	General	elects	to	withd raw	or	withhold	consent	to	this Decree,	pursuant	to CAA	section	113(g),	42	U.S.C.	§	7613(g),	EPA	shall	promptly	adv ise	Wyoming. 18.	 It	is	hereby	expressly	understood	and	agreed	that	this	Dec ree	was jointly	drafted	by	the	Parties	a nd	that	any	and	all	rules	of	co nstruction	to	the	effect that	ambiguity	is	construed	against	the	drafting	party	shall	be inapplicable	in	any dispute	concerning	the	terms,	meaning,	or	interpretation	of	thi s	Decree. 19.	 The	undersigned	representat ives	of	each	Party	certify	that they	are fully	authorized	by	the	Party	the y	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	8 2002 ( 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 99 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	18 th 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		8 2003‐0668 ( 307)	772‐2124 nick.vassallo@usdoj.gov Case 2:14-cv-00042-NDF Document 16-1 Filed 09/29/14 Page 9 of 9