1 IN	THE	UNITED	STATES	DISTRICT	COURT FOR	THE	DISTRICT	OF COLORADO No.	1:15
- cv- 00630
- MSK
- KLM WILDEARTH	GUARDIANS ; ) HEAL	Utah ; ) NATIONAL	PARKS	CONSERVATION ) ASSOCIATION;	and ) SIERRA	CLUB, ) ) Plaintiff s , )

) v. ) ) UNITED	STATES	ENVIRONMENTAL ) PROTECTION	AGENCY; ) GINA	McCA RTHY,	in	her	official	capacity ) as	Admi nistrator	of	the	United	States ) Environmental	Protection	Agency; and ) SEAN	McGRATH,	in	his	official	capacity	as ) Regional	Administrator,	Un ited	States ) Environmental	Protection	Agency, ) ) Defendants . )

________________________________________________ ) CONSENT	DECREE This	Consent	Decree (“Decree”) is	entered	into	by Plaintiffs WildEarth Guardians (“ Guardians ”) , H EAL	Utah, National	Parks	Conservation	Association (“NPCA”) ,	and	Sierra	Club and	Defendants	U.S.	Environmental	Protection	Agency, Administrator	Gina	McCarthy,	and	Regional	Administrator	Shaun	McGrath (collectively	“EPA”)
. Guardians,	HEAL	Utah, NPCA,	Sierra	Club,	EPA,	Administrator McCarthy,	and	Regional	Administrator	McGrath	are	described	herein	as	the “Parties.”2 RECITALS A. Pursuant	to	the	Clean	Air	Act	(“Act”),	e ach	State must	adopt a “ State Implementation	Plan”	(“SIP”) that	includes enforceable	emission	limitations necessary	to	attain	the	National	Ambient	Air	Quality	Standards	(“NAAQS”)	and	to meet	all	applicable	requirements	of	the Clean Air	Act	( “CAA”	or “Act”).		42	U.S.C.	§ 7410(a)(1).		The	primary	goal	of	a	SIP	is	to	explain	what regulations,	control measures,	and	programs	the	State	will	use	to	ensure	that	air	quality	standards	are attained	and	maintained. SIPs	must	be	submitted	to	and	approved	by	EPA.		32	U.S.C. §	7410(a)(1),	(k). B. I n	1977,	Congress	enacted	42	U.S.C.	§	749 1,	entitled “Visibility protection	for	Federal	Class	I	areas.”		Congress	declared	as a national	goal	“the prevention	of	any	future,	and	the	remedying	of	any	existing,	impairment	of	visibility in	mandatory	Class	I	Federal	areas	which	impairment	results	from man - made	air pollution.”		42	U.S.C.	§	7491(a)(1).		Congress	required	EPA	to	promulgate regulations	by	1979	to	assure	“reasonable	progress”	toward	meeting	the	national goal	identified	above	and	compliance	with	the	requirements	of	42	U.S.C.	§	7491.		42 U.S. C.	§	7491(a)(1).		The	regulations	require	implementation	plans	for	States	in which	a	Class	I	area	exists	(and	for	States	“the	emissions	from	which	may reasonably	be	anticipated	to	cause	or	contribute	to	any	impairment	of	visibility”	in such	Class	I	area)	to	include	emission	limits,	compliance	schedules,	and	“other measures	as	may	be	necessary	to	make	reasonable	progress	toward	meeting	the national	goal.”		42	U.S.C.	§	7491(b)(2). Pursuant	to	EPA’s regional	haze regulations,3

States	were	required	to	submit	re gional	haze	SIPs to	EPA	for	approval by	December 17,	2007.		40	C.F.R.	§ 51.308(b). C
. On	May	26,	2011,	Utah	submitted	a	SIP	revision	to	EPA	that	addressed regional	haze	SIP	requirements.		On	October	30,	2012,	EPA	disapproved portions	of Utah’s	SIP	revis ion	regarding	the	State’s	“best	available	retrofit	technology” (“BART”)	determination	for	Units	1	and	2	of	the	Hunter	power	plant	and	Units	1	and 2	of	the	Huntingdon	power	plant.	77	Fed.	Reg.	74,355	(Dec. 14,	2012). D
. Within	two years	after	the	EPA	Adm inistrator	(a)	finds	that	a	State failed	to	make	a	required	submission,	(b)	finds	that	a	SIP	or	SIP	revision	submission does	not	satisfy	statutory	minimum	criteria,	or	(c)	disapproves	a	SIP	in	whole	or	in part, the	Administrator	is	to	promulgate	a	“Federal Implementation	Plan”	(“FIP”), unless	the	State	corrects	the	deficiency,	and	the	Administrator	approves	the	plan	or plan	revision	before	the	Administrator	promulgates	the	FIP.		42	U.S.C.	§	7410(c)(1). E
. EPA	has	not	promulgated	a	regional	haze	FIP	for	the	State	of	Utah. F
. On	or	about	January	21,	2015,	Guardians	provided	EPA	with	written notice	of	a	claim	that	EPA	had	failed	to	promulgate	a	regional	haze	FIP	for	Utah ; HEAL	Utah	submitted	a	similar	claim	on	or	about	January	29,	2015
. G
. On March	27,	201 5,	Guardians	filed	a	“Complaint	for	Declaratory	and Injunctive	Relief”	in	the	United	States	District	Court	for	the	District	of	Colorado. Plaintiff	Guardians states that	it	brought	the	Complaint	pursuant	to	the	Clean	Air Act’s	citizen	suit	provision,	42	U.S .C.	§	7604(a)(2),	in	that	it	alleges	that	the Administrator	has	not	performed	a	non
- discretionary	duty	to	promulgate	a	regional haze	FIP	for	Utah	within	the	statutory	time	frame.4 H
. In	its	prayer	for	relief,	Guardians	requests	(a)	a	declaratory	judgment that	EPA	has	violated	the	Act	by	failing	to	promulgate	a	regional	haze	FIP	for	Utah; (b)	an	injunction	compelling	EPA	to	promulgate	a	FIP	by	a	time	certain;	(c) an	order that the	court	retain jurisdiction	until	EPA	has	complied;	and	(d)	an	award	of G uardian s’	costs	of	litigation.		Complaint	at	9. I
. On	March	31,	2015,	Plaintiffs	HEAL	Utah,	National	Parks	Conservation Association,	and	Sierra	Club	filed	a	“Complaint	for	Declaratory	and	Injunctive Relief ,” against	the	United	States	Environmental	Protection	Age ncy,	EPA Administrator	McCarthy,	and	EPA	Region	VIII	Administrator	Shaun	McGrath, in which	they	asserted	the	same	claim	and	prayer	for	relief	as asserted	by Guardians in Guardians	v.	McCarthy
. HEAL	Utah	v.	U.S.	Environmental	Protection	Agency,	Case	No. 1:15
- cv- 00666	(D.	Colo.)	(“HEAL	v.	EPA ”). The Guardians	v.	McCarthy and HEAL	Utah v.	EPA cases	were	consolidated	into Guardians	v.	McCarthy on July	9 ,	2015. The Court	ordered	that	the HEAL	Utah	v.	EPA action be	dismissed	and	that	all	subsequent pleadings and	other	documents	be	filed	under the	1:15
- cv- 00630
- MSK
- KLM case number. J
. The	State	of	Utah	and	PacifiCorp	have	filed	pending	motions	to intervene	in	both Guardians	v.	McCarthy and HEAL	Utah	v.	EPA
. The	Court	denied the	motions	to	intervene	filed	i n	the HEAL	Utah	v.	EPA case	without	prejudice	to refiling	in	the	above
- captioned	matter. K
. On	June 11,	2015 ,	the	State	of	Utah	submitted	a	proposed	revised regional	haze	SIP	to	EPA	for	approval.5 L. On	July	22,	205,	pursuant	to	the	Court’s	order,	Guardia ns,	HEAL	Utah, NPCA,	and	Sierra	Club	filed	a	“Consolidated	Amended	Complaint	for	Declaratory	and Injunctive	Relief”	(“Consolidated	Complaint”)	in	the	consolidated	cases.		The Consolidated	Complaint	included	the	same	claim	for	relief	and	prayer	for	relief	a s set	forth	in	the Guardians	v.	McCarthy and HEAL	Utah	v.	EPA complaints. M
. 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. N
. 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. O
. 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 the	Consolidated	Complaint and	to	order	the	relief	contained	in	this	Decree.		Venue is	proper	in	the	United	States	District	Court	for	the	District	of Colorado
. 2. The	Parties shall	not	challenge	the	terms	of	this	Decree	or	this	Court’s jurisdiction	to	enter	and	enforce	this	Decree in	any	formal	administrative	or	judicial forum .		This	Decree	constitutes	a	complete	and	final	resolution	of	all	claims	that6

have	been	asserted	in	th e Guardians Complaint and	in	the	HEAL	Utah	Complaint, and	in the Consolidated	Complaint
. 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 November	19 ,	2015 , the	appropriate EPA official will sign	a	notice proposing issuance	of	a	FIP	regarding	those	portions	of	the	Utah	SIP revision	EPA	previously	disapproved, proposing	approval	of a	new	regional haze	SIP revision	submitted	to	EPA	by	the	State	of	Utah	before	that	date ,	or proposing conditional	approval of a	new	regional	haze	SIP	revision	submitted	to	EPA	by	the State	of	Utah	before	that	date
. 5. On	or	before	March	31,	2016, the	appropriate	EPA	of ficial	will	sign	a notice	of	final	action	regarding	the	proposal	referenced	in	Paragraph	4. 6
. Within	fifteen	business	days	fo llowing	the	signature	of	the	notice	of	a proposed	and final	ru lemaking	pursuant	to	Paragraph s	4	and 5 above,	EPA	shall submit	the notice	for	review	and	publication	by	the	Office	of	the	Federal	Register. 7. The	United	States	agrees	to	pay	Guardians	as	full	settlement	for	all claims	for	attorneys’	fees,	costs,	and	expenses	incurred	in Guardians	v.	McCarthy and the	consolidated	case,	through	the	date	of	lodging	this	Consent	Decree,	under	any authority,	the	sum	of	$4,000.00 ,	as	soon	as	reasonably	practicable	following	entry	of this	Consent	Decree,	by	electronic	funds	transfer	to	a	bank	account	identified	by Guardians.		Guardians	agree s	to	accept	$4,000.00	in	full	satisfaction	of	any	and	all claims	for	costs	and	attorneys’	fees	with	respect	to Guardians	v.	McCarthy and	the7

consolidated	case,	except	that	Guardians	reserves	the	right	to	seek	costs	and	fees pursuant	to	42	U.S.C.	§	7604(d)	for	any	additional	work	performed	after	the	lodging of	this	Consent	Decree,	including	costs	and	attorneys’	fees	for	any	extensions	of	the dea dline	set	forth	in	Paragraphs	4	or	5	requested	by	EPA	and	costs	and	attorneys’ 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	eli gible	for	recovery	of	any	costs	or	attorneys’	fees,	and	EPA	reserves	all defenses	with	respect	to	any	future	cost	or	fee	claim.		The	amount	of	attorneys’	fees or	rates	under	this	Paragraph	shall	have	no	precedential	value	in	any	future	fee claim. 8. The United	States	agrees	to	pay	HEAL	Utah,	NPCA,	and	Sierra	Club,	as full	settlement	for	all	claims	for	attorneys’	fees,	costs,	and	expenses	incurred	in HEAL	UTAH	v.	EPA and	the	consolidated	case,	through	the	date	of	lodging	this Consent	Decree,	under	any	auth ority,	the	sum	of $ 22,525.00 ,	as	soon	as	reasonably practicable	following	entry	of	this	Consent	Decree,	by	electronic	funds	transfer	to	a bank	account	identified	by	HEAL	Utah,	NPCA,	and	Sierra	Club.		HEAL	Utah,	NPCA, and	Sierra	Club	agree	to	accept	$ 22,525 .00 in	full	satisfaction	of	any	and	all	claims for	costs	and	attorneys’	fees	with	respect	to HEAL	Utah	v.	EPA and	the	consolidated case,	except	that HEAL	Utah,	NPCA,	and	Sierra	Club	reserve the	right	to	seek	costs and	fees	pursuant	to	42	U.S.C.	§	7604(d)	f or	any	additional	work	performed	after	the lodging	of	this	Consent	Decree,	including	costs	and	attorneys’	fees	for	any extensions	of	the	deadline	set	forth	in	Paragraphs	4	or	5	requested	by	EPA	and	costs and	attorneys’	fees	for	enforcement	of	the	Consent	D ecree	in	the	future.		Nothing	in8

this	Paragraph	shall	be	construed	as	an	admission	or	concession	by	EPA	that HEAL Utah,	NPCA,	or	Sierra	Club is	entitled	to	or	eligible	for	recovery	of	any	costs	or attorneys’	fees,	and	EPA	reserves	all	defenses	with	respect to	any	future	cost	or	fee claim.		The	amount	of	attorneys’	fees	or	rates	under	this	Paragraph	shall	have	no precedential	value	in	any	future	fee	claim. 9
. T he	Parties	do	not	anticipate any need to	extend the	deadlines	se t forth	in	Paragraphs	4	and	5. S uch deadlines may	be	extended,	however, by	written stipulation	executed	by the	Parties and	filed	with	the	Court.		Any	other request	for
an extension	of	the	deadline	in	Paragraph s 4 or	5 may	be	approved	by	the	Court upon	motion	made	by	any	Party	to	this	Dec ree 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. 10
. If	a n EPA lapse	in	appropriation s	occurs	within	120	days	prior	to	the deadline	set	forth	in	Paragraph	4 or	in	Paragraph	5, or	after	the	deadline	set	forth	in Paragraph	4	or	Paragraph	5	but	before	the	deadline	in	Paragraph	6, that	deadline shall	be	extended	auto matically	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 7
. 11
. Nothing	in	this	Cons ent	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	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.9

EPA’s	obligation	to	perform	the	actions	specified	by	Paragraph s 4 and	5 by	the	time specified	therein	does	not constitute	a	limitation	or	modification	of	EPA’s	discretion within	the	meaning	of	this	P aragraph. 1 2
. Nothing	in	this	Decree	shall	be	construed	as	an	admission	of	any	issue of	fact	or	law n or	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 s identified	in Paragraph s 4 or	5
. 1 3
. 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 Act,	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). 1 4
. The	Parties	recognize	and	acknowledge	that	the	obligations	imposed upon	EPA	under	this	Decree	can	only	be	undertaken	using	appropriated	funds 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. 1 5
. Any	notices	required	or	provide d for	by	this	Decree	shall	be	made	in writing	and	sent	via	email	to	the	following:10 For Guardians : Samantha	Ruscavage
- Barz WildEarth	Guardians sruscavagebarz@wildearthguardians.org For	HEAL	Utah,	National	Parks	Conservation	Association	and	Sierra Club: Jenny	K.	Harbine EARTHJUSTICE jharbine@earthjustice.org John	Barth Attorney	at	Law barthlawoffice@gmail.com For	EPA: Daniel	Pinkston Environmental	Defense	Section U.S.	Dept.	of	Justice Daniel.pinkston@usdoj.gov Elyan a	Sutin Office	of	Regional	Counsel EPA	Region	8 Sutin.elyana@epa.gov 1 6
. In	the	event	of	a	dispute	among	the	Parties	concerning	the interpretation, implementation,	or	enforcement of	any	aspect	of	this	De cree,	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	re ach	an agreed
- upon	resolution	within	ten	business	days	after	receipt	of	the	notice,	any Party	may	move	the	Court	to	resolve	the	dispute.11 1 7
. No	motion	or	other	proceeding	seeking	to	enforce	this	Decree	shall	be properly	filed	unless	the	Party	seeking	to	e nforce	this	Decree	has first	exhausted the procedure set	forth	in	Paragraph	1 6
. 1 8
. The	Court	shall	retain	jurisdiction	to	determine	and	effectuate compliance	with	this	Decree	and	to	resolve	any	disputes	thereunder.		After	EPA’s obligations	under	Paragraph s 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 Guardians and/or	the	HEAL	Plaintiffs shall	have	twenty	days	to	respond	to	such motion. 1 9
. The	Parties	agree	and	acknowledge	that	final	approval	and	entry	of this	proposed	Decree	are	subject	to	the	requirements	of	42	U.S.C.	§	741 3(g),	which provides	that	notice	of	this	proposed	Decree shall 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	th e	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	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	motion	that	requests	the	Court	to	enter	this	Decree. If	the12

Administrator	and/or	Attorney	General	elects	to	withdraw	or	withhold	consent	to this	Decree	pursuant	to	42	U.S.C.	§	7613(g),	EPA	shall	promptly	advise Plaintiffs. 20
. 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. 21
. 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	______________________ 2015
.

________________________________________________ United	States	District	Judge SO	AGREED: FOR WILDEARTH	G UARDIANS: Dated:

________,	2015

_______________________________________________ WildEarth	Guardians 516	Alto	Street Santa	Fe,	NM		87501 (505) 401
- 4180 sruscavagebarz@wildearthguardians.org FOR	HEAL	UTAH,	NATIONAL	PARKS CONSERVATION	ASSOCIATION,	AND SIERRA	CLUB: Dated:_______,	2015

_______________________________________________ EARTHJUSTICE 315	East	Main	Street Bozeman,	MT		59715 (406)	586
- 9699 jharbine@earthjustice.org13

Dated:_______,	2015

______________________________________________ Attorney	at	Law P.O.	Box	409 Hygiene,	CO		80533 (303)	774
- 8868 barthlawoffice@gmail.com FOR UNITED	STATES	ENVIRONMENTAL PROTECTION	AGENCY,	ADMINISTRATOR GINA	McCARTHY,	AND	REGIONA L A DMINISTRATOR	SHAUN	McGRATH : JOHN	C.	CRUDEN Assistant	Attorney	General Environment	and	Natural	Resources Division
Dated: _______, 2015 By:

_______________________________________________ DANIEL	PINKSTON Environmental	Defense	Section Environment	and	Natural	Resourc es Division U.S.	Dept.	of	Justice 999	18 th Street South	Terrace,	Suite	370 Denver,	Colorado		80202 (303)	844
- 1804 daniel.pinkston@usdoj.gov