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SETTLEMENT AGREEMENT 

 This Settlement Agreement (“Agreement”) is entered into by (a) WildEarth 

Guardians (“Guardians”), Petitioner in WildEarth Guardians v. United States Environmental 

Protection Agency, No. 13-9520 (10th Cir.) (“Guardians v. EPA”); (b) National Parks 

Conservation Association (“NPCA”), Petitioner in National Parks Conservation Association v. 

United States Environmental Protection Agency, No. 13-9525 (10th Cir.) (“NPCA v. EPA”); (c) the 

United States Environmental Protection Agency (“EPA”), Respondent in Guardians v. EPA

and NPCA v. EPA; (d) the Colorado Department of Public Health and Environment 

(“CDPHE”), Intervenor-Respondent in Guardians v. EPA and in NPCA v. EPA; and (e) TriState Generation and Transmission Association, Inc. (“Tri-State”), Intervenor-Respondent 

in Guardians v. EPA and in NPCA v. EPA. Guardians, NPCA, EPA, CDPHE, and Tri-State 

are hereinafter collectively referred to as “the Parties” for purposes of this Agreement. 

RECITALS

 A. On May 25, 2011, pursuant to Sections 169A and 169B of the Clean Air Act, 

42 U.S.C. §§ 7491 and 7492, CDPHE submitted a revision to the Colorado state 

implementation plan (“SIP”) relating to regional haze to EPA for review and approval. 

 B. The Colorado SIP revision included provisions regarding NOX emissions 

from electric generating Units 1, 2, and 3 at the Craig Station in Northwest Colorado. TriState is the operator of Craig Station Units 1, 2, and 3, owner of Unit 3, and part owner of 

Units 1 and 2. Units 1 and 2 are “BART-eligible,” while Unit 3 is subject only to reasonableprogress requirements. 

 C. The Colorado SIP revision imposes the following NOX emission limit 

requirements on the three Craig Station Units: Craig Unit 1 is subject to a NOX requirement 

Exhibit A

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of 0.28 lb/MMBtu, on a 30-day rolling average; Craig Unit 2 is subject to a NOX

requirement of 0.08 lb/MMBtu, on a 30-day rolling average; and Craig Unit 3 is subject to a 

NOX requirement of 0.28 lb/MMBtu, on a 30-day rolling average. 

D. On December 31, 2012, EPA issued a final rule entitled “Approval and 

Promulgation of Implementation Plans; State of Colorado; Regional Haze State 

Implementation Plan,” 77 Fed. Reg. 76,871 (“Final Rule”), approving the Colorado SIP 

revision in full, including the requirements as to Craig Units 1, 2, and 3. 

 E. On February 25, 2013, Guardians filed a petition for review (Guardians v. 

EPA) challenging EPA’s approval of the Colorado SIP revision as to Craig Units 1, 2, and 3, 

EPA’s approval of the SIP revision as to Units 1 and 2 of the Comanche Power Station 

(owned and operated by Public Service Company of Colorado, dba Xcel Energy, Inc. 

(“PSCo”), and EPA’s approval of the SIP revision regarding Boilers 4 and 5 of the Colorado 

Energy Nations Company, LLLP (“CENC”) facility at the Coors Brewery in Golden, 

Colorado (owned and operated by CENC). Guardians’ petition also challenged EPA’s 

approval of the time by which the Colorado SIP revision required BART emission limits to 

be met at the aforementioned facilities. 

 F. On March 1, 2013, NPCA filed a petition for review (NPCA v. EPA) 

challenging EPA’s approval of the NOX emission limits for Craig Units 1, 2, and 3. 

 G. By order filed by the Clerk of the Court on May 3, 2013, the Guardians v. 

EPA and NPCA v. EPA petitions for review were consolidated for purposes of briefing, 

record, and submission. 

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 H. CDPHE, PSCo, Tri-State, PacifiCorp, and CENC were granted leave to 

intervene in Guardians v. EPA, and CDPHE, Tri-State, and PacifiCorp were granted leave to 

intervene in NPCA v. EPA. 

 I. Through this Agreement, the Parties wish to resolve those portions of the 

Guardians v. EPA and NPCA v. EPA petitions for review relating to the Craig Station. The 

Agreement will not affect the litigation of Guardians’ claims regarding Comanche Units 1 

and 2 and CENC Boilers 3 and 4 in Guardians v. EPA. 

 J. The Parties have negotiated this Agreement in good faith. If approved and 

implemented as set forth herein, this Agreement will resolve all issues presented in NPCA v. 

EPA and that portion of Guardians v. EPA relating to Craig Units 1, 2, and 3, with the 

exception of litigation fees and costs. 

 K. This Agreement will not impact any other provisions of the Final Rule except 

as specifically set forth herein. 

AGREEMENT

 1. On or before the tenth business day after the last Party to this Agreement 

except EPA executes the Agreement (“Initial Effective Date”), NPCA will file a motion with 

the Court, seeking to hold the briefing of all of its claims in abeyance. Guardians will 

concurrently file a motion with the Court, seeking to proceed separately with Guardians v. 

EPA, with respect to the Comanche Power Station. Guardians’ motion will inform the 

Court that in proceeding with Guardians v. EPA, Guardians will not pursue any issues related 

to Craig Units 1, 2, and 3, including any claim challenging the time by which the Colorado 

SIP Revision required BART emission limits to be met at Craig Station, except with regard 

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to fees and costs as described in Paragraph 13 below. All Parties to this Agreement agree 

not to oppose such motions. 

 2. On or before the 60th day after the Initial Effective Date, EPA shall provide 

notice of this Agreement in the Federal Register and an opportunity for public comment 

pursuant to 42 U.S.C. § 7413(g). After this Agreement has been made available for notice 

and comment, the Administrator of EPA or the United States Attorney General, as 

appropriate, shall promptly consider any written comments in determining whether to 

withdraw or withhold their consent to the Agreement, in accordance with 42 U.S.C. § 

7413(g). If the United States elects not to withdraw or withhold its consent to this 

Agreement, EPA shall execute the agreement and provide written notice to the Parties as 

expeditiously as practicable. The Agreement shall become final and effective as to all Parties 

on the date that EPA executes the Agreement (“Final Effective Date”). 

 3. On or before the tenth business day after the Final Effective Date, EPA will 

file a motion with the Court, seeking a voluntary remand to EPA of those portions of the 

Final Rule regarding EPA’s approval of the Colorado SIP revision relating to Craig Unit 1. 

The motion for remand will also seek vacatur of those portions of the Final Rule regarding 

EPA’s approval of the Colorado SIP revision relating to Craig Unit 1. The motion for 

remand and vacatur will also seek a 45-day period in which NPCA and Guardians may move 

for their costs of litigation (including attorneys’ fees) if the motion is granted. All Parties to 

this Agreement agree not to oppose such motion for partial remand and vacatur. 

 4. After Petitioners’ claims for fees and costs are resolved by negotiation or 

litigation, NPCA will file a motion to dismiss NPCA v. EPA within ten business days of the 

resolution of the litigation-cost claim. 

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 5. CDPHE will begin the State SIP revision process in 2014, with a proposal to 

revise its SIP to include a determination that the NOX BART emission limit for Craig Unit 1 

is 0.07 lb/MMBtu, calculated on a 30 boiler-operating-day rolling average, and with a 

compliance deadline of August 31, 2021 (“Proposed SIP Revision”). The Proposed SIP 

Revision will not alter any emission limit or compliance deadline for Craig Unit 2 or 3. 

CDPHE intends to submit the Proposed SIP Revision to EPA no later than July 31, 2015. 

If CDPHE determines that it will not be able to submit the Proposed SIP Revision to EPA 

by July 31, 2015, or that the terms of the Proposed SIP Revision will not be in accordance 

with those set forth in this Paragraph, CDPHE shall notify the Parties as soon as possible 

after making such a determination. 

 6. EPA agrees that by December 31, 2016, it will either (a) take final action on 

the Proposed SIP Revision, or (b) to take final action on the remanded portion of the 

Colorado SIP revision if Colorado has not submitted the Proposed SIP Revision by 

December 31, 2015. If, however, CDPHE submits a Proposed SIP Revision that is in 

accordance with the terms of Paragraph 5 after December 31, 2015, EPA may, at its election, 

take final action on that submission by December 31, 2016, rather than taking final action on 

the remanded portion of the Colorado SIP revision as set forth in the preceding sentence. 

 7. While EPA anticipates that the Proposed SIP Revision submitted by 

CDPHE in accordance with Paragraph 5 would be approvable, EPA cannot guarantee that it 

will approve such Proposed SIP Revision. If EPA approves in full the Proposed SIP 

Revision or in the alternative takes final action on the remanded portion of the Colorado SIP 

revision by promulgating a federal implementation plan (“FIP”) in accordance with the 

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provisions of Paragraph 5, the Parties agree not to file petitions for judicial review or 

petitions for administrative reconsideration challenging such action. 

 8. The deadlines set forth in this Agreement may be extended by mutual written 

agreement between all Parties to this Agreement. 

 9. Nothing in this Agreement shall be construed to limit or modify the 

discretion accorded to EPA or CDPHE by statute or by general principles of administrative 

law. 

 10. No provision of this Agreement shall be interpreted as or constitute a 

commitment or requirement that the United States or any of its departments or agencies 

obligate or pay funds in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341 et seq., or 

in violation of any other statute, law, or regulation. 

 11. Nothing in this Agreement shall be construed to limit or modify the rights of 

any Party to the Agreement to seek reconsideration or judicial review of any altered, 

amended, or revised provisions of any final action that EPA or CDPHE may take that 

differs in any material respect from a full approval of the Proposed SIP Revision or 

promulgation of a FIP that is in accordance with the provisions of Paragraph 5. Subject 

to the provisions of the first sentence of Paragraph 7 above and to the provisions of 

Paragraph 9 above, all Parties agree to support, or not to oppose, the Craig Unit 1 NOX

requirements set forth in Paragraph 5 above before the Colorado Air Quality Control 

Commission, the Colorado Legislature, and EPA. 

 12. Nothing in this Agreement diminishes the obligation and authority of EPA 

and CDPHE to timely comply with the requirements at 40 C.F.R. § 51.308(f), (g), and (h) 

with respect to the Craig Station, or limits any Party’s rights (which are expressly preserved) 

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on any grounds, to challenge, defend, comment on, or otherwise participate in a rulemaking 

action or litigation as to any action or inaction by EPA or CDPHE regarding those 

requirements with respect to the Craig Station. 

 13. Assuming that the Court grants EPA’s motion for partial voluntary remand 

and vacatur referenced in Paragraph 3, the deadline for filing any motion for fees and costs 

for activities performed up to and including the Final Effective Date of this Agreement is 45 

days after such ruling. During this 45-day period, Guardians, NPCA, and EPA shall seek to 

informally resolve any claim for fees and costs, and if they cannot reach a resolution, 

Guardians and NPCA may seek such fees and costs from the Court. The Parties intend that 

the Court retain jurisdiction to resolve any request for fees and costs. Guardians and NPCA 

reserve their right to seek fees and costs for any work performed after the Final Effective 

Date. 

 14. All notices and other communications required to be given as provided in 

this Agreement shall be provided to the following: 

Wildearth Guardians: 

Ashley Wilmes, Esq. 

awilmes@wildearthguardians.org

(859) 312-4162 

National Parks Conservation Association: 

Reed Zars, Esq. 

reedzars@gmail.com

(307) 745-7979 

EPA: 

Daniel Pinkston 

daniel.pinkston@usdoj.gov 

(303) 844-1804 

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Michael Boydston 

boydston.michael@epa.gov

(303) 312-7103 

CDPHE: 

Tom Roan 

tom.roan@state.co.us

(720) 508-6268 

Tri-State: 

James Sanderson 

j.sanderson@rcalaw.com

(303) 863-7500 

 15. The undersigned hereby certify that they are duly authorized to bind the 

Party on whose behalf this Agreement is executed to the terms of this Agreement. 

 16. Subject to the provisions of Paragraph 2 as to EPA, the provisions of this 

Agreement shall apply to and be binding on the Parties, and their successors and assigns. 

 17. This Agreement may be signed in counterparts, and such counterpart 

signatures shall be given full force and effect. 

 APPROVED: 

 

 

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FOR UNITED STATES 

ENVIRONMENTAL 

PROTECTION AGENCY:

[TO BE DETERMINED]

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FOR COLORADO DEPARTMENT

OF PUBLIC HEALTH AND

ENVIRONMENT:

Dated: 20 June 2014

William C. Allison V

Director, Air Pollution Control 

Division

Colorado Dept. of Public Health and

Environment

4300 Cherry Creek Drive S.

Denver, CO 80246-1530

(303) 692-3114

william.allison@state.co.us 

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