UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN MIDWEST ENVIRONMENTAL DEFENSE CENTER, Plaintiff ,


### v. GINA MCCARTHY, in her official capacity as Administrator ofthe United States Environmental Protection Agency, Defendant. ) ) ) ) ) Case No. 1:15-cv-1511 ) ) ) ) ) ) ) )

CONSENT DECREE WHEREAS , PlaintiffMidwest Environmental Defense Center (" MEDC " ) filed this action pursuant to section 304(a)(2) ofthe Clean Air Act (" CAA' '), 42 U

.S.C. § 7604(a)(2) , alleging that Defendant Gina McCarthy, in her official capacity as Administrator ofthe United States Environmental Protection Agency ("EPA" ), failed to perform a non-discretionary duty mandated by CAA section 505(b)(2), 42 U.S.C. § 7661d(b)(2), to grant or deny, within 60 days, an administrative petition submitted by Plaintiffrequesting that EPA object to a Title V Operating Permit Renewal issued by the Wisconsin Department ofNatural Resources to Appleton Coated, LLC' s facility located in Combined Locks , Wisconsin, Permit No. 445031290- P 10 ("Permit" )

. WHEREAS , MEDC and EPA (collectively the " Parties") wish to effectuate a settlement ofthe above-captioned case without expensive and protracted litigation.WHEREAS , the Parties consider this Consent Decree to be an adequate and equitable resolution ofthe claims in the above-captioned case. WHEREAS , the Court, by entering this Consent Decree, finds that this Consent Decree is fair, reasonable, in the public interest, and consistent with the CAA, 42 U.S.C. §§ 7401 et seq. NOW THEREFORE, before the taking oftestimony, without trial or determination ofany issue offact or law, and upon the consent ofthe Parties , it is hereby ORDERED, ADJUDGED and DECREED that: 1

. This Court has subject matterjurisdiction over the claims set forth in the Complaint related to Plaintiffs administrative petition on the Permit and to order the relief contained in this Consent Decree. Venue is proper in the United States District Court for the Eastern District ofWisconsin. 2. By October 14, 2016, or within thirty (30) days after entry ofthis Consent Decree by the Court, whichever date is later, EPA shall sign its response to MEDC ' s administrative petition dated October 28 , 2013 , regarding the Permit. 3. Fallowing signature ofEPA ' s response to Plaintiffs administrative petition on the Permit, EPA shall expeditiously deliver notice of such action on the administrative petition to the Office ofthe Federal Register for prompt publication and to Plaintiff

. 4. IfEPA ' s response to MEDC ' s administrative petition includes the granting of any portion ofthe petition, in whole or in part, EPA shall promptly transmit its response to the Wisconsin Department ofNatural Resources , pursuant to 40 C.F

.R. § 70.7(g)(1 )

.

2

### 5. The United States agrees to pay Plaintiffas full settlement of all claims for attorneys' fees , costs, and expenses incurred in this case under any authority, the sum of $1053

.94, for the period through entry ofthis Consent Decree, as soon as reasonably practicable following entry ofthis Consent Decree, by electronic funds transfer to a bank account identified by Plaintiff. Nothing in this Consent Decree shall be construed as an admission or concession by EPA that Plaintiffis entitled to or eligible for recovery ofany costs or attorneys' fees. Nothing in this paragraph precludes Plaintifffrom seeking payment of additional costs and/or fees incurred after entry ofthis Consent Decree, including but not limited to costs and/or fees incurred to enforce this Consent Decree, to the extent allowed by law. 6

. Any provision ofthis Consent Decree may be modified (a) by written stipulation ofthe Parties with notice to the Court, or (b) by the Court, following motion ofany Party to this Consent Decree submitted pursuant to the Federal Rules of Civil Procedure, and upon consideration ofany response by the non-moving Party. 7. Plaintiffand EPA shall not challenge the terms ofthis Consent Decree or this Court' sjurisdiction to enter and enforce this Consent Decree

. 8. Plaintiffand EPA agree that this Consent Decree shall constitute a complete and final settlement of all claims that Plaintiffhas asserted against the United States, including EPA, under any provision of law in connection with Midwest Environmental Defense Center v. McCarthy, 

### Civil Case No. 1:15-cv-1511 (E.D. Wis. )

. Plaintifftherefore discharges and covenants not to sue the United States, including EPA, for any such claims. Nothing in this paragraph precludes Plaintifffrom seeking payment of additional costs and/or fees incurred after entry of



### 3this Consent Decree, including but not limited to costs and/or fees incurred to enforce this Consent Decree, to the extent allowed by law

. 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 actions which are the subject ofthis Consent Decree, including the discretion to alter, amend or revise any responses or final actions contemplated by this Consent Decree. EPA' s obligation to perform the actions specified in Paragraph 2-4 by the time specified therein does not constitute a limitation or modification ofEPA's discretion within the meaning ofthis paragraph. 10. Nothing in this Consent 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 administrative petition, or the Permit. 11. Nothing in this Consent Decree shall be construed to confer upon the district court jurisdiction to review any final decision made by EPA pursuant to this Consent Decree. Nothing in this Consent Decree shall be construed to confer upon the district courtjurisdiction to review any issues that are within the exclusivejurisdiction ofthe United States Courts ofAppeals pursuant to CAA section 307(b)(1) and 505 , 42 U

.S.C

. § 7607(b)(1) , 7661d

. Nothing in this Consent Decree shall be construed to waive any remedies or defenses the Parties may have under CAA Section 307(b)(l) , 42 U.S.C

. § 7607(b)(l ). 12. The Parties recognize that the possibility exists that a lapse in the appropriations that fund EPA could delay compliance with the timetables contained in this Consent Decree

. Should a delay occur due to a lapse in appropriations , any resulting failure to meet the timetables set forth herein shall not constitute a failure to comply with the terms ofthis Consent Decree, and

4any deadlines occurring within one hundred twenty (120) days ofthe termination ofthe delay shall be automatically extended one day for each da y ofthe delay. Nothing in this paragraph shall preclude EPA from seeking an additional extension through modification ofthis Consent Decree pursuant to Paragraph 6. The Parties recognize and acknowledge that the obligations imposed upon EPA under this Consent Decree can only be undertaken using appropriated funds legally available for such purpose. No provision ofthis Consent Decree shall be interpreted as or constitute a commitment or requirement that the United States obligate or pay funds in contravention ofthe Anti-Deficiency Act, 31 U.S.C. § 1341 , or any other applicable provision of law

. 13. Any notices required or provided for by this Consent Decree shall be made in writing, via facsimile or other means , and sent to the following: For Plaintiff : David C. Bender Bender Westerberg, LLC 10 E. Doty Street, Suite 800 Madison, WI 53 703 Tel: (608) 310-3560 Fax: (608) 441-5707 bender@ benderwesterberg.com

For Defendant: Amy J. Dona United States Department ofJustice Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044 Tel: (202) 514-0223 Fax : (202) 514-8865 amy.dona@ usdoj .gov 

### 5Daniel H

. Conrad U.S. Environmental Protection Agency Office of General Counsel (MC 2344A) 1200 Pennsylvania Ave. , N.W

. Washington , DC 20460 Tel: (202) 564-0903 conrad.daniel @ epa.gov 14. In the event of a dispute between the Parties concerning the interpretation or implementation ofany aspect ofthis Consent Decree, the disputing Party shall provide the other Party with a written notice outlining the nature ofthe dispute and requesting informal negotiations. Ifthe Parties cannot reach an agreed-upon resolution within twenty (20) business days after receipt ofthe notice, any party may move the Court to resolve the dispute. 15. No motion or other proceeding seeking to enforce this Consent Decree or for contempt of Court shall be properly :filed unless Plaintiffhas followed the procedure set forth in Paragraph 14, and provided EPA with written notice received at least :fifteen (15) business days before the filing of such motion or proceeding

. 16. The Court shall retain jurisdiction to determine and effectuate compliance with this Consent Decree. When EPA ' s obligations under Paragraphs 2-4 have been completed, this
case shall be dismissed with prejudice

. The Parties shall file the appropriate notice with the Court so that the Clerk may close the :file

. 17. The Parties agree and acknowledge that before this Consent Decree can be finalized and entered by the Court, EPA must provide notice in the Federal Register and an opportunity for comment pursuant to CAA section 113(g), 42 U.S.C. § 7413(g). EPA will promptly submit a public notice ofthis Consent Decree to the Federal Register for publication



### 6and public comment after lodging this Consent Decree with the Court. After this Consent Decree has undergone an opportunity for notice and comment, the Administrator and/or the Attorney General , as appropriate, will promptly consider any such written comments in determining whether to withdraw or withhold consent to this Consent Decree, in accordance with section 113(g) ofthe CAA. Ifthe federal government elects not to withdraw or withhold consent to this Consent Decree, the Parties will promptly file a motion that requests the Court to enter this Consent Decree

. Iffor any reason the Court does not enter the Consent Decree, the obligations set forth in this Consent Decree are null and void. 18. It is hereby expressly understood and agreed that this Consent Decree was jointly drafted by MEDC and EPA and that any and all rules ofconstruction to the effect that ambiguity is construed against the drafting party shall be inapplicable in any dispute concerning the terms , meaning, or interpretation ofthis Consent Decree

. 19. The undersigned representatives ofeach Party certify that they are fully authorized by the Party they represent to bind that Party to the terms ofthis Consent Decree. SO ORDERED on this_ day of______ 2016.

UNITED STATES DISTRICT JUDGE



### 7SO AGREED : FOR PLAINTIFF David C. Bender Bender Westerberg, LLC 10 E. Doty Street, Suite 800 Madison, WI 53703 Tel: (608) 310-3560 bender@benderwesterberg.com

DATED:



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- --------------FOR DEFENDANT JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division

Amy J. Dona United States Department ofJustice Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044 Tel: (202) 514-0223 Fax : (202) 514-8865 amy.dona@ usdoj

.gov

DATED:



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