UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF WISCONSIN 

MIDWEST ENVIRONMENTAL DEFENSE 

CENTER, 

Plaintiff, 

v. 

GINA MCCARTHY, in her official capacity as 

Administrator of the United States 

Environmental Protection Agency, 

Defendant. 

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) Case No. 1:15-cv-1511 

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CONSENT DECREE 

WHEREAS, Plaintiff Midwest Environmental Defense Center ("MEDC") filed this 

action pursuant to section 304(a)(2) of the Clean Air Act ("CAA''), 42 U.S.C. § 7604(a)(2), 

alleging that Defendant Gina McCarthy, in her official capacity as Administrator of the 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 Plaintiff requesting that EPA object to a Title V 

Operating Permit Renewal issued by the Wisconsin Department of Natural 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 

of the above-captioned case without expensive and protracted litigation. 
WHEREAS, the Parties consider this Consent Decree to be an adequate and equitable 

resolution of the 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 of testimony, without trial or determination of any 

issue of fact or law, and upon the consent ofthe Parties, it is hereby ORDERED, ADJUDGED 

and DECREED that: 

1. This Court has subject matter jurisdiction 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 of Wisconsin. 

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 of EPA'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. If EPA's response to MEDC's administrative petition includes the granting of any 

portion of the 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 ). 

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5. The United States agrees to pay Plaintiff as 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 of this Consent Decree, as soon as reasonably practicable 

following entry of this 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 Plaintiff is entitled to or eligible for recovery of any costs or attorneys' fees. Nothing in 

this paragraph precludes Plaintiff from seeking payment of additional costs and/or fees incurred 

after entry of this 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 of this Consent Decree may be modified (a) by written stipulation 

of the Parties with notice to the Court, or (b) by the Court, following motion of any Party to this 

Consent Decree submitted pursuant to the Federal Rules of Civil Procedure, and upon 

consideration of any response by the non-moving Party. 

7. Plaintiff and EPA shall not challenge the terms of this Consent Decree or this 

Court's jurisdiction to enter and enforce this Consent Decree. 

8. Plaintiff and EPA agree that this Consent Decree shall constitute a complete and 

final settlement of all claims that Plaintiff has 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 Plaintiff from seeking payment of additional costs and/or fees incurred after entry of 

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this 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 of this 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 of EPA's discretion within the meaning of this 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 court jurisdiction to review 

any issues that are within the exclusive jurisdiction of the United States Courts of Appeals 

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 of this Consent Decree, and 

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any deadlines occurring within one hundred twenty (120) days of the termination of the delay 

shall be automatically extended one day for each day of the delay. Nothing in this paragraph shall 

preclude EPA from seeking an additional extension through modification of this 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 of this Consent Decree shall be interpreted as or 

constitute a commitment or requirement that the United States 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 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 of Justice 

Environmental Defense Section 

P.O. Box 7611 

Washington, D.C. 20044 

Tel: (202) 514-0223 

Fax: (202) 514-8865 

amy.dona@usdoj .gov 

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Daniel 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 of any aspect of this Consent Decree, the disputing Party shall provide the other 

Party with a written notice outlining the nature of the dispute and requesting informal 

negotiations. If the Parties cannot reach an agreed-upon resolution within twenty (20) 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 Consent Decree or for 

contempt of Court shall be properly :filed unless Plaintiff has 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 of this Consent Decree to the Federal Register for publication 

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and 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) of the CAA. If the 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. If for 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 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 Consent 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 Consent Decree. 

SO ORDERED on this_ day of ______ 2016. 

UNITED STATES DISTRICT JUDGE 

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SO 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: MH-t...~ ~~. 'Z<ll fo 

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FOR DEFENDANT JOHN C. CRUDEN 

Assistant Attorney General 

Environment & Natural Resources Division 

Amy J. Dona 

United States Department of Justice 

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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