IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:11-cv-0001-CJA-MEH (Consolidated with 11-cv-00743-CMA-MEH) WILDEARTH GUARDIANS, Plaintiffs,

v. LISA JACKSON, in her official capacity as Administrator, United States Environmental Protection Agency, Defendant.

____________________________________________________________________________ CONSENT DECREE

_________________________________________________________________________ This Consent Decree is entered into by Pl aintiffs WildEarth Guardians (“Guardians”), National Parks Conservation Association (“NP CA”), and the Environmental Defense Fund (“EDF”), and by Defendant Lisa Ja ckson, in her official capacity as Administrator of the United States Environmental Protection Agency (“EPA”). WHEREAS, Guardians filed this action pursu ant to section 304(a )(2) of the Clean Air Act (“CAA”), 42 U.S.C. § 7604(a)(2), alleging th at EPA failed to perform a duty mandated by CAA section 110(k)(2) and (3), 42 U.S.C. § 7410(k)(2) and (3), by not acting on two State Implementation Plan (“SIP”) submissions, one addressing Colorado regi onal haze and the other addressing North Dakota excess emissions during startup, shut down, malfunction and maintenance. The complaint further sought to compel EPA to take final action on these submissions by a date certain; Case 1:11-cv-00001-CMA -MEH Document 35-1 Filed 06/06/11 USDC Colorado Page 1 of 132 WHEREAS, Guardians and NPCA filed an amended complaint pursuant to CAA section 304(a)(2), 42 U.S.C. § 7604(a)(2), alleging addi tional claims that EPA failed to perform a duty mandated by CAA section 110(k)(2) and (3 ), 42 U.S.C. § 7410(k)(2) and (3), by not acting on a Wyoming SIP submission addressing Wyoming regional haze, and duties mandated by CAA section 110(c), 42 U.S.C. § 7410(c), to promulga te regional haze Federal Implementation Plans (“FIPs”) for Montana, North Dakota, Colorado and Wyoming. The amended complaint further sought to compel EPA to take final action on these regional haze matters by a date certain; WHEREAS, the Environmental Defense F und (“EDF”) filed a complaint pursuant to CAA section 304(a)(2), 42 U.S.C. § 7604(a)(2), alleging that EPA failed to perform a duty mandated by CAA section 110(c), 42 U.S.C. § 7410(c) , to promulgate a regional haze FIP for the State of Colorado or, alternatively, to finally approve a regional haze SIP for the State of Colorado; WHEREAS, Guardians, NPCA, EDF and EPA (collectively, the “Parties”) wish to effectuate a settlement of the above-captioned ca ses without expensive a nd protracted litigation, and without a litigated resolution of any issue of law or fact; WHEREAS, the Parties consider this Consen t Decree to be an adequate and equitable resolution of the claims in the above-captioned case and consent to entry of this Consent Decree; and WHEREAS, the Court, by entering this Consen t Decree, finds that th is Consent Decree is fair, reasonable, in the public interest, a nd consistent with the CAA, 42 U.S.C. §§ 7401 et seq

. NOW THEREFORE, before the taking of te stimony, without trial or determination of any issue of fact or law, and upon the consen t of the Parties, it is hereby ORDERED, ADJUDGED, and DECREED that: Case 1:11-cv-00001-CMA -MEH Document 35-1 Filed 06/06/11 USDC Colorado Page 2 of 133 1. This Court has subject matter jurisdiction over the claims set forth in the Amended Complaint and the EDF Complaint and to orde r the relief contained in this Consent
Decree. 2. Venue is proper in the United States Dist rict Court for the District of Colorado. Resolution of Claim Asserted Solely by Guardians
3. By October 27, 2011, or within 20 days after the entry date of th is Consent Decree, whichever date is later, EPA shall sign a no tice of final rulemaki ng in which it takes final action on the State of North Dakota’s revisions to Chapters 33-15-01 and 33-15- 05, N.D.A.C., that North Dakota submitte d to EPA on April 6, 2009. Such final action may consist of an approval, disappr oval, limited approval/limited disapproval, partial approval/partial disapproval, or any combination thereof, as long as EPA takes final action on the entirety of th e specified rule revisions. Resolution of Claims Ass erted by Guardians and NPCA
4. By July 21, 2011, or within 20 days after the entry date of this Consent Decree, whichever date is later, EPA shall sign a notice of proposed rulemaking in which it proposes approval of a SIP, promulgation of a FIP, partial approval of a SIP and promulgation of a partial FIP, or approval of a SIP or promulgation of a FIP in the alternative, for the State of North Dakota, to meet the regional haze implementation plan requirements that were due by December 17, 2007 under EPA’s regional haze regulations.
5. EPA shall by January 26, 2012, sign a notice of final rulemaking promulgating a FIP for the State of North Dakota, to meet the regional haze implementation plan requirements that were due by Dece mber 17, 2007 under EPA’s regional haze Case 1:11-cv-00001-CMA -MEH Document 35-1 Filed 06/06/11 USDC Colorado Page 3 of 134 regulations, unless, by January 26, 2012, EPA has signed a notice of final rulemaking unconditionally approving a SIP, or pr omulgating a partial FIP and partial unconditional approval of a SI P, for the State of North Dakota that meets the regional haze implementation plan requirements that were due by December 17, 2007 under EPA’s regional haze regulations.
6. By April 15, 2012, EPA shall sign a notice of proposed rulemaking in which it proposes approval of a SIP, promulgation of a FIP, partial approval of a SIP and promulgation of a partial FIP, or approval of a SIP or promulgation of a FIP in the alternative, for the State of Wyoming, to meet the regi onal haze implementation plan requirements that were due by December 17, 2007 under EPA’s regional haze regulations.
7. EPA shall by October 15, 2012, sign a notice of final rulemaking promulgating a FIP for the State of Wyoming, to meet the regional haze implementation plan requirements that were due by Dece mber 17, 2007 under EPA’s regional haze regulations, unless, by October 15, 2012, EPA has signed a notice of final rulemaking unconditionally approving a SIP, or pr omulgating a partial FIP and partial unconditional approval of a SIP, for the State of Wyoming that meets the regional haze implementation plan requirements that were due by December 17, 2007 under EPA’s regional haze regulations.
8. By January 20, 2012, EPA shall sign a notic e of proposed rulemaking in which it proposes approval of a SIP, promulgation of a FIP, partial approval of a SIP and promulgation of a partial FIP, or approval of a SIP or promulgation of a FIP in the alternative, for the State of Montana, to meet the regional haze implementation plan Case 1:11-cv-00001-CMA -MEH Document 35-1 Filed 06/06/11 USDC Colorado Page 4 of 135 requirements that were due by December 17, 2007 under EPA’s regional haze regulations.
9. EPA shall by June 29, 2012, sign a notice of final rulemaking promulgating a FIP for the State of Montana, to meet the regi onal haze implementation plan requirements that were due by December 17, 2007 under EPA’s regional haze regulations, unless, by June 29, 2012, EPA has signed a notice of final rulemaking unconditionally approving a SIP, or promulga ting a partial FIP and partia l unconditional approval of a SIP, for the State of Montana that m eets the regional haze implementation plan requirements that were due by December 17, 2007 under EPA’s regional haze regulations. Resolution of Claims Asserted by Guardians, NPCA and EDF
10. By March 8, 2012, EPA shall sign a notice of proposed rulemaking in which it proposes approval of a SIP, promulgation of a FIP, partial approval of a SIP and promulgation of a partial FIP, or approval of a SIP or promulgation of a FIP in the alternative, for the State of Colorado, to meet the regional haze implementation plan requirements that were due by December 17, 2007 under EPA’s regional haze regulations.
11. EPA shall by September 10, 2012, sign a notic e of final rulemaking promulgating a
FIP for the State of Colorado, to meet the regional haze implementation plan requirements that were due by Dece mber 17, 2007 under EPA’s regional haze regulations, unless, by September 10, 2012, EPA has signed a notice of final rulemaking unconditionally approving a SIP, or promulgating a partial FIP and partial unconditional approval of a SIP, for the State of Colorado that meets the regional Case 1:11-cv-00001-CMA -MEH Document 35-1 Filed 06/06/11 USDC Colorado Page 5 of 136 haze implementation plan requirements that were due by December 17, 2007 under EPA’s regional haze regulations. General Provisions
12. The deadline in Paragraph 3 may be exte nded for a period of 60 days or less by written stipulation executed by counsel fo r EPA and Guardians and filed with the Court. Any other extension of a deadlin e in paragraph 3 may be approved by the Court upon motion made pursuant to the Fe deral Rules of Civil Procedure by EPA and upon consideration of any response by Guardians and reply by EPA. The deadlines in Paragraphs 4 through 9 may be extended for a period of 60 days or less by written stipulation execute d by counsel for EPA, Guardians and NPCA and filed with the Court. Any other extension of a deadline in paragraphs 4 through 9 may be approved by the Court upon motion made pur suant to the Federal Rules of Civil Procedure by EPA and upon consideration of any response by Guardians and NPCA, and reply by EPA. The deadlines in Pa ragraphs 10 and 11 may be extended for a period of 60 days or less by written s tipulation executed by counsel for EPA, Guardians, NPCA, and EDF and filed with the Court. Any ot her extension of a deadline in paragraphs 10 and 11 may be approved by the Court upon motion made pursuant to the Federal Rules of Civil Pr ocedure by EPA and upon consideration of any response by Guardians, NPCA and EDF, and reply by EPA. Any other modification of this Consent Decree may be approved by the Court upon motion made pursuant to the Federal Rules of Civ il Procedure by any Party to this Consent Decree and upon consideration of any res ponse by the non-moving Parties and reply by the moving party. Case 1:11-cv-00001-CMA -MEH Document 35-1 Filed 06/06/11 USDC Colorado Page 6 of 137 13. The United States agrees to pay Guardian s as full settlement of all claims by Guardians for attorneys’ fees, costs, and e xpenses (“costs of litigation”) incurred in this consolidated litigation through the date of lodging this consent decree, under any authority, the sum of $23,545 as soon as r easonably practicable following entry of this Consent Decree, by elec tronic funds transfer to a bank account identified by Guardians. Guardians agrees that the United States’ payment to Guardians of $23,545 fully satisfies any and all claims for costs of litigation Guardians may have with respect to these consolidated cases, except that Guardians reserves the right to seek costs of litigation pu rsuant to 42 U.S.C. §7604(d) for any additional work performed after the lodging of this Consen t Decree. The costs of litigation paid under this Paragraph shall have no precedential valu e in any future claim. Guardians will not seek costs of litigation incurred be tween February 22, 2011 and the date of lodging this consent decree in Case No. 09-cv-02148-REB-MJW (D. Colo.). NPCA does not seek costs of litigation related to its claims in these consolidated cases for work performed through the date of lodging this Consent Decree. NPCA reserves its right to seek costs of li tigation pursuant to 42 U.S.C. §7604(d) for any work performed after the lodging of this Consen t Decree. EDF, whic h filed a separate complaint in this matter, does not seek costs of litigation related to its claims in these consolidated cases for work performed befo re or after the lodging of this Consent Decree. EPA does not concede that Guardian s or NPCA will be entitled to fees for any work performed by Guardians or NPCA after the lodging of the Consent Decree, and EPA reserves all defenses with respect to any future costs of litigation claim. Case 1:11-cv-00001-CMA -MEH Document 35-1 Filed 06/06/11 USDC Colorado Page 7 of 138 14. No later than ten business days following si gnature of the notice of any proposed or final rulemaking referenced above, EPA shall submit the notice for review and publication to the Office of the Federal Re gister. Following such delivery to the Office of the Federal Register, EPA shall no t take any step to delay or otherwise interfere with publication of such notice in the Federal Register.
15. Guardians, NPCA, EDF and EPA shall not challenge the terms of this Consent Decree or this Court’s jurisdiction to enter and enforce this Consent Decree.
16. Nothing in this Consent Decree shall be c onstrued to limit or modify any discretion accorded EPA by the CAA or by general prin ciples 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 by Paragraphs 3 through 11 by the times specified does not constitute a limitation or modification of EPA’s discretion within the mean ing of this paragraph.
17. Nothing in this Consent Decree shall be c onstrued as an admission of any issue of fact or law or to waive or limit any clai m or defense, on any grounds, related to any final action EPA may take with respect to the SIPs or FIPs identified in paragraphs 3 through 11 of this Consent Decree.
18. Nothing in this Consent Decree shall be c onstrued to confer upon the district court jurisdiction to review any final decision made by EPA pursuant to this Consent Decree. Nothing in this C onsent Decree shall be construe d to confer upon the district court jurisdiction to review any issues that are within the exclusive jurisdiction of the United States Court of Appeals pursuan t to CAA section 307(b)(1) and 505, 42 Case 1:11-cv-00001-CMA -MEH Document 35-1 Filed 06/06/11 USDC Colorado Page 8 of 139 U.S.C. §§ 7607(b)(1), 7661d. Nothing in th is Consent Decree shall be construed to waive any remedies or defenses the Parties may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1). 19. The Parties recognize and acknowledge that the obligations imposed upon EPA under this Consent Decree can only be underta ken using appropriated funds legally available for such purpose. No provision of this Consent Decree shall be interpreted as or constitute a commitment or requir ement that EPA obligate or pay funds in contravention of the Anti-D eficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law.
20. Any notices required or provide d for by this Consent Decree shall be made in writing and sent via e-mail to the following: For Guardians : Ashley Wilmes awilmes@wildearthguardians.org James Tutchton jtutchton@wildearthguardians.org For NPCA : Reed Zars rzars@lariat.org
For EDF : Pamela Campos pcampos@edf.org For EPA : Alan Greenberg alan.greenberg@usdoj.gov Case 1:11-cv-00001-CMA -MEH Document 35-1 Filed 06/06/11 USDC Colorado Page 9 of 1310 Lea Anderson anderson.lea@epa.gov Jonah Staller staller.jonah@epa.gov
21. In the event of a disput e among the Parties concerni ng the interpretation or implementation of any aspect of this C onsent Decree, the disputing Party shall provide the other Party with a written noti ce outlining the nature of the dispute and requesting informal negotiations. If the Parties cannot re ach an agreed-upon resolution within ten business days after r eceipt of the notice, any Party may move the Court to resolve the dispute.
22. No motion or other proceeding seeking to enforce this Consent Decree or for contempt of court shall be properly filed unless the Party seeki ng to enforce this Consent Decree has followed the pro cedure set forth in Paragraph 21.
23. The Court shall retain jurisdiction to dete rmine and effectuate compliance with this Consent Decree, to resolve any disputes th ereunder, and to consider any requests for costs of litigation (including reasonable attorneys’ fees). After EPA’s obligations under Paragraphs 3 through 14 have been co mpleted, this consent decree may be terminated. EPA shall notify the Court by mo tion of the completion of its obligations under Paragraphs 3 through 14, and Plaintiffs shall have 14 days in which to respond to such motion.
24. The Parties agree and acknowledge that before this Consent Decree can be finalized and entered by the Court, EPA must provide notice in the Federa l Register and an opportunity for comment pursuant to CAA s ection 113(g), 42 U.S.C. § 7413(g). EPA will deliver a public notice of this Consen t Decree to the Federal Register for Case 1:11-cv-00001-CMA -MEH Document 35-1 Filed 06/06/11 USDC Colorado Page 10 of 1311 publication and public comment within 10 bus iness days after lodging this Consent Decree with the Court. After this Cons ent Decree has undergone an opportunity for notice and comment, EPA’s Ad ministrator and the Attorney General, as appropriate, will promptly consider any such writte n comments in determining whether to withdraw or withhold consent to this Consent Decree, in accordance with section 113(g) of the Clean Air Act. If the Administrator or the Attorney General elects not to withdraw or withhold consen t to this Consent D ecree, the Parties will promptly file a motion that requests the Court to enter this Consent Decree. If a motion to enter the Consent Decree is not filed w ithin 90 days after the noti ce is published in the Federal Register, any party may file dispositive motions in this matter.
25. It is hereby expressly understood and agr eed that this Consent Decree was jointly drafted by the Parties and that any and all rules of constr uction to the effect that ambiguity is construed agains t the drafting party shall be inapplicable in any dispute concerning the terms, meaning, or inte rpretation of this Consent Decree.
26. The undersigned representatives of each Party certify that they are fully authorized by the Party they represent to bind that Part y to the terms of this Consent Decree. SO ORDERED this day of 2011.

United States District Judge Case 1:11-cv-00001-CMA -MEH Document 35-1 Filed 06/06/11 USDC Colorado Page 11 of 1312 SO AGREED:
FOR PLAINTIFF WILD EARTH GUARDIANS s/Ashley D. Wilmes Dated: June 6, 2011 __________________________ Ashley D. Wilmes WildEarth Guardians 827 Maxwell Ave., Suite L Boulder, CO 80304 (859) 312-4162 awilmes@wildearthguardians.org

FOR PLAINTIFF NATIONAL PARKS CONSERVATION ASSOCIATION:

s/ Reed Zars Dated: June 6, 2011 ________________________ Reed Zars Attorney at Law 910 Kearney Street Laramie, WY 82070 307-745-7979 rzars@lariat.org
FOR ENVIRONMENTAL DEFENSE FUND: s/ Pamela Campos Dated: June 6, 2011 __________________________ Pamela Campos Environmental Defense Fund 2060 Broadway, Suite 300 Boulder, CO 80302 720-205-2366 pcampos@edf.org Case 1:11-cv-00001-CMA -MEH Document 35-1 Filed 06/06/11 USDC Colorado Page 12 of 1313 FOR DEFENDANT LISA JACKSON:
IGNACIA S. MORENO Assistant Attorney General Environment and Natural Resources Division By: s/Alan D. Greenberg Dated: June 6, 2011 ______________________ ALAN D. GREENBERG Environmental Defense Section Environment and Natural Resources Division U.S. Department of Justice 999 18th Street South Terrace, Suite 370 Denver, CO 80202 (303) 844-1366 alan.greenberg@usdoj.gov Case 1:11-cv-00001-CMA -MEH Document 35-1 Filed 06/06/11 USDC Colorado Page 13 of 13