Case 1:09-cv-02148-REB-MJW Document 22-2 Fih3d 04/29/10 USDC Colorado Page 1 of 9 

SETTLEMENT AGREEMENT 

WHEREAS, on October 22, 2009, WildEarth Guardians. filed an Amended Complaint in 

WildEarth Guardians v. Jackson, No. 09-cv-02148-REB-MJW (D. Colo.), against Lisa Jackson, 

in her official capacity as Administrator of the United States Environmental Protection Agency 

("EPA"); 

WHEREAS, WildEarth Guardians therein alleges that EPA has failed to take action to 

approve or disapprove a number of State lmplementati1)n Plan ("SIP") submissions from the 

States of Colorado, Montana, Utah and New Mexico within the time frame required by section 

IIO(k)(2), of the Clean Air Act ("CAA''), 42 U.S.C. § 7410(k)(2); 

WHEREAS, the Parties are entering into a separate Consent Decree to settle the majority 

of the claims raised in the Amended Complaint; 

WHEREAS, if the Parties were to litigate WildEarth Guardians' claims, EPA would raise 

jurisdictional defenses to some of the claims in the Amended Complaint, and the Parties have 

therefore decided to settle those claims through this Settlement Agreement, as opposed to the 

separate Consent Decree; and 

WHEREAS, WildEarth Guardians and EPA have agreed to a settlement of the claims 

resolved in this Settlement Agreement without admission of any issue of fact or law in order to 

avoidprotracted and costly litigation and to preserve judicial resources. 

NOW, THEREFORE, the Parties, intending to be bound by this Agreement, hereby 

stipulate and agree as follows: 

l. Exhibits l and 2 to this Settlement Agreement consist of tables identify ing the 

SIP submissions subject to this Settlement Agreement and the specific deadline for EPA action 
Case 1 :09-cv-02148-REB-MJW Document 22-2 Filed 04/29/10 USDC Colorado Page 2 of 9 

on each such SIP submission. This Settlement Agreement resolves WildEarth Guardians' claims 

in the Amended Complaint that EPA has failed to take action to approve or disapprove the SIP 

submissions identified in Exhibits I and 2 to this Settlement Agreement within the time frame 

required by section 110(k)(2) of the CAA, 42 U.S.C. § 7410(k)(2}. EPA shall sign a notice of 

final action approving in whole, partially approving and partially disapproving, or disapproving 

in whole each SIP submission by the respective deadline set forth in Exhibit I or Exhibit 2 for 

each specific SIP submission. 

2. Exhibits 1 and 2 to this Settlement Agreement also contain dates by which EPA 

will sign a notice of proposed action with respect to some, but not all, of the SIP submissions 

subject to this Settlement Agreement. Solely with respect to those SIP submissions for which 

Exhibit I or Exhibit 2 contain a deadline for EPA to sign a notice of proposed action, EPA shall 

sign a notice of proposed action for the specific Sl P submission by the specific deadline 

provided in Exhibit 1 or Exhibit 2. If no deadline is provided in Exhibit l or Exhibit 2 for EPA 

to sign a notice of proposed action for any specific SIP submission, then EPA is not obligated 

under this Settlement Agreement to sign a notice of proposed action by any particular date. 

However, regardless of the date by which EPA signs a notice of proposed action for any specific 

SIP submission, EPA remains obligated to sign a notice of final action for each SIP submission 

by the respective deadline provided in Exhibits 1 or 2 to this Settlement Agreement unless that 

deadline is extended by future agreement of the Parties. 

3. Within 15 business days D)llowing signature on each notice required by 

Paragraphs I and 2, and as set forth in Exhibits 1 and 2 to this Settlement Agreement, EPA shall 

deliver the notice to the Office of the Federal Register for publication. 

2 
Case 1 :09-cv-02148-REB-MJW Document 22-2 Filr3d 04/29/10 USDC Colorado Page 3 of 9 

4. The Parties may agree to extend one or more of the deadlines contained in 

Exhibits I and 2 by mutual written consent. 

5. lfthis Settlement Agreement becomes final fol lowing the notice-and-comment 

process discussed in Paragraph 8 below, the Parties shall file a joint motion under Rule 41 .2 of 

the Local Rules for the United States District Court for the District of Colorado to close 

WildEarth Guardians v. Jackson, No. 09-cv-02 148-.REB-MJW (D. Colo.), administratively with 

respect to the claims that are resolved in this Settlement Agreement. If EPA fai Is to take action 

on any SIP submission by the deadline provided under Exhibits I or 2 to this Settlement 

Agreement, then WildEarth Guardians' sole remedy under this Agreement shall be the right to 

ask the court to reopen the case and establish a schedule for further proceedings. EPA reserves 

all of its defenses to the claims addressed by this Settlement Agreement. 

6. EPA's obligation to take any action required in Paragraphs I and 2 by the 

deadlines set forth in Exhibits I and 2 to this Settlement Agreement shall become null and void 

ifthe underlying SIP submission to which the deadline corresponds is withdrawn in writing by 

the relevant State prior to the relevant deadline. EPA shall provide WildEarth Guardians with a 

copy of any written notice ofwithdrawal prior to the relevant deadline. In addition, the Parties 

recognize that EPA may receive additional SIP submis:;ions that may relate to the SIP 

submissions covered by this Settlement Agreement. It is possible that EPA may need to consider 

the relevance of a particular additional SIP submission to a SIP submission covered by this 

Settlement Agreement prior to the time that EPA takes action on the SIP submission covered by 

this Settlement Agreement. IfEPA believes it will need to delay action on any SIP submission 

covered by this Settlement Agreement beyond the deadline provided in Exhibit I or 2 to this 

3 
Case 1 :09-cv-02148-REB-MJW Document 22-2 Filed 04/29/10 USDC Colorado Page 4 of 9 

Settlement Agreement due to an additional SIP submission by the relevant State, then EPA shall 

confer with WildEarth Guardians and request that the Parties agree to an extension ofthe 

relevant deadline. There may be other reasons that are not specifically mentioned in this 

Settlement Agreement which would potentially warrant an extension of a deadline. 

7. Nothing in this Settlement Agreement shall be construed to limit or modify any 

d iscreti.on accorded EPA by the Clean Air Act or by general principles of administrative law. 

8. The Parties agree and acknowledge that final approval of this Settlement 

Agreement is subject to the requirements of Clean Air Act§ 113(g), 42 U.S.C. § 7413(g). That 

subsection provides that notice of this Settlement Agreement be given to the public, that the 

public shall have a reasonable opportunity to make any comments, and that the Administrator or 

the Attorney General, as appropriate, mu,:;t consider those comments in deciding whether to 

consent to this Agreement. EPA shall submit public notice of this Settlement Agreement to the 

Federal Register for publication and public comment within 15 days of execution of this 

Agreement by the Parties. After this Set1lement Agreement has undergone an opportunity for 

notice and comment, the Administrator and/or the Attorney General, as appropriate, shall 

promptly consider any such written comments in determining whether to withdraw or withhold 

consent to this Consent Decree, in accordance with section I 13(g) of the CAA. 

9. Except as set forth in this Agreement, the Parties retain all rights, claims, 

defenses, and discretion they may otherwise have. 

10. The obligations imposed upon EPA under this Settlement Agreement may only be 

undertaken using appropriated funds. No provision of this Agreement shall be interpreted as or 

constitute a commitment or requirement t:hat EPA obligate funds in contravention of the Anti4 
Case 1 :09-cv-02148-REB-MJW Document 22-2 Filed 04/29/10 USDC Colorado Page 5 of 9 

Deficiency Act, 31 U.S.C. § 1341, or any other applicable law or regulation. 

II. WildEarth Guardians shall file a motion tor voluntary dismissal, with prejudice, 

in accordance with Rule 4 1(a)(l) ofthe Federal Rules 1)fCivil Procedure of WildEarth 

Guardians v. Jackson, No. 09-cv-02148-REB-MJW (D. Colo.), with respect to the claims 

resolved by this Settlement Agreement within 30 days after notice appears in the Federal 

Register of EPA taking the last rulemaking action required under Paragraph 1 ofthis Settlement 

Agreement. 

12. WildEarth Guardians agrees that the amount of attorneys' fees and costs paid by 

the United States to WildEarth Guardians under the related Consent Decree in WildEarth 

Guardians v. Jackson, No. 09-cv-02148-REB-MJW (D. Colo.), shall constitute full payment of 

the fees and costs up until the time of signing this settlement agreement which WildEarth 

Guardians could have sought for the claims addressed by this Settlement Agreement. However, 

WildEarth Guardians reserves the right to seek fees and costs incurred in the future with respect 

to the claims addressed by this Settlement Agreement if Wi I dEarth Guardians reopens the 

litigation based upon an alleged failure by EPA to meet its obligations under this Settlement 

Agreement, or if EPA withdraws its consent to this Settlement Agreement following the noticeand-comment process discussed in Paragraph 8 above. EPA reserves all of its defenses with 

respect to such future fees and costs, including WildEarth Guardians' entitlement to such fees 

and costs. 

13. The undersigned representative of each Party certifies that he is 

fu lly authorized by the Party he represents to bind that Party to the terms of this Settlement 

Agreement. 

5 
Case 1 :09-cv-02148-REB-MJW Document 22-2 Filed 04/29/10 USDC Colorado Page 6 of 9 

14. Any written notices or other written communications between the Parties 

contemplated under this Settlement Agre-ement shall be sent to the undersigned counsel at the 

addresses listed in the signature blocks below unless written notice of a change in counsel and/or 

address is provided. 

Dated: 2/2/20 l 0 

Dated: 1/20/2010 

6 

JGNACIA S. MORENO 

Assistant Attorney General 

s/David A. Carson 

DA VTD A. CARSON 

United States Department of Justice 

Environment and Natural Resources 

Division 

1961 Stout Street - 8111 Floor 

Denver, Colorado 80294 

(303) 844-1 349 

david.a.carson<(Jl,usdoj .gov 

COUNSEL FOR EPA 

s/James J. Tutchton 

JAMES J. TUTCHTON 

WildEarth Guardians 

1536 Wynkoop St., Suite 301 

Denver, Colorado 80202 

(720) 301-3843 

jtutchton(b,)wildearthguardians.org 

s/Robert Ukeiley 

ROBERT UKEJLEY 

Law Office of Robert Ukeiley 

435R Chestnut Street, Suite 1 

Berea, Kentucky 40403 

(859) 986-5402 

rukeiley@igc.org 

COUNSEL FOR WILDEARTH 

GUARDIANS 
Case 1 :09-cv-02148-REB-MJW Document 22-2 Fik~d 04/29/10 USDC Colorado Page 7 of 9 

Montana SIPs 

Item Governor's Title/Description 

No. Letter Date 

I. 04/14/1999 Stack Height Rules17.8.401-403 

Stack Height Rule 

revisions 

2. 04/19/1999 Kraft Pulp Mill rule 

Rule recod. and opacity 

3. 08/25/1999 Subchapter 7 

Permit, Construction and 

Operation of Air 

Contaminant Sources 

4. 03/06/2008 PM2.5 Attainment Plan 

for Libbv, MT 

Utah SIPs 

Item Governor's Title/Description 

No. Letter Date 

5. 10/09/1 998 R307-401 

Renumbering ofNSR 

rules 

6. 01/08/1999 R307-413 

Soil venting and aeration 

7. 02/22/1999 1-hour ozone 

maintenance plan 

8. 09/20/1999 Rules reorg. 

Grouping of smaller 

materials into a coherent 

structure 

Signature on 

Proposed 

Action 

06/30/2011 

None 

None 

None 

Sig.nature on 

proposed 

action 

06/30/20 II 

06/30/2011 

None 

06/30/2011 

Signature on 

Final Action 

12/30/201 1 

06/30/201 1 

03/31/20 II 

12/31/2010 

Signature on 

final action 

12/30/201 1 

12/30/2011 

06/30/20 II 

12/30/20 11 

EXHIBIT 1 

Page I of 2 
Case 1 :09-cv-02148-REB-MJW Document 22-2 Filed 04/29/10 USDC Colorado Page 8 of 9 

Utah SfPs, continued 

Item Governor's Title/Description 

No. Letter Date 

9. 12/10/1999 R307-202-5 

Open burning 

10. 03/30/2000 Ogden PM 10 SIP Clean 

Air Determina-tion 

II. 04/17/2008 Utah R307-401-14 

Used Oil Fuel Burned for 

Energy Recovery 

12. 05/08/2006 Utah Smoke Management Rules 

13. 03/07/2008 Utah NSR SIP revision 

NSR Refc)fm. Proposed 

rule published 1/7/09. 

Signature on 

proposed 

action 

06/30/2011 

12/3112011 

06/30/2011 

06/30/20 II 

06130120 ll 

if re-proposal 

is needed. 

Otherwise, not 

applicable. 

Signature on 

final action 

12/30/2011 

06/30/2012 

12/30/20 II 

12/30/201 I 

12/30/2011 

EXHIBIT 1 

Page 2 of 2 
Case 1 :09-cv-02148-REB-MJW Document 22-2 h~d 04/29/1 0 USDC Colorado Page 9 of 9 

New Mexico SlPs 

Item Governor's Title/Description 

No. Letter Date 

I. 04/ ll/2002 NM State Pt 73 

Emissions Inventories 

2. 04/ 11/2002 NM St Pt 72 

Construction Permits 

3. 04/ 11 /2002 NM StAir Quality 

Control Act 

4. 05/29/ 1998 NM Revisions to rules 

for construction permits 

Signature on 

Proposed Action 

None 

04/0 I /2012 

04/0 1/2012 

04/01 /2012 

Signature on 

Final Action 

01 /02/20 II 

I 0/0112012 

10/0112012 

10/0112012 

EXHIBIT2 

Page I of I