IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 1:l 1-cv-02227-WJM-KLM

WILDEARTH GUARDIANS,

Plaintiff,

►i~

LISA P. JACKSON, in her official capacity as

Administrator, United States Environmental

Protection Agency,

Defendant.

CONSENT DECREE

This Consent Decree ("Consent Decree") is entered into by Plaintiff WildEarth Guardians

("Plaintiff' or "WildEarth") and by Defendant Lisa P. Jackson, Administrator of the United

States Environmental Protection Agency ("Defendant" or "EPA")

WHEREAS, Plaintiff 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 Lisa P. Jackson, Administrator of the

United States Environmental Protection Agency, failed to perform a 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 ("Petition") submitted by Plaintiff. The Petition requested that EPA object to a Title V

Operating Permit issued by the Colorado Department of Public Health and Environment, Air

Pollution Division, to CF&I Steel, dfb/a EVRAZ Rocky Mountain Steel, to operate its

steelmaking facility in Pueblo, Colorado ("Permit");

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Case 1:11-cv-02227-WJM-KLM Document 17-1 Filed 01/17/12 USDC Colorado Page 1 of 10
WHEREAS, Plaintiff and EPA (collectively, the "Parties") wish to effectuate a settlement

of the above-captioned case without expensive and protracted litigation, and without a litigated

resolution of any issue of law or fact;

WHEREAS, the Parties consider this Consent 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 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 of the Parties, it is hereby ORDERED, ADJ[JDGED,

and DECREED that:

1. This Court has subject matter jurisdiction over the claims set forth in the Complaint

related to Plaintiffl s 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 District of Colorado.

2. By May 31, 2012, or within 30 days of the entry date of this Consent Decree,

whichever date is later, EPA shall sign its response to the Petition. Within 15 days following

signature of such response, EPA will deliver notice of such action on the Petition to the Office of

the Federal Register for publication.

3. The United States agrees to pay Plaintiff as full settlement of all claims for attorney's

fees, costs, and expenses incurred in this litigation through the date of lodging this Consent

Decree, under any authority, the sum of $ 2,535.00, as soon as reasonably practicable following

entry of this Consent Decree, by electronic funds transfer to a bank account identified by

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Case 1:11-cv-02227-WJM-KLM Document 17-1 Filed 01/17/12 USDC Colorado Page 2 of 10
Plaintiff. Plaintiff agrees to accept $ 2,535.00 in full satisfaction of any and all claims for costs

and attorney's fees with respect to this case, except that Plaintiff reserves the right to seek fees

pursuant to 42 U.S.C. § 7604(d) for any additional work performed after the lodging of this

Consent Decree, including costs and attorney's fees for enforcement of the Consent Decree in the

future. Nothing in this Paragraph shall be construed as an admission or concession by EPA that

Plaintiff is entitled to or eligible for recovery of any costs or attorney's fees, and EPA reserves all

defenses with respect to any future fee claim. The amount of attorney's fees or rates under this

Paragraph shall have no precedential value in any future fee claim.

4. Any provision of this Consent Decree may be modified by (a) written stipulation of

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

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

response by the non-moving Party.

5. Plaintiff and EPA shall not challenge the terms of this Consent Decree or this Court's

jurisdiction to enter and enforce this Consent Decree.

6. 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 by Paragraph 2 by the time specified therein does not constitute a

limitation or modification of EPA's discretion within the meaning of this paragaph.

7. 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

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Case 1:11-cv-02227-WJM-KLM Document 17-1 Filed 01/17/12 USDC Colorado Page 3 of 10
may take with respect to the Permit.

8. 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 Court of Appeals

pursuant to CAA section 307(b)(1) and 505, 42 U.S.C. §§ ~607(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)(1), 42 U.S.C. § 7607(b)(1).

9. 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 AntiDeficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law.

10. 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:

ASHLEY D. WILMES, Esq.

WildEarth Guardians

827 Maxwell Avenue, Suite L

Boulder, CO 80304

(859) 312-4162

awilmes e,wildearthguardians.org

Case 1:11-cv-02227-WJM-KLM Document 17-1 Filed 01/17/12 USDC Colorado Page 4 of 10
JAMES J. TUTCHTON, Esq.

WildEarth Guardians

6439 East Maplewood Avenue

Centennial, CO 80111

(720) 3 01-3 843

jtutchtonna,~,wildearth~uardians.org

For Defendant:

DANIEL PINKSTON

Environmental Defense Section

Environment and Natural Resources Division

U.S. Department of Justice

999 18t'' Street

South Terrace, Suite 370

Denver, CO 80202

(303) 844-1804

Fax: (303) 844-1350

daniel.pinkstonnusdoL~ov

MELINA WILLIAMS

Office of General Counsel

U.S. EPA

Mail Code 2344A

Ariel Rios Building

1200 Pennsylvania Avenue, N.W.

Washington, D.C. 20460

(202) 564-3406

Fax: (202) 564-5603

williams.melina(a~epa. o~v

SARA LAUMANN

Office of Regional Counsel

USEPA Region 8

1595 Wynkoop Street

Mail Code: 8RC

Denver, CO 80202-1129

(303) 312-6443

Fax: (303) 312-6859

laumann.sara~,epa. o~v

11. In the event of a dispute among the Parties concerning the interpretation or

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Case 1:11-cv-02227-WJM-KLM Document 17-1 Filed 01/17/12 USDC Colorado Page 5 of 10
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 anagreed-upon resolution within ten business days after

receipt of the notice, any Party may move the Court to resolve the dispute.

12. 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 11, and provided EPA with written notice received at least ten business days before

the filing of such motion or proceeding.

13. The Court shall retain jurisdiction to determine and effectuate compliance with this

Consent Decree, to rule upon any motions filed in accordance with Paragraph 4 of this Consent

Decree, and to resolve any disputes in accordance with Paragraph 11 of this Consent Decree.

When EPA's obligations under Paragraphs 2 and 3 have been completed, this case shall be

terminated and the case dismissed with prejudice. The Parties may either jointly notify the Court

that the Consent Decree should be terminated and the case dismissed, or EPA may so notify the

Court by motion, and Plaintiff shall have twenty days in which to respond to such motion.

14. 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 and public comment

after lodging this Consent Decree with the Court. After this Consent Decree has undergone an

opportunity for notice and comment, EPA's Administrator and the Attorney General, as

appropriate, will promptly consider any such written comments in determining whether to

Case 1:11-cv-02227-WJM-KLM Document 17-1 Filed 01/17/12 USDC Colorado Page 6 of 10
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

consent to this Consent Decree, the Parties will promptly file a motion that requests the Court to

enter this Consent Decree.

15. It is hereby expressly understood and agreed that this Consent Decree was jointly

drafted by Plaintiff 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.

16. 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 this _day of ►.1

United States District Judge

SO AGREED:

FOR PLAINTIFF:

ASHLEY D. WILMES, Esq.

WildEarth Guardians

827 Maxwell Avenue, Suite L

Boulder, CO 80304

(859) 312-4162

awilmes(a~wildearthguardians. ors

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Case 1:11-cv-02227-WJM-KLM Document 17-1 Filed 01/17/12 USDC Colorado Page 7 of 10
withdraw or withhold consent to this Consent Decree; in.accordaace with section 1 I3(g) of the

Clean Air Act If the Administrator or the Attorney General elects not to withdzaw ar withhold

consent to this Consent Decree, the Partzes wili pmmptly file a motion that requests the Court to

enter Phis Conse~at Decree.

15. It is hereby expressly understood and agreed that this Consent Decree was jointly

dzafted by Plaintiff and EPA and that any and all rules of construction to the effect that ambiguitty

is construed against the drafting party shall be inapplicable in any dispute concerning the terms,

z~eaning, or interpxetadon of this Consent Decree.

16. The undersigned representatives o~ each Party certify that they are £u11y authorized by

the Party they represent to brad that Party to the ternis of this Consent Decree.

S~ (3RDERED this _day of 20_,

United States District Judge

SO AGKEED:

FOR PLAIlV'fIFF: „`

ASHLEY D. MES, Esq.

WildSartb; Guardians

827 N.~axwell Avenue, Suite L

Boulder, CO 84304

(859} 312-4162

awitm~~wildearthguardians.grg

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Case 1:11-cv-02227-WJM-KLM Document 17-1 Filed 01/17/12 USDC Colorado Page 8 of 10
JAMES J. TUTCHTON, Esq.

WildEarth Guardians

6439 East Maplewood Avenue

Centennial, CO 80111

(720) 301-3 843

jtutchtonnwildearthguaxdians.org

FOR DEFENDANT:

IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

By: ~l

DANIEL PINKSTON

Environmental Defense Section

Environment and Natural Resources Division

U.S. Department of Justice

1961 Stout Street, 8t"Floor

Denver, CO 80294

(303) 844-1804

daniel.pinkstonnusdo~ o~v

DATED: January 17, 2012

JOHN WALSH

United States Attorney

STEPHEN TAYLOR

Assistant United States Attorney

District of Colorado

1225 Seventeenth Street, Suite 700

Denver, CO 80202

(303) 454-0100

stephen.ta~(ae,usdo~gov

~:~

Case 1:11-cv-02227-WJM-KLM Document 17-1 Filed 01/17/12 USDC Colorado Page 9 of 10
Of Counsel for Defendant:

MELINA WILLIAMS

Office of General Counsel

U.S. EPA

Mail Code 2344A

Ariel Rios Building

1200 Pennsylvania Avenue, N.W.

Washington, D.C. 20460

(202) 564-3406

SARA LAUMANN

Office of Regional Counsel

USEPA Region 8

1595 Wynkoop Street

Mail Code: 8RC

Denver, CO 80202-1129

(303) 312-6443

Case 1:11-cv-02227-WJM-KLM Document 17-1 Filed 01/17/12 USDC Colorado Page 10 of

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