UNITED STATES DISTRlCT COURT

FOR THE DISTRCT OF COLUMIA

SIERR CLUB,

Plaintiff,

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) Case No.10-cv-0859

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v.

LISA JACKSON, Administrator ofthe United

States Environmental Protection Agency,

Defendat.

CONSENT DECRE

WHEREAS, Plaintiff Sierra Club fied 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 Jackson,

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Administrator of the United States Environmental Protection Agency ("EPA"), 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 administrtive petition submitted by Plaintiff requesting that EP A object to a Title V

Operating Permit issued by the Kentucky Division of Air Quality to the Tennessee Valley

Authority's Paradise Fossil Plant ("the TV A Paradise Permit") in Drakesboro, Kentucky.

WHREAS, Plaintiff and EP A (collectively the "Parties") wish to effectuate a settlement

of the abve-captioned case without expensive and protracted litigation.

WHREAS, the Paries consider this Decree to be an adequate and equitale resolution

of the claims in the above-cptioned case.

WHREAS, the Court, by entering this Decree, finds that this Decree is fair, reasonable,

in the public interest, and consistent with the CAA, 42 U.S.C. §§ 7401 et~.
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, ADJUGED

and DECREED that:

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

Complaint related to Plaintiffs administrative petition on the TV A Paradise Permit and to order

the relief contained in this Decree. Venue is proper in the United States Distrct Court for the

District of Columbia.

2. By February 9, 2011, EPA shall sign its response to Plaintiffs administrative

petition dated Janua 9, 2010, regarding the TV A Paradise Permit.

3. Following signature of such response to Plaintiffs petition, EPA shall

expeditiously deliver notice of such action on the TV A Paradise Permit to the Offce of the

Federal Register for publication.

4. Within 15 business dåys following signature of such response to Plaintiffs

petition, EP A shall transmit EPA's determination, if an objection in whole or in part, to the

Kentucky Diviion of Air Quality.

5. The United States agees to pay Plaintiff as full settlement of all claims for

attorneys' fees, costs,.àid expenses incurrd, under any authority, the sum of $4,250.00 as soon

as reasonably practicable following entr of this Decrèe, by electronic fuds transfer to a bank

account identified by Plaitiff; Nothing in this paragraph shall be constred as an .admission or

concession by EP A that Plaintiff is entitled to or eligible for recovery of any costs or attorneys'

fee.

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6. The deadlines in paragrphs 2 and 4 of this Decree may be extended by (a) wrtten

stipulation of the Plaintiff and EP A with notice to the Cour, or (b) by the Court on a motion of

EP A,.puruant to the Federal Rules of Civil Procedure, and upon consideration of any response

by the Plaintiff. Any other provision of this Consent Decree may be modified by the Cour

following motion of Plaintiff or EP A pUruant to the Federal Rules of Civil Proceure and upon

consideration of any opposition by the non-moving par.

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

jurisdiction to enter and enforce this Decree.

8. Nothing in this Decree shall be construed to limit or modify any discretion

accorded EP A by the CAA or by general principles of administrative law in taing the actions

which are the subject of this Decree, including the discretion to alter, amend or revise any

responses or final actions contemplated by this Decree. EPA's obligation to perform the actions

specified in paragraphs 2-4 by the time specified therein does not constitute a limitation or

modification ofEPA's discretion within the meaning of this paragaph.

9. Nothing in this 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 EP A

may take with respect to the TV A Paradise Permit.

10. . Nothing in this Decree shall be constred to confer upon the distrct court

jurisdiction to review any final decision made by EP A pursuant to this Decree. Nothing in this

Decree shall be constred to confer upon the district court jurisdiction to review any issues that

, are within the exclusive jurisdiction ofthe United States Court of Appeals pursuant to CAA

sections 307(b)(l) and 505, 42 U.S.C. §§ 7607(b)(l), 7661d. Nothing in this Decre shall be

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constred to waive any remedies or defenses the Parties may have under CAA Section 307(bXI),

42 U.S.c. § 7607(b)(l).

11. The Parties recogniz and acknówledge that the obligations imosed upon EP A

under this Decree can only be undertaken using appropriated funds legally available for such

purpose. No provision of this Decree shall be interpreted as or constitute a commitment or

requirement that the United Staes obligate or pay funds in contrvention of the Anti-Deficiency

Act, 31 U.S.C. § 1341, or any other applicable provision oflaw. The possibilty exists that

circumstaces outside the reasonable control ofEPA could delay compliance with the deadline

established in pargraph 2. Should a delay occur due to such circumstaces, any resulting failure

to meet the deadline set fort herein shall not constitute a failure to comply with the terms of this

Consent Decree, and any deadlines occurng within one hundred twenty (120) days of the

termination of the circumstances causing the delay shall be extended one dayfor eaèh day of the

circumstances causing the delay. EPA wil provide Plaintiff with notice as soon as is reaonably

possible under the circumstances in the event that EP A invokes this provision of the Consent

Decree and wil provide Plaintiff with an explanation ofEPA's basis for invokig this provision.

Plaintiff may challenge the invocation of this provisionofthe Consent Decree under the dispute

resolution term of this Consent Decre.

12. Any notices require or provided for by this Decree shall be made in writing, via .

facsimile or other means, and sent to the following:

For Plaintiff:

DAVID. BENDER

McGillvray Westerberg & Bender, LLC

305. S. Paterson Street

Madison, WI 53703

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Tel: (608)3103560

Fax: (608) 310-3561

bender(wbattomeys.com

For Defendant:

STEPHANIJ. TALBERT

Environmental Defense Section

Environment & Naturl Resource Division

P.O. Box: 23986

Washington, D.C. 20026-3986

Tel: (202) 514-2617

Fax: (202) 514-8865

Stephanîe.tabe~usdoj .gov

GAUTAMSRIIVASAN

U.S. Envirnmenta Protection Agency

Offce of Genera Counsel (2344A)

1200 Pennsylvania A ve., N. W.

Washington, DC 20460

Tel: (202) 564-5647

Srinivasan.gauta~epa.gov

13. In the event of a dispute between the Parties concemI1g the interpretation or

implementation of any aspect of this Decree, the disputig Part shall provide the other Part

with a wrtten notice outlining the natue of the dispute and requesting informal negotiations. If

the Parties canot reach an agreed-upon resolution within ten (10) business' days after receipt of

the notice, any par may move the Court to resolve the dispute.

i 4. No motion or other proceeing seeking to enforc this Decree or for contempt of

Cour shall be properly fied unless Plaintiffh8S followed the procedure set fort in paragrph 13,

and provided EP A with writtn notice-received at least 10 business days before the fiing of such

motion or proceding.

15. The Cour shall retan jursdiction to determine and effectuate compliance with

this Decree. When EPA's obligations under paragraphs 2-4 have ben completed, this case shall

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be dismissed with prejudice. The Partes shal fie the appropriate notice with the Cour so that

the Clerk may close the file.

16. The Paries 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 1 13(g), 42 U.S.C. § 7413(g). EPA wil

promptly submit a public notice of this Consent Decree to the Federal Register for publication

and public comment after lodging ths Consent Decree with the Court. Aftr this Consent Decree

has undergone an opportity for notice and comment, the Administratr and the Attorney

General, as appropriat, wil promptly consider any such written comments in determining

whether to withdrw or withhold consent to this Consent Decree, in accordance with setion

1 13(g) of the CAA. If the Administrator or the Attorney General elects not to withdraw or

withhold consent to this Consent Decree, the Paries wil promptly fie a motion that requests the

Court to enter this Consent Decre.

17. The undersigned representatives of each Part certify that they are fully authorized

by the Part they represent to bind that Par to the terms of this Decree.

SO ORDERED on this _ day of 2010.

JUGE COLLEEN KOLLAR-KOTELL Y

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. SO AGREED:

FOR PLAINTIF

DAVI BENDER DJ¿~

McGilivray, Westerberg & Bender LLC

305 S. Paterson Street

Madison, WI 53703

Tel: (608) 310-3560

Fax: (608) 310-3561

bender(§mwbattorneys.com

DATED: '/Z-~/IO

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FOR DEFENANT IGNACIA S. MORENO

Assistant Attorney General

Env.& Natural Resources Division

(~:: ¡ .'l~. . /, j ~T¡

--'STE~ J. T B RT

Environmental D fense Section

Environment & Natural Resources Division

United States Deparent of Justice

P.O. Box 23986

Washingtn, D.C. 20026-3986

Phone (202) 514-2617

Fax (202) 514-8865

Stephanie.talbe~usdoj.gov

DATED: 1II111rD

Of Counsel for Defendant:

GAUTAM SRJ ASAN

U.S. Environmental Protetion Agency

Offce of General Counsel

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

Tel: (202) 564-5547

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