### UNITED STATES DISTRlCT COURT 

### FOR THE DISTRCT OF COLUMIA SIERR CLUB,

Plaintiff, ) ) ) ) ) Case No.10-cv-0859 ) ) ) ) ) ) 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, ) Administrator of the United States Environmental Protection Agency ("EPA"), failed to perform

aduty

### 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

ofthe 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. .,"

26. 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 4

### 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 5

### 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

6. SO AGREED:



### FOR PLAINTIF

# DJ¿~ DAVI BENDER 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 

# /, j ~T¡ (~:: ¡ .'l~. . --'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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