Case 1:09-cv-021 09-MSK-KLM Document 22 Filed 03/09/2010 USDC Colorado Page 1 of 6 

IN THE UNITED STATES DISTRICT COURT
 

FOR THE DISTRICT OF COLORADO
 

Honorable Marcia S. Krieger
 

Civil Action No. 09-cv-021 09-MSK-KLM 

WILDEARTH GUARDIANS, 

Plaintiff, 

v. 

LISA JACKSON, in her official capacity as Administrator ofthe Environmental Protection 

Agency, 

Defendant. 

CONSENT DECREE
 

WHEREAS, on September 3,2009, Plaintiff WildEarth Guardians filed its Complaint in 

this action against Lisa Jackson, in her official capacity as Administrator ofthe United States 

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

WHEREAS, Plaintiff alleges that EPA has approved a State Implementation Plan ("SIP") 

for the State of Utah under section 110(k) of the Clean Air Act ("CAN'), 42 U.S.c. § 7410(k); 

WHEREAS, Plaintiff alleges that the Utah SIP contains a provision, Utah Regulation 

307-107- I through 307-107-5 ("the Utah breakdown provision"), relating to excess emissions 

resulting from the breakdown of pollution control equipment; 

WHEREAS, Plaintiff alleges that the Utah breakdown provision is inconsistent with 

sections 107(a) and 11 O(a)(l) ofthe CAA, 42 U.S.c. §§ 7407(a), 741 O(a)(l); 

WHEREAS, on December 31,2007, Plaintiff submitted to EPA an administrative 

petition requesting that EPA formally notify the State of Utah under section 11 0(k)(5) of the 

CAA, 42 U.S.c. § 741 0(k)(5), that the Utah breakdown provision is inadequate to comply with 

the requirements of the CAA, and further requesting that EPA require Utah to revise the Utah 
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breakdown provision as necessary to meet the requirements ofthe CAA; 

WHEREAS, EPA has not taken action to grant or deny Plaintiffs administrative petition; 

WHEREAS, Plaintiff has alleged that EPA has failed to undertake a mandatory duty 

under section II 0(k)(5) of the CAA, 42 U.S.C. § 741O(k)(5), to require Utah to revise the Utah 

breakdown rule; 

WHEREAS, Plaintiff has further alleged that EPA has unreasonably delayed action on 

Plaintiffs administrative petition within the meaning ofCAA section 304(a), 42 U.S.C. § 

7604(a), and 5 U.s.c. §§ 555(b), and 706(1); 

WHEREAS, Plaintiff and Defendant have agreed to a settlement of this case without any 

admission of any issue of fact or law, which they consider to be a just, fair, adequate and 

equitable resolution ofthe claims raised in this action; and 

WHEREAS, it is in the interest ofthe public, the parties and judicial economy to resolve 

the issues in this action without protracted litigation. 

NOW, THEREFORE, it is hereby ORDERED, ADJUDGED AND DECREED as 

follows: 

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

Complaint and to order the relief contained in this Consent Decree. 

2. Venue lies in the District of Colorado. 

3. Plaintiff and Defendant shall not challenge the terms of this Consent Decree or 

this Court's jurisdiction to enter and enforce this Consent Decree. Upon entry, no party shall 

challenge the terms of this Consent Decree. This Consent Decree constitutes a complete and 

final resolution of all claims which have been asserted or which could have been asserted in the 

Complaint. 
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4. This Consent Decree shall become effective upon the date of its entry by the 

Court. If for any reason the Court does not enter this Consent Decree, the obligations set forth in 

this Decree are null and void. 

5. By February 28, 20 II, or within 20 days after the Court's entry of this Consent 

Decree, whichever is later, EPA shall sign a notice of final rulemaking action determining 

whether the Utah Breakdown provision (Utah Regulations 307-107-1 through 307-107-5) 

renders the Utah SIP "substantially inadequate" within the meaning of section II 0(k)(5) of the 

CAA, 42 U.S.c. § 741 0(k)(5), and, if EPA determines that the SIP is substantially inadequate, 

requiring the State to revise the SIP as it relates to the Utah breakdown provision. 

6. Within 15 business days following signature of the action required by Paragraph 

5, EPA shall deliver notice of the action to the Office ofthe Federal Register for publication. 

7. The deadline in Paragraph 5 may be extended for a period of 60 days or less by 

written stipulation executed by counsel for Plaintiff and Defendant and filed with the Court. 

Any other extension to the deadline in Paragraph 5 may be approved by the Court upon motion 

made pursuant to the Federal Rules ofCivil Procedure by either party to this Consent Decree and 

upon consideration of any response by the non-moving party. 

8. EPA agrees to settle Plaintiffs claim for costs and attorneys' fees by paying 

$4,588.50 as soon as reasonably practicable after entry ofthis Consent Decree. This amount 

shall be paid by Fed Wire Electronic Funds Transfer to WildEarth Guardians. Plaintiff agrees to 

accept payment of$4,588.5.00 in full satisfaction of any and all claims for costs and attorneys' 

fees with respect to this case, except that Plaintiff reserves the right to seek fees for enforcement 

ofthe Consent Decree in the future. EPA does not concede that Plaintiff will be entitled to fees 

for any efforts by Plaintiffto enforce the Consent Decree in the future, and EPA reserves all 

defenses with respect to any such enforcement efforts and any related fee claim. The fees paid 
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under this Paragraph shall have no precedential value in any future fee claim. 

9. The Court shall retain jurisdiction to determine and effectuate 

compliance with this Consent Decree, to rule upon any motions filed in accordance with 

Paragraph 7 ofthis Consent Decree, and to resolve any disputes in accordance with Paragraph 14 

ofthis Consent Decree. Once EPA has taken the action caJled for in Paragraphs 5, 6 and 8 of 

this Consent Decree, this Decree shall be terminated and the case dismissed with prejudice. The 

Parties may either jointly notify the Court that the Decree should be terminated and the case 

dismissed, or EPA may so notify the Court by motion. [fEPA notifies the Court by motion, then 

Plaintiff shall have twenty days in which to respond to such motion. 

10. Except as provided herein, nothing in this Consent Decree shall be construed to 

limit or modify any discretion accorded EPA by the Clean Air Act or by general principles of 

administrative law in taking the actions which are the subject of this Consent Decree. 

11. The parties agree and acknowledge that final approval and entry ofthis proposed 

Consent Decree are subject to the requirements ofClean Air Act § 113(g), 42 U.S.c. § 7413(g). 

That subsection provides that notice ofthis proposed Decree 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, must consider those comments in deciding whether to 

consent to this Consent Decree. 

12. Nothing in the terms of this Consent Decree shall be construed to waive any 

remedies Plaintiff may have under section 307(b)(l) ofthe Clean Air Act, 42 U.S.c. § 

7607(b)(I), with respect to any future challenges to the final rulemaking action called for in 

Paragraph 5. 

13. Nothing in this Consent Decree shall be construed to provide this Court with 

jurisdiction over any challenges by Plaintiff or any other person or entity not a party to this 
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litigation with respect to any future challenges to the final rulemaking action called for in 

Paragraph 5. 

14. In the event of a dispute between the parties concerning the interpretation or 

implementation of any aspect of this Consent Decree, the disputing party shall contact the other 

party to confer and attempt to reach an agreement on the disputed issue. If the parties cannot 

reach an agreed-upon resolution, then either party may move the Court to resolve the dispute. 

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

drafted by Plaintiff and Defendant 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 tenns, meaning, or interpretation of this Consent Decree. This Consent Decree shall be 

governed and construed under the laws of the United States. 

16. The obligations imposed upon EPA under this Consent Decree may only be 

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

constitute a commitment or requirement that EPA obligate funds in contravention of the AntiDeficiency Act, 31 U,S.c. § 1341, or any other applicable law or regulation. 

17. The undersigned representative of each party certifies that he is 

fully authorized to consent to the Court's entry of the terms and conditions of this Consent 

Decree. 

18. Any written notices or other written communications between the parties 

contemplated under this Consent Decree shall be sent to the undersigned counsel at the addresses 

listed in the signature blocks below unless written notice of a change in counsel andlor address is 

provided. 
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Respectfully submitted, 

IGNACIA S. MORENO 

Assistant Attorney General 

Dated: 11/23/2009	 slDavid A. Carson
 

DAVID A. CARSON
 

United States Department of Justice
 

Environment and Natural Resources
 

Division
 

1961 Stout Street - 8th Floor
 

Denver, Colorado 80294
 

(303) 844-1349 

day id .a.carson(i]usdoj ,gOY 

COUNSEL FOR DEFENDANT 

Dated: 11/17/2009	 s/James J. Tutchton
 

JAMES J. TUTCHTON
 

WildEarth Guardians
 

1536 Wynkoop St., Suite 30 I
 

Denver, Colorado 80202
 

(720) 301-3843 

jtutchton@wildearthguardians,org 

COUNSEL FOR PLAINTIFF 

Upon consideration of the foregoing, the Court hereby finds that this Consent Decree is
 

fair, reasonable, consistent with the Clean Air Act and in the public interest.
 

IT IS SO ORDERED. 

March 9, 2010 

BY THE COURT: 

Marcia S. Krieger 

United States District Judge