### Case 1:09-cv-02109-MSK-KLM Document 22 Filed 03/09/2010 USDC Colorado Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FORTHE DISTRICTOF COLORADO Honorable Marcia S. Krieger Civil Action No. 09-cv-02109-MSK-KLM WILDEARTH GUARDIANS, Plaintiff,

v. LISA JACKSON, in her official capacity as Administratorofthe Environmental Protection Agency, Defendant.



### CONSENT DECREE

WHEREAS, on September 3,2009, PlaintiffWildEarth Guardians filed its Complaint in this action against LisaJackson, in her official capacity as Administrator ofthe United States Environmental Protection Agency ("Defendant" or "EPA"); WHEREAS, Plaintiffalleges that EPA has approved a State Implementation Plan ("SIP") for the State ofUtah under section 110(k) ofthe Clean Air Act ("CAN'), 42 U.S.c. 

### § 7410(k); WHEREAS, Plaintiffalleges thatthe 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 ofpollution control equipment; WHEREAS, Plaintiffalleges 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, Plaintiffsubmitted to EPA an administrative petition requesting that EPA formally notify the State ofUtah under section 110(k)(5) ofthe CAA, 42 U.S.c. 

### § 7410(k)(5), thatthe Utah breakdown provision is inadequate to comply with the requirements ofthe 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 ordeny Plaintiffs administrative petition; WHEREAS, Plaintiffhas alleged that EPA has failed to undertake a mandatory duty under section II0(k)(5) ofthe CAA, 42 U.S.C. § 741O(k)(5), to require Utah to revise the Utah breakdown rule; WHEREAS, Plaintiffhas 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, Plaintiffand Defendant have agreed to a settlement ofthis case without any admission ofany issue offact or law, which they considerto be ajust, fair, adequate and equitable resolution ofthe claims raised in this action; and WHEREAS, it is in the interest ofthe public, the parties andjudicial economy to resolve the issues in this action without protracted litigation. NOW, THEREFORE, 

### it is hereby ORDERED, ADJUDGED AND DECREED as follows: I. This Courthas subject matterjurisdictionoverthe claims set forth in the Complaint and to orderthe reliefcontained in this ConsentDecree. 2. Venue lies in the District ofColorado. 3. Plaintiffand Defendant shall not challengetheterms ofthis Consent Decree or this Court'sjurisdictionto enter and enforce this Consent Decree. Upon entry, no party shall challenge the terms ofthis Consent Decree. This Consent Decree constitutes a complete and final resolution ofall 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 ofits entry by the Court. If for any reason the Court does not enterthis Consent Decree, the obligations set forth in this Decree are null and void. 5. By February 28, 20II, orwithin 20 days afterthe Court'sentry ofthis Consent Decree, whichever is later, EPA shall sign a notice offinal rulemaking action determining whetherthe Utah Breakdown provision (Utah Regulations 307-107-1 through 307-107-5) renders the Utah SIP "substantially inadequate" within the meaning ofsection II0(k)(5) ofthe CAA, 42 U.S.c. § 7410(k)(5), and, ifEPA 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 ofthe action required by Paragraph 5, EPA shall deliver notice ofthe action to the Office ofthe Federal Register for publication. 7. The deadline in Paragraph 5 may be extended for a period of60 days or less by written stipulation executed by counsel for Plaintiffand Defendant and filed with the Court. Any other extension to the deadline in Paragraph 5 may be approved by the Courtupon motion made pursuant to the Federal Rules ofCivil Procedure by either party to this Consent Decree and upon consideration ofany response by the non-moving party. 8. EPA agrees to settle Plaintiffsclaim 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 Transferto WildEarth Guardians. Plaintiffagrees to accept payment of$4,588.5.00 in full satisfaction ofany and all claims for costs and attorneys' fees with respect to this case, except that Plaintiffreserves the right to seek fees for enforcement ofthe Consent Decree in the future. EPA does not concede that Plaintiffwill be entitled to fees for any efforts by Plaintiffto enforcethe 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 retainjurisdiction 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 eitherjointly 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 Plaintiffshall 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 AirAct or by general principles of administrative law in taking the actions which are the subject ofthis Consent Decree. 11. The parties agree and acknowledgethat 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 opportunityto make any comments, and that the Administrator or the Attorney General, as appropriate, must consider those comments in deciding whetherto consent to this Consent Decree. 12. Nothing in the terms ofthis Consent Decree shall be construed to waive any remedies Plaintiffmay have under section 307(b)(l) ofthe Clean AirAct, 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 Plaintiffor any other person or entity not a party to this

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### litigation with respect to any future challengesto the final rulemaking action called for in Paragraph 5. 14. In the event ofa dispute between the parties concerning the interpretation or implementation ofany aspect ofthis Consent Decree, the disputing party shall contact the other party to confer and attempt to reach an agreement on the disputed issue. Ifthe parties cannot reach an agreed-upon resolution, then eitherparty may move the Court to resolve the dispute. ]5. It is hereby expressly understood and agreed that this Consent Decree wasjointly drafted by Plaintiffand Defendant and that any and all rules ofconstruction to the effect that ambiguity is construed against the drafting party shall be inapplicable in any dispute concerning the tenns, meaning, or interpretation ofthis Consent Decree. This Consent Decree shall be governed and construed under the laws ofthe United States. 16. The obligations imposed upon EPA under this Consent Decree may only be undertaken using appropriated funds. No provision ofthis Decree shall be interpreted as or constitute acommitment orrequirement that EPA obligate funds in contravention ofthe AntiDeficiency Act, 31 U,S.c. § 1341, or any other applicable law or regulation. 17. The undersigned representative ofeach party certifies that he is fully authorized to consent to the Court's entry ofthe terms and conditions ofthis 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 ofachange 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 ofJustice Environment and Natural Resources Division 1961 Stout Street

- 8th Floor Denver, Colorado 80294 (303) 844-1349 

### dayid.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 30I Denver, Colorado 80202 (720) 301-3843 jtutchton@wildearthguardians,org COUNSELFOR PLAINTIFF Upon consideration ofthe foregoing, the Courthereby finds thatthis 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