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SETTLEMENT AGREEMENT 

This Settlement Agreement is entered into by Plaintiffs National Parks Conservation 

Association, Minnesota Center for Environmental Advocacy, Friends of the Boundary Waters, 

Voyageurs National Park Association, Fresh Energy, and the Sierra Club ("Plaintiffs"), and by 

Defendant United States Environmental Protection Agency and Gina McCarthy, in her official 

capacity as Administrator of EPA (collectively "EPA" or "the Administrator"), and Intervenor 

Defendant Northern States Power Company Minnesota, d/b/a Xcel Energy ("NSP"), as a 

settlement of Plaintiffs' claims in National Parks Conservation Association v. EPA, Civ. No. 12-

3043 (D. Minn.) ("this litigation"); 

WHEREAS, on September 3, 2009, Plaintiffs petitioned the Department of the Interior 

("DOl") to certify that a portion of the visibility impairment in Voyageurs and Isle Royale 

National Parks is reasonably attributable to emissions from NSP's coal-fired Sherburne County 

Generating Station ("Sherco") in central Minnesota; 

WHEREAS, on October 21, 2009, DOl provided a letter to EPA in which DOl stated 

"that there exists reasonably attributable impairment of visibility at Voyageurs and Isle Royale 

due to emissions from the Sherco facility;" 

WHEREAS, on December 5, 2012, Plaintiffs filed their complaint in this litigation, 

alleging that, since DOl's October 21, 2009 letter, the Administrator had failed to perform her 

mandatory duty to promulgate a federal reasonably attributable visibility impairment ("RA VI") 

best available retrofit technology ("BART") determination for Sherco without unreasonable 

delay; 

WHEREAS, on February 1, 2013, Defendants filed their answer in this litigation, 

denying that the Administrator has a mandatory duty to promulgate RA VI BART for Sherco in 
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response to DOl's October 21, 2009 letter without unreasonable delay because EPA has not 

determined that visibility impairment at one or more Class I areas is reasonably attributable to 

emissions from Sherco; 

WHEREAS, on July 24, 2014, the Court of Appeals for the Eighth Circuit overturned the 

District Court's previous ruling in this litigation that denied NSP's motion to intervene, making 

NSP a party to the case; 

WHEREAS, on March 25, 2015, Plaintiffs filed an Amended Complaint in this litigation, 

alleging that the Administrator had failed to perform her mandatory duty "to identify and analyze 

for BART each existing stationary facility which may reasonably be anticipated to cause or 

contribute to impairment of visibility in any mandatory Class I Federal area where the 

impairment in the mandatory Class I Federal area is reasonably attributable to that existing 

stationary facility;" 

WHEREAS, EPA and NSP have not yet filed responses to the Amended Complaint in 

this litigation, but generally deny the allegations in the Amended Complaint; 

WHEREAS, Plaintiffs, EPA, and NSP (collectively, the "Parties") desire to settle, 

compromise and finally resolve all aspects of Plaintiffs' claims in this litigation, without 

expensive and protracted litigation, and without a litigated resolution of any issue of law or fact, 

on the terms hereinafter set forth, which the parties consider to be a just, fair, adequate, and 

equitable resolution of those claims; and 

WHEREAS, the Parties have therefore determined to enter into this Settlement 

Agreement, which EPA has coordinated with DOL 

NOW THEREFORE, in consideration of the mutual covenants and promises set forth in 

this Settlement Agreement, and for other good and valuable consideration, the adequacy and 

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sufficiency of which the Parties hereby acknowledge, THE PARTIES HEREBY AGREE as 

follows: 

1. Promptly after the date that this Settlement Agreement is signed by all the Parties, the 

Parties will file a joint motion with the Court requesting that the Court stay this 

litigation pending EPA's final action revising as described in this Settlement 

Agreement the Federal Implementation Plan with respect to Reasonably Attributable 

Visibility Impairment for Minnesota ("Minnesota RA VI FIP"), located at 40 C.F .R. § 

52.1236. 

2. The Parties agree and acknowledge that this Settlement Agreement will not become 

effective immediately upon its signature by all the Parties because EPA must provide 

notice in the Federal Register and an opportunity for comment pursuant to section 

113(g) of the Clean Air Act ("CAA"), 42 U.S.C. § 7413(g). EPA agrees to deliver a 

public notice of this Settlement Agreement to the Office of the Federal Register for 

publication and public comment within fifteen (15) business days after the date that 

the Settlement Agreement has been signed by all the Parties. After this Settlement 

Agreement 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 withdraw or withhold consent to 

this Settlement Agreement, in accordance with section 113(g) of the CAA. EPA will 

promptly inform the Parties of the Administrator's and the Attorney General's 

decision whether or not to withdraw or withhold consent to this Settlement 

Agreement, and EPA will file an appropriate notice with the Court in this litigation. 

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If consent is not withdrawn or withheld, this Settlement Agreement will become 

effective upon the date that EPA's notice is filed with the Court in this litigation. 

3. If this Settlement Agreement becomes effective as described in Paragraph 2, EPA 

will propose to revise the Minnesota RA VI FIP to include the specific emission 

limitations for Sherco Units 1, 2, and 3 that are set forth in Paragraph 5 of the 

Settlement Agreement, and EPA will take final action on the proposal. EPA will 

provide an opportunity for the public to comment on EPA's proposed revision to the 

Minnesota RA VI FIP through a notice published in the Federal Register. EPA agrees 

to sign a fmal notice within seven (7) months after the date this Settlement Agreement 

becomes effective as described in Paragraph 2. Within fifteen (15) days of signing 

the final notice, EPA agrees to deliver such notice to the Office of the Federal 

Register for publication. 

4. The Parties agree that if EPA notifies the Patties that the Administrator and/or the 

Attorney General has elected to withdraw or withhold consent to this Settlement 

Agreement under CAA section 113(g) as described in Paragraph 2, or if EPA does 

not take final action to revise the Minnesota RA VI FIP within seven (7) months as 

described in Paragraph 3, or if the Minnesota RA VI FIP revision does not include the 

specific emission limitations for Sherco Units 1, 2, and 3 that are set forth in 

Paragraph 5 to this Settlement Agreement, Plaintiffs' sole remedy shall be to request 

that the Court lift the stay and reinstitute this litigation. 

5. NSP agrees that Sherco Units 1 and 2 will achieve an SOz emissions limitation of 

0.05 lbs!Mtu, starting October 1, 2015 (or on the date this Settlement Agreement 

becomes effective, if later), and that Sherco Unit 3 will achieve an SOz emissions 

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limitation of 0.29 lbs!Mtu, starting June 1, 2017, as long as EPA promulgates a 

revision to the Minnesota RA VI FIP consistent with Paragraph 3. EPA agrees to 

propose such emission limitations in the format set forth in Exhibit A to this 

Settlement Agreement with a compliance date for Units 1 and 2 of October 1, 2015, 

and a compliance date for Unit 3 of June 1, 2017. The parties agree that the new S02 

emission limitations will be federally-enforceable against the Sherco facility on and 

after such compliance dates as specified in the revised Minnesota RA VI FIP. 

6. NSP agrees to support, and Plaintiffs agree not to take any administrative or judicial 

action, or to submit any adverse comments in any administrative or judicial forum, 

opposing an action by EPA to propose and promulgate the emission limitations for 

Sherco Units 1, 2, and 3, that are set forth in Paragraph 5 to this Settlement 

Agreement as a revision to the Minnesota RA VI FIP and, following such revision to 

the Minnesota RA VI FIP, actions by Minnesota to incorporate the emission 

limitations into operating permits and/or administrative orders, as applicable, for 

Sherco. 

7. Neither Plaintiffs nor NSP will assert a challenge in the United States Court of 

Appeals for the Eighth Circuit or any other comt to EPA's final action revising the 

Minnesota RA VI FIP if that final action includes the emission limitations for Sherco 

Units 1, 2, and 3 that are set forth in Paragraph 5 to this Settlement Agreement. 

However, nothing in this Settlement Agreement is intended to foreclose any right that 

Plaintiffs or NSP may have to assert a challenge in the United States Court of 

Appeals for the Eighth Circuit to EPA's final action revising the Minnesota RA VI 

FIP if that fmal action differs in any material respect from the emission limitations for 

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Sherco Units 1, 2, and 3 that are set forth in Paragraph 5 to this Settlement 

Agreement, or if EPA's fmal action does not fmd that the revised Minnesota RA VI 

FIP addresses the concems in DOl's October 21, 2009, letter as set forth in Paragraph 

8 to this Settlement Agreement. 

8. EPA agrees that it will propose to find that the S02 emission limitations set forth in 

Paragraph 5 to this Settlement Agreement, when combined with the reductions in S02 

and NOx already achieved by the Minnesota regional haze SIP, address DOl's 

October 21, 2009 letter that states 11th ere exists reasonably attributable impairment of 

visibility at Voyageurs and Isle Royale due to emissions from the Sherco facility.11 

The parties agree that as a result of this Settlement Agreement, EPA need not make a 

RA VI attribution finding or a RA VI BART determination for Sherco. EPA further 

agrees that it will not propose to address regional haze issues with respect to Sherco 

in its RA VI FIP, although it may respond to comments that raise regional haze 

ISSUeS. 

9. While DOl is not a party to this Settlement Agreement, EPA has coordinated with 

DOL DOl has indicated that, if the Settlement Agreement becomes effective as 

described in Paragraph 2 to this Settlement Agreement, it will issue a letter stating 

that the new S02 emission limitations for Sherco, when combined with the reductions 

in S02 and NOx already achieved by the Minnesota regional haze SIP, provide an 

outcome that addresses the visibility concerns raised in DOl's October 21, 2009 letter 

regarding the visibility impairment in Voyageurs National Park and Isle Royale 

National Park that it attributed to emissions from Sherco. 

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10. The Parties agree that nothing in this Settlement Agreement is intended to modify or 

diminish NSP's legal obligations under the regional haze program of the CAA, 

including but not limited to any legal obligation identified pursuant to opinions issued 

by the United States Court of Appeals for the Eight Circuit in Case Nos. 12-2910 and 

12-3841. However, nothing in this Settlement Agreement limits NSP's use of the fact 

that Sherco's S02 emissions will be reduced as a result of the new S02 emission 

limitations, as that fact applies to NSP' s compliance with such legal obligations. 

11. Within fifteen (15) days after EPA's final action revising the Minnesota RA VI FIP 

consistent with this Settlement Agreement is published in the Federal Register, 

Plaintiffs shall move to dismiss their Amended Complaint in this litigation, with 

prejudice, subject to the resolution of their claim for costs and fees as reserved in 

Paragraph 16. Plaintiffs will also acknowledge in their motion to dismiss that EPA's 

final RA VI FIP and DOl's letter resolve the allegations in Plaintiffs' Amended 

Complaint. Plaintiffs agree that they will not seek a new RA VI certification 

regarding emissions from Sherco Units 1, 2, and/or 3 as long as the emission 

limitations contemplated under this Settlement Agreement remain in effect. 

12. NSP agrees that it will provide to Plaintiffs NSP's quarterly Excess Emissions 

Reports ("EERs") and annual compliance certifications filed with Minnesota and 

EPA for the twelve months after each S02 limit goes into effect. 

13. Nothing in this Settlement Agreement 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 contemplated by this Settlement Agreement. 

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14. Nothing in this Settlement Agreement shall be construed to confer upon the district 

court subject matter jurisdiction to review the Minnesota RA VI FIP revision 

contemplated by this Settlement Agreement. Nothing in this Settlement Agreement 

shall be construed to confer upon the district court subject matter jurisdiction to 

review any issues that are within the exclusive jurisdiction of the United States Court 

of Appeals pursuant to 42 U.S.C. §§ 7607(b)(1) and 7661(d). 

15. The Parties recognize an<:J acknowledge that the actions EPA has agreed to undertake 

in this Settlement Agreement can only be undertaken using appropriated funds legally 

available for such purpose. No provision of this Settlement Agreement shall be 

interpreted as or constitute an agreement, commitment, or requirement that EPA 

obligate or pay funds in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, 

or any other applicable provision of law. 

16. EPA and Plaintiffs agree that in their motion to stay this litigation they will ask the 

Court for an order retaining jurisdiction to resolve any request by Plaintiffs for fees 

and costs. EPA and Plaintiffs agree that any claim Plaintiffs may have for fees and 

costs will be ripe after EPA takes final action on the Minnesota RA VI FIP revision as 

contemplated in this Settlement Agreement. Plaintiffs and EPA agree to attempt to 

informally resolve any claim for fees and costs. If they cannot reach an informal 

resolution, Plaintiffs may seek such fees and costs from the Court within sixty (60) 

days after EPA's final action on the Minnesota RA VI FIP revision is published in the 

Federal Register. EPA reserves its rights to oppose any claim for fees and costs, 

including both Plaintiffs' entitlement to fees and costs and the amount of such fees 

and costs. 

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17. With respect to Plaintiffs and NSP, actions for breach of this Settlement Agreement 

shall be limited to a request for injunctive relief or specific performance. Such 

remedies are not available against EPA under this Settlement Agreement. With 

respect to EPA, Paragraph 4 to this Settlement Agreement sets forth the 

circumstances under which Plaintiffs may move to lift the stay and reinstitute the 

litigation, and Paragraph 7 to this Settlement Agreement addresses the circumstances 

under which Plaintiffs and/or NSP may assert a challenge to the Minnesota RA VI FlP 

in the Eighth Circuit Court of Appeals. 

18. Any notices required or provided for by this Settlement Agreement shall be made in 

writing and sent via e-mail to the following: 

For Plaintiffs: 

Kevin Reuther 

kreuther@mncenter .org 

Reed Zars 

reedzars@gmail.com 

ForNSP: 

Ann Seha 

Ann.M.Seha@Xcelenergy.com 

Linda Rockwood 

Linda.rockwood@faegrebd.com 

William Bumpers 

Wi lliam.bumpers@bakerbotts.com 

For EPA: 

Matthew Marks 

marks.matthew@epa.gov 

David A. Carson 

david.a.carson@usdoj.gov 

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19. This Settlement Agreement may be amended by written agreement of the Parties. If a 

lapse in EPA's appropriations occurs within 120 days prior to the date for EPA to 

sign a final notice as set forth in Paragraph 3 to this Settlement Agreement, the date 

for EPA to sign a final notice shall be extended automatically one day for each day of 

delay caused by the lapse in appropriations. 

20. The undersigned certify that they are fully authorized by the Party or Parties they 

represent to bind that Party or those Parties to the terms of this Settlement Agreement. 

21. Subject to the provisions of Paragraph 2 as to EPA, the provisions of this Settlement 

Agreement shall apply to and be binding on the Parties, and their successors and 

assigns. 

22. This Settlement Agreement may be signed in counterparts, and such counterpart 

signatures shall be given full force and effect. 

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SO AGREED: 

For Plaintiffs National Parks Conservation 

Association and Sierra Club 

Is/ REED ZARS 

Attorney at Law 

910 Kearney Street 

Laramie, WY 82070 

(307) 745-7979 

rzars@lariat.org 

Dated: 5/15/2015 
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For Plaintiffs Minnesota Center for 

Environmental Advocacy, Friends of the 

Boundary Waters, Voyagers National Park 

Association, and Fresh Energy 

Is/ KEVIN REUTHER 

Minnesota Center for Environmental 

Advocacy 

26 E. Exchange St., Suite 206 

St. Paul, MN 55101-1667 

(651) 287-4861 

kreuther@nmcenter.org 

Dated: 5/15/2015 

For Defendants 

JOHN C. CRUDEN 

Acting Assistant Attorney General 

Is/DAVID A. CARSON 

United States Department of Justice 

Environment and Natural Resources 

Division 

999 18th Street 

South Terrace - Suite 370 

Denver, CO 80202 

(303) 844-1349 

david.a.carson@usdoj .gov 

Dated: 5/15 /2015 

For Northern States Power Company 

Minn� 

Christopher B. Clark 

President 

Northern States Power Company Minnesota 

414 Nicollet Mall 

Minneapolis, MN 55401 

Dated: 5/15/2015 
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