SETTLEMENT AGREEMENT

WHEREAS, on October 22, 2009, WildEarth Guardians filed an Amended Complaint in

WildEarth Guardians v. Jackson, No. 09-cv-02148-REB-MJW (D. Colo.), against Lisa Jackson,

in her official capacity as Administrator of the United States Environmental Protection Agency

(“EPA”);

WHEREAS, WildEarth Guardians therein alleges that EPA has failed to take action to

approve or disapprove a number of State Implementation Plan (“SIP”) submissions from the

States of Colorado, Montana, Utah and New Mexico within the time frame required by section

110(k)(2), of the Clean Air Act (“CAA”), 42 U.S.C. § 7410(k)(2);

WHEREAS, the Parties are entering into a separate Consent Decree to settle the majority

of the claims raised in the Amended Complaint;

WHEREAS, if the Parties were to litigate WildEarth Guardians’ claims, EPA would raise

jurisdictional defenses to some of the claims in the Amended Complaint, and the Parties have

therefore decided to settle those claims through this Settlement Agreement, as opposed to the

separate Consent Decree; and

WHEREAS, WildEarth Guardians and EPA have agreed to a settlement of the claims

resolved in this Settlement Agreement without admission of any issue of fact or law in order to

avoid protracted and costly litigation and to preserve judicial resources. 

NOW, THEREFORE, the Parties, intending to be bound by this Agreement, hereby

stipulate and agree as follows: 

1. Exhibits 1 and 2 to this Settlement Agreement consist of tables identifying the

SIP submissions subject to this Settlement Agreement and the specific deadline for EPA action
2

on each such SIP submission. This Settlement Agreement resolves WildEarth Guardians’ claims

in the Amended Complaint that EPA has failed to take action to approve or disapprove the SIP

submissions identified in Exhibits 1 and 2 to this Settlement Agreement within the time frame

required by section 110(k)(2) of the CAA, 42 U.S.C. § 7410(k)(2). EPA shall sign a notice of

final action approving in whole, partially approving and partially disapproving, or disapproving

in whole each SIP submission by the respective deadline set forth in Exhibit 1 or Exhibit 2 for

each specific SIP submission.

2. Exhibits 1 and 2 to this Settlement Agreement also contain dates by which EPA

will sign a notice of proposed action with respect to some, but not all, of the SIP submissions

subject to this Settlement Agreement. Solely with respect to those SIP submissions for which

Exhibit 1 or Exhibit 2 contain a deadline for EPA to sign a notice of proposed action, EPA shall

sign a notice of proposed action for the specific SIP submission by the specific deadline

provided in Exhibit 1 or Exhibit 2. If no deadline is provided in Exhibit 1 or Exhibit 2 for EPA

to sign a notice of proposed action for any specific SIP submission, then EPA is not obligated

under this Settlement Agreement to sign a notice of proposed action by any particular date. 

However, regardless of the date by which EPA signs a notice of proposed action for any specific

SIP submission, EPA remains obligated to sign a notice of final action for each SIP submission

by the respective deadline provided in Exhibits 1 or 2 to this Settlement Agreement unless that

deadline is extended by future agreement of the Parties. 

3. Within 15 business days following signature on each notice required by

Paragraphs 1 and 2, and as set forth in Exhibits 1 and 2 to this Settlement Agreement, EPA shall

deliver the notice to the Office of the Federal Register for publication. 
3

4. The Parties may agree to extend one or more of the deadlines contained in

Exhibits 1 and 2 by mutual written consent. 

5. If this Settlement Agreement becomes final following the notice-and-comment

process discussed in Paragraph 8 below, the Parties shall file a joint motion under Rule 41.2 of

the Local Rules for the United States District Court for the District of Colorado to close

WildEarth Guardians v. Jackson, No. 09-cv-02148-REB-MJW (D. Colo.), administratively with

respect to the claims that are resolved in this Settlement Agreement. If EPA fails to take action

on any SIP submission by the deadline provided under Exhibits 1 or 2 to this Settlement

Agreement, then WildEarth Guardians’ sole remedy under this Agreement shall be the right to

ask the court to reopen the case and establish a schedule for further proceedings. EPA reserves

all of its defenses to the claims addressed by this Settlement Agreement.

6. EPA’s obligation to take any action required in Paragraphs 1 and 2 by the

deadlines set forth in Exhibits 1 and 2 to this Settlement Agreement shall become null and void

if the underlying SIP submission to which the deadline corresponds is withdrawn in writing by

the relevant State prior to the relevant deadline. EPA shall provide WildEarth Guardians with a

copy of any written notice of withdrawal prior to the relevant deadline. In addition, the Parties

recognize that EPA may receive additional SIP submissions that may relate to the SIP

submissions covered by this Settlement Agreement. It is possible that EPA may need to consider

the relevance of a particular additional SIP submission to a SIP submission covered by this

Settlement Agreement prior to the time that EPA takes action on the SIP submission covered by

this Settlement Agreement. If EPA believes it will need to delay action on any SIP submission

covered by this Settlement Agreement beyond the deadline provided in Exhibit 1 or 2 to this
4

Settlement Agreement due to an additional SIP submission by the relevant State, then EPA shall

confer with WildEarth Guardians and request that the Parties agree to an extension of the

relevant deadline. There may be other reasons that are not specifically mentioned in this

Settlement Agreement which would potentially warrant an extension of a deadline.

7. Nothing in this Settlement Agreement shall be construed to limit or modify any

discretion accorded EPA by the Clean Air Act or by general principles of administrative law. 

8. The Parties agree and acknowledge that final approval of this Settlement

Agreement is subject to the requirements of Clean Air Act § 113(g), 42 U.S.C. § 7413(g). That

subsection provides that notice of this Settlement Agreement 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 Agreement. EPA shall submit public notice of this Settlement Agreement to the

Federal Register for publication and public comment within 15 days of execution of this

Agreement by the Parties. After this Settlement Agreement has undergone an opportunity for

notice and comment, the Administrator and/or the Attorney General, as appropriate, shall

promptly consider any such written comments in determining whether to withdraw or withhold

consent to this Consent Decree, in accordance with section 113(g) of the CAA. 

9. Except as set forth in this Agreement, the Parties retain all rights, claims,

defenses, and discretion they may otherwise have.

10. The obligations imposed upon EPA under this Settlement Agreement may only be

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

constitute a commitment or requirement that EPA obligate funds in contravention of the Anti-
5

Deficiency Act, 31 U.S.C. § 1341, or any other applicable law or regulation.

11. WildEarth Guardians shall file a motion for voluntary dismissal, with prejudice,

in accordance with Rule 41(a)(1) of the Federal Rules of Civil Procedure of WildEarth

Guardians v. Jackson, No. 09-cv-02148-REB-MJW (D. Colo.), with respect to the claims

resolved by this Settlement Agreement within 30 days after notice appears in the Federal

Register of EPA taking the last rulemaking action required under Paragraph 1 of this Settlement

Agreement.

12. WildEarth Guardians agrees that the amount of attorneys’ fees and costs paid by

the United States to WildEarth Guardians under the related Consent Decree in WildEarth

Guardians v. Jackson, No. 09-cv-02148-REB-MJW (D. Colo.), shall constitute full payment of

the fees and costs up until the time of signing this settlement agreement which WildEarth

Guardians could have sought for the claims addressed by this Settlement Agreement. However,

WildEarth Guardians reserves the right to seek fees and costs incurred in the future with respect

to the claims addressed by this Settlement Agreement if WildEarth Guardians reopens the

litigation based upon an alleged failure by EPA to meet its obligations under this Settlement

Agreement, or if EPA withdraws its consent to this Settlement Agreement following the noticeand-comment process discussed in Paragraph 8 above. EPA reserves all of its defenses with

respect to such future fees and costs, including WildEarth Guardians’ entitlement to such fees

and costs.

13. The undersigned representative of each Party certifies that he is 

fully authorized by the Party he represents to bind that Party to the terms of this Settlement

Agreement. 
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14. Any written notices or other written communications between the Parties

contemplated under this Settlement Agreement shall be sent to the undersigned counsel at the

addresses listed in the signature blocks below unless written notice of a change in counsel and/or

address is provided.

IGNACIA S. MORENO

Assistant Attorney General

Dated: 2/2/2010 s/David 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

david.a.carson@usdoj.gov

COUNSEL FOR EPA 

Dated: 1/20/2010 s/James J. Tutchton 

JAMES J. TUTCHTON

WildEarth Guardians

1536 Wynkoop St., Suite 301

Denver, Colorado 80202

(720) 301-3843

jtutchton@wildearthguardians.org

 s/Robert Ukeiley 

ROBERT UKEILEY

Law Office of Robert Ukeiley

435R Chestnut Street, Suite 1

Berea, Kentucky 40403

(859) 986-5402

rukeiley@igc.org

COUNSEL FOR WILDEARTH 

GUARDIANS 
EXHIBIT 1

Page 1 of 2

Montana SIPs

Item

No.

Governor’s

Letter Date

Title/Description Signature on

Proposed

Action

Signature on

Final Action

1. 04/14/1999 Stack Height Rules –

17.8.401-403

Stack Height Rule

revisions

06/30/2011 12/30/2011

2. 04/19/1999 Kraft Pulp Mill rule

Rule recod. and opacity None 06/30/2011

3. 08/25/1999 Subchapter 7

Permit, Construction and

Operation of Air

Contaminant Sources

None 03/31/2011

4. 03/06/2008 PM2.5 Attainment Plan

for Libby, MT

None 12/31/ 2010

Utah SIPs

Item

No.

Governor’s

Letter Date

Title/Description Signature on

proposed

action 

Signature on

final action

5. 10/09/1998 R307-401

Renumbering of NSR

rules

06/30/2011 12/30/2011

6. 01/08/1999 R307-413

Soil venting and aeration 06/30/2011 12/30/2011

7. 02/22/1999 1-hour ozone

maintenance plan

None 06/30/2011

8. 09/20/1999 Rules reorg.

Grouping of smaller

materials into a coherent

structure

06/30/2011 12/30/2011
EXHIBIT 1

Page 2 of 2

Utah SIPs, continued

Item

No.

Governor’s

Letter Date

Title/Description Signature on

proposed

action 

Signature on

final action

9. 12/10/1999 R307-202-5

Open burning 06/30/2011 12/30/2011

10. 03/30/2000 Ogden PM10 SIP Clean

Air Determina-tion

12/31/2011 06/30/2012

11. 04/17/2008 Utah R307-401-14

Used Oil Fuel Burned for

Energy Recovery

06/30/2011 12/30/2011

12. 05/08/2006 Utah Smoke Management Rules06/30/2011 12/30/2011

13. 03/07/2008 Utah NSR SIP revision

NSR Reform. Proposed

rule published 1/7/09.

06/30/2011

if re-proposal

is needed. 

Otherwise, not

applicable.

12/30/2011
EXHIBIT 2

Page 1 of 1

New Mexico SIPs

Item

No.

Governor’s

Letter Date 

Title/Description Signature on

Proposed Action

Signature on 

Final Action 

1. 04/11/2002 NM State Pt 73

Emissions Inventories 

None 01/02/2011

2. 04/11/2002 NM St Pt 72

Construction Permits 

04/01/2012 10/01/2012

3. 04/11/2002 NM St Air Quality

Control Act

04/01/2012 10/01/2012

4. 05/29/1998 NM Revisions to rules

for construction permits 

04/01/2012 10/01/2012