### 1 IN	THE	UNITED	STATES	DISTRICT	COURT FOR	THE	DISTRICT	OF	COLORADO No.	1:15‐cv‐00630‐MSK‐KLM WILDEARTH	GUARDIANS;	 	 	 ) HEAL	Utah;	 	 	 	 	 ) NATIONAL	PARKS	CONSERVATION	 ) ASSOCIATION;	and	 	 	 	 ) SIERRA	CLUB,	 	 	 	 ) ) Plaintiffs,	 	 	 ) ) v.	 	 	 	 	 ) ) UNITED	STATES	ENVIRONMENTAL	 ) PROTECTION	AGENCY;	 	 	 ) GINA	McCARTHY,	in	her	official	capacity	 ) as	Administrator	of	the	United	States	 ) Environmental	Protection	Agency;	and	 ) SHAUN	McGRATH,	in	his	official	capacity	 ) As	Regional	Administrator,	United	States	 ) Environmental	Protection	Agency,	 	 ) ) Defendants,		 	 	 ) ) and	 	 	 	 	 ) ) STATE	OF	UTAH,	on	behalf	of	the	Utah	 ) Department	of	Enviro nmental	Quality,	 ) Division	of	Air	Quality,	and	 	 	 ) PACIFICORP,	 	 	 	 	 ) ) Intervenor‐Defendants.	 ) ________________________________________________	) UNOPPOSED MOTION FOR ENTRY OF CONSENT DECREE

INTRODUCTION Plaintiffs	WildEarth	Guardians, HEAL	Utah,	National	Parks	Conse rvation Association,	and	Sierra	Club	and	Defendants	U.S.	Environmental Protection	Agency, Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 1 of 27

### 2 Administrator	Gina	McCarthy,	and	Regional	Administrator	Shaun	M cGrath (collectively	referred	to	herein	as	the	“Parties”)	jointly	movethe	Court	to	enter	the Consent	Decree,	attached	hereto	as	Attachment	A.		The	positions	of	Intervenor‐ Defendants	State	of	Utah	and	Pac ifiCorp	are	stated	herein,	but neither	objects	to entry	of	the	Consent	Decree. In	its	notice	of	lodging	the	pro posed	Consent	Decree	(August	25 ,	2015,	Dkt. #51),	EPA	explained	that	the	Parties	could	not	move	for	entry	o f	the	proposed Consent	Decree	until	the	public	p articipation	process,	requiredby	Section	113(g)	of the	Clean	Air	Act	(“CAA”	or	“Act”),	42	U.S.C.	§	7413(g),	was	co mpleted.		Notice	of availability	of	the	lodged	Consent	Decree	for	public	comment	wa s	published	in	the Federal	Register,	80	Fed.	Reg. 57,178	(Sept.	22,	2015).		The	on ly	two	substantive comments	received	were	from	the	Intervenors	in	this	case,	Pacif iCorp	and	the	State of	Utah.		However,	these	comments	do	not	oppose	the	establishme nt	of	deadlines	for EPA	to	issue	proposed	and	final	r ules	governing	the	Utah	region al	haze	state implementation	plan,	which	is	the	main	subject	of	the	Consent	Decree,	and	the gravamen	of	the	Complaint.			The	comments	suggested	certain	revisions	to	the Consent	Decree	and	stated	that	the	Intervenors	should	be	made	p arties	to	the Consent	Decree	with	respect	to	approving	proposed	revisions	to	the	deadlines	set forth	in	the	Decree,	receiving	notices,	and	participating	in	di spute	resolution processes.		EPA	made	several	cha nges	to	the	proposed	Consent	De cree	to	address certain	factual	issues	raised	inthe	comments,	but	has	determin ed	that	the comments	do	not	disclose	facts	orconsiderations	indicating	that	EPA’s	entry	into the	Consent	Decree	is	inappropriate,	improper,	inadequate,	or	i nconsistent	with	the Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 2 of 27

### 3 requirements	of	the	Act.		EPA	and	the	Department	of	Justice	have	therefore	elected not	to	withhold	or	withdraw	conse nt	to	entry	of	the	Consent	Dec ree	submitted	here. Accordingly,	the	Court	should	enter	the	Consent	Decree	attachedhereto. BACKGROUND A. Statutory Background Pursuant	to	the	Clean	Air	Act,	each	State	must	adopt	a	“State	I mplementation Plan”	(“SIP”)	that	includes	enfo rceable	emission	limitations	necessary	to	attain	the National	Ambient	Air	Quality	Stan dards	(“NAAQS”)	and	to	meet	al l	applicable requirements	of	the	Clean	Air	Act.		42	U.S.C.	§	7410(a)(1).		Th e	primary	purpose	of	a SIP	is	to	explain	what	regulations,	control	measures,	and	progr ams	the	State	will	use to	ensure	that	air	quality	stand ards	are	attained	and	maintaine d.		SIPs	must	be submitted	to	and	approved	by	EPA.		42	U.S.C.	§	7410(a)(1),	(k). In	1977,	Congress	enacted	42	U. S.C.	§	7491,	entitled	“Visibility	protection	for Federal	class	I	areas.” 1 

### Congress	declared	as	a	nationalgoal	“the	prevention	of	any future,	and	the	remedying	of	any existing,	impairment	of	visibi lity	in	mandatory class	I	Federal	areas	which	impa irment	results	from	man‐made	ai r	pollution.”		42 U.S.C.	§	7491(a)(1).		Congress	re quired	EPA	to	promulgate	regul ations	by	1979	to assure	“reasonable	progress”	toward	meeting	the	national	goal	i dentified	above	and compliance	with	the	requirements	of	42	U.S.C.	§	7491.		42	U.S.C .	§	7491(a)(4).		The regulations	require	implementation	plans	for	States	in	which	a	Class	I	area	exists (and	for	States	“the	emissions	from	which	may	reasonably	be	anticipated	to	cause	or

1“Federal	class	I	areas”	are	int ernational	parks,	wilderness	a reas	and	national	memorial	parks	over 5,000	acres	in	size,	and	nationa l	parks	over	6,000	acres.		42	U .S.C.	§	7472(a). 

### Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 3 of 27

### 4 contribute	to	any	impairment	of visibility”	in	such	Class	I	are a)	to	include	emission limits,	compliance	schedules,	an d	“other	measures	as	may	be	nec essary	to	make reasonable	progress	toward	meeti ng	the	national	goal.”		42	U.S. C.	§	7491(b)(2). Pursuant	to	EPA’s	regional	haze regulations,	States	were	requir ed	to	submit regional	haze	SIPs	to	EPA	for approval	by	December	17,	2007.		4 0	C.F.R.	§	51.308(b). EPA	must	then	act	on	the	State’s	submission.		Within	two	years after	the	EPA Administrator	(a)	finds	that	a	S tate	failed	to	make	a	required submission,	(b)	finds that	a	SIP	or	SIP	revision	submission	does	not	satisfy	statutory	minimum	criteria,	or (c)	disapproves	a	SIP	in	whole	or	in	part,	the	Administrator	isto	promulgate	a “Federal	Implementation	Plan”	(“FIP”),	unless	the	State	corrects	the	deficiency,	and the	Administrator	approves	the	p lan	or	plan	revision	before	theAdministrator promulgates	the	FIP.		42	U.S.C.	§	7410(c)(1). B. Factual background On	September	9,	2008,	and	May	2 6,	2011,	Utah	submitted	SIP	revisions	to EPA	that	addressed	regional	haze SIP	requirements.		These	SIP	r evisions superseded	and	replaced	earlier	regional	haze	SIP	submittals. On	October	30,	2012, EPA	disapproved	portions	of	Utah’ s	SIP	revision	regarding	the	S tate’s	“best	available retrofit	technology”	(“BART”)	de termination	for	Units	1	and	2	o f	the	Hunter	power plant	and	Units	1	and	2	of	the	H untingdon	power	plant.		77	Fed. Reg.	74,355	(Dec. 14,	2012). To	date,	EPA	has	not	promulgated	a	regional	haze	FIP	addressin g	those portions	of	Utah’s	SIP	disapproved	by	EPA	in	2012.		On	or	about January	21,	2015, Guardians	provided	EPA	with	written	notice	of	a	claim	that	EPA had	failed	to Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 4 of 27

### 5 promulgate	a	regional	haze	FIP	for	Utah;	HEAL	Utah	submitted	a	similar	claim	on	or about	January	29,	2015.		On	Marc h	27,	2015,	Guardians	filed	a	“ Complaint	for Declaratory	and	Injunctive	Relief”	in	the	United	States	District	Court	for	the	District of	Colorado.	Plaintiff	Guardians ’	Complaint	alleges	a	Clean	AirAct	citizen	suit	claim, 42	U.S.C.	§	7604(a)(2),	arguing	that	the	Administrator	has	not performed	a	non‐ discretionary	duty	to	promulgatea	regional	haze	FIP	for	Utah	within	the	statutory time	frame.		Guardians	seeks	a	de claratory	judgment	that	EPA	ha s	violated	the	Act by	failing	to	promulgate	a	regio nal	haze	FIP	for	Utah;	an	injun ction	compelling	EPA to	promulgate	a	FIP	by	a	time	ce rtain;;	and	an	award	of	Guardia ns’	costs	of	litigation. Complaint	at	9. On	March	31,	2015,	Plaintiffs	HEAL	Utah,	National	Parks	Conservation Association,	and	Sierra	Club	(the“HEAL	Utah	plaintiffs”)	fileda	similar	complaint. The	Court	consolidated	the	cases	on	July	9,	2015.		The	Court	th en	ordered	that HEAL Utah v. EPAbe	dismissed	and	that	all	subseq uent	pleadings	and	other	docum ents	be filed	under	the	1:15‐cv‐00630‐MSK‐KLM	case	number. The	State	of	Utah	and	PacifiCorp	were	granted	leave	to	interve ne	on	July	29, 2015.		On	June	11,	2015,	the	State	of	Utah	submitted	a	proposedrevised	regional haze	SIP	to	EPA	for	approval,	wh ich	EPA	is	currently	reviewing On	July	22,	2015,	pursuant	to	the	Court’s	order,	Guardians,	HE AL	Utah,	NPCA, and	Sierra	Club	filed	a	“Consoli dated	Amended	Complaint	for	Declaratory	and Injunctive	Relief”	(“ConsolidatedComplaint”)	in	the	consolidated	cases.		The Consolidated	Complaint	included the	same	claim	for	relief	and	p rayer	for	relief	as set	forth	in	the Guardians v. McCarthy and HEAL Utah v. EPAcomplaints. Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 5 of 27

### 6 C. The Consent Decree The	parties	to	the	Consent	Decree	are	WildEarth	Guardians,	theHEAL	Utah plaintiffs,	and	the	federal	defe ndants.		Pursuant	to	the	propos ed	Consent	Decree, EPA	agrees	that	on	or	before	December	16,	2015,	it	will	sign	a notice	proposing issuance	of	a	FIP	regarding	thos e	portions	of	the	Utah	SIP	revi sion	EPA	previously disapproved,	proposing	approval	o f	a	new	regional	haze	SIP	revi sion	submitted	to EPA	by	the	State	of	Utah	before that	date,	or	proposing	conditi onal	approval	of	a new	regional	haze	SIP	revision	submitted	to	EPA	by	the	State	of Utah	before	that date.		Decree,	Att.	A,	Paragrap h	4.			EPA	also	agrees	to	sign	anotice	of	final	action	on the	proposal	referenced	in	Paragraph	4	of	the	proposed	Decree, on	or	before	June	1, 2016. Id.,	Paragraph	5. The	rulemaking	deadlines	set	forth	above	may	be	extended	by	wri tten stipulation	between	the	Parties to	the	Decree	and	filed	with	th e	Court. Id., Paragraph	9.				However,	if	the	P arties	cannot	agree	on	an	exte nsion	or	any	other modification	of	the	Decree,	a	Party	to	the	Decree	may	file	a	motion	to	amend	the Decree. Id.		Dispute	resolution	provisions	are	included	at	Paragraph	16. No	motion to	enforce	the	Decree	or	for	contempt	may	be	filed	by	a	Party	u nless	it	has	complied with	the	dispute	resolution	provisions	of	Paragraph	17.		Intervenor‐Defendants	are not	identified	as	Parties	to	the	Decree. The	Decree	settles	Plaintiff	Guar dians’	claims	for	attorneys’	f ees	and	costs pursuant	to	42	U.S.C.	§	7604(d).		EPA	agrees	to	pay	$4,000	in	attorneys’	fees	and costs	to	Guardians	as	“full	settlement	of	all	claims	for	attorn eys’	fees,	costs,	and Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 6 of 27

### 7 expenses	incurred	in	this	litigation	through	the	date	the	Parti es	file	a	joint	motion	to enter	this	Consent	Decree	.	.	.	.”	Decree,	Att.	A,	Paragraph	7. Similarly,	the	Decree	also	settl es	the	HEAL	Utah	plaintiffs’	cl aims	for attorneys’	fees	and	costs	pursu ant	to	42	U.S.C.	§	7604(d).		EPAagrees	to	pay	$27,795 in	attorneys’	fees	and	costs	to the	HEAL	Utah	plaintiffs	as	“fu ll	settlement	of	all claims	for	attorneys’	fees,	costs ,	and	expenses	incurred	in	thi s	litigation	through	the date	the	Parties	file	a	joint	mo tion	to	enter	this	Consent	Decree	.	.	.	.” Id.,	Paragraph 8. ARGUMENT A. Standard of Review “The	initial	decision	to	approve	or	reject	a	settlement	proposa l	is	committed to	the	sound	discretion	of	the	trial	judge.” SEC v. Randolph, 736	F.2d	525,	529	(9th Cir.	1984), quoting Officers for Justice v. Civil Serv. Comm’n, 688	F.2d	615,	625	(9th Cir.	1982); accord, Jones v. Nuclear Pharmacy, Inc., 741	F.2d	322,	324	(10th	Cir. 1984).		Courts	generally	accord	sub stantial	deference	to	settle ments	because	“[t]he inveterate	policy	of	the	law	is to	encourage,	promote,	and	sustain	the	compromise and	settlement	of	disputed	claims.” Am. Home Assur. Co. v. Cessna Aircraft Co., 551 F.2d	804,	808	(10th	Cir.	1977), quoting Tulsa City Lines v. Mains, 107	F.2d	377,	380 (10th	Cir.	1939).		“In	exercising its	discretion,	the	trial	cou rt	must	approve	a settlement	if	it	is	fair,	reasonable	and	adequate.” Nuclear Pharmacy, Inc., 741	F.2d	at 324.		In	reviewing	a	consent	decree,	a	district	court	must	dete rmine	whether	the proposed	settlement	fairly	and	r easonably	resolves	the	controve rsy	in	a	manner Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 7 of 27

### 8 consistent	with	the	public	interest	and	the	applicable	law. United States v. Jones & Laughlin Steel Corp., 804	F.2d	348,	351	(6th	Cir.	1986). B. The Terms of the Proposed Consent Decree are Fair, Reasonable, Adequate, and in the Public Interest The	terms	of	the	Consent	Decree were	extensivelynegotiated	at arm’s	length by	the	Plaintiffs	and	Defendants.		Intervenor‐Defendants	did	no t	participate. Counsel	for	the	Parties	are	experienced	in	litigating	Clean	AirAct	citizens’	suit claims	such	as	those	set	forth	i n	the	amended	complaint.		The	u ltimate	terms	of	the Consent	Decree	are	the	product	of	numerous	offers	and	proposalsback	and	forth and	EPA’s	explanation	of	its	res ource	constraints	and	competingstatutory	priorities. The	attorneys’	fees	and	costs	se ttlement	was	based	on	contempor aneous	time records	presented	by	Plaintiffs	and	EPA’s	investigation	into	ap propriate	attorneys’ fee	rates	in	the	Denver	area. The	deadlines	set	forth	in	the	p roposed	Consent	Decree	take	acc ount	of	the statutory	mandates	of	the	Clean Air	Act,	but	also	recognize	the	resource	constraints and	competing	statutory	priorities	with	which	EPA	must	contend. The	Consent Decree	includes	provisions	for	modification	of	the	deadline	where	appropriate.		The agreement	memorialized	in	the	Consent	Decree	attached	hereto	istherefore reasonable. The	terms	of	the	Consent	Decree	submitted	with	this	Joint	Motio n	are adequate	in	that	they	resolve	cl aims	made	by	Plaintiffs	in	the amended	complaint, settle	Plaintiffs’	claims	for	litigation	costs	pursuant	to	42	U.S.C.	§	7604(d),	and provide	for	a	mechanism	by	which	the	Parties	may	adjust	the	dea dlines	in	the	event that	currently	unknown	contingen cies	occur	or	circumstances	cha nge. Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 8 of 27

### 9 The	Consent	Decree	also	serves	th e	purposes	of	the	Clean	Air	Act	and	the public	interest	because	it	provides	a	reasonable	schedule	for	E PA’s	mandated	action by	a	date	certain.		The	Consent	D ecree	terms	provide	certainty and	avoid	additional expenditure	of	judicial	resources	and	the	time	and	cost	to	the Parties. As	indicated	above,	substantive	comments	regarding	the	proposedConsent Decree	were	received	during	the	S ection	113(g)	public	comment	p eriod	from Intervenor‐Defendants	State	of	Utah	and	PacifiCorp.		Neither	Intervenor	challenged the	deadlines	set	forth	in	the	Consent	Decree. 2 

### However,	both	Utah	and	PacifiCorp commented	that	they	should	be	inc luded	in	Paragraphs	9	(extensi on	of	deadlines and	modifications	to	the	Decree) ,	15	(notice	requirements),	and16‐17	(dispute resolution).		Intervenors	did	not object	to	the	litigation	costsettlement	provisions	of Paragraphs	7	and	8. 3 

### In	general,	intervenors	do	not	have	a	right	to	veto	a	settlemen t	entered	into between	plaintiffs	and	defendants. San Juan County, Utah v. United States,	503	F.3d

2 

### The	proposal	and	final	deadlinesset	forth	in	th e	version	of	th e	Consent	Decree lodged	with	the	Court	and	made	available	for	pub lic	comment	wer e	November	19, 2015,	and	March	31,	2016,	respectively.		After	the	close	of	thecomment	period,	but before	filing	this	Joint	Motion to	Enter	Consent	Decree,	EPA	de termined	that	new information	received	and	developed	by	EPA	would	necessitate	an extension	of	those deadlines	to	December	16,	2015,	for	signature	on	a	proposal,	and	to	June	1,	2016, for	signature	on	final	action	onthe	proposal.		The	parties	to the	Decree	agreed	to such	extensions,	but	the	HEAL	Utah	plaintiffs’	agreement	was	conditioned	on	EPA’s representation	that	it	would	make	a	copy	of	the	proposed	rule	available	to	them	no later	than	December	16,	2015. 3 

### The	litigation	cost	settlements	in	the	Consent	Decree	attached	to	this	Joint	Motion were	modified	from	the	lodged	Con sent	Decree	to	reflect	that	th e	releases	granted pursuant	to	the	Decree	run	through	the	date	of	filing	of	this	J oint	Motion	(as opposed	to	the	date	the	original	Consent	Decree	was	lodged)	andincreasing	the amount	of	the	settlement	as	to	th e	HEAL	Utah	Plaintiffs	from	$2 2,525.00	to $27,795.00. Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 9 of 27

### 10 1163,	1189	(10 th

### Cir.	2007).		Intervenors	here	have	not	objected	to	inclusion	o f deadlines	for	EPA	action	in	settling	this	consolidated	action. The	Parties	to	the Decree	submit	that	the	time	withi n	which	EPA	may	discharge	its discretionary	duty is	within	its	own	knowledge,	andthere	is	no	reason	that	partic ipation	by Intervenors	in	modification	of	the	deadlines	or	dispute	resolution	should	be	made an	order	of	the	Court.		Interveno r‐Defendants	believe	that	it	w ould	be	best	if	they were	included	in	the	provisions of	the	Consent	Decree.		Moreove r,	as	intervenors	in this	case,	they	may	attempt	to	b e	heard	in	future	Court	proceed ings,	if	they	occur. The	Parties	therefore	jointly	co nclude	that	the	settlement	set forth	in	the Consent	Decree	is	fair,	reasonable,	in	the	public	interest,	andconsistent	with	the Clean	Air	Act,	and	should	therefore	be	entered	by	the	Court. CONCLUSION For	the	foregoing	reasons,	the	Court	should	grant	this	unoppose d	motion	for entry	of	the	Consent	Decree	and	enter	the	Consent	Decree. Respectfully	submitted, FOR	WILDEARTH	GUARDIANS: Dated:	Dec.	8,	2015 /s/ Samantha Ruscavage

‐ Barz WildEarth	Guardians 516	Alto	Street Santa	Fe,	NM 87501 ( 505)	401‐4180 sruscavagebarz@wildearthguardians.org FOR	HEAL	UTAH,	NATIONAL	PARKS CONSERVATION	ASSOCIATION,	AND SIERRA	CLUB: Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 10 of 27

### 11 Dated:	Dec.	8,	2015 /s/Jenny Harbine EARTHJUSTICE 313	East	Main	Street Bozeman,	MT 59715 ( 406)	586‐9699 jharbine@earthjustice.org Dated:	Dec.	8,	2015 /s/John Barth Attorney	at	Law P.O.	Box	409 Hygiene,	CO 80533 ( 303)	774‐8868 barthlawoffice@gmail.com FOR	UNITED	STATES	ENVIRONMENTAL PROTECTION	AGENCY,	ADMINISTRATOR GINA	McCARTHY,	AND	REGIONAL ADMINISTRATOR	SHAUN	McGRATH: JOHN	C.	CRUDEN Assistant	Attorney	General Environment	and	Natural	Resources Division Dated:	Dec.	8,	2015	 	 	 By: /s/ Daniel Pinkston DANIEL	PINKSTON Environmental	Defense	Section Environment	and	Natural	Resources Division U.S.	Dept.	of	Justice 999	18 th

### Street South	Terrace,	Suite	370 Denver,	Colorado		80202 ( 303)	844‐1804 daniel.pinkston@usdoj.gov Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 11 of 27

### 12 CERTIFICATE	OF	SERVICE I	hereby	certify	that	I	served	a	copy	of	the	foregoing	UNOPPOS ED	MOTION FOR	ENTRY	OF	CONSENT	DECREE	by	No tice	of	Electronic	Filing	using	the	Court’s CM/ECF	system,	which	will	send	notice	of	such	filing	via	email to	all	counsel	of record. Said	filing	was	made	one or	before	December	8,	2015. By:	 /s/	Daniel	Pinkston Environmental	Defense	Section U.S.	Department	of	Justice Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 12 of 27

# ATTACHMENT A

Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 13 of 27IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO No. 1:15-cv-OOb30-MSK-KLM WILDEARTH GUARDIANS; HEAL Utah; NATIONAL PARKS CONSERVATION ASSOCIATION; and SIERRA CLUB,

Plaintiffs,

v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; GINA McCARTHY,in her official capacity as Administrator of the United States Environmental Protection Agency; and SEAN McGRATH,in his official capacity as Regional Administrator, United States Environmental Protection Agency,

Defendants, and STATE OF UTAH,on behalf of the Utah Department of Environmental Quality, Division ofAir Quality, and ) PACIFICORP,
Intervenor-Defendants.

CONSENT DECREE This Consent Decree ("Decree") is entered into by Plaintiffs WildEarth Guardians ("Guardians"), HEAL Utah, National Parks Canservarion Association ("NPCA"),and Sierra Club and Defendants U.S. Environmental Protection Agency,

1 

### Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 14 of 27Administrator Gina McCarthy, and Regional Administrator Shaun McGrath

(collectively "EPA"). Guardians, HEAL Utah, NPCA,Sierra Club, EPA,Administrator McCarthy, and Regional Administrator McGrath are described herein as the "Parties."

• ~ . A. Pursuant to the Clean Air Act ("Act"), each State must adopt a "State Implementation Plan" ("SIP") that includes enforceable emission limitations necessary to attain the National Ambient Air Quality Standards ("NAAQS")and to meet all applicable requirements of the Clean Air Act ("CAA" or "Act"). 42 U.S.C. § 7410(a)(1). The primary goal of a SIP is to explain what regulations, control measures,and programs the State will use to ensure that air quality standards are attained and maintained. SIPS must be submitted to and approved by EPA. 32 U.S.C.

B. In 1977,Congress enacted 42 U.S.C. § 7491,entitled "Visibility protection for Federal Class I areas." Congress declared as a national goal "the prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from man-made air pollution." 42 U.S.C. § 7491(a)(1). Congress required EPA to promulgate regulations by 1979 to assure "reasonable progress" toward meeting the national goal identified above and compliance with the requirements of 42 U.S.C. § 7491. 42 U.S.C. § 7491(a)(1). The regulations require implementation plans for States in which a Class I area exists (and far States "the emissions from which may reasonably be anticipated to cause or contribute to any impairment of visibility" in



### 0 Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 15 of 27such Class I area) to include emission limits, compliance schedules, and "other

measures as maybe necessary to make reasonable progress toward meeting the national goal." 42 U.S.C. § 7491(b)(2). Pursuant to EPA's regional haze regulations, States were required to submit regional haze SIPS to EPA for approval by December 17, 2007. 40 C.F.R. § 51.308(b). C. On September 9, 200$, and May 26, 2011, Utah submitted SIP revisions to BPA that addressed regional haze SIP requirements. These SIP revisions superseded and replaced earlier regional haze SIP submitCals. On October 30, 2012, EPA disapproved portions of Utah's SIP revision regarding the State's "best available retrofit technology" ("BART")determination for Units 1 and 2 of the Hunter power plant and Units 1 and 2 of the Huntingdon power plant. 77 Fed. Reg. 74,355 (Dec. 14, 2012). D. Within two years after the EPA Administrator (a)finds that a State failed to make a required submission, (b) finds that a SIP or SIP revision submission does not satisfy statutory minimum criteria, or (c) disapproves a SIP in whole or in part, the Administrator is to promulgate a "Federal Implementation Plan" ("FIP"), unless the State corrects the deficiency, and the Administrator approves the plan or plan revision before the Administrator promulgates the FIP. 42 U.S.C. § 7410(c)(1). E. EPA has not promulgated a regional haze FIP for the State of Utah. F. On or about January 21, 2015, Guardians provided EPA with written notice of a claim that EPA had failed to promulgate a regional haze FIP for Utah; HEAI. Utah submitted a similar claim on or about January 29, 2015.

3 

### Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 16 of 27G. On March 27, 2015, Guardians filed a "Complaint for Declaratory and

Injunctive Relief' in the United States District Court for the District of Colorado. Plaintiff Guardians states that it brought the Complaint pursuant to the Clean Air Act's citizen suit provision, 42 U.S.C. § 7604(a)(2), in that it alleges that the Administrator has not performed anon-discretionary duty to promulgate a regional haze FIP for Utah within the statutory time frame. H. In its prayer for relief, Guardians requests (a) a declaratory judgment that EPA has violated the Act by failing to promulgate a regional haze FIP for Utah; (b)an injunction compelling EPA to promulgate a FIP by a time certain; (c) an order that the court retain jurisdiction until EPA has complied; and (d~ an award of Guardians' costs of litigation. Complaint at 9, I. On March 31, 2015, Plaintiffs HEAL Utah, National Parks Conservation Association, and Sierra Ciub filed a "Complaint for Declaratory and Injunctive Relief," against the United States Environmental Protection Agency, EPA Administrator McCarthy,and EPA Region VIII Administrator Shaun McGrath, in which they asserted the same claim and prayer for relief as asserted by Guardians in Guardians v. McCarthy. HEAL Utah v. II.S. Environmental Protection Agency, Case No. 1:15-cv-Q0666 (D. Colo.) ("HEAL v EPA"). The Guardians v. McCarthy and HEAL Utah

v. EPA cases were consolidated into Guardians a McCarthy on July 9, 2015. The Court ordered that the HEAL Utah v EPA action be dismissed and that all subsequent pleadings and other documents be filed under the 1:15-cv-00630-MSK-KLM case number.

4 

### Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 17 of 27J. The State of Utah and PacifiCorp were granted leave to intervene on

July 29, 2015. K. On June 11, 2015, the State of Utah submitted a proposed revised regional haze SIP to EPA for approval. L. On July 22, 205, pursuant to the Court's order, Guardians, HEAL Utah, NPCA,and Sierra Club filed a "Consolidated Amended Complaint for Declaratory and Injunctive Relief' ("Consolidated Complaint") in the consolidated cases. The Consolidated Complaint included the same claim for relief and prayer for relief as set forth in the Guardians v. McCarthy and HEAL Utah v EPA complaints. M. The Parties wish to effectuate a settlement of this case without expensive and protracted Iitigation, and without a litigated resolution of any issue of law or fact. N. The Parties consider this Decree to be an adequate and equitable resolution of the claims of this case and consent to entry of this Decree. Q. The Court, by entering this Decree,finds that this Decree is fair, reasonable,in the public interest, and consistent with the Clean Air Act. GENERAL PROVISIONS NOW THEREFORE,before the taking of testimony, without trial or determination of any issue of law or fact, and upon the consent of the Parties, it is hereby fJRDERED,

ADJUDGED,and DECREED that: 1. This Court has subject matter jurisdiction over the claims set forth in the Consolidated Complaint and to order the relief contained in this Decree. Venue is proper in the United States District Court for the District of Colorado.

S 

### Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 18 of 27The Parties shall not challenge the terms of this Decree or this Court's

jurisdiction to enter and enforce this Decree in any formal administrative or judicial forum. This Decree constitutes a complete and final resolution of all claims that have been asserted in the Guardians Complaint and in the HEAL Utah Complaint, and in the Consolidated Complaint

This Decree shall become effective upon the date of iCs entry by the Court. If for any reason the Court does not enter this Decree,the obligations set forth in this Decree are null and void. 4. On or before December 16, 2015,the appropriate EPA official will sign

a notice proposing issuance of a FIP regarding those portions of the Utah SIP revision EPA previously disapproved, proposing approval of a new regional haze SIP revision submitted to EPA by the State of Utah before that date, or proposing conditional approval of a new regional haze SIP revision submitted to EPA by the State of Utah before that date. 5. On or before June 1, 2016,the appropriate EPA official will sign a notice of final action regarding the proposal referenced in Paragraph 4. 6. Within fifteen business days following the signature of the notice of a proposed and final rulemaking pursuant to Paragraphs 4 and 5 above, EPA shall submit the notice for review and publication by the Office of the Federal Register. 7. The United States agrees to pay Guardians as full settlement for all claims for attorneys' fees, costs, and expenses incurred in Guardians v. McCarthy and the consolidated case, through the date the Parties file a joint motion to enter this Consent Decree, under any authority, the sum of $4,000.00, as soon as reasonably



### 0 Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 19 of 27practicable following entry of this Consent Decree, by electronic funds transfer to a

bank account identified by Guardians. Guardians agrees to accept $4,Q00.00 in full satisfaction of any and all claims for costs and attorneys'fees with respect to Guardians v. McCarthy and the consolidated case, except that Guardians reserves the right to seek costs and fees pursuant to 42 U.S.C. § 7604(d)for any additional work performed after the date the Parties file a joint motion to enter this Consent Decree, including costs and attorneys' fees for any extensions of the deadline set forth in Paragraphs 4 or 5 requested by EPA and costs and attorneys' fees for enforcement of the Consent Decree in the future. Nothing in this Paragraph shall be construed as
an admission or concession by EPA that Guardians is entitled to or eligible for recovery of any costs or attorneys'fees, and EPA reserves all defenses with respect to any future cost or fee claim. The amount of attorneys' fees or rates under this Paragraph shall have no precedential value in any future fee claim. 8. The United States agrees to pay HEAL Utah, NPCA,and Sierra Club, as full settlement for all claims for attorneys'fees, costs, and expenses incurred in HEAL UTAH v. EPA and the consolidated case, through the date the Parties file a joint motion to enter this Consent Decree, under any authority, the sum of $27,795.00, as
soon as reasonably practicable following entry of this Consent Decree,by electronic funds transfer to a bank account identified by HEAL Utah, NPCA,and Sierra Club. HEAL Utah, NPCA,and Sierra CIub agree to accept $27,795.00 in full satisfaction of any and all claims for costs and attorneys'fees with respect to HEAL Utah v. EPA and the consolidated case, except that HEAL Utah, NPCA,and Sierra Club reserve the right to seek costs and fees pursuant to 42 U.S.C. § 7604~dj for any additional work

7 

### Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 20 of 27performed after the date tl~.e Parties file a joint motion to enter this Consent Decree,

including costs and attorneys' fees for any extensions of the deadline set forth in Paragraphs 4 or 5 requested by EPA and costs and attorneys' fees for enforcement of the Consent Decree in the future. Nothing in this Paragraph shall be construed as

an admission or concession by EPA that HEAL Utah, NPCA, or Sierra Club is entitled to or eligible for recovery of any costs or attorneys' fees, and EPA reserves all defenses with respect to any future cost or fee claim. The amount of attorneys' fees

or rates under this Paragraph shall have nfl precedential value in any future fee claim. 9. The Parties do not anticipate any need to extend the deadlines set forth in Paragraphs 4 and 5. Such deadlines maybe emended,however, by written stipulation executed by the Parties and filed with the Court. Any other request for

an extension of the deadline in Paragraphs 4 or 5 may be approved by the Court upon motion made by any Party to this Decree for good cause shown and upon consideration of any response and any reply. Any other provision of this Decree may also be modified by the Court for goad cause shown and upon consideration of any response by anon-moving Party and any reply. 10. If an EPA lapse in appropriations occurs within 120 days prior to the deadline set forth in Paragraph 4 or in Paragraph 5, or after the deadline set forth in Paragraph 4 or Paragraph 5 but before the deadline in Paragraph 6, that deadline shall be extended automatically one day for each day of the lapse in appropriations. Nothing in this paragraph shall preclude EPA from seeking an additional extension, either by stipulation or by Court order, pursuant to the procedures of Paragraph 7. 

### Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 21 of 2711. Nothing in this Consent Decree shall be construed to limit or modify

any discretion accorded EPA by the Act or by general principles of administrative law in taking the action that is 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 by Paragraphs 4 and 5 by the time specified therein does not constitute a limitation or modification of EPA's discretion within the meaning of this Paragraph. 12. Nothing in this Decree shall be construed as an admission of any issue of fact or law nor to waive or limit any claim, remedy, or defense, on any grounds, related to any final action EPA may take with respect to the EPA actions identified in Paragraphs 4 or 5. 13. Nothing in this Decree shall be construed to confer upon the District Court jurisdiction to review any final decision made by EPA pursuant to this Decree. Nothing in this Decree shall be construed to confer upon the District Court jurisdiction to review any issues that are within the exclusive jurisdiction of the United States Court ofAppeals pursuant to the Act, 42 U.S.C. §§ 7607(b)(1), 7661d. 1Vothing in this Decree shall be construed to waive any claims, remedies, ar defenses the Parties may have under 42 U.S.C. § 7607(b}(1). 14. The Parties recognize and acknowledge that the obligations imposed upon EPA under this Decree can only be undertaken using appropriated funds legally available for such purpose. No provision of this Decree shall be interpreted

or constitute a commitment or requirement that EPA obligate or pay funds in



### 0 Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 22 of 27contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable

provision of Iaw. 15. Any notices required or provided For by this Decree shall be made in writing and sent via email to the following

For Guardians: Samantha Ruscavage-Barz WildEarth Guardians sruscavagebarz wildeart ua~dians t~

For HEAL Utah, National Parks Conservation Association and Sierra Club: jenny K. Harbine EARTHjUSTICE ~arbineC~earthjustice.or,~ john Barth Attorney at Law barthlawoffice@gmail.com 1 •_ ': Daniel Pinkston Environmental Defense Section U.S. Dept. of Justice Daniel.~ink~ton usc~o.~~ov Elyana Sutin Office of Regional Counsel BPA Region 8 Su~in.elyana(~e~a,.gov 16. In the event of a dispute among the Parties concerning the interpretation, implementation, or enforcement of any aspect of this Decree, the disputing Parry shall provide the other Party with a written notice outlining the nature of the dispute and requesting informal negotiations, The Parties shall meet

10 

### Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 23 of 27and confer in order to attempt to resolve the dispute. If the Parties cannot reach an

agreed -upon resolution within ten business days after receipt of the notice, any Party may move the Court to resolve the dispute. 17. No motion or other proceeding seeking to enforce this Decree shall be properly filed unless the Party seeking to enforce this Decree has first exhausted the procedure set forth in Paragraph 16. 18. The Court shall retain jurisdiction to determine and effectuate compliance with this Decree and to resolve any disputes thereunder. After EPA's obligations under Paragraphs 4 and 5 have been completed, this Decree shall be terminated. The Parties may either jointly notify the Court that the Decree should be terminated and the case dismissed, or EPA may notify the Court by motion,and Guardians and/or the HEAL Plaintiffs shall have twenty days to respond to such motion. 19. The Parties agree and acknowledge that final approval and entry of this proposed Decree are subject to the requirements of 42 U.S.C. § 7413(g), which provides that notice of this proposed Decree shall be given to the public and that the public shall have a reasonable opportunity to commend EPA will promptly deliver a public notice of this Decree to the Office of the Federal Register for publication and public comment after lodging this Decree with the Court. After this Decree has undergone an opportunity for notice and comment, BPA's Administrator and/or the United Sates Attorney General, as appropriate, shall promptly consider any written comments in determining whether to withdraw or withhold consent to this Decree, in accordance with 42 U.S.C. § 7413(8). If the Administrator andJor the Attorney

11 

### Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 24 of 27General elects not to withdraw or withhold consent to this Decree,the Parties shall promptly file a motion that requests the Court to enter this Decree. If the Administrator and/or Attorney General elects to withdraw or withhold consent to this Decree pursuant to 42 U.S.C. § 7613{g~,EPA shall promptly advise Plaintiffs. 2d. It is hereby expressly understood and agreed that this Decree was jointly drafted by the Parties and that any and all rules of construction to the effect that ambiguity is construed against the drafting party shalt be inapplicable in any dispute concerning the terms,meaning,or interpretation ofthis Decree. 21. The undersigned representatives of each Party certify that they are fully authorized by the Party they represent to bind that Party to the terms of this Decree. SO ORDERED this ~day of

F WII.UEATH RDIANS: DaCed:.~~~ 2015 ~1 ~~i' ;t%~~

_ ~ ,~~~~~ ildEarth Guard ans 516 Alta Street Santa Fe,NM 875U1 (5U5)401-4180 sruscavagebar~~wildearth~uard ians.or~ FOR HEAL UTAH,

NATIONAL PARKS CONSERVATION ASSQCIATiON, AND SIERRA CLUB: Dated:~c~ , ~ t 2015 ~ _~~~~ "5 t..^-`,~- .~, l ,~,~n~~~iwt.. EARTHJUSTICE 31S East Main 5trest

2015.

United States District Judge SO AGREED:

~~a 

### Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 25 of 27General elects nat to withdraw or withhold consent to this Decree,the Parties shall promptly file a rnotian that requests the Court to enter this Decree. If the Administrator andJor Attorney General elects to withdraw or withhold consent to this Decree pursuant to 42 U.S.C. § 7613(8), EPA shall pramptiy advise Plaintiffs. 20. It is hereby expressly understood and agreed that this Decree was jointly drafted by the Parties and that any and ali rules of construction to the effect that ambiguity is construed against the drafting party shall be inapplicable in any dispute concerning the terms, meaning, or interpretation of this Decree. 21. The undersigned representatives ofeach Party certify that they are Fully authorized by the Party they represent to bind that Party to the terms of this
Decree. SO ORDERED this.._ day of 2015.

United States District Judge SO AGREED: FOR tNILDEARTH GUARDIANS: Dated:

__ __. ,

2015 WildEarth Guardians 516 Alto Street Santa Fe, NM 87501 (5a5)401-4180 sruscavagebarzC~wild~~~t~i,~uar ~R~,g FOR HEAL UTAH,

NATIt~IVAL PARKS CONSEI2VATlflN ASSOCIATION,AI~iD SIERRA CLUB: r Bated:~+''~ ~3 2Q15 ~--_...___ `•^~- ` I ~ EARTHJUSTICE 31S East Main Street

1Z 

### Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 26 of 27Bozeman,MT 59715 (405 586-9699 iharbineC~%e~r~}~'ustice.or~ ~l~- c Dated• ~~~ `2015 `'~`"•° ~" "".""- Attorney a[ Law P,O. Box 409 Hygiene, CO 80533 (303) 774-8868 ba rthla~vofficeta~~►nail.com FOR UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

ADMINISTRATOR GINA McCARTHY,

AND REGIONAL ADMINISTRATOR SHAUN McGRATH; JOHN C. CRUDEN Assistant Attorney General Environment anc! Natural Resources Division

Dazed; e~'j ~' .2015 By: ~ ~ ~ ---- D NOEL FINKSTON Environmental Defense Section Environment and Natural Resources Division U.S. Dept. of Justice 99918th Street South Terrace,Suite 370 Denver, Colorado 80202 (3d3)844-1$44 

### ~~.~~~~k~~~taC~us_v

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### Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 27 of 27