IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 1:11-cv-02227-WJM-KLM

WILDEARTH GUARDIANS,

Plaintiff,

v.

LISA P. JACKSON, in her official capacity as

Administrator, United States Environmental 

Protection Agency,

Defendant.

CONSENT DECREE

This Consent Decree (“Consent Decree”) is entered into by Plaintiff WildEarth

Guardians (“Plaintiff” or “WildEarth”) and by Defendant Lisa P. Jackson, Administrator

of the United States Environmental Protection Agency (“Defendant” or “EPA”).

WHEREAS, Plaintiff filed this action pursuant to Section 304(a)(2) of the Clean

Air Act (“CAA”), 42 U.S.C. § 7604(a)(2), alleging that Defendant Lisa P. Jackson,

Administrator of the United States Environmental Protection Agency, failed to perform a

duty mandated by CAA section 505(b)(2), 42 U.S.C. § 7661d(b)(2), to grant or deny,

within 60 days, an administrative petition (“Petition”) submitted by Plaintiff. The Petition

requested that EPA object to a Title V Operating Permit issued by the Colorado

Department of Public Health and Environment, Air Pollution Division, to CF&I Steel,

d/b/a EVRAZ Rocky Mountain Steel, to operate its steelmaking facility in Pueblo,

Colorado (“Permit”); 

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WHEREAS, Plaintiff and EPA (collectively, the “Parties”) wish to effectuate a

settlement of the above-captioned case without expensive and protracted litigation, and

without a litigated resolution of any issue of law or fact;

WHEREAS, the Parties consider this Consent Decree to be an adequate and

equitable resolution of the claims in the above-captioned case and consent to entry of

this Consent Decree; and

WHEREAS, the Court, by entering this Consent Decree, finds that this Consent

Decree is fair, reasonable, in the public interest, and consistent with the CAA, 42 U.S.C.

§§ 7401 et seq.

NOW THEREFORE, before the taking of testimony, without trial or determination

of any issue of fact or law, and upon the consent of the Parties, it is hereby ORDERED,

ADJUDGED, and DECREED that:

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

Complaint related to Plaintiff’s Petition on the Permit and to order the relief contained in

this Consent Decree. Venue is proper in the United States District Court for the District

of Colorado.

2. By May 31, 2012, or within 30 days of the entry date of this Consent Decree,

whichever date is later, EPA shall sign its response to the Petition. Within 15 days

following signature of such response, EPA will deliver notice of such action on the

Petition to the Office of the Federal Register for publication. 

3. The United States agrees to pay Plaintiff as full settlement of all claims for

attorney’s fees, costs, and expenses incurred in this litigation through the date of

lodging this Consent Decree, under any authority, the sum of $ 2,535.00, as soon as

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reasonably practicable following entry of this Consent Decree, by electronic funds

transfer to a bank account identified by Plaintiff. Plaintiff agrees to accept $ 2,535.00 in

full satisfaction of any and all claims for costs and attorney’s fees with respect to this

case, except that Plaintiff reserves the right to seek fees pursuant to 42 U.S.C. §

7604(d) for any additional work performed after the lodging of this Consent Decree,

including costs and attorney’s 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 Plaintiff is entitled to or eligible for recovery of any costs or attorney’s fees, and

EPA reserves all defenses with respect to any future fee claim. The amount of

attorney’s fees or rates under this Paragraph shall have no precedential value in any

future fee claim.

4. Any provision of this Consent Decree may be modified by (a) written

stipulation of the Parties with notice to the Court, or (b) by the Court following motion of

any Party to this Consent Decree, pursuant to the Federal Rules of Civil Procedure, and

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

5. Plaintiff and EPA shall not challenge the terms of this Consent Decree or this

Court’s jurisdiction to enter and enforce this Consent Decree.

6. Nothing in this Consent Decree 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 the subject of this Consent Decree, including the discretion

to alter, amend, or revise any responses or final actions contemplated by this Consent

Decree. EPA’s obligation to perform the actions specified by Paragraph 2 by the time

specified therein does not constitute a limitation or modification of EPA’s discretion

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within the meaning of this paragraph.

7. Nothing in this Consent Decree shall be construed as an admission of any

issue of fact or law nor to waive or limit any claim or defense, on any grounds, related to

any final action EPA may take with respect to the Permit.

8. Nothing in this Consent Decree shall be construed to confer upon the district

court jurisdiction to review any final decision made by EPA pursuant to this Consent

Decree. Nothing in this Consent 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 of Appeals pursuant to CAA section 307(b)(1) and 505, 42 U.S.C.

§§ 7607(b)(1), 7661d. Nothing in this Consent Decree shall be construed to waive any

remedies or defenses the Parties may have under CAA section 307(b)(1), 42 U.S.C. §

7607(b)(1).

9. The Parties recognize and acknowledge that the obligations imposed upon

EPA under this Consent Decree can only be undertaken using appropriated funds

legally available for such purpose. No provision of this Consent Decree shall be

interpreted as or constitute a commitment or requirement that the United States

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

any other applicable provision of law.

10. Any notices required or provided for by this Consent Decree shall be made

in writing, via facsimile or other means, and sent to the following:

For Plaintiff:

ASHLEY D. WILMES, Esq.

WildEarth Guardians

827 Maxwell Avenue, Suite L

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Boulder, CO 80304

(859) 312-4162

awilmes@wildearthguardians.org

JAMES J. TUTCHTON, Esq.

WildEarth Guardians 

6439 East Maplewood Avenue

Centennial, CO 80111

(720) 301-3843

jtutchton@wildearthguardians.org

For Defendant:

DANIEL PINKSTON

Environmental Defense Section

Environment and Natural Resources Division

U.S. Department of Justice

999 18 Street th

South Terrace, Suite 370

Denver, CO 80202

(303) 844-1804

Fax: (303) 844-1350

daniel.pinkston@usdoj.gov

MELINA WILLIAMS

Office of General Counsel

U.S. EPA

Mail Code 2344A

Ariel Rios Building

1200 Pennsylvania Avenue, N.W.

Washington, D.C. 20460

(202) 564-3406

Fax: (202) 564-5603

williams.melina@epa.gov

SARA LAUMANN

Office of Regional Counsel

USEPA Region 8

1595 Wynkoop Street

Mail Code: 8RC

Denver, CO 80202-1129

(303) 312-6443

Fax: (303) 312-6859

laumann.sara@epa.gov

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11. In the event of a dispute among the Parties concerning the interpretation or

implementation of any aspect of this Consent Decree, the disputing Party shall provide

the other Party with a written notice outlining the nature of the dispute and requesting

informal negotiations. 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.

12. No motion or other proceeding seeking to enforce this Consent Decree or

for contempt of court shall be properly filed unless Plaintiff has followed the procedure

set forth in Paragraph 11, and provided EPA with written notice received at least ten

business days before the filing of such motion or proceeding.

13. The Court shall retain jurisdiction to determine and effectuate compliance

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

4 of this Consent Decree, and to resolve any disputes in accordance with Paragraph 11

of this Consent Decree. When EPA’s obligations under Paragraphs 2 and 3 have been

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

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

and the case dismissed, or EPA may so notify the Court by motion, and Plaintiff shall

have twenty days in which to respond to such motion.

14. The Parties agree and acknowledge that before this Consent Decree could

be finalized and entered by the Court, EPA had to provide notice in the Federal

Register and an opportunity for comment pursuant to CAA section 113(g), 42 U.S.C. §

7413(g). The record shows that the EPA did so and has now moved the Court for entry

of this Consent Decree.

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15. It is hereby expressly understood and agreed that this Consent Decree was

jointly drafted by Plaintiff and EPA 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 terms, meaning, or interpretation of this Consent Decree.

16. 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 Consent

Decree.

Dated this 10 day of April, 2012. th

BY THE COURT:

 

William J. Martínez 

United States District Judge

SO AGREED:

FOR PLAINTIFF:

 /s/ Ashley D. Wilmes 

ASHLEY D. WILMES, Esq.

WildEarth Guardians

827 Maxwell Avenue, Suite L

Boulder, CO 80304

(859) 312-4162

awilmes@wildearthguardians.org

JAMES J. TUTCHTON, Esq.

WildEarth Guardians 

6439 East Maplewood Avenue

Centennial, CO 80111

(720) 301-3843

jtutchton@wildearthguardians.org

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FOR DEFENDANT:

IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

By: /s/ Daniel Pinkston 

DANIEL PINKSTON

Environmental Defense Section

Environment and Natural Resources Division

U.S. Department of Justice

1961 Stout Street, 8 Floor

th

Denver, CO 80294

(303) 844-1804

daniel.pinkston@usdoj.gov

DATED: January 17, 2012

JOHN WALSH

United States Attorney

STEPHEN TAYLOR

Assistant United States Attorney

District of Colorado

1225 Seventeenth Street, Suite 700

Denver, CO 80202

(303) 454-0100

stephen.taylor@usdoj.gov

Of Counsel for Defendant:

MELINA WILLIAMS

Office of General Counsel

U.S. EPA

Mail Code 2344A

Ariel Rios Building

1200 Pennsylvania Avenue, N.W.

Washington, D.C. 20460

(202) 564-3406

SARA LAUMANN

Office of Regional Counsel

USEPA Region 8

1595 Wynkoop Street

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Mail Code: 8RC

Denver, CO 80202-1129

(303) 312-6443

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