  SEQ CHAPTER \h \r 1 UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

SIERRA CLUB,

		Plaintiff,

	v.

LISA JACKSON, Administrator of the United States Environmental
Protection Agency,

		Defendant.

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Case No. 09-cv-0751









CONSENT DECREE

WHEREAS, Plaintiff Sierra Club 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 Jackson, Administrator of the United States
Environmental Protection Agency (“EPA”), 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 submitted by
Plaintiff requesting that EPA object to a Title V Operating Permit
issued by the Wisconsin Department of Natural Resources to Wisconsin
Public Service Corporation’s J.P. Pulliam Generating Station
(“Pulliam”) in Green Bay, Wisconsin. 

WHEREAS, Plaintiff and EPA (collectively the “Parties”) wish to
effectuate a settlement of the above-captioned case without expensive
and protracted litigation.

WHEREAS, the Parties consider this Decree to be an adequate and
equitable resolution of the claims in the above-captioned case.

WHEREAS, the Court, by entering this Decree, finds that this 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 administrative petition on the
Pulliam permit and to order the relief contained in this Decree.  Venue
is proper in the United States District Court for the Western District
of Wisconsin.	

2.	By June 4, 2010, or within 20 days after the entry date of this
Consent Decree, whichever date is later, EPA shall sign its response to
the administrative petition dated June 25, 2009, regarding the Title V
permit for Pulliam that was submitted to EPA by Plaintiff.

Within 15 business days following signature of such response(s), EPA
shall:

deliver notice of such action on the Pulliam permit to the Office of the
Federal Register for prompt publication; and

transmit EPA’s determination, if an objection in whole or in part, to
the Wisconsin Department of Natural Resources, 101 S. Webster Street, PO
Box 7921, Madison, WI 53707-7921, (608) 261-4380 (Fax), pursuant to 40
C.F.R. § 70.7(g)(1). 

4.	The United States agrees to pay Plaintiff as full settlement of all
claims for attorneys’ fees, costs, and expenses incurred, under any
authority, the sum of $2,624.71 as soon as reasonably practicable
following entry of this Decree, by electronic funds transfer to a bank
account identified by Plaintiff.  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 attorneys’
fees.5.	Subject to paragraph 6 of this Decree, any provision of this
Decree may be modified by the Court upon (a) written stipulation of the
Parties, or (b) a motion of any party to this Decree, pursuant to the
Federal Rules of Civil Procedure, and upon consideration of any response
by the non-moving party to this Decree.

6.	The Parties may extend the deadline in Paragraph 2 by 30 days or less
by written stipulation executed by counsel for the Parties and filed
with the Court.  Extensions greater than 30 days may be granted pursuant
to Paragraph 5.

7.	Plaintiff and EPA shall not challenge the terms of this Decree or
this Court’s jurisdiction to enter and enforce this Decree.  Subject
to paragraphs 5 and 6 of this Decree, upon entry, no party shall
challenge the terms of this Decree. 

8.	Nothing in this 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
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 in Paragraph 2-4 by the time specified
therein does not constitute a limitation or modification of EPA’s
discretion within the meaning of this paragraph.

9.	Nothing in this 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
Title V Operating Permit for Pulliam.

10.	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 Courts of
Appeals pursuant to CAA section 307(b)(1) and 505, 42 U.S.C. §
7607(b)(1), 7661d.  Nothing in this 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).

11.	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 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.  The possibility exists that circumstances outside the
reasonable control of EPA could delay compliance with the deadline
established in Paragraph 2.  Such situations include, but are not
limited to, a government shut-down such as occurred in 1995 and 1996, or
catastrophic environmental events requiring immediate and/or
time-consuming response by EPA.  Should a delay occur due to such
circumstances, any resulting failure to meet the deadline set forth
herein shall not constitute a failure to comply with the terms of this
Consent Decree, and any deadlines occurring within one hundred twenty
(120) days of the termination of the circumstances causing the delay
shall be extended one day for each day of the circumstances causing the
delay.  EPA will provide Plaintiff with notice as soon as is reasonably
possible under the circumstances in the event that EPA invokes this
provision of the Consent Decree and will provide Plaintiff with an
explanation of EPA’s basis for invoking this provision.  Plaintiff may
challenge the invocation of this provision of the Consent Decree under
the dispute resolution terms of this Consent Decree.

12.	Any notices required or provided for by this Decree shall be made in
writing, via facsimile or other means, and sent to the following:

For Plaintiff:

DAVID BENDER

McGillivray Westerberg & Bender, LLC

305 S. Paterson Street

Madison, WI 53703

Tel:  (608) 310 3560

Fax: (608) 310-3561

bender@mwbattorneys.com

For Defendant:

JERED LINDSAY

Environmental Defense Section

Environment & Natural Resources Division

P.O. Box 23986

Washington, D.C. 20026-3986

Tel:  (202) 514-9277

Fax:  (202) 514-8865

Jered.Lindsay@usdoj.gov

AMY HUANG BRANNING

U.S. Environmental Protection Agency

Office of General Counsel

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

Tel:  (202) 564-1744

Branning.Amy@epamail.epa.gov

13.	In the event of a dispute between the Parties concerning the
interpretation or implementation of any aspect of this 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 (10) business days after receipt of the notice, any party may
move the Court to resolve the dispute.

14.	No motion or other proceeding seeking to enforce this Decree or for
contempt of Court shall be properly filed unless Plaintiff has followed
the procedure set forth in Paragraph 13, and provided EPA with written
notice received at least 10 business days before the filing of such
motion or proceeding.

15.	The Court shall retain jurisdiction to determine and effectuate
compliance with this Decree.  When EPA’s obligations under Paragraphs
2-4 have been completed, this case shall be dismissed with prejudice. 
The Parties shall file the appropriate notice with the Court so that the
Clerk may close the file.

16.	The Parties agree and acknowledge that before this Consent Decree
can be finalized and entered by the Court, EPA must provide notice in
the Federal Register and an opportunity for comment pursuant to CAA
section 113(g), 42 U.S.C. § 7413(g).  EPA will promptly submit a
public notice of this Consent Decree to the Federal Register for
publication and public comment after lodging this Agreement with the
Court.  After this Consent Decree has undergone an opportunity for
notice and comment, the Administrator and the Attorney General, as
appropriate, will 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.  If the
Administrator or the Attorney General elects not to withdraw or withhold
consent to this Consent Decree, the Parties will promptly file a motion
that requests the Court to enter this Consent Decree. 

17.	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 on this         day of                              2010.

_____________________________

UNITED STATES DISTRICT JUDGE

SO AGREED:

FOR PLAINTIFF

_______________________________

DAVID BENDER

McGillivray, Westerberg & Bender LLC

305 S. Paterson Street

Madison, WI 53703

Tel:  (608) 310-3560

Fax: (608) 310-3561

bender@mwbattorneys.com

DATED:                                             



FOR DEFENDANT			           	IGNACIA S. MORENO

           	Assistant Attorney General

           	Env. & Natural Resources Division

_____________________________

JERED J. LINDSAY

Environmental Defense Section

Environment & Natural Resources Division

United States Department of Justice

P.O. Box 23986

Washington, D.C. 20026-3986

Phone (202) 514-9277

Fax (202) 514-8865

Jered.lindsay@usdoj.gov

DATED:                                             

Of Counsel for Defendant:

AMY HUANG BRANNING

U.S. Environmental Protection Agency

Office of General Counsel

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

Tel:  (202) 564-1744

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