IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 10-cv-01672-RPM

WILDEARTH GUARDIANS,

		Plaintiff,

	v.

LISA 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 (“WildEarth”) and by Defendant Lisa Jackson, in
her official capacity as Administrator of the United States
Environmental Protection Agency (“EPA”).

	WHEREAS, WildEarth filed this action pursuant to section 304(a)(2) of
the Clean Air Act (“CAA”), 42 U.S.C. § 7604(a)(2), alleging that
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, three
administrative petitions (the “Petitions”) submitted by WildEarth. 
The Petitions requested that EPA object to Title V Operating Permits
issued by the Colorado Department of Public Health and Environment, Air
Pollution Division, to the Public Service Company of Colorado to operate
the Pawnee power plant in Morgan County, Colorado, the Valmont power
plant in Boulder County, Colorado, and the Cherokee power plant in
Denver, Colorado; 

	WHEREAS, WildEarth 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 Amended Complaint related to WildEarth’s Petitions 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 June 30, 2011, or within 20 days after the entry date of this
Consent Decree, whichever date is later, EPA shall sign its response to
the petition addressing the Title V operating permit for the Pawnee
power plant.  Thereafter, EPA shall deliver the notice of its action to
the Office of the Federal Register for publication. 

	3.  By September 30, 2011, or within 20 days after the entry date of
this Consent Decree, whichever date is later, EPA shall sign its
response to the petition addressing the Title V operating permit for the
Valmont power plant.  Thereafter, EPA shall deliver the notice of its
action to the Office of the Federal Register for publication. 

	4.  By October 31, 2011, or within 20 days of the entry date of this
Consent Decree, whichever date is later, EPA shall sign its response to
the petition addressing the Title V operating permit for the Cherokee
power plant.  Thereafter, EPA shall deliver the notice of its action to
the Office of the Federal Register for publication. 

	5.  The United States agrees to pay WildEarth as full settlement of all
claims for attorneys’ fees, costs, and expenses incurred, under any
authority, the sum of $2,600 as soon as reasonably practicable following
entry of this Consent Decree, by electronic funds transfer to a bank
account identified by WildEarth.  WildEarth agrees to accept $ 2,600 in
full satisfaction of any and all claims for costs and attorneys’ fees
with respect to the case, except that WildEarth reserves the right to
seek fees for enforcement of the Consent Decree in the future.  EPA does
not concede that WildEarth will be entitled to fees for any efforts by
WildEarth to enforce the Consent Decree in the future, and EPA reserves
all defenses with respect to such enforcement efforts and any related
fee claim.  The fees under this Paragraph shall have no precedential
value in any future fee claim.

	6.  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.

	7.  WildEarth and EPA shall not challenge the terms of this Consent
Decree or this Court’s jurisdiction to enter and enforce this Consent
Decree.

	8.  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 Paragraphs 2, 3,
and 4 by the times specified does not constitute a limitation or
modification of EPA’s discretion within the meaning of this paragraph.

	9.  Nothing in this Consent Decree shall be construed as an admission
of any issue of fact or law or 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 Permits for the Pawnee, Valmont, and Cherokee 
power plants.

	10.  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).

	11.  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.

	12.  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 WildEarth:

Samantha Ruscavage-Barz 

WildEarth Guardians 

312 Montezuma Ave.

Santa Fe, NM 87501

(505) 988-9126 x1158

    HYPERLINK "mailto:jtutchton@wildearthguardians.org" 
sruscavagebarz@wildearthguardians.org 

For EPA:

Alan Greenberg

Environmental Defense Section

Environment and Natural Resources Division

U.S. Department of Justice

1961 Stout Street, 8th Floor

Denver, CO 80294

(303) 844-1366

    HYPERLINK "mailto:daniel.pinkston@usdoj.gov" 
alan.greenberg@usdoj.gov 

Richard H. Vetter

Office of General Counsel

U.S. EPA

Mail Drop D205-01

Research Triangle Park, NC 27711

(919) 541-2127 

    HYPERLINK "mailto:branning.amy@epa.gov"  vetter.rick@epa.gov 

Elyana Sutin 

Office of Regional Counsel

USEPA Region 8

1595 Wynkoop Street

Mail Code: 8RC

Denver, CO 80202-1129

(303) 312-6899

    HYPERLINK "mailto:staller.jonah@epa.gov"  sutin.elyana@epa.gov 

Sara Laumann

Office of Regional Counsel

USEPA Region 8

1595 Wynkoop Street

Mail Code: 8RC

Denver, CO 80202-1129

(303) 312-6443

    HYPERLINK "mailto:laumann.sara@epa.gov"  laumann.sara@epa.gov 

	13.  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.

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

	15.  The Court shall retain jurisdiction to determine and effectuate
compliance with this Consent Decree, to rule upon any motions filed in
accordance with Paragraph 6 of this Consent Decree, and to resolve any
disputes in accordance with Paragraph 13 of this Consent Decree.  When
EPA’s obligations under Paragraphs 2, 3, 4 and 5 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.

	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 deliver a public notice
of this Consent Decree to the Federal Register for publication and
public comment after lodging this Consent Decree with the Court.  After
this Consent Decree 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 Consent Decree, in accordance with
section 113(g) of the Clean Air Act.  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.  It is hereby expressly understood and agreed that this Consent
Decree was jointly drafted by Wildearth 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.

	18.  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.

	SO ORDERED this      day of                          20   ,

						                                                                  
            

										

United States District Judge



						SO AGREED:

						FOR PLAINTIFF:

						/s/ Samantha Ruscavage-Barz                                    

						SAMANTHA RUSCAVAGE-BARZ, Esq.

						WildEarth Guardians 

						312 Montezuma Ave. 

						Santa Fe, NM 87501

						(505) 988-9126 x1158

    HYPERLINK "mailto:jtutchton@wildearthguardians.org" 
sruscavagebarz@wildearthguardians.org 					

						DATED:  September 24, 2010		

					FOR DEFENDANT:

						IGNACIA S. MORENO

						Assistant Attorney General

						Environment and Natural Resources Division

					By:	/s/ Alan D. Greenberg                                          
    

						ALAN D. GREENBERG

						Environmental Defense Section

						Environment and Natural Resources Division

						U.S. Department of Justice

						1961 Stout Street, 8th Floor

						Denver, CO 80294

						(303) 844-1366

    HYPERLINK "mailto:daniel.pinkston@usdoj.gov" 
alan.greenberg@usdoj.gov 					

						DATED: __________, 2010

						

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