WildEarth Guardians v. Public Service Company of Colorado

Filing 291

CONSENT DECREE by Judge R. Brooke Jackson on 04/30/13. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 09-CV-01862-RBJ-MEH
WILDEARTH GUARDIANS,
Plaintiff,
v.
PUBLIC SERVICE COMPANY OF COLORADO
d/b/a XCEL ENERGY,
Defendant.
__________________________________________________________________________
CONSENT DECREE
_________________________________________________________________________
WHEREAS, Public Service Company of Colorado (“Public Service” or “Defendant”) is a
Colorado corporation that owns and operates the Cherokee Power Plant (“Cherokee Plant”)
located in north Denver, Colorado;
WHEREAS, on January 28, 2008, and April 1, 2009, WildEarth Guardians (“Plaintiff”)
sent certified letters (“Notice Letters”) to Public Service providing notice of their intent to sue
Public Service for declaratory and injunctive relief and civil penalties for alleged violations of
certain conditions relating to opacity monitoring and opacity standards in Public Service’s
operating permit, issued by the State of Colorado pursuant to the federal Clean Air Act, for the
Cherokee Plant (“Cherokee operating permit”);
WHEREAS, the Complaint in this matter was filed on August 6, 2009;
WHEREAS, the Complaint seeks declaratory and injunctive relief, the imposition of civil
penalties, and Plaintiff’s attorneys’ fees and costs of litigation;
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WHEREAS, Public Service denies liability for the allegations set forth in the Complaint,
and nothing herein shall constitute an admission of liability;
WHEREAS, Plaintiff and Defendant (the “Parties”) have negotiated this Consent Decree
(“Decree”) in good faith and at arm’s length, and agree that the settlement of the abovecaptioned action (the “Action”) through this Consent Decree without further litigation is in the
public interest and provides certainty for utility customers, and is a fair, reasonable, and
appropriate means of resolving all claims in the Action;
WHEREAS, since the commencement of this Action, Public Service has implemented
measures both voluntarily and in compliance with regulatory requirements to help ensure
compliance with the opacity and opacity monitoring provisions of the Cherokee operating
permit. These measures include, but are not limited to, installation of new opacity monitors,
implementation of a Compliance Assurance Monitoring plan for particulate matter emissions at
Cherokee Station, and changes to the process used at Cherokee for reporting opacity monitor
downtime and opacity exceedances to state regulators;
WHEREAS, consistent with its implementation of the requirements of the Colorado
Clean Air Clean Jobs Act, Public Service has committed to stop burning coal at the Cherokee
Plant by December 31, 2017;
WHEREAS, Plaintiffs believe that, due to the operational changes and the
decommissioning or refueling of the generating units at Cherokee, the alleged violations of the
Cherokee operating permit that formed the basis of the Complaint have been satisfactorily
addressed;

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WHEREAS, the Parties anticipate that this Decree will achieve valuable environmental
and community benefits by improving air quality and reducing demand for energy in the north
Denver communities near the Cherokee Plant;
WHEREAS, the Parties consent to the entry of this Decree without further trial,
argument, or appeal;
WHEREAS, pursuant to Section 304 of the Clean Air Act (“Act”), 42 U.S.C. §
7604(c)(3), this Consent Decree is being forwarded to the United States Department of Justice
and to the United States Environmental Protection Agency (“EPA”) for the statutorily-mandated
forty-five (45) day review period;
NOW, THEREFORE, with the consent of the Parties and without any admission or
adjudication of the violations alleged in the Complaint or the Notice Letters, IT IS HEREBY
ADJUDGED, ORDERED, AND DECREED as follows:
1.

This Court has jurisdiction over the Parties and the subject matter of the Action

pursuant to Section 304 of the Clean Air Act, 42 U.S.C. § 7604, the citizen suit provision of the
Act, and pursuant to 28 U.S.C. § 1331.
2.

Venue is proper in this judicial district under Section 304(c) of the Act, 42 U.S.C.

§ 7604(c), and under 28 U.S.C. § 1391.
3.

Upon entry, the provisions of this Consent Decree shall apply to and be binding

upon the Parties, as well as the Parties’ officers, employees, agents, successors and assigns.
4.

Within 30 days of the date of entry of the Decree by the Court, Public Service will

pay $447,000.00 to the recipient named in Appendix A to be used exclusively to provide funding
for specific environmentally beneficial projects in north Denver, Colorado, as described further

Consent Decree

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and under conditions set forth in Appendix A. Notice of the payment shall be provided to
Plaintiff consistent with Paragraph 6 of this Consent Decree.
5.

Counsel for Plaintiff shall provide wire transfer instructions to counsel for Public

Service at least twenty (20) days prior to the date payment is due.
6.

Any notifications under this Consent Decree shall be directed to the individuals at

the addresses specified below by United States Mail or Overnight Courier and e-mail, unless
these individuals or their successors give notice of a change to the other Parties in writing.
As to Plaintiff:
Michael Harris
Environmental Law Clinic
2255 East Evans Ave.
Suite 335
Denver, CO 80201
[e-mail]

and

Jeremy Nichols
WildEarth Guardians
1536 Wynkoop St.
Suite 301
Denver, CO 80202
[e-mail]

As to Defendant:
Kent Mayo
and
Baker Botts L.L.P.
1299 Pennsylvania Ave NW
Washington, DC 20004
[e-mail]
7.

Frank Prager
Public Service Company of Colorado
1800 Larimer St.
Denver CO 80202
[e-mail]

The Parties agree to cooperate in good faith in order to obtain the Court’s review

and entry of this Consent Decree.
8.

Pursuant to 42 U.S.C. § 7604(c)(3), this Consent Decree shall be lodged with the

Court and simultaneously provided to the United States Department of Justice and the United
States Environmental Protection Agency (collectively, the “United States”) for review and
comment for a period not to exceed forty-five (45) days.

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9.

If the United States does not object or intervene within forty-five (45) days of

receipt, the Parties shall submit a joint motion to the Court seeking entry of the Consent Decree.
10.

Entry of this Consent Decree shall:
a.

Cause dismissal, with prejudice, of Plaintiff’s Complaint in the Action;

b.

Resolve any and all claims or potential claims of Plaintiff, including but

not limited to claims under the Clean Air Act and its implementing regulations, the Colorado
State Implementation Plan, state and local air quality regulations, the Cherokee Plant Title V
Operating Permit, or any other permit applicable to the Cherokee Plant for alleged violations
relating to (i) opacity limitations and any exceedances of those limitations, (ii) opacity
monitoring requirements and any opacity monitor downtime, and (iii) reporting requirements
regarding opacity, opacity monitoring, or opacity monitoring downtime at the Cherokee Plant
that occurred prior to entry of the Decree, including but not limited to those claims alleged, or
that could have been alleged, in the Complaint and Notice Letters in the Action.
c.

Resolve any and all claims or potential claims of Plaintiff, related to any

coal-fired generating unit presently or formerly operated by Public Service within Colorado,
under the Clean Air Act and its implementing regulations, the Colorado State Implementation
Plan, state and local air quality regulations, any relevant Title V Operating Permit, or any other
operating or construction permit for alleged violations relating to (i) opacity limitations and any
exceedances of those limitations, (ii) opacity monitoring requirements and any opacity monitor
downtime, and (iii) reporting requirements regarding opacity, opacity monitoring, or opacity
monitoring downtime that occurred prior to entry of the Decree.
11.

This Consent Decree constitutes the final, complete and exclusive agreement and

understanding among the Parties with respect to the settlement embodied in this Consent Decree,
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and supersedes all prior agreements and understandings among the Parties related to the subject
matter herein. No document, representation, inducement, agreement, understanding, or promise
constitutes any part of this Consent Decree or the settlement it represents, nor shall they be used
in construing the terms of this Consent Decree.
12.

Each Party shall bear all of its own attorneys’ fees related to the Action. The

Parties agree that any claims for litigation costs shall be resolved through a separate agreement.
13.

Each Party agrees that any public statements, including press releases or any other

oral, written or electronic communication, regarding the lawsuit, the settlement, or the consent
decree terms will focus on the benefits to the north Denver, Colorado, communities receiving
funding for beneficial projects. Neither Party shall make any public statement, including press
releases or any other oral, written or electronic communication, that might reasonably be
construed as negative, derogatory or critical of the opposing Party, including but not limited to
any actions relating to the Action and its resolution, or any matter addressed by this Decree. The
Parties agree to provide each other with draft versions of any press releases or public statements
regarding the Consent Decree at least two days prior to the date of lodging of the Consent Decree
with the Court, and to respond in good faith to any comments or requests for changes received
from the other Party. Violation of this non-disparagement clause shall be grounds for the other
Party to remove its consent from the proposed Consent Decree.
14.

Modifications to this Consent Decree may be made only upon written agreement

of the Parties which shall be filed with the Court.
15.

Pursuant to 42 U.S.C. § 7604(c)(3), the United States shall be provided with the

opportunity to review and comment upon any proposed modification to this Consent Decree.

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16.

The Decree shall terminate automatically upon receipt of the payments required to

be made by Public Service under Paragraph 4 of this Decree, except that the Court shall retain
jurisdiction to enforce the provisions of this Decree, inclusive of the provisions of Appendix A.
17.

Each undersigned representative of the Parties certifies that he or she is fully

authorized to enter into the terms and conditions of this Consent Decree and to execute and
legally bind such Party to this document.
18.

This Consent Decree may be signed in counterparts.

THE UNDERSIGNED PARTIES enter into this Consent Decree and submit it to this
Court for approval and entry.
IT IS SO ORDERED.
DATED this 30th day of April, 2013.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

Consent Decree

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Signature Page for Consent Decree

WildEarth Guardians v. Public Service Company of Colorado,
Civil Action No. 09-CV-01862-RBJ-MEH

Dated: ___________, 2013

Consent Decree

_________________________________
John Horning, Executive Director
WildEarth Guardians

Page 8

Signature Page for Consent Decree

WildEarth Guardians v. Public Service Company of Colorado,
Civil Action No. 09-CV-01862-RBJ-MEH

Dated: ___________, 2013

Consent Decree

__________________________________
David L. Eves
President and Chief Executive Officer
Public Service Company of Colorado

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WildEarth Guardians v. Public Service Company of Colorado,
Civil Action No. 09-CV-01862-RBJ-MEH

Appendix A to Consent Decree

Environmentally Beneficial Projects
In addition to the requirements in Paragraph 4 of the Consent Decree, the Parties agree to
comply with the following requirements to ensure that the intended benefits of the $447,000
payment (the “Project Funds”) by Public Service for the environmentally beneficial projects (the
“Projects”) described below are achieved.
A.

Project Funds Recipient: The Parties have designated Groundwork Denver as the

third-party recipient (the “Recipient”) of the Project Funds to be paid by Public Service to fund
the environmentally beneficial projects described in Section B of this Appendix. No later than
ten (10) days after the date of entry of the Consent Decree, Plaintiff agrees to obtain from
Groundwork Denver and provide to Defendant written confirmation that Groundwork Denver (1)
has legal authority to accept funding for the Projects; (2) has the legal authority and capability to
conduct the Projects; and (3) will comply with the requirements of this Appendix regarding
expenditure of the Project Funds and implementation of the Projects.
B.

Environmentally Beneficial Projects: The Parties intend for the Project Funds to

be expended on the Projects as described below
1. Energy Efficiency Improvements ($172,900): Homes in Globeville, Elyria
and Swansea will be offered a package of air sealing, attic insulation, and CFL
light bulbs. The Recipient expects to serve 142 households on a first-come, firstserved basis with the SEP funds. The expected results are as follows:
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Families
served
Energy
efficienc
y

therms gas
kWh saved saved (over
(over life of life of
measure)
measure)

142 587,880

397,600

$
saved
per
year
per
family

tons CO2
emissions
reduced (over
life of
measures)

$193 2,840

2. Solar Energy ($74,100): The Recipient will install solar PV panels on one
or more public buildings in Globeville, Elyria or Swansea neighborhoods. The
Recipient will work to develop a partnership with the owner of the building(s)
(likely DPS or the City of Denver) to translate the energy cost savings from the
project into community benefit. The Recipient expects $3,472 per year in savings
that can be directed to ongoing community projects. The Recipient estimates that
it will be able to install a 14 kW system, but final size will depend on the system
bids that are received. Expected results are as follows:

kW
installed
Photovoltaics

kWh
produced
(over 20
years)

14 408,520

therms
gas saved
(over life
of
measure)
0

Annual $
saved
plus
REC
payments

tons CO2
emissions
reduced
(over life of
measures)

$3,472 357

3. Green Space Improvements ($200,000): These funds will be used for the
implementation of Platte Farm Open Space (“PFOS”). PFOS is a community
vision for turning 5.5 acres of underutilized property in the heart of Globeville
into a community natural area, while also solving flooding problems for this
entire section of the South Platte River watershed. Landscape designs,
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maintenance plan, title work, land survey, and environmental analysis (Phase I)
have been completed. Groundwork Denver and the resident steering committee
are working with the property owners and the City of Denver to determine the
land-holding strategy for the site. The entire open space project implementation is
estimated to cost $1.2 million (based on an estimate provided by the landscape
architecture firm that designed the site). The $200,000 will be utilized to help
with on-ground infrastructure improvements, solar features to provide the open
space with lighting, and for other site construction costs.
C.

Change in Projects: The Parties may agree, in writing, to change the scope of any

Project, and the allocation of dollars among the specific Projects identified in Paragraph B of this
Appendix or additional projects not specifically described in this Appendix that are similar to or
serve similar purposes as the Projects by improving air quality and reducing demand for fossil
fuel based energy. Such agreed changes do not require approval by the Court.
D.

Unspent Funds: Any Project Funds that remain unspent as of twenty-four (24)

months after the date of entry of the Consent Decree by the Court shall be directed to community
environmental projects in north Denver, Colorado, that are similar to or serve similar purposes as
the Projects by improving air quality and reducing demand for fossil fuel based energy. In the
event that unspent Project Funds exist, Plaintiff shall inform Public Service and provide a
description of the intended use for such Funds. Under no circumstances shall any of the unspent
Project Funds be used to initiate or support (i) any legislative or lobbying efforts (ii) any
administrative petition, rulemaking activity or action, or (iii) any judicial litigation.

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E.

Reporting:
1. Project Plans: Within 60 days of the date of entry of the Consent Decree by
the Court, the Recipient shall submit to the Parties a Project plan(s) that
covers each of the Projects described in this Appendix A. Each Project plan
shall describe the nature and scope of the expected activities to be completed,
identify any additional parties or vendors expected to be used in completing
the work, identify an estimated budget and cost allocation, and identify an
expected completion date.
2. Biannual Status Report: The Recipient will submit to the Parties, pursuant to
the notice provision in the Consent Decree, biannual Project status reports due
on January 31st and July 31st of each year while funds are being spent. The
status reports will include, at a minimum, the following information:
A description of activities completed to date;
A budget summary table listing funds expended to date by budget
category;
A discussion of any anticipated changes to the scope or timeline of the
Projects.
3.

Final Completion Report: The Recipient will submit to the Parties, pursuant
to the notice provision in the Consent Decree, a final Completion Report
within 30 days of completion of the Projects, or within 30 days of the fully
expending the allocated funds. The report will contain at a minimum:
A detailed description of the Projects as implemented;

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A summary table identifying deliverables and tasks for the Projects
along with the associated completion dates;
A description of any operating problems encountered and the solutions
thereto;
A full expense accounting including itemized costs, documented by
copies of purchase orders, contracts, receipts or canceled checks;
Certification and demonstration that the Projects have been fully
implemented pursuant to the provisions of the Consent Decree and this
Appendix A;
A description of the environmental and public health benefits resulting
from implementation of the Projects along with quantification of the
outcomes and benefits;
Examples of brochures, educational or outreach materials developed or
produced as part of the Projects; and
Photographs documenting the Projects.

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