WildEarth Guardians v. McCarthy

Filing 17

CONSENT DECREE by Judge John L. Kane on 09/04/14. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 1:13-cv-03457-JLK
WILDEARTH GUARDIANS,
Plaintiff,
v.
GINA MCCARTHY, in her official capacity as Administrator of the Environmental
Protection
Agency,
Defendant.
________________________________________________________________________

CONSENT DECREE
________________________________________________________________________
This Consent Decree is entered into between Plaintiff WildEarth Guardians
(“Guardians”) and by Defendant Gina McCarthy in her official capacity as Administrator
of the United States Environmental Protection Agency (“EPA”).
WHEREAS, on December 23, 2013, and pursuant to section 304(a)(2) of the
Clean Air Act (“CAA”), 42 U.S.C. § 7604(a)(2), Guardians filed its Complaint in this
action against EPA;
WHEREAS, Guardians alleges that EPA has failed to take action on an
application for an Operating Permit under Title V of the CAA, 42 U.S.C. §§ 7661 –

7661f, and EPA’s implementing regulations at 40 C.F.R. pt. 71 (“Title V Permit”), for the
Deseret Bonanza coal-fired power plant (“Deseret Bonanza Power Plant”), which is
located in Uintah County in northeastern Utah, within the Uintah and Ouray Indian
Reservation, in the timeframe required under 42 U.S.C. § 7661b(c);
WHEREAS, EPA presently intends to propose a draft Title V Permit for the
Deseret Bonanza Power Plant by mid-May 2014 and seek public comment on the draft
Title V Permit;
WHEREAS, Guardians and EPA have agreed to a settlement of this case without
any admission of any issue of fact or law, which they consider to be a just, fair, adequate
and equitable resolution of the claims raised in this action; and
WHEREAS, it is in the interest of the public, the parties, and judicial economy to
resolve the issues in this action without protracted litigation.
NOW, THEREFORE, it is hereby ORDERED, ADJUDGED, AND DECREED as
follows:
1.

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

Complaint and to order the relief contained in this Consent Decree.
2.

Venue lies in the District of Colorado.

3.

Guardians and EPA shall not challenge the terms of this Consent Decree or

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

2

constitutes a complete and final resolution of all claims that have been asserted or that
could have been asserted in the Complaint.
4.

This Consent Decree will become effective upon the date of its entry by the

Court. If for any reason the Court does not enter the Consent Decree, the obligations set
forth in this Decree are null and void.
5.

On or before October 28, 2014, EPA shall issue a final Title V permit

decision for the Deseret Bonanza Power Plant and provide notice to Guardians in
accordance with 40 C.F.R. § 71.11(i), which regulation also addresses the effective date
and possible administrative appeal of the final permit decision.
6.

The deadline for issuance of the final permit decision in Paragraph 5 may

be extended for a period of 60 days or less by written joint stipulation executed by
counsel for Guardians and EPA and filed with the Court. Any other extension to the
deadline for issuance of the final permit decision in Paragraph 5 or any other
modification to this Consent Decree (excluding changes in counsel or addresses under
Paragraph 17), may be approved by the Court upon motion made by either party to this
Consent Decree and upon consideration of any response by the non-moving party and
reply by the moving party.
7.

EPA agrees to settle Plaintiff’s claim for costs and attorneys’ fees by

arranging for payment of $2,594.20 as soon as reasonably practicable after entry of this
Consent Decree. This amount shall be paid by Fed Wire Electronic Funds Transfer to a
3

bank account identified by Antonio Bates Bernard Professional Corporation pursuant to
payment instructions provided by Plaintiff’s counsel. Guardians agrees to provide
counsel for Defendant all necessary information for processing the electronic funds
transfer within five (5) business days after receipt of the Court’s order entering this
Consent Decree. Guardians agrees to accept payment of $2,594.20 in full satisfaction of
any and all claims for costs and attorneys’ fees with respect to this case incurred up until
the date of entry of this Consent Decree by the Court. EPA does not concede that
Guardians will be entitled to fees for any efforts after the date of entry of this Consent
Decree, and EPA reserves all defenses with respect to any such efforts and any related fee
claim. The fees paid under this Paragraph shall have no precedential value in any future
fee claim.
8.

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. Once EPA has taken the actions called for in Paragraphs 5 and 7 of
this Consent Decree, this Decree shall be terminated and the case dismissed with
prejudice. The Parties may either jointly notify the Court that the Decree should be
terminated and the case dismissed, or EPA may so notify the Court by motion. If EPA
notifies the Court by motion, then Guardians shall have twenty days (20) in which to
respond.
4

9.

Except as provided herein, 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.
10.

The parties agree and acknowledge that final approval and entry of this

proposed Consent Decree are subject to the requirements of CAA section 113(g), 42
U.S.C. § 7413(g). That subsection provides that notice of this proposed Decree be given
to the public, that the public shall have a reasonable opportunity to make any comments,
and that the Administrator or the Attorney General, as appropriate, must consider those
comments in deciding whether to consent to this Consent Decree. After lodging this
Consent Decree with the Court, EPA shall promptly submit a notice of the availability of
the Consent Decree for public comment to the Office of Federal Register for review and
publication. After this Consent Decree has undergone an opportunity for notice and
comment, the Administrator and/or the Attorney General, as appropriate, shall 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
federal government elects not to withdraw or withhold consent to this Consent Decree,
EPA or the parties shall promptly file a motion that requests the Court to enter this
Consent Decree.
5

11.

Nothing in the terms of this Consent Decree shall be construed to waive

any remedies Guardians may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1),
with respect to any future challenges to the final action called for in Paragraph 5.
12.

Nothing in this Consent Decree shall be construed to provide the Court

with jurisdiction over any challenges by Guardians or any other person or entity not a
party to this litigation with respect to the final action called for in Paragraph 5.
13.

In the event of a dispute between the parties concerning the interpretation

or implementation of any aspect of this Consent Decree, the disputing party shall contact
the other party to confer and attempt to reach an agreement on the disputed issue. If the
parties cannot reach an agreed-upon resolution, then either party may move the Court to
resolve the dispute.
14.

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

drafted by EPA and Guardians jointly 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. This
Consent Decree shall be governed and construed under the laws of the United States.
15.

The obligations imposed upon EPA under this Consent Decree may only

be undertaken using appropriated funds. No provision of this Decree shall be interpreted
as or constitute a commitment or requirement that EPA will obligate funds in

6

contravention of the Anti-deficiency Act, 31 U.S.C. § 1341, or any other applicable law
or regulation.
16.

The undersigned representative of each party certifies that she or he is

fully authorized to consent to the Court’s entry of the terms and conditions of this
Consent Decree.
17.

Any written notice or other written communication between the parties

contemplated under this Consent Decree shall be sent to the undersigned counsel at the
email addresses listed in the signature blocks below unless written notice of a change in
counsel and/or address is provided. In addition, notice should be provided to EPA and/or
Guardians as is relevant at the following the following email addresses:
[e-mail]

[e-mail]

[e-mail]

[e-mail]

7

ROBERT G. DREHER
Acting Assistant Attorney General
Dated: 4/29/2014

s/David A. Carson
DAVID A. CARSON
United States Department of Justice
Environment and Natural Resources
Division
South Terrace – Suite 370
999 18th Street
Denver, Colorado 80202
[phone]
[e-mail]
COUNSEL FOR DEFENDANT

Dated: 4/29/2014

s/Melissa A. Hailey
MELISSA A. HAILEY, CO Reg. 42836
Antonio Bates Bernard, P.C.
3200 Cherry Creek Drive S., Ste. 380
Denver, Colorado 80209
Tel: [phone]
Fax: [phone]
[e-mail]
COUNSEL FOR PLAINTIFF

Upon consideration of the foregoing, the Court hereby finds that this Consent
Decree is fair, reasonable, consistent with the Clean Air Act and in the public interest,

8

and the Court hereby enters the Consent Decree.
IT IS SO ORDERED:
DATED: September 4, 2014

BY THE COURT:
s/John L. Kane
John L. Kane, U.S. Senior District Judge

9