1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) SIERRA CLUB, ) ) Plaintiff, ) ) Civil Case No. 1: 1 2

- cv
- 00 0 12 (CKK ) v. ) ) LISA P. JACKSON, in her official ) capacity as Administrator, UNITED ) STATES ENVIRONMENTAL ) PROTECTION AGENCY, ) ) Defendant. ) ____________________________________)
CONSENT DECREE WHEREAS, on March 2 , 2012, Plaintiff Sierra Club filed a First Amended Complaint in this matter against Defendant Lisa P. Jackson, in her official capacity as Administrator of the United States Environmental Protection Agency (hereinafter, “EPA” or “the Agency”), alleging
that EPA has failed to undertake certain nondiscretion ary duties under the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401

- 7671q, and that such alleged failure is actionable under section 304(a)(2) of the CAA, 42 U.S.C. § 7604(a)(2); WHEREAS, Sierra Club’s First Amended Complaint alleges that EPA has failed to perfo rm a duty mandated by CAA sections 110(k)(2) and (3), 42 U.S.C. §§ 7410(k)(2) and (3), to take timely final action to approve, disapprove, or partially approve/disapprove portions of Texas’ state implementation plan for the Houston

- Galveston

- Brazoria (“HGB ”) and Dallas

- Fort
Worth 1997 8

- hour ozone nonattainment areas ; WHEREAS, the Parties wish to effectuate a complete and final settlement of Sierra Club
v. Jackson , Case No. 1 2

- cv
- 000 12 (D.D.C.), without expensive and protracted litigation and2 without the admission of any issue of fact or law; WHEREAS, the Parties, by entering into this Consent Decree, do not waive or limit any claim, remedy, or defense, on any grounds, related to any final EPA action; WHEREAS, the Parties consider this Consen t Decree to be an adequate and equitable
resolution of all of the claims in the above

- captioned case; WHEREAS, the Court, by entering this Consent Decree, finds that the Consent Decree is fair, reasonable, in the public interest, and consistent with the CA A, 42 U.S.C. §§ 7401

- 7671q; NOW THEREFORE, before the taking of testimony, without trial or determination of any issue of law or fact, and upon the consent of the Parties, it is hereby ORDERED,
ADJUDGED and DECREED that:
1. This Court has subject matter juris diction over the claims set forth in the First
Amended C omplaint and to order the relief contained in this Consent Decree. Venue is proper in
the United States District Court for the District of Columbia.
2. Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), the appropriate EPA
official shall no later than the dates listed in Column A below , sign for publication in the Federal Register a notice or notices of the Agency’s proposed action approving, di sapproving, or approving in part and disapproving in part the SIP submittal s submitted by Texas, and no later than the dates listed in Column B below, sign for publication in the Federal Register a notice or notices of the Agency’s final action approving, disapproving, or approving in part and disapproving in part the SIP submittals submitted by Texas:

Region Portion of SIP Submittal Requiring Action Column A: Proposed Rule Deadline Column B: Final Rule Deadline
HGB Contingency Provisions for RFP Milesto nes 182(c)(9) August 30 , 201 3 January 17, 201 4
HGB Ozone Attainment Demonstration August 30 , 201 3 January 17, 201 43 HGB RACT Non

- CTG VOC for Major Sources February 1, 2013 August 1, 201 3
HGB RACT NOX for Major Sources February 1, 201 3 August 1, 2013 HGB RACT VOC CTG Bulk Gasoline Plants February 1, 2013 August 1, 201 3 HGB RACT VOC CTG Equipment Leaks from Natural Gas/Gasoline Processing Plants February 1, 2013 August 1, 201 3

HGB RACT VOC CTG Fugitive Emissions from Synthetic Organic Chemical Polymer and Resin Manufacturing Equipment February 1, 2013 August 1, 2013

HGB RACT VOC CTG leaks from Gasoline Tank Trucks and Vapor Collection Systems February 1, 2013 August 1, 2013

HGB RACT VOC CTG Leaks from Petroleum Refinery Equipment February 1, 2013 Au gust 1, 2013
HGB RACT VOC CTG Manufacture of High

- Density Polyethylene, Polypropylene, and Polystyrene Resins February 1, 2013 August 1, 2013

HGB RACT VOC CTG Manufacture of Pneumatic Rubber Tires February 1, 2013 August 1, 2013
HGB RACT VOC CTG Manufacture of Synthesized Pharmaceutical Products February 1, 2013 August 1, 2013
HGB RACT VOC CTG Petroleum Liquid Storage in External Floating Roof Tanks February 1, 2013 August 1, 2013

HGB RACT VOC CTG Refinery Vacuum Producing Systems, Wastewater Separators, and Process Unit Turnarounds February 1, 2013 August 1, 2013

HGB RACT VOC CTG SOCMI Air Oxidation Processes February 1, 2013 August 1, 2013
HGB RACT VOC CTG SOCMI Distillation and Reactor Processes February 1, 2013 August 1, 2013

HGB RACT VOC CTG Shipbuilding/R epair February 1, 2013 August 1, 2013
HGB RACT VOC CTG Solvent Metal Cleaning February 1, 2013 August 1, 2013
HGB RACT VOC CTG Stage I Vapor Control Systems

– Gasoline Service Stations February 1, 2013 August 1, 2013

HGB RACT VOC CTG Storage of Petroleum Liquids in Fixed Roof Tanks February 1, 2013 August 1, 20134 HGB RACT VOC CTG Tank Truck Gasoline Loading Terminals February 1, 2013 August 1, 2013
HGB RF P VOC and NOX

– Severe 15 August 30 , 201 3 January 17, 201 4
HGB VMT TCMS to Offset Growth August 30 , 201 3 January 17, 201 4
HGB VMT Demonstrations and TCMs August 30 , 201 3 January 17, 201 4

3. If Texas withdraws any of the SIP submittals listed in Paragraph 2, then EPA’s obligation to take the corresponding action on such SIP submi ttal is automatically terminated.
4. After signing a proposed or final rule or determin ation as described in Paragraph 2 of this Consent Decree, EPA shall promptly deliver notice of such actions to the Office of Federal Register for review and publication.
5. The deadlines in Paragraph 2 may be extended by (a) written stipulation executed by counsel for Sierra Club and EPA with notice to the Court, or (b) by the Court on a motion of EPA for good cause shown pursuant to the Federal Rules of Civil Procedure, and upon consideration of any res ponse by Sierra Club and any reply by EPA. Any other provision of this Consent Decree may be modified by the Court following motion of Sierra Club or EPA for good cause shown pursuant to the Federal Rules of Civil Procedure and upon consideration of any

o pposition by the non

- moving party and any reply.
6. Sierra Club and EPA shall not challenge the terms of this Consent Decree or this Court’s jurisdiction to enter and enforce this Consent Decree.
7. Sierra Club and EPA agree that this Consent Decree shall cons titute a complete and final settlement of all claims that Sierra Club has asserted against the United States, including EPA, under any provision of law in connection with Sierra Club v. Jackson , Case No.
1 2

- cv
- 000 1 2 (D.D.C.). Sierra Club therefore dischar ges and covenants not to sue the United5 States, including EPA, for any such claims.
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

a ctions 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 in this Consent Decree by the ti mes specified herein 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 to waive or limit any claim, remed y, or defense, on any grounds, related to any final action EPA may take with respect to the actions addressed in this Consent Decree.
10. Nothing in this Consent Decree shall be construed to: (a) confer upon this Court jurisdiction to review any issues that a re within the exclusive jurisdiction of the United States Courts of Appeals pursuant to CAA sections 307(b)(1), 42 U.S.C. §§ 7607(b)(1) , including final action taken pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), approving, disapproving, or ap proving in part and disapproving in part a SIP submittal ; or ( b ) waive any claims, remedies, or defenses the Parties may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1).
11. The deadline for filing a motion for costs of litigation, including reasonabl e attorney’s fees, incurred prior to entry of this Consent Decree is hereby extended until sixty (60) days after the entry of this Consent Decree by this Court. During this time, the Parties shall seek to resolve informally any claim for costs of litigati on, including reasonable attorney’s fees, and if they cannot, will submit that issue to the Court for resolution. The United States does not waive or limit any defenses it may have to such claim. The Court shall retain jurisdiction to resolve6 any request s for costs of litigation, including reasonable attorney’s fees.
12. 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 p rovision 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.
13. Any noti ces 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 Sierra Club : ROBERT UKEILEY Law Office of Robert Ukeiley 435R Chestnut Street, Suite 1 Berea, KY 40403 Phon e : (859) 986

- 5402 Fax: (866) 618

- 1017 rukeiley@igc.org
For Defendant EPA : STEPHANIE J. TALBERT Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Environmental Defense Section P.O. Box 7611 Washington, D.C. 200 44 Phone : (202) 514

- 2617 Fax: (202) 514

- 8865 talbert.stephanie@usdoj.gov
KAYTRUE TING Office of the General Counsel U.S. Environmental Protection Agency Ariel Rios Bldg., MC 2344A 1200 Pennsylvania Ave., N.W. Washington, D.C. 20460 Phon e: (202) 564

- 63807 Fax: (2 02) 564

- 5603 Ting.kaytrue @epa.gov
14. 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 provide the other party with a written notice outlining the nat ure 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, either party may move the Court to resolve the dispute.
15. No motion or other proceeding seeking to enforce this Consent Decree or for contempt of Court shall be properly filed unless Sierra Club has followed the pro cedure set forth in Paragraph 1 4 , and provided EPA with written notice received at least ten ( 10 ) business days
before the filin g of such motion or proceeding.
16. The Court shall retain jurisdiction to determine and effectuate compliance with this Consent Decree. When EPA’s obligations under Paragraphs 2 have been completed, any relevant notices have been published in the Federal Reg ister, and any claim for costs of litigation, including reasonable attorney’s fees, has been resolved pursuant to the process described in Paragraph 1 1 , the above

- captioned matter shall be dismissed with prejudice. EPA shall file an appropriate notice wit h the Court so that the Clerk may close the file.
17. 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 se ction 113(g), 42 U.S.C. § 7413(g). EPA will
deliver a public notice of this Consent Decree to the Federal Register for review, publication , and public comment within ten (10) business days after lodging this Consent Decree with the Court

. After this Cons ent Decree has undergone an opportunity for notice and comment, the Administrator and the Attorney General, as appropriate, will promptly consider any such written8 comments in determining whether to withdraw or withhold consent to this Consent Decree, in

a ccordance with section 113(g) of the CAA , 42 U.S.C. § 7413(g) . 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 Co nsent Decree

. 18. The undersigned representatives of each p arty certify that they are fully authorized by the p arty they represent to bind that p arty to the terms of this Consent Decree.
SO ORDERED on this day of 201 2

.

COLLEEN KOLLAR

- KOTELLY UNITED STATES DISTRICT JUDGE
SO AGREED:

FOR PLAINTIFF Sierra Club / s / R o b e r t U k e i l e y ROBERT UKEILEY Law Office of Robert Ukeiley 435R Chestnut Street, Suite 1 Berea, KY 40403 Phone : (859) 986

- 5402 Fax: (866) 618

- 1017 rukeiley@igc.org
DATED: J u n e 2 0 , 2 0 1 29 FOR DEFENDANT EPA IGNACIA S. MORENO Assistant Attorney General Env ironment & Natural Resources Division
/ s / S t e p h a n i e J

. T a l b e r t STEPHANIE J. TALBERT Trial Attorney United States Department of Justice Environment & Natural Resources Division Environ mental Defense Section P.O. Box 7611 Washington, D.C. 20 044 Phone : (202) 514

- 2617 Fax : (202) 514

- 8865 talbert.stephanie@usdoj.gov
DATED: J u n e 2 0 , 2 0 1 2