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28 JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division United States Department of Justice LESLIE M. HILL (D.C. Bar No. 476008) Leslie.Hill@usdoj.gov Environmental Defense Section 601 D Street N.W., Suite 8000 Washington D.C. 2 0004 Telephone (202) 514

- 0375 Facsimile (202) 514

- 8865
Attorneys for Defendant

ROBERT UKEILEY , Admitted Pro Hac Vice Law Office of Robert Ukeiley 255 Mountain Meadow Road Boulder, CO 80302 Tel ephone ( 303 ) 442

- 4033 Email: rukeiley@igc.org

[additio nal a ttorney for Plaintiff included in signature block]
Attorney s for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

SIERRA CLUB
,
Plaint i ff,

v.
GINA McCARTHY, in her official capacity as the Ad ministrator of the United States Environmental Protection Agency,

Defendant. Case No. 3:12

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[PROPOSED] CONSENT DECREE

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28 WHEREAS, on December 21, 2012 , Plaintiff Sierra Club filed the above

captioned matter against Gina McCarthy , in her offici al capacity as Administrator of the United States Environmental Protection Agency (hereinafter “EPA” or “ Defendant”); WHEREAS, Plaintiff alleges that EPA has failed to undertake certain non

discretionary 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, pursuant to CAA section 1 09 ( a )( 1 ), 42 U.S.C. § 74 09 ( d )( 1 ) , EPA promulgated a final rule revising the fin e particulate matter, or PM 2.5 , National Ambient Air Quality Standard (“ NAAQS ”), Final Rule
, 71 Fed. Reg. 61,144 (Oct. 16, 2006); WHEREAS, pursuant to CAA section 110( d )( 1 ), 42 U.S.C. § 7410( d )( 1 ), “[e]ach
State shall,

. . . submit to the Administrator, w ithin 3 years

. . . after the promulgation of a [NAAQS] (or revision thereof) under section 7409 of this title for any air pollutant, a plan

which provides for implementation, maintenance, and enforcement of such primary standard in each air quality contro l region (or portion thereof) with each State,” a state implementation plan (“SIP”), often referred to as an infrastructure SIP;
WHEREAS, s uch SIP submittal s must meet the requirements set forth in section
110(a)(2)(A)

- (M)
, 42 U.S.C. § 7410(a)(2)(A)

- (M) ;
W HEREAS, EPA must then determine whether a State’s submittal is complete

within six months after EPA receives the submission. 42 U.S.C. § 7410(k)(1)(B). If EPA does not determine completeness of the plan or revision within six months, then the

submittal i s deemed complete by operation of law after six months. Id. ; WHEREAS, w ithin 12 months of a determination of completeness or a determination by operation of law, EPA must act on the plan or revision. 42 U.S.C. § 7410(k)(2). EPA must approve in whole or in part, disapprove, or conditionally approve in whole or in part the plan or revision. Id. § 7410(k)(3)

- (4) ; WHEREAS, if a state fails to make a required submission or if EPA finds that a plan or revision submitted by a state is incomplete or disapprove s a plan or revision

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28 submitted by a state, EPA must promulgate a Federal implementation plan (“FIP”) to

address the deficiencies “at any time within 2 years
, ” 42 U.S.C. § 7410(c)(1) ;
WHEREAS , pursuant to CAA section 110( a )( 1 ), 42 U.S.C. § 7410( a )( 1 ), stat es were required to submit infrastructure SIPs within 3 years of promulgation of the 2006

PM 2.5 NAAQS, by no later than October 16 , 2009 ; WHEREAS, pursuant to CAA section 110 (k)( 2 )

- (4) , 42 U.S.C. § 7410(k)( 2 )

- (4)
, EPA was required to approve in whole or in part, disapprove, or conditionally approve in whole or in part
, each plan or revision , within 12 months of a determination of completeness by EPA or a determination deemed by operation of law to be complete ; WHEREAS, in Claim 1, Plaintiff alleges that EPA has failed to perform a duty mandated by CAA sections 110(k) (2)

- (4), 42 U.S.C. §§ 7410(k)( 2)

- (4), to take final

action to approve or disapprove, in whole or in part, certain infrastructure SIP

submissions for the 2006 PM 2.5 NAAQS from the following sta tes and requirements
, see Compl. ¶ 3 (Dkt. No. 1):

STATE REQUIREMENT(S)

Illinois 42 U.S.C. § 7410( a )( 2 ) (D)(i)(II) (Prong 3 PSD only) and 42 U.S.C. § 7410(a)(2)(E)(ii) Michigan 42 U.S.C. § 7410( a )( 2 ) (D)(i)(II) (Prong 3 PSD only) and 42 U.S.C. §
7410( a ) ( 2 ) (E)(ii)

Nebraska 42 U.S.C. § 7410( a )( 2 ) (A)

- (C), (D)(i)(I) (Prong 1, interstate transport, significant contribution only), (D)(i)(II) (Prong 3, PSD only), (D)(ii), (E)

- (M)

South

Dakota 42 U.S.C. § 7410( a )( 2 ) (A)

- (D)(i), (E)

- (M)

Wisconsin 42 U.S.C. § 74 10( a )( 2 ) (D)(i)(II) (Prong 3 PSD and Prong 4 visibility), (E)(ii)

California 42 U.S.C. § 7410( a )( 2 ) (A)

- (B), (D)

- (H), and (K)

- (M)

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28 WHEREAS, EPA took final action disapproving Illinois’ SIP revision addressing part of the requirements of the requirements of section 110(a)(2)(D)(i)(II)(prong 3 PSD only), 42 U.S.C. § 7410(a)(2)(D)(i)(II)(prong 3 PSD only). Final Rule , 77 Fed. Reg. 65,478, 65,485 (Oct. 29, 2012). Therefore Claim 1 as to that provision section 110(a)(2)(D)(i)(II)(prong 3 PSD only) fails to sta te a claim; WHEREAS, on September 29, 2014, EPA took final action finding that California failed to submit a SIP to satisfy the attainment and maintenance interstate transport requirements of section 110(a)(2)(D)(i)(I), 42 U.S.C. § 7410(a)(2)(D)(i)(I), with respect

to the 2006 24

- hour NAAQS for PM 2.5 , Final Rule , 79 Fed. Reg. 63
, 536 (Oct. 24, 2014), and therefore Claim 1 is moot as to that provision;
WHEREAS, in Claim 2, Plaintiff alleges that EPA has failed to perform a duty mandated by CAA sections 11 0( c ) ( 1 )
, 42 U.S.C. §§ 7410( c )( 1 ), to “promulgate a Federal implementation plan at any time within 2 years after the Administrator

-- (A) finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the Stat e does not satisfy the minimum criteria established under subsection (k)(1)(A) of this section, or (B) disapproves a State implementation plan submission in whole or in part
, ” addressing the requirements of section 110(a)(2)(D)(i)(I), 42 U.S.C. §§

7410 (a)( 2)(D)(i)(I), for the following states, see Compl. ¶ 4 (Dkt. No. 1 ) : Alaska, Colorado, District of Columbia, Idaho, Illinois, Iowa, Louisiana, Maryland, Michigan, Minnesota, Montana, Nebraska, North Dakota, Oregon, Pennsylvania, South Dakota, Utah, West

Vir ginia, Wisconsin, and Wyoming ; WHEREAS, effective July 9, 2010, EPA found that the following states or territories failed to submit SIPs to satisfy the attainment and maintenance interstate transport requirements of section 110(a)(2)(D)(i)(I), 42 U.S.C . § 7410(a)(2)(D)(i)(I), with respect to the 2006 24

- hour NAAQS for PM 2.5 , Final Rule , 75 Fed. Reg. 32,673 (June 9,
2010):

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28 Alaska, Colorado, Idaho, Illinois, Iowa, Louisiana, Maryland, Michigan, Minnesota, Montana, Nebraska, North Dakota, Oregon, Pennsylva nia, South Dakota, Utah, Virginia, West Virginia,
Wisconsin, Wyoming, and the District of Columbia ; WHEREAS, EPA promulgated the Cross

- S tate Air Pollution Rule (the “Transport

Rule” ), in part to address, for the following ten states, the requirements of se ction 110(a)(2)(D)(i)(I) with respect to the 2006 24

- hour PM 2.5 NAAQS
, Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals , 76 Fed. Reg. 48,208 ( Aug

. 8, 2011 ) : Illinois, Iowa, Maryland, Mi chigan, Minnesota, Nebraska, Pennsylvania, Virginia , West Virginia, and Wisconsin;
WHEREAS, the Transport Rule “defines each State’s emissions reduction obligations under the good neighbor provision” and “prescribes Federal Implementation Plans to implemen t those obligations at the State level.” EME Homer City Generation,

L.P. v. EPA , 696 F.3d 7, 15 (D.C. Cir. 2012), rev ’ d and remanded
, 572 U.S.

-- , 134 S.Ct.

1584 (2014) ;
WHEREAS
, the Transport Rule was vacated on August 21, 2012
, EME Homer City , 696 F.3d at 11

- 12
, 38 ; however, the judgment of the D.C. Circuit was reversed and the cases remanded for further proceedings consistent with the Supreme Court’s opinion
, EPA v. EME Homer City Generation, L.P.
, 572 U.S.

-- , 134 S.Ct. 1584, 1 610 (2014)

. O n
EPA’s m otion, the Court of Appeals lifted the stay of the Transport Rule
, Order ( D.C.
Cir., Doc. No. 1518738
, Oct. 23, 2014) ; WHEREAS, Claim 2, therefore, is now moot as to Illinois, Iowa, Maryland, Michigan, Minnesota, Nebraska, Pennsylvania, Virginia , West Vir ginia, and Wisconsin; WHEREAS, EPA took final action approving Alaska’s SIP revision addressing the requirements of 42 U.S.C. § 7410( a )( 2 ) (D)(i)(I), Final Rule , 79 Fed. Reg. 45,103
, 45,104 ( Aug. 4, 2014 ), and therefore Claim 2 as to Ala s ka is moot;

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28 WHEREAS , EPA took final action approving in part and disapproving in part, Montana’s SIP submittal addressing the requirements of 42 U.S.C. § 7410( a )( 2 ) (D)(i)(I),

conclud ing that t he “ existing Montana SIP is

. . . adequate to meet the requirements of

CAA section 110(a)(2)(D)(i)(I) for the 2006 24

- hour PM 2.5 NAAQS ,” Final Rule , 78 Fed. Reg. 4 5 ,869 (July 30, 2013), and therefore Claim 2 as to Montana is moot; WHEREAS, EPA took final action approving North Dakota’s SIP submittal addressing the requirements of 42 U.S. C. § 7410( a )( 2 ) (D)(i)(I), concluding that “that North Dakota’s existing SIP is adequate to address the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2006 PM 2.5 NAAQS,” Final Rule , 78 Fed. Reg. 45,457 (July 29, 2013), and therefore Claim 2 as to No rth Dakota is moot; WHEREAS, EPA took final action approving Louisiana’s SIP submittal addressing the requirements of 42 U.S.C. § 7410( a )( 2 ) (D)(i)( I ), Final Rule , 79 Fed. Reg.
21,142 ( April 15 , 2014), and therefore Claim 2 as to Louisiana is moot;
WHEREAS, EPA took final action disapproving Utah’s SIP submittal addressing the requirements of 42 U.S.C. § 7410( a )( 2 ) (D)(i)(I), Final Rule , 7 8 Fed. Reg. 48
, 615
( Aug . 9, 2013), and therefore Claim 2 as to Utah is moot ; WHEREAS, EPA has not taken final action pursu ant to CAA section 110(a)(2)(D)(i)(I)
, 42 U.S.C. § 74 110(a)(2)(D)(i)(I)
, to promulgate a FIP for the six remaining states or territories : Colorado, the District of Columbia, Idaho, Oregon, South Dakota
, and Wyoming ; WHEREAS, the relief requested in the Co mplaint includes, among other things,

an order from this Court to establish a date certain by which EPA must fulfill its obligations for both Claims 1 and 2 ; WHEREAS, Plaintiff and EPA have agreed to a settlement of this action without admission of any iss ue of fact or law, except as expressly provided herein;

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28 WHEREAS, Plaintiff and EPA, 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, Plaintiff and EPA consi der this Consent Decree to be an adequate and equitable resolution of all the claims in this matter and therefore wish to effectuate a
settlement; WHEREAS, it is in the interest of the public, Plaintiff Sierra Club , Defendant EPA, and judicial economy to r esolve this matter without protracted litigation; WHEREAS, Plaintiff and EPA agree that this Court has jurisdiction over this matter pursuant to the citizen suit provision in CAA section 304(a)(2), 42 U.S.C. § 7604(a)(2), and that venue is proper in the Northern District of California pursuant to 28 U.S.C. § 1391(e) and N.D. Cal. Civ. Local Rule 3

- 2(c)

- (d); WHEREAS, the Court, by entering this Consent Decree, finds that the Consent Decree is fair, reasonable, in the public interest, and consistent with th e Clean Air Act; NOW THEREFORE, before the taking of testimony, without trial or determination of any issues of fact or law, and upon the consent of Plaintiff Sierra Club and Defendant EPA, it is hereby ordered, adjudged and decreed that:

1. Claim 1 and 2.

a. Claim 1

. The appropriate EPA official shall sign a notice of final rulemaking to approve , disapprove, or approve in part and disapprove in part, certain plans p ursuant to sections 110(k) (2)

- (4) of the CAA, 42 U.S.C. §§ 7410(k)( 2)

- (4), no
later tha n the date indicated below for the following areas for the 2006 PM 2.5 NAAQS :
i. California for the requirements of 42 U.S.C. § 7410(a)(2)(A)

- (B), (D)(i)(II), (D)(ii), (E)

- (H), and (K)

- (M) by November 30, 2015 ;
i i

. Illinois for the requirements of 42 U.S. C. § 7410(a)(2)(E)(ii) by
November 30, 2015 ;

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28 i ii . Michigan for the requirements of 42 U.S.C. § 7410(a)(2)(D)(i)(II) (Prong 3 PSD only) and 42 U.S.C. § 7410(a)(2)(E)(ii) by November
30, 2015 ;
i v

. Nebraska for the requirements of 42 U.S.C. § 7410(a)(2) (A)

- (C), (D)(i)(I)(Prong 1

– Interstate Transport

– significant contribution only), (D)(i)(II)(Prong 3 PSD only), (D)(ii), and (E)

- (H), (J)

- (M) by November 30, 2015 ;

v . South Dakota for the requirements of 42 U.S.C. §
7410(a)(2)(A)

- (D)(i), (E)

- (M) by Nov ember 30
, 2015 ; and

v i . Wisconsin for the requirements of 42 U.S.C. §
7410( a )( 2 ) (D)(i)(II) (Prong 3 PSD and Prong 4 visibility), and (E)(ii) by November 30,

2015

. b

. Claim 2

. The appropriate EPA official shall sign a notice of final rulemaking to eithe r promulgate a Federal implementation plan pursuant to section
110( c ) (1)(A)

- (B) of the CAA, 42 U.S.C. §§ 7410( c ) (1)(A)

- (B), or to approve in full
, a state implementation plan p ursuant to section 110(k) (2)

- (4) of the CAA, 42 U.S.C. § 7410(k)( 2)

- (4), address ing the requirements of section 110(a)(2)(D)(i)(I), 42 U.S.C. §
7410( d )(2)(D)(i) (I), no later than the date indicated below for the following states for the

2006 PM 2.5 NAAQS :
i. Colorado by July 31, 2015 ; ii. District of Columbia by November 30, 2015;

i ii

. Idaho by November 30, 2015 ;
i v . Oregon by September 30, 2015; v. South Dakota by November 30, 2015 ; and

v i

. Wyoming by July 31, 2015

. 2 . EPA shall, within 15 days of signature , deliver notice of each action taken
pursuant to P aragraph 1 of thi s Consent Decree to the Office of the Federal Register for review and publication.

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28 3

. After EPA has completed the action s set forth in Paragraph 1 of this Consent

Decree and after notice of each final action required by P aragraph 1 has been published

in t he Federal Register and the issue of costs of litigation, including attorneys fees
, has

been resolved , EPA may move to have this Decree terminated and the action dismissed

. Plaintiff shall have fourteen (14) days in which to respond to such a motion , unle ss the parties stipulate to a longer time for Plaintiff to respond

. 4

. The deadline s established by this Consent Decree may be extended (a) by written stipulation of Plaintiff and EPA with notice to the Court, or (b) by the Court upon motion of EPA for go od cause shown pursuant to the Federal Rules of Civil Procedure and upon consideration of any response by Plaintiff and any reply by EPA

. 5 . If a lapse in appropriations for EPA occurs within one hundred and twenty (120) days prior to any deadline in Pa ragraph 1 in this Decree, th at deadline s shall be extended automatically one day for each day of the lapse in appropriations

. 6

. Plaintiff and EPA agree that this Consent Decree shall constitute a complete

and final settlement of all claims that Plaint iff has asserted against the United States, including EPA, under any provision of law in connection with Sierra Club v. McCarthy
, Case No. 3 :1 2

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covenants not to sue the United States, incl uding EPA, for any such claims.

7

. In the event of a dispute between Plaintiff and EPA 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. These parties shall meet and confer in order to attempt to resolve the dispute. If these parties are unable to resolve the dispute within ten (10) business days after receipt of the notice, either party may petition the Court to resolve the dispute.

8 . No motion seeking to enforce this Consent Decree or for contempt of Court

shall be properly filed unless the procedure set forth in Paragraph 7 has been followed
,

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28 and the non

- moving party has been provided with written notice at least ten (10) business days before the filing of such motion

. 9

. The deadline for filing a motion for costs of litigation (including attorney fees) for activities performed prior to entry of the Consent Decree is here by extended until ninety (90) days after this Consent Decree is entered by the Court. During this period, the Parties shall seek to resolve informally any claim for costs of litigation (including attorney fees), and if they cannot, the Sierra Club will fi le a motion for costs of litigation (including attorney fees) or a stipulation or motion to extend the deadline to file such a motion. EPA reserves the right to oppose any such request.

1 0 . This Court shall retain jurisdiction over this matter to enforc e the terms of this Consent Decree and to consider any requests for costs of litigation, including attorney fees.

1 1 . Nothing in the terms of this Consent Decree shall be construed ( a ) to confer upon this Court jurisdiction to review any issues that are within the exclusive jurisdiction of the United States Courts of Appeals under CAA section 307(b)(1),

42 U.S.C. § 7607(b)(1), including final action take pursuant to section 110(k) of the
CAA, 42 U.S.C. § 7410(k), approving, disapproving, or approving in p art and disapproving in part a SIP submittal and promulgati ng a FIP pursuant to section 110(c) of
the CAA, 42 U.S.C. § 7410( c ), or ( b ) to waive any claims, remedies, or defenses that the parties may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1).

1 2 . Nothing in this Consent Decree shall be construed to limit or modify any discretion accorded EPA by the Clean Air Act or by general principles of administrative law in taking the actions which are the subject of this Consent Decree, including the

dis cretion to alter, amend, or revise any final actions promulgated pursuant to this Consent Decree. EPA’s obligation to perform each action specified in this Consent

Decree does not constitute a limitation or modification of EPA’s discretion within the

mean ing of this paragraph.

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28 1 3 . Except as expressly provided herein, nothing in this Consent Decree shall be construed as an admission of any issue of fact or law nor to waive or limit any claim, remedy, or defense, on any grounds, related to any final action EPA takes with respect to

the actions addressed in this Consent Decree.

1 4 . Plaintiff reserves the right to seek additional costs of litigation, including reasonable attorney fees, incurred subsequent to entry of this Consent Decree and arising

from Pla intiff’s need to enforce or defend against efforts to modify its terms or the underlying schedule outlined herein, or for any other unforeseen continuation of this action. EPA reserves the right to oppose any such request for additional costs of litigatio n, including reasonable attorney fees.

1 5 . It is hereby expressly understood and agreed that this Consent Decree was jointly drafted by Plaintiff and EPA. Accordingly, the parties hereby agree that any and

all rules of construction to the effect that a mbiguity is construed against the drafting party shall be inapplicable in any dispute concerning the terms, meaning, or interpretation of

this Consent Decree.

1 6 . The parties agree and acknowledge that before this Consent Decree can be

finalized and enter ed by the Court, EPA must provide notice of this Consent Decree in the Federal Register and an opportunity for public comment pursuant to CAA

section 113(g), 42 U.S.C. § 7413(g). After this Consent Decree has undergone notice and
comment, the Administrato r and/or the Attorney General, as appropriate, shall promptly consider any written comments in determining whether to withdraw or withhold their consent to the Consent Decree, in accordance with CAA section 113(g). If the Administrator and/or the Attorney General do not elect to withdraw or withhold consent, EPA shall promptly file a motion that requests that the Court enter this Consent Decree.

1 7 . Any notices required or provided for by this Consent Decree shall be in writing, via electronic mail or oth er means, and sent to the following (or to any new

address of counsel as filed and listed in the docket of the above

- captioned matter, at a future date):

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28 For Plaintiff Sierra Club :
Robert Ukeiley Law Office of Robert Ukeiley 255 Mountain Meadow Road Bould er, CO 80302 Tel. (303) 442

- 4033 Email: rukeiley@igc.org

ANDREA ISSOD (Cal. Bar No. 230920) Sierra Club 85 Second Street, 2nd Floor San Francisco, CA 94105 Tel

. (415) 977

- 5544 Facsimile (415) 977

- 5793 Email: andrea.issod@sierraclub.org

For Defendan t EPA : Leslie M. Hill U.S. Department of Justice Environment & Natural Resources Division Environmental Defense Section 601 D Street N.W., Suite 8000 Washington D.C. 20004 Tel. (202) 514

- 0375 Email: Leslie.Hill@usdoj.gov

1 8 . EPA and Plaintiff recogni ze 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 o r 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.

19 . If for any reason the Court should decline to approve this Consent Decree in

the form presented, this agreement is voidable at the sole discretion of either party and the terms of the proposed Consent Decree may not be used as evidence in any litigation between the parties.

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28 2 0 . The undersigned representatives of Plaintiff Sierra Club and D efendant EPA certify that they are fully authorized by the party they represent to consent to the Court’s entry of the terms and conditions of this Decree.

SO ORDERED on this _____ day of _____________________, 201 5

.

________________________________ CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

COUNSEL FOR PLAINTIFF:

/s/ Robert Ukeiley ( email authorization 1 / 9 /1 5) Robert Ukeiley, Admitted Pro Hac Vice Law Office o f Robert Ukeiley 255 Mountain Meadows Road Boulder, CO 80302 Telephone (303) 442

- 4033 Email: rukeiley@igc.org

ANDREA ISSOD (Cal. Bar No. 230920) Sierra Club 85 Second Street, 2nd Floor San Francisco, CA 94105 Telephone (415) 977

- 5544 Facsimile (415) 977

- 5793 andrea.issod@sierraclub.org
Attorneys for Plaintiff Sierra Club

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28 C OUNSEL FOR DEFENDANT: JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division

/s/ Leslie M. Hill LESLIE M. HILL (D.C. Bar No. 476008) Environment al Defense Section 601 D Street N.W., Suite 8000 Washington D.C. 20004 Tel. (202) 514

- 0375 Email: Leslie.Hill@usdoj.gov
Attorneys for Defendant EPA

Of counsel:

Ragan S. Tate Office of General Counsel U.S. Environmental Protection Agency

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