Consent Decree 1 Case No. 11

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28 BRENT NEWELL (SBN 210312) ALEGRIA DE LA CRUZ (SBN 229713) Center on Race Poverty & the Environment 47 Kearny Street, Suite 804 San Francisco, California 94108 Telephone: (415) 346

- 4179 Facsimile: (415) 346

- 8723 bnewell@crpe

- ej.org
Attorneys for Plaintiffs adelacruz@crpe.ej.org

IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division

PAUL CIRINO United States Department of Justice Environment & Natural Resources Division P.O. Box 23986 Washington, D.C. 20026

- 3986 Telephone : (202) 514

- 1542 Facsimile: (202) 514

- 8865 paul.cirino@usdoj.gov Attorneys for Defendants

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

EL COMIT É PARA EL BIENESTAR DE EARLIMART and ASSOCIATION OF IRRITATED RESIDENTS,
Plaintiffs,

vs.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, LISA JACKSON, and JARED BLUMENFELD,

Defendants. Case No. 11

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CONSENT DECREE Case3:11-cv-03779-WHA Document22-1 Filed11/14/11 Page1 of 9Consent Decree 2 Case No. 11

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28 WHEREAS, on August 1, 2011, Plaintiffs El Comité para el Bienestar de Earlimart and
Association of Irritated Residents (jointly, “Plaintiffs”) filed the Complaint in the above

captioned matter against Defend ants United States Environmental Protection Agency, Lisa
Jackson, in her official capacity as Administrator of the United States Environmental Protection
Agency, and Jared Blumenfeld, in his official capacity as Regional Administrator for Region IX

of the United States Environmental Protection Agency (collectively, “EPA”), alleging that EPA
has failed to undertake certain nondiscretionary duties under the Clean Air Act (“CAA”), 42
U.S.C. §§ 7401

- 7671q, and that such alleged failures are actionable under sec tion 304(a)(2) of
the CAA, 42 U.S.C. § 7604(a)(2);
WHEREAS, Section 110(a)(1) of the CAA, 42 U.S.C. § 7410(a)(1), requires States to
adopt and submit to EPA for review state implementation plans (“SIPs”), which establish
specific control measures and other requirements that apply to particular sources of air pollution
within a State and are designed to attain, maintain, and enforce National Ambient Air Quality
Standards established by EPA that specify the maximum permissible concentrations for those
pollut ants in the ambient air, see 42 U.S.C. §§ 7408, 7409;
WHEREAS, Section 110(k) of the CAA, 42 U.S.C. § 7410(k), sets forth the process by
which EPA is to review SIP submissions, including SIP revisions;
WHEREAS, Plaintiffs’ Complaint alleges that EPA has a nondiscretionary duty to act
within the time lines set forth in Section 110(k)(2) of the CAA, 42 U.S.C. § 7410(k)(2), on SIP
submissions and revisions submitted to EPA;
WHEREAS, Plaintiffs’ Complaint alleges that EPA has failed to take timely final actio n to approve, disapprove, or partially approve/disapprove the Proposed State Implementation Plan
Commitment for the San Joaquin Valley (hereinafter, “Pesticide Element SIP Submittal”), as Case3:11-cv-03779-WHA Document22-1 Filed11/14/11 Page2 of 9Consent Decree 3 Case No. 11

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28 well as regulations pertaining to field fumigation methods, pesticid e emission inventory, and
field fumigation limits (“Fumigant Rules SIP Submittal”);
WHEREAS, Plaintiffs’ Complaint seeks an order from this Court directing EPA to take
final action on the Pesticide Element SIP Submittal and the Fumigant Rules SIP Submittal , both
of which were submitted to EPA on October 12, 2009, pursuant to Section 110(k) of the CAA;
WHEREAS, EPA intends to provide public notice and an opportunity to comment on its
proposed action on any SIP submission, or revision thereto, that provides a basis for the final
action specified in Paragraph 2 below, and to consider and address in that final action any
relevant comments received;
WHEREAS, the parties have agreed to a settlement of this action without admission of
any issue of fact or law;

WH EREAS, the parties, by entering into this Consent Decree, do not waive or limit any
claim or defense, on any grounds, related to any final EPA action;
WHEREAS, the parties consider this Consent Decree to be an adequate and equitable

resolution of all of th e claims in this matter;
WHEREAS, it is in the interest of the public, the parties, and judicial economy to resolve
this matter without protracted litigation;
WHEREAS, the parties agree that this Court has jurisdiction over this matter pursuant to

the ci tizen suit provision in Section 304(a)(2) of the CAA and that venue lies in the Northern
District of California;
WHEREAS, the Court, by entering this Consent Decree, finds that the Consent Decree is
fair, reasonable, in the public interest, and consistent with the CAA; Case3:11-cv-03779-WHA Document22-1 Filed11/14/11 Page3 of 9Consent Decree 4 Case No. 11

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28 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. EPA shall sign no later than April 15, 2012 a no tice or notices of the Agency’s
proposed action or actions on the Revised Pesticide Element SIP Submittal and the Fumigant
Rules SIP Submittal pursuant to Section 110(k) of the CAA, 42 U.S.C. § 7410(k). No later than
15 business days following signature, EPA shall send the notice or notices to the Office of the
Federal Register for review and publication in the Federal Register.

2. EPA shall sign no later than August 15, 2012 a notice or notices of the Agency’s

final action or actions on the Revised Pesticide Element SIP Submittal and the Fumigant Rules
SIP Submittal pursuant to Section 110(k) of the CAA, 42 U.S.C. § 7410(k). No later than 15
business days following signature, EPA shall send the notice or notices to the Office of the
Federal Register for revi ew and publication in the Federal Register.

3. When EPA’s obligations under Paragraphs 1 and 2 have been completed, the
parties shall file a joint request to the Court to dismiss this matter with prejudice.

4. The parties may extend the deadlines established in Paragraphs 1, 2, and 10 by
written stipulation executed by counsel for the parties and filed with the Court. In addition,
subject to the terms in Paragraphs 8 and 9, the deadlines established in Paragraphs 1, 2, and 10
may be extended by the Court upon mo tion by any party to this Consent Decree for good cause
shown and demonstrating that such modification is in the public interest, after consideration of
any response by the non

- moving party.

5. Nothing in this Consent Decree shall be construed to limit or m odify the
discretion accorded EPA by the CAA and by general principles of administrative law, including
the discretion to alter, amend or revise any response and/or final action contemplated by this Case3:11-cv-03779-WHA Document22-1 Filed11/14/11 Page4 of 9Consent Decree 5 Case No. 11

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28 Consent Decree. EPA’s obligation to take the actions set forth in Paragraphs 1 and 2 by the time
specified therein does not constitute a limitation or modification of EPA’s discretion within the
meaning of this paragraph.

6. Nothing in this Consent Decree shall be construed to confer upon the district
court jurisd iction to review any decision made in the final action or actions identified in
Paragraph 2. 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 o f the United States
Courts of Appeal pursuant to Sections 307(b)(1) and 505 of the CAA, 42 U.S.C. §§ 7607(b)(1),

7661d.

7. This Court shall retain jurisdiction to enforce the terms of this Consent Decree
and to consider any requests for costs of litigation, i ncluding attorneys’ fees.

8. 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 nature of t he dispute and requesting informal
negotiations. If the parties cannot reach an agreed

- upon resolution within ten (10) business days
after receipt of the notice, any party may move the Court to resolve the dispute.

9. No motion or other proceeding seeking to enforce this Consent Decree shall be
considered properly filed, unless Plaintiffs have followed the procedure set forth in Paragraph 8
and provided EPA with written notice received at least ten (10) business days before the filing of
such motion or procee ding.

10. EPA agrees that, pursuant to Section 304(d) of the CAA, 42 U.S.C. § 7604(d),
Plaintiffs are both eligible and entitled to recover its costs of litigation in this action, including
reasonable attorneys’ fees, incurred prior to entry of this Consent De cree. The deadline for filing
a bill of costs pursuant to Local Rule 54

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28 reasonable attorneys’ fees, pursuant to Local Rule 54

- 6 for activities performed in this case prior
to entry of this Consent Decree, is hereby extended until 90 days after the date on which the
Court enters this Consent Decree. During this time the parties shall seek to resolve informally
any claim for costs of litigation, including reasonable attorneys’ fees.

11. Plaintiff reserves the r ight to seek recovery of costs of litigation, including
reasonable attorneys’ fees, consistent with Section 304(d) of the CAA, for activities to enforce
this Consent Decree. EPA reserves the right to oppose any such request for costs of litigation.

The C ourt shall retain jurisdiction to resolve any such request notwithstanding any dismissal
pursuant to Paragraph 3.

12. The obligations imposed upon EPA under this Consent Decree may only be
undertaken using appropriated funds. No provisions of this Consent Dec ree shall be interpreted
as or constitute a commitment or requirement that EPA obligate or pay funds in contravention of

the Anti

- Deficiency Act, 31 U.S.C. § 1341, or any other applicable federal law.

13. Plaintiffs and EPA shall not challenge the terms of t his Consent Decree or this
Court’s jurisdiction to enter this Consent Decree.

14. The parties agree and acknowledge that before this Consent Decree is entered by
the Court, EPA must provide notice of this Consent Decree in the Federal Register and an
opportuni ty for public comment pursuant to Section 113(g) of the CAA, 42 U.S.C. § 7413(g).
After this Consent Decree has undergone 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 their consent to the Consent Decree, in accordance
with section 113(g) of the CAA. If the Administrator and/or the Attorney General do not elect to
withdraw or withhold their consent, EPA shall promptly file a motion that requests the Court to

enter this Consent Decree. Case3:11-cv-03779-WHA Document22-1 Filed11/14/11 Page6 of 9Consent Decree 7 Case No. 11

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28 15. Any notices required or provided for by this Consent Decree shall be made in
writing, via facsimile, e

- mail or other means, and sent to the following:

For Plaintiff:

Brent Newell Alegria De La Cruz Center on Race Poverty & the Environment 47 Kearny Street, Suite 804 San Francisco, CA 94108 Telephone: (415) 346

- 4179 Email: bnewell@crpe

- ej.org adelacruz@crpe

- ej.org

For Defendants:

Pa ul Cirino U.S. Department of Justice Environmental Defense Section P.O. Box 23986 Washington, D.C. 20026

- 3986 Phone: (202) 514

- 1542 Reference DJ# 90

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- 19204/1
Jan M. Tierney Office of General Counsel U.S. Environmental Protecti on Agency Ariel Rios Bldg., MC 2344A 1200 Pennsylvania Ave., N.W. Washington, DC 20460 Phone: (202) 564

- 5598 Fax: (202) 564

- 5603 Email: tierney.jan@epa.gov
Jeff Wehling Office of Regional Counsel U.S. Environmental Protection Agency 75 Haw thorne Street, ORC

- 2 San Francisco, CA 94105 Phone: (415) 972

- 3901 Fax: (415) 947

- 3570 Email: wehling.jefferson@epa.gov

16. The undersigned representatives of each party certify that they are fully
authorized by the party that they represen t to bind that party to the terms of this Consent Decree. Case3:11-cv-03779-WHA Document22-1 Filed11/14/11 Page7 of 9Consent Decree 8 Case No. 11

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28 17. Thi s Consent Decree shall not preclude any right of action by a non

- party to bring
a citizen suit pursuant to S ection 304 of the Clean Air Act, 42 U.S.C. § 7604, to enforce the n on

discretionary dut ies alleged in the Complaint. In any such matter, EPA preserves all its defenses.

IT IS SO ORDERED.

Dated: _________________

__________________________________ WILLIAM H. ALSUP
UNITED STATES DISTRICT JUDGE
COUNSEL FOR PLAINTIFFS:

Dated: N ovember 2 , 2011 /s/ Brent Newell (with permission) BRENT NEWELL (SBN 210312) ALEGRIA DE LA CRUZ (SBN 229713) Center on Race Poverty & the Environment 47 Kearny Street, Suite 804 San Francisco, CA 94108 Telephon e: (415) 346

- 4179 Email: bnewell@crpe

- ej.org Email: adelacruz@crpe

- ej.org Counsel for Plaintiff

COUNSEL FOR DEFENDANTS:

Dated: November 2 , 2011 IGNACIA S. MORENO Assistant Attorney General Environment and Natural Resource s Division

/s/ Paul Cirino PAUL CIRINO Trial Attorney U.S. Department of Justice Environmental Defense Section P.O. Box 23986 Washington, D.C. 20026

- 3986 Phone: (202) 514

- 1542 Email: paul.cirino@us doj.gov Counsel for Defendants Case3:11-cv-03779-WHA Document22-1 Filed11/14/11 Page8 of 9Consent Decree 9 Case No. 11

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28 OF COUNSEL:
Jan M. Tierney Office of General Counsel United States Environmental Protection Agency Washington, D.C.
Jefferson Wehling Office of Regional Counsel United States Environmental Protection Agency, Region IX San Francisco, California Case3:11-cv-03779-WHA Document22-1 Filed11/14/11 Page9 of 9