Consent Decree 1 Case No. 11-cv-3779 WHA

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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 COMITÉ 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-cv-3779 WHA

 

 CONSENT DECREE

Case3:11-cv-03779-WHA Document22-1 Filed11/14/11 Page1 of 9
Consent Decree 2 Case No. 11-cv-3779 WHA

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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 abovecaptioned matter against Defendants 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 section 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 

pollutants 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 action 

to approve, disapprove, or partially approve/disapprove the Proposed State Implementation Plan 

Commitment for the San Joaquin Valley (hereinafter, “Pesticide Element SIP Submittal”), as 

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well as regulations pertaining to field fumigation methods, pesticide 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; 

WHEREAS, 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 the 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 citizen 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;

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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 notice 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 review 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 motion 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 modify 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 

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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 jurisdiction 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 of 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, including 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 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, 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 proceeding.

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 Decree. The deadline for filing 

a bill of costs pursuant to Local Rule 54-1 and a motion for costs of litigation, including 

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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 right 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 Court 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 Decree 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 this 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 

opportunity 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.

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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:

Paul Cirino

U.S. Department of Justice

Environmental Defense Section

P.O. Box 23986

Washington, D.C. 20026-3986

Phone: (202) 514-1542

Reference DJ# 90-5-2-4-19204/1

Jan M. Tierney

Office of General Counsel

U.S. Environmental Protection 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 Hawthorne 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 represent to bind that party to the terms of this Consent Decree.

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17. This Consent Decree shall not preclude any right of action by a non-party to bring 

a citizen suit pursuant to Section 304 of the Clean Air Act, 42 U.S.C. § 7604, to enforce the nondiscretionary duties 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: November 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

Telephone: (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 Resources 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@usdoj.gov

Counsel for Defendants

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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

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