UNTED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ENVIRONMENTAL INTEGRITY PROJECT,

BALTIMORE HARBOR W ATERKEPER,

INC., CLEAN WATER ACTION, and the

CHESAPEAKE CLIMATE ACTION

NETWORK,

Plaintiffs,

v.

LISA P. JACKSON, in her official

capacity as Administrator, United States

Environmental Protection Agency,

Defendant.

)

)

)

)

)

)

) Civil Action No. 10-

)

)

)

)

)

)

)

)

CONSENT DECREE

WHEREAS, Plaintiffs Environmental Integrity Project, Baltimore Harbor Waterkeeper,

Inc., Clean Water Action, and the Chesapeake Climate Action Network (collectively

"Plaintiffs"), fied this action pursuant to section 304(a)(2) of the Clean Air Act ("CAA"), 42

U.S.C. § 7604(a)(2), alleging that Defendant Lisa P. Jackson, Administrator of the United States

Environmental Protection Agency ("EP A"), failed to perform a nondiscretionary duty mandated

by CAA section 505(b)(2), 42 U.S.c. § 766ld(b)(2), to grant or deny within 60 days an

administrative petition dated May 21,2009, requesting that EP A object to a proposed CAA Title

V federal operating permit issued by the Maryland Department of the Environment to

Wheelabrator Baltimore, L.P. for a municipal solid waste incinerator in Baltimore, Maryland

("Title V Petition").

WHEREAS, Plaintiffs and EP A (collectively "the Parties") wish to effectuate a

settlement of the above-captioned matter without expensive and protracted litigation.
WHEREAS, the Parties consider this Consent Decree to be an adequate and equitable

resolution of the claims in the above-captioned matter.

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, 42 U.S.C. §§ 7401 et seq.

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,

ADJUGED and DECREED that:

1. This Cour has subject matter jurisdiction over the claims set forth in the

Complaint regarding the Title V Petition 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. As soon as is practicable after execution of this Agreement by the Parties, EPA

wil submit a public notice of this Consent Decree to the Federal Register for publication and

public comment pursuant to CAA section 1 13 (g), 42 U.S.C. § 7413(g).

3. Not later than April 15, 2010, EPA shall sign a decision pursuant to 42 U.S.C.

§ 766ld(b)(2) taking final action on the Title V Petition.

4. Within 15 business days following signature of its decision, EPA shall transmit

notice of such action to the Offce of the Federal Register for publication. Following such

transmission, EP A shall not take any step (other than as necessary to correct any typographical

or other errors in form within 10 days after transmission) to delay or otherwise interfere with

publication of such notice in the Federal Register.

5. The deadline for fiing a motion for costs oflitigation (including attorneys fees)

for activities performed prior to execution of this Consent Decree is hereby extended until 60

days after this Consent Decree is entered by the Cour. During this 60-day period, the Parties

2
3
to review any issues that are within the exclusive jurisdiction of the United States Courts of

Appeals pursuant to CAA section 307(b)(1) and 505, 42 U.S.C. § 7607(b)(1), 766ld. Nothing in

the terms of this Consent Decree shall be construed to waive any remedies or defenses the

Parties may have under CAA Section 307(b)(1), 42 U.S.C. § 7607(b)(1).

11. The Parties recognize and acknowledge that the obligations imposed upon EP A

under this Consent Decree can only be undertaken using appropriated fuds legally available for

such purose. No provision of this Consent Decree shall be interpreted as or constitute a

commitment or requirement that the United States obligate or pay fuds in contravention of the

Anti-Deficiency Act, 31 U.S.c. § 1341, or any other applicable provision oflaw. The possibility

exists that circumstances outside the reasonable control ofEPA could delay compliance with the

deadline established in Paragraph 3. Such situations include, but are not limited to, a

governent shut-down such as occured in 1995 and 1996, or catastrophic environment~l events

requiring immediate and/or time-consuming response by EP A. Should a delay occur due to such

circumstances, any resulting failure to meet the deadline set forth herein shall not constitute a

failure to comply with the terms of this Consent Decree, and any deadlines occuring within one

hundred twenty (120) days of the termination of the delay shall be extended one day for each day

of the delay. EPA wil provide Plaintiffs with notice as soon as is reasonably possible under the

circumstances in the event that EPA invokes this provision of the Consent Decree and wil

provide Plaintiffs with an explanation of EP A's basis for invoking this provision. Plaintiffs may

challenge the invocation of this provision of the Consent Decree under the dispute resolution

terms of this Consent Decree.

12. Any notices required or provided for by this Consent Decree shall be made in

writing, via facsimile or other means, and sent to the following:

4
For Plaintiffs:

Jennifer Peterson

Environmental Integrity Project

1920 L Street, NW Suite 800

Washington, DC 20036

Phone: 202-263-4449

Fax: 202-296-8822

EmaI1: Jpeterson~environmentalintegrity .org

F or Defendant:

Chief, Environmental Defense Section

United States Department of Justice

Environmental Defense Section

P.O. Box 23986

Washington, D.C. 20026-3986

Fax: 202-514-8865

Leslie Darman

U.S. Environmental Protection Agency

Office of General Counsel

AR: MC-2344-A

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

Phone: 202-564-5452

Fax: 202-564-5477

EmaI1: darman.1eslie~epa.gov

13. In the event of a dispute between the Parties concerning the interpretation or

implementation of any aspect of this Consent Decree, the disputing Part shall provide the other

Part with a written notice outlining the nature of the dispute and requesting informal

negotiations. If the Parties cannot reach an agreed-upon resolution within fifteen (15) business

days after receipt of the notice, any Part may move the Court to resolve the dispute.

14. No motion or other proceeding seeking to enforce this Consent Decree or' for

contempt of Cour shall be properly filed unless the Plaintiffs have followed the procedure set

5
forth in Paragraph 13 and provided EPA with written notice received at least five (5) business

days before the fiing of such motion or proceeding.

15. The Court shall retain jurisdiction to determine and effectuate compliance with

this Consent Decree. When EP A's obligations under Paragraphs 2 through 4 have been

completed, and the Plaintiffs' claims for costs of litigation have been resolved pursuant to the

process described in Paragraph 5 above, the above-captioned matter shall be dismissed with

prejudice. EP A shall file the appropriate notice with the Cour so that the Clerk may close the

fie.

16. The Effective Date of this Consent Decree is the date of its entr by the Cour.

17. The Parties agree and acknowledge that before this Consent Decree can be

finalized and entered by the Court, EP A must provide notice in the Federal Register and an

opportnity for comment pursuant to CAA section 1 13 (g), 42 US.c. § 7413(g). After this

Consent Decree has undergone an opportity for notice and comment, the Administrator and

the Attorney General, as appropriate, wil consider any such written comments as soon as is

practicable to determne whether to withdraw or withhold consent to this Consent Decree in

accordance with section l13(g) of the CAA. If the Administrator or the Attorney General elects

not to withdraw or withhold consent to this Consent Decree, the Parties wil promptly file a

motion that requests the Court to enter this Consent Decree.

18. This Consent Decree is the entire agreement between Plaintiffs and EP A in this

case. All prior conversations, meetings, discussions, drafts and writings of any kind are

specifically superseded by this Consent Decree.

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

drafted by Plaintiffs and EPA. Accordingly, the Parties hereby agree that any and all rules of

6
construction to the effect that ambiguity is construed against the drafting part shall be

inapplicable in any dispute concerning the terms, meaning, or interpretation of this Consent

Decree.

20. The undersigned representatives of each Part certify that they are fully

authorized by the Part they represent to bind that Part to the terms of this Consent Decree.

SO ORDERED on this _ day of ,2010.

UNITED STATES DISTRICT JUGE

7
SO AGREED:

FOR PLAINTIFFS

Dated: December J.3, 2009

~NNIFER PETERSON ~(P~

Environmental Integrty Project

1920 L Street, NW Suite 800

Washington, DC 20036

Phone: 202-263-4449

Fax: 202-296-8822

Email: Jpeterson~environmentalintegrity .org

FOR DEFENDANT

IGNACIA S. MORENO

Assistant Attorney General

Environmental & Natual Resources Division

Dated: ~ ';2J ),OID

HEATHER E. GANGE

~~

United States Depaiiment of Justice

Environmental Defense Section

P.O. Box 23986

Washington, D.C. 20026-3986

Phone (202) 514-4206

Fax (202) 514-8865

Email: Heather.Gange~usdoj.gov

Of Counsel for Defendant:

Leslie Darman

US. Environmental Protection Agency

Office of General Counsel

AR: MC-2344A

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

Phone: 202-564-5452

Fax: 202-564-5477

Email: Darman.Leslie~epa.gov

8