**IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA**  ENVIRONMENTAL INTEGRI TY PROJECT ) and BENJAMIN FELDMAN, ) ) Plaintiffs, ) Civil Action No. ) 13
- cv - 01783 (KBJ) v. ) ) GI NA MCCARTHY, in her official ) capacity as Administrator, United States ) Environmental Protection Agency , ) ) Defendant. ) __________________________________________) **CONSENT DECREE** WHEREAS, Plaintiff

s Environmental Integrity Project and Benjamin Feldman (“Plaintiffs”) filed this action pursuant to section 304(a)(2) of the Clean Air Act (“CAA”), 42 U.S.C. § 7604(a)(2), alleging that Defendant Gina McCarthy , in her official capacity as Adminis trator, United States Environmental Protection Agency (“EPA”), failed to perform a
non - discretionary

duty under CAA § 505(b)(2), 42 U.S.C. § 7661d(b)(2), to grant or deny within 60 day s a petition (“Title V Petition”) submitted by Plaintiffs on February 5, 2013 requesting that EPA object to a CAA permit (“Permit”) issued by the Maryland Department of the Environment to Mettiki Coal , LLC to operate a coal preparation/processing plant located in Oakland , Maryland (“Mettiki Plant”) ; WHEREAS, Pl aintiff

s and EPA (“the Parties”) wish to effect 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;2

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, ADJUDGED, and DECREED that: 1. On or before September 26, 2014 , EPA shall sign a response to Plaintiff s ’ CAA Title V P etition pursuant to 42 U.S.C. § 7661d(b)(2)
. 2. Following signatur e of such response to Plaintiff s ’ Title V P etition, EPA shall
e xpeditiously

deliver notice of EPA’s response to the Office of the Federal Register for review and publication. Following such transmission, EPA shall not take any step (other than as necessary to correct any typ ographical error or other errors in form) to delay or otherwise interfere with publication of such notice in the Federal Register. 3. If EPA’s response t o Plaintiffs’ p etition includes the granting of any portion of the p etition in whole or in part, EPA shall also promptly transmit the response to the Maryland Department of the Environment. 4. The deadline for filing a motion for costs of litigation, inclu ding attorney s’ fees, incurred prior to entry

of this Consent Decre e is hereb y extended until sixty ( 60 ) day s 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 litigation, including attorney s’ fees, and if they cannot, will submit that issue to this Court for resoluti on. The United States does not waive or limit any defenses it may

have to such claim. This Court shall retain jurisdiction to resolve any requests for costs of litigation, including attorney s’ fees.3

5
. Any

provision of this Consent Decree may be modifi ed by

(a) written stipulation of the Parties with notice to the Court, or (b) by the Court following motion of any party to this Consent Decree, pursuant to the Federal Rules of Civil Procedure, and upon consideration of an y response b y the non
- moving party. 6. The parties recognize that the possibility exists that circumstances outside the reasonable control of EPA could delay compliance with the timetables contained in this Consent Decree. Such situations include, but are not limited to, a government s hut
- down such as occurred in 1995, 1996, and 2013, or catastrophic environmental events requiring immediate and/or time
- consuming response by EPA. Should a delay

occur due to such circum stances, an y resulting failure to meet the timetables set forth here in shall not constitute a failure to compl y with the terms of this Consent Decree, and any deadlines occurring within one hundred twenty (120) day s of the termination of the delay shall be extended one day for each day

of the delay
. EPA will provide Plaintiff s with notice as soon as is reasonabl y possible under the circumstances in the event that EPA invokes this term of the Consent Decree and will provide Plaintiff s with an explanation of EPA's basis for invoking this term. Plaintiff s may challenge the i nvocation of this term of the Consent Decree under the dispute resolution terms of this Consent Decree, and EPA shall bear the burden of justifying its invocation of this term. 7
. Plaintiff

s and EPA shall not challenge the terms of this Consent Decree or this Court’s jurisdiction to enter and enforce this Consent Decree
. 8
. Plaintiffs and EPA agree that this Consent Decree shall constitute a complete and final settlement of all claims that Plaintiffs have asserted against the United States, including EPA, under an y provision of law in connection with Environmental Integrity Project, et al. v. Jackson , Case No. 13
- cv - 01783 (KBJ) (D.D.C.) , except as provided in Paragraph s 4 and 1 0 of4

this Consent Decree
. Plaintiffs therefore dischar ge and covenant not to sue the United States, including EPA, for any s uch claims. 9
. Nothing in this Consent Decree shall be construed to limit or modify an y discretion accorded EPA by the CAA or by

general principles of administrative law in taking the actions which are the subject of this Consent Decree, including discretion to alter, amend, or revise an y responses or final actions contemplated by this Consent Decree. E PA’s obligation to perform the actions specified i n Paragraph 1 b y the time specified therein does not constitute a limitation or modification of EPA’s discretion within the meaning of this paragraph. 10
. 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 or defense, on an y grounds, related to any final action EPA may take with respect to the Permit. 1 1
. Nothing in this Consent Decree shall be construed to confer upon the D istrict C ourt jurisdiction to review any final decision made by EPA pursuant to this Consent Decree. Nothing in this Consent Decree shall be construed to confer upon the D istrict C ourt jurisdiction to review an y issues that are within the exclusive jurisdiction of the United States Court of Appeals pursuant to CAA s ection 307 (b)(1), 42 U.S.C. § 7607(b)( 1). 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). 1 2
. The obligations imposed upon EPA under this Consent Decree can onl y be unde rtaken u sing appropriated funds. No provision 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
- D eficiency

Act, 31 U.S.C. § 1341, or any other applicable provision of law.5

1 3
. Any

notices required or provided for by this Consent Decree shall be made in writing and sent to the following: For Plaintiffs: Leah Kell y Abel Russ Environmental Integrity Project 1000 Vermont Avenue NW, Suite 1100 Washington, DC 20005 Tel: 202
- 263
- 4448 Fax: 202
- 296
- 8822 lkelly @environmentalintegrity .org aruss@environmentalintegrity .org For Defendants: Eileen McDonough United States Department of Justice Environmental Defens e Section P.O. Box 7611 Washington, D.C. 20044 Tel: (202) 514
- 3126 Fax: (202) 514
- 8865 eileen.mcdonough@usdoj.gov Karen Bennett Bianco U.S. Environmental Protection Agency Office of General Counsel 1200 Pennsylvania Ave., N.W. Washington, D.C. 20460 Tel: ( 202 ) 564
- 3298 Fax: (202) 564
- 5603 bennett.karen@usepa.gov James VanOrden U.S. Environmental Protection Agency Office of Regional Counsel , Region 3 1650 Arch Street Mail Code: 3RC42 Philadelphia, PA 19103
- 2029 Tel: ( 215 ) 814
- 2693 vanorden.james@epa.gov6

1 4
. 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 w ith 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 day s after receipt of the notice, any party may

move the Court to resolve the dispute. 1 5
. No motion or other proceeding seeking to enforce this Consent Decree or for contempt of Court shall be filed unless the Plaintiff has followed the pro cedure set forth in Paragraph 1 4
. 1 6
. The Court shall retain jurisdiction to determine and effect compliance with this Consent Decree. When EPA’s obligations under Paragraphs 1 through 3 of this Consent Decree have been completed, and Plaintiffs’ claim for costs of litigation has been resolved pursuant to Paragraph 4 , the above
- captioned matter shall be dismissed with prejudice. The Parties shall file the a ppropriate notice with the Court so that the Clerk may close the file. 1 7
. The Parties agree and acknowledge that before this Consent Decree can be finalized and entered b y the Court, EPA must provide notice in the Federal Register and an opportunity

for comment pursuant to CAA section 113(g), 42 U.S.C. § 7413(g). EPA shall pro mptly submit a public notice of this Consent Decree to the Federal Register for publication and public comment after lodging this Consent Decree with the Court. After this Consent Decree has undergone an opportunity for notice and comment, the Administrator and/or the Attorney General, as appropriate, shall promptl y consider an y such written comments in determining whether to withdraw or withhold consent to this Consent Decree, in accordance with section 113(g) of the CAA. If the federal government elects not to withdraw or withhold consent7

to this Consent Decree, the Parties promptly shall file a motion that requests the Court to enter this Consent Decree. 1 8
. It is hereb y expressl y understood and agreed that this Consent Decree was jointly drafted b y Plaintiffs and EPA and that any and all rules of construction to the effect that ambiguity is construed against the drafting party s hall be inapplicable in any dispute concerning the terms, meaning, or interpretation of this Consent Decree. 1 9
. T he undersigned representatives of each Party certify that they are full y
a uthorized by

the Party they represent to bind that Party to the terms of this Consent Decree. SO ORDERED on this ___ day of

_________________ , 201 4.

_______________________________ __ HON. KETANJ I BROWN JACKSON United States District Judge SO AGREED: FOR PLAI

NTIFFS /s/ LEAH KE LLY Leah Kell y Abel Russ Environmental Integrity Project 1000 Vermont Avenue NW, Suite 1100 Washington, DC 20005 Tel: 202
- 263
- 4448 Fax: 202
- 296
- 8822 lkelly @environmentalintegrity .org aruss@environmentalintegrity .org
FOR DEFENDANTS ROBERT G. DREHER Acting Assistant Attorney General Environment & Natural Resources Division /s/ EILEEN T. MCDONOUGH Eileen T. McDonough United States Department of Justice8 Environmental Defense Section P.O. Box 7611 Washington, D.C. 200 44 Tel: (202) 514
- 3126 Fax: (202) 514
- 8865 eileen.mcdonough@usdoj.gov