IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ENVIRONMENTAL INTEGRITY PROJECT )

and BENJAMIN FELDMAN, )

)

Plaintiffs, ) Civil Action No. 

) 13-cv-01783 (KBJ)

v. )

)

GINA MCCARTHY, in her official )

capacity as Administrator, United States )

Environmental Protection Agency, )

)

Defendant. )

__________________________________________)

CONSENT DECREE

WHEREAS, Plaintiffs 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 

Administrator, 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 days 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, Plaintiffs and EPA (“the Parties”) wish to effect a settlement of the abovecaptioned 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;
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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 Plaintiffs’ CAA 

Title V Petition pursuant to 42 U.S.C. § 7661d(b)(2).

2. Following signature of such response to Plaintiffs’ Title V Petition, EPA shall

expeditiously 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 typographical 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 to Plaintiffs’ petition includes the granting of any portion of the 

petition 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, including attorneys’ fees, 

incurred prior to entry of this Consent Decree is hereby extended until sixty (60) days 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 attorneys’ fees, and if they cannot, will 

submit that issue to this Court for resolution. 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 attorneys’ fees. 
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5. Any provision of this Consent Decree may be modified 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 any 

response by 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 shut-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 circumstances, any 

resulting failure to meet the timetables set forth herein shall not constitute a failure to comply 

with the terms of this Consent Decree, and any deadlines occurring within one hundred twenty 

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

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

circumstances in the event that EPA invokes this term of the Consent Decree and will provide 

Plaintiffs with an explanation of EPA's basis for invoking this term. Plaintiffs may challenge the 

invocation 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. Plaintiffs 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 any 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 Paragraphs 4 and 10 of 
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this Consent Decree. Plaintiffs therefore discharge and covenant not to sue the United States, 

including EPA, for any such claims. 

9. Nothing in this Consent Decree shall be construed to limit or modify any 

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 any responses or final actions contemplated by this Consent Decree. EPA’s obligation to

perform the actions specified in Paragraph 1 by 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 any grounds, related to any final action 

EPA may take with respect to the Permit.

11. Nothing in this Consent Decree shall be construed to confer upon the District 

Court 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 District Court jurisdiction 

to review any issues that are within the exclusive jurisdiction of the United States Court of 

Appeals pursuant to CAA section 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).

12. The obligations imposed upon EPA under this Consent Decree can only be

undertaken using 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-Deficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law.
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13. Any notices required or provided for by this Consent Decree shall be made in

writing and sent to the following:

For Plaintiffs:

Leah Kelly

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 Defense 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.gov
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14. 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.

15. 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 procedure set forth in 

Paragraph 14.

16. 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 appropriate notice with the Court so that the Clerk may close the file.

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

finalized and entered by 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 

promptly 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 promptly consider any 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 consent 
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to this Consent Decree, the Parties promptly shall file a motion that requests the Court to enter 

this Consent Decree.

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

drafted by Plaintiffs and EPA and that any and all rules of construction to the effect that 

ambiguity is construed against the drafting party shall be inapplicable in any dispute concerning 

the terms, meaning, or interpretation of this Consent Decree.

19. The undersigned representatives of each Party certify that they are fully

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

SO ORDERED on this ___ day of _________________, 2014.

_________________________________

HON. KETANJI BROWN JACKSON 

United States District Judge

SO AGREED: 

FOR PLAINTIFFS /s/ LEAH KELLY

Leah Kelly

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 Justice
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Environmental Defense Section

P.O. Box 7611

Washington, D.C. 20044

Tel: (202) 514-3126

Fax: (202) 514-8865

eileen.mcdonough@usdoj.gov