1 IN THE UNITED STATES DI STRICT COURT FOR THE DISTRICT OF COLUMBIA
NATIONAL PARKS CONSERVATION ) ASSOCIATION, MONTANA ENVI RONMENTA L ) IN FORMAT ION CENTER, GRAND CANYON ) TRUST, SAN JUAN CITI ZENS ALLIANCE, ) OUR CHILDREN'S EARTH FOU NDATION, ) PLAI NS JUSTI CE, POWDER R IVER BASIN ) CIVI L ACTION NO. RESOURCE COUNCIL, SI ERRA CLUB, ) 1: 11
- cv - 01 5 48 (ABJ) AND ENVI RONMENTALDE FENSE FUND ) ) Plaintiffs, ) ) v. ) ) LISA JACKSON, in her official capacit y as ) Admi nistrator, United States Environmental ) Protection Agency , ) ) Defendant. ) ________________________________________________) CONSENT DECREE This Consent Decree is entered into by Plaintiffs National Parks Conservation Association, Montana Environmental Information Center , Grand Cany on Trust , San Juan Citizens Alliance , Our Children's Earth Foundation , Plains Justice , Powder River Basin Resource Council , Sierra Club, and Environmental Defense Fund (“Plaintiffs”), and by Defendant L i sa Jackson, in her official capacit y as Administrator of the United States Environmental Protection Agency (“EPA” or “the Administrator” ). WHEREAS, Section 110(c) of the Clean Air Act, 42 U.S.C. § 7410(c), requires the Administrator of EPA to promulgate a federal implementation plan (“ FIP ”) within two y ears of a finding that a state has failed to make a required a state implementation plan (“ SIP ”) submittal. The pertinent provision of Section 110(c) states:2

(1) The Administrator shall promulgate a Federa l implementation plan at any time within 2 y ears after the Administrator

— (A) finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum criteria established unde r section 110(k)(1)(A). WHEREAS, on January 15, 2009, EPA found that the following 34 States 1 had failed to submit Clean Air Act SI Ps addressing an y of the required regional haze SIP elements of 40 C.F.R. § 51.308: Alaska, California, Connecticut, Distr ict of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey , New York, North Dakota, Ohio, Oklahoma, Oregon, Penns yl vania, Rhode Island, South Dakota, Texas, Vermont, U.S. Virgin Islands, Virginia, Washington, and Wisconsin. 74 Fed. Reg. 2392, 2393 (Jan

. 15, 2009); WHEREAS, on January

15, 2009 EPA also found that the following five states had submitted some, but not all, of the required regiona l haze SIP elements set forth at 40 C.F.R. §§ 51.308 and 51.309: Arizona

—40 C
. F
. R
. § 51.309(g) and 40 C

. F
. R
. § 51.309(d)(4); Colorado

— 40 C
. F
. R
. § 51.308(d) and 40 C

. F
. R
. § 51.308(e) for two sources; Michigan

—40 C
. F
. R
. § 51.308(d) and 40 C

. F .R. § 51.308(e) for six sources; New Mexico

—40 C
. F
. R
. § 51.309(g) and 40 C
. F
. R
. § 51.309(d)(4); Wyoming

—40 C
. F
. R
. § 51.309(g). 74 Fed. Reg. at 2393 ; WHEREAS, on January

15, 2009, EPA stated that its finding “ starts the two

- ye ar clock for the promulgation b y EPA of a FI P. EPA is not required to promulgate a FIP if the state makes the required SIP submittal and EPA takes final action to approve the submittal within two ye ars of EPA’s finding. ” 74 Fed. Reg. at 2393; WHEREAS, EPA did not, by January 15, 2011, promulgate regional haze FIPs or approve regional haze SIPs for an y of the 34 states for which it found on January 15, 2009 a

1 Throughout this Consent Decree, the term “ s tate” or “State” has the meaning provided in 42 U.S.C. § 7602(d).3

failure to submit SIPs addressing any of the required regional haze SIP element s, and EPA also did not, by

January 15, 2011, promulgate regi onal haze FIPs or approve regional haze SIPs correcting the non

- submittal defic i encies that EPA found on January 15, 2009 with respect to the regional haze SIP requirements for Arizona, Colorado, Michigan, New Mexico and Wyoming ; WHEREAS to meet the reg ional haze implementation plan requirements that were due by December 17, 2007 under EPA’s regional haze regulations the following states (and one region) submitted regional haze SIPs to EPA prior to January 15, 2009 (hereinafter, “regional haze SI P submittals”), and whereas EPA has y et to take final action on such submittals pursuant to 42 U.S.C. 7410(k): Alabama; Albuquerque, NM; Iowa; L ouisiana; Mississippi ; Missouri; North Carolina; South Carolin a; Tennessee; and West Virginia; WHEREAS, Plaintiffs s erved prior notice on the Administrator alleg ing that her failure to promulgate regional haze FIPs and take final action on regional haze SIPs as described above constituted failure to perform duties that are not discretionary under the Act, and of Plainti ffs’ intent to initiate the present action. This notice was provided via certified letters, posted January 19, 2011, and addressed to the Administrator ; WHEREAS, Plaintiffs filed a complaint pursuant to CAA section 304(a)(2), 42 U.S.C. § 7604(a)(2), alle ging failure b y the Administrator to perform nondiscretionary duties as referenced above; WHEREAS, Plaintiffs and EPA (collectivel y, the “Parties”) wish to effectuate a settlement of the above

- captioned cases without expensive and protracted litigation, and without a litigated resolution of any issue of law or fact;4

WHEREAS, the Parties consider this Consent Decree to be an adequate and equitable resolution of the claims in the above

- captioned case and consent to entry of this Consent Decree; and WHEREA S, the Court, by entering this Consent Decree, finds that this 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. This Court has subject matter jurisdiction over the claims set forth in the Complaint and to order the relief contained in this Consent Dec ree. 2. Venue is proper in the United States District Court for the District of Columbia. **Resolution of Claims** 3. By the “Proposed Promulgation Deadlines” set forth in Table A below EPA shall sign a notice (s) of proposed rulemaking in which it proposes approv al of a SIP, promulgation of a FIP, partial approval of a SIP and promulgation of a partial FIP, or approval of a SI P or promulgation of a FIP in the alternative, for each State therein, that collectively

meet the regional haze implementation plan requirem ents that were due by December 17, 2007 under EPA’s regional haze regulations. 4. By the “Final Promulgation Deadlines” set forth in Table A below, EPA shall sign a notice (s) of final rulemaking promulgating a FIP for each State therein to meet the regional haze implementation plan requirements that were due by December 17, 2007 under EPA’s regional haze regulations , except where, by such deadline EPA has for a State therein signed a notice of final rulemaking unconditionally approving a SIP, or5 promulgating a partial FIP and unconditional approval of a portion of a SI P , that collectively meet the regional haze implementation plan requirements that were due by December 17, 2007 under EPA’s regional haze regulations

. **TABLE A Deadlines for EPA to Sign Notic**  **e of Promulgation for Proposed and Final Regional Haze FIPs and/or**  **Approval of SIPs (“RH” = Regional Haze)**  **Proposed Promulgation**  **Deadlines Final** 

**Promulgation Deadlines**  **State**
**December 13 , 2011**  Nevada Oklahoma (all BART elements) **December 15, 2011** Kansas New Jersey **November 15, 2011**  **March 15, 2012** District of Col umbia Maine **November 29, 2011**  **March 29, 2012** South Dakota **January 1 7**  **, 2012 May 15, 2012**  Minnesota Illinois Indiana New York Ohio Pennsylvania Virginia **February 15, 2012 June 15, 2012**  Alas ka (all BART elements) Georgia Maryland Nebraska New Hampshire New Mexico(all remaining RH SIP elements) Rhode Island Verm ont Wisconsin **March 15, 2012 July 1**  **3 , 2012**  Connecticut Massachusetts **May 14, 2012 September 14, 2012**  Haw aii Virgin Islands **May 1 5, 2012**  **November 15, 2012** Alaska (all remaining RH SIP elements) Arizona Idaho (all remaining RH SIP elements) Florida Michigan Oklahoma (all remaining RH SIP elements) Oregon (all remaining RH SIP elements) Texas Washington6

5. By the “Proposed Promulgation Deadlines” set forth in Table B below EPA shall sign a notice of proposed rulemaking in which it proposes to approve or disapprove, in accordance with 42 U.S.C. § 7410(k), the regional haze SI P submittals for each state
or area indicated

. 6. By the “Final Promulgation Deadlines” set forth in Table B below, EPA shall sign a notice of final rulemaking in which it approves or disapproves, in accordance with 42 U.S.C. § 7410(k), the regional haze SIP submittals for each state or area indicated

. **TABLE B Deadl**  **ines for EPA to Sign Notices of Promulgation for Proposed and Final Approval or Disapproval of Regional Haze SIP Submissions**  **Proposed Promulgation**  **Deadlines Final** 

**Promulgation Deadlines**  **State or Area March 15, 2012**  Tennessee West Virginia **February 15, 2012**  **June 15, 2012** Alabama Albuquerque, NM Iow a Louisiana Mississippi Missouri North Carolina South Carolina **General Provisions** 7. The deadlines in Table A or B may be extended for a period of 60 day s or less by written stipulation executed by couns el for EPA and Plaintiffs and filed with the Court. Any

other extension of a deadline in Table A or B may be approved by

the Court upon motion made pursuant to the Federal Rules of Civil Procedure by EPA and upon consideration of an y response b y Plaintiff s and repl y b y EPA. 8. EPA agrees that Plaintiffs are entitled to recover their costs of litigation (including attorney s’ fees) (“litigation costs”) incurred in this matter pursuant to 42 U.S.C. §7 7604(d). The deadline for the filing of an y motion for litig ation costs for activities performed prior to the lodging of this decree with the Court is hereb y extended for a period of 120 day s. During this time the Parties shall seek to resolve informal ly an y claim for litigation costs , and if they cannot reach a r esolution, Plaintiffs may seek such litigation costs from the Court. The Court shall retain jurisdiction to resolve an y request for litigation costs. Plaintiffs reserve their right to seek litigation costs for an y work performed after the lodging of this Consent Decree. EPA does not concede that Plaintiffs w ill be entitled to fees for an y work performed after the lodging of the Consent Decree, and the parties reserve all claims and defenses with respect to any future costs of litigation claim. 9. No lat er than ten business day s following signature by the Administrator or her deleg atee of the notice of any proposed or final rulemaking referenced above, EPA shall deliver the notice to the Office of the Federal Register for review and prompt publication

. F ollowing such delivery to the Office of the Federal Register, EPA shall not take an y action (other than is necessary to correct an y t ypographical errors or other er r ors in form) to delay

or otherwise interfere with publication of such notice in the Federal Register. EPA shall make available to Plaintiffs copies of the notices referenced herein within five business day s following signature b y the Administrator or her delegatee

. 10. Plaintiffs and EPA shall not challenge the terms of this Consent Decree or thi s Court’s jurisdiction to enter and enforce this Consent Decree. 11. Nothing in this Consent Decree shall be construed to limit or modify an y discretion accorded EPA b y the CAA or b y general principles of administrative law in taking8 the actions which are the subject of this Consent Decree, including the discretion to alter, amend, or revise any responses or final actions contemplated by this Consent Decree. EPA’s obligation to perform the actions specified b y Paragraphs 3 through 6 does not constitute a limit ation or modification of EPA’s discretion within the meaning of this paragraph. 12. Nothing in this Consent Decree shall be construed as an admission of an y issue of fact or law or to waive or limit any claim or defense, on any grounds, related to any final ac tion EPA may

take with respect to the SIPs or FIPs identified in paragraphs 3 through 6 of this Consent Decree. 13. Nothing in this Consent Decree shall be construed to confer upon the district court jurisdiction to review any final decision made by

EPA purs uant to this Consent Decree. Nothing in this Consent Decree shall be construed to confer upon the district court jurisdiction to review an y issues that are within the exclusive jurisdiction of the United States Court of Appeals pursuant to 42 U.S.C. §§ 76 07(b)(1) and 7661d. Nothing in this Consent Decree shall be construed to waive an y remedies or defenses the Parties may

have under 42 U.S.C. § 7607(b)(1). 14. The Parties recognize and acknowledge that the obligations imposed upon EPA under this Consent Decre e can only be undertaken using appropriated funds legally available for such purpose. 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

- Deficie ncy Act, 31 U.S.C. § 1341, or any other applicable provision of law.9

15. Any notices required or provided for by this Consent Decree shall be made in writing and sent via e

- mail to the following: **For Plaintiffs**  **:** David Baron dbaron@earthjustice.org Reed Zars rzars@lariat.org **For Defendant**  **:** Eileen T. McDonough eileen.mcdonough@usdoj.gov Lea Anderson anderson.lea@epa.gov
16. In the event of a dispute among the Parties concerning the interpretation or implementation of any

aspect of this Consent Decree, the disputing Party shall provide the other Part y with a written notice outlining the nature of the dispute and requesting informal negotiations. I f the Parties cannot reach an agreed

- upon resolution, any

Party may move the Court to resolve the dispute. 17. No motion or other proceeding seeking to enforce this Consent Decree or for contempt of court shall be properl y filed unless the Party s eeking to enforce this Consent Decree has followed the procedure set forth in Paragraph 16. 18. The Court shall retain jurisdiction to determine and effectuate compliance with this Consent Decree, to resolve an y disputes thereunder, and to consider an y requests for costs of litigation (including reasonable attorney s’ fees). After EPA’s obligations under Paragraphs 3 through 6 have been completed, EPA may move to have this10 consent decree terminated. Plaintiffs shall have 14 day s in which to respond to such motion. 19. 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 42 U.S.C. § 7413(g). EPA will deliver a public notice of this Consent Decree to the Federal Register for publication and public comment within 10 business day s after lodging this Consent Decree with the Court. After this Consent Decree has undergone an opportunity for notice and comment, EPA’s Admini strator and the Attorney General, as appropriate, will promptly 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 Clean Air Act. If the Administrator or the Attorney General elects not to withdraw or withhold consent to this Consent Decree, the Parties will promptly file a motion that requests the Court to enter this Consent Decree. If a motion to enter the Consent Decree is not filed within 6 0 day s aft er the notice is published in the Federal Register, any party may file dispositive motions in this matter. 20. It is hereb y expressl y understood and agreed that this Consent Decree was jointly drafted b y the Parties and that any and all rules of construction t o the effect that ambiguit y is construed against the drafting part y s hall be inapplicable in any dispute concerning the terms, meaning, or interpretation of this Consent Decree.11

21. The undersigned certify that they are fully authorized by

the Part y or Parties they represent to bind that Party or those Parties to the terms of this Consent Decree.
SO ORDERED this day of 2011.

HON. AMY BERMAN JACKSON United States District Judge SO AGREED: FOR PLAI

NTIFFS: /s/ REED ZARS /s/ DAVID BARON Attorney at Law Earthjustice 910 Kearney

Street 1625 Massachusetts Ave., NW, #702 Laramie, WY 82070 Washington, DC 20036 307
- 745
- 7979 202
- 667
- 4500 ext.203 rzars@lariat.org dbaron@earthjustice.org FOR DEFENDANT IGNACIA S. MORENO Assistant Attorney

General Environment and Natural Resources Division /s/ EILEEN T. MCDONOUGH Environmental Defense Section U.S. Department of Justice P.O. Box 23986 Washington, D.C. 20026

- 3986 ( 202) 514

- 3126 Of Counsel: M. L EA ANDERSON Office of General Counsel U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N. W. Washington, DC 20460 (202) 564

- 5571 anderson.lea@epa.gov