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IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

MICHELLE R. LAMBERT

Trial Attorney

United States Department of Justice

Environmental Defense Section

P.O. Box 23986

Washington, D.C. 20026-3986

Telephone: (202) 616-7501

Fax: (202) 514-8865

Email: michelle.lambert@usdoj.gov

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

 FOR THE NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

COMITE CIVICO DEL VALLE, INC.,

 Plaintiff,

v.

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,

 Defendants.

Case No. 10-cv-02859-PJH

NOTICE OF LODGING OF 

PROPOSED CONSENT DECREE

NOTICE OF LODGING OF PROPOSED CONSENT DECREE CASE NO. 10-cv-02859-PJH

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NOTICE OF LODGING OF PROPOSED CONSENT DECREE - 1 - CASE NO. 10-cv-02859-PJH

Defendants Lisa Jackson, in her official capacity as Administrator of the United States

Environmental Protection Agency, and Jared Blumenfeld, in his official capacity as 

Administrator for Region IX of the United States Environmental Protection Agency

(collectively, “EPA”), hereby lodge with the Court a proposed consent decree that contains the

terms of a proposed settlement of this action. See Attachment 1, Consent Decree. 

The proposed consent decree should not be signed or entered by the Court at this

time. Pursuant to section 113(g) of the Clean Air Act, 42 U.S.C. § 7413(g), the EPA

Administrator must provide “a reasonable opportunity by notice in the Federal Register to

persons who are not named as parties or intervenors to the action or matter to comment in

writing” upon the proposed consent decree. Accordingly, EPA will publish in the Federal

Register a notice of the proposed consent decree and request comments. After a reasonable

comment period, the EPA Administrator will promptly consider any written comments received

and, if none of the comments disclose facts or considerations which indicate that the proposed

consent decree is inappropriate, improper, inadequate, or inconsistent with the requirements of

the Clean Air Act, Defendants will move for entry of the decree. 

Respectfully submitted, 

Dated: October 12, 2010 IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

 /s/ Michelle R. Lambert MICHELLE R. LAMBERT

Trial Attorney

United States Department of Justice

Environmental Defense Section

P.O. Box 23986

Washington, D.C. 20026-3986

Telephone: (202) 616-7501

Fax: (202) 514-8865

Email: michelle.lambert@usdoj.gov

Attorneys for Defendants

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NOTICE OF LODGING OF PROPOSED CONSENT DECREE - 2 - CASE NO. 10-cv-02859-PJH

CERTIFICATE OF SERVICE

On October 12, 2010, a true and correct copy of the foregoing Notice of Lodging of

Proposed Consent Decree was served electronically via the Court’s e-filing system to Counsel of

Record.

 

 /s/ Michelle R. Lambert 

MICHELLE R. LAMBERT

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GIDEON KRACOV (SBN 179815)

801 S. Grand Avenue, Ste. 1100

Los Angeles, CA 90017

Phone: (213) 629-2071

Fax: (213) 623-7755

Email: gk@gideonlaw.net

RICHARD TOSHIYUKI DRURY (SBN 163559)

Lozeau - Drury LLP 

410 12th St., Suite 250 

Oakland, CA 94607

Phone: (510) 836-4200

Fax: (510) 836-4205

Email: richard@lozeaudrury.com

Attorneys for Plaintiff

IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

MICHELLE R. LAMBERT

Trial Attorney

United States Department of Justice

Environmental Defense Section

P.O. Box 23986

Washington, D.C. 20026-3986

Telephone: (202) 616-7501

Fax: (202)514-8865

Email: michelle.lambert@usdoj.gov

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

 FOR THE NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

COMITE CIVICO DEL VALLE, INC.,

 Plaintiff,

v.

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,

 Defendants.

Case No. 10-cv-02859-PJH

CONSENT DECREE

CONSENT DECREE Case No. 10-cv-02859-PJH

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CONSENT DECREE - 1 - Case No. 10-cv-02859-PJH

WHEREAS, on August 30, 2010, Plaintiff Comite Civico Del Valle, Inc. filed the first

amended complaint (“Complaint”) in the above-captioned matter against Defendants 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 a certain nondiscretionary duty under the Clean Air Act (“CAA”), 42

U.S.C. §§ 7401-7671q, and that such alleged failure is 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, Plaintiff’s complaint alleges that EPA has a nondiscretionary duty to act on

SIP submissions and revisions submitted to EPA within the time lines set forth in section

110(k)(2) of the CAA, 42 U.S.C. § 7410(k)(2); 

WHEREAS, Plaintiff’s Complaint alleges that EPA has failed to take timely final action

to approve, disapprove, or partially approve/disapprove the Imperial County Air Pollution

Control District Rule 217, which was submitted to EPA on or about August 24, 2007 and

includes measures to control particulate matter emissions from large confined animal facilities

within the Imperial Valley (hereinafter, “Rule 217”);

WHEREAS, Plaintiff’s Complaint alleges that EPA has failed to take timely final action

to approve, disapprove, or partially approve/disapprove the Imperial County Air Pollution

Control District Rules 201 and 202, which were submitted to EPA on or about August 24, 2007

and includes permitting requirements and exemptions within the Imperial Valley (hereinafter,

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CONSENT DECREE - 2 - Case No. 10-cv-02859-PJH

“Rule 201" and “Rule 202");

WHEREAS, Plaintiff’s complaint seeks an order from this Court directing EPA to take

final action on Rules 201, 202, and 217 pursuant to section 110(k) of the CAA;

 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;

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 for publication in the Federal Register no later than April 15, 2011

a notice of the Agency’s final action on Rule 201 and Rule 202 pursuant to section 110(k) of the

CAA, and thereafter deliver the notice to the Office of the Federal Register for publication. 

2. EPA shall sign for publication in the Federal Register no later than September 15,

2011 a notice of the Agency’s final action on Rule 217 pursuant to section 110(k) of the CAA,

and thereafter deliver the notice to the Office of the Federal Register for publication. 

3. When EPA’s obligations under Paragraphs 1 and 2 have been completed, the

parties will 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

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CONSENT DECREE - 3 - Case No. 10-cv-02859-PJH

written stipulation executed by counsel for the parties and filed with the Court. In addition, 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, 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

Consent Decree. EPA’s obligation to take the action 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 identified in Paragraphs 1 or 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

Appeals 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 Plaintiff has 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),

Plaintiff is both eligible and entitled to recover its costs of litigation in this action, including

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CONSENT DECREE - 4 - Case No. 10-cv-02859-PJH

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

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. 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. 

12. Plaintiff and EPA shall not challenge the terms of this Consent Decree or this

Court’s jurisdiction to enter this Consent Decree.

13. 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.

14. 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:

Gideon Kracov 

801 S. Grand Avenue, Ste. 1100

Los Angeles, CA 90017

Phone: (213) 629-2071

Fax: (213) 623-7755

Email: gk@gideonlaw.net

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CONSENT DECREE - 5 - Case No. 10-cv-02859-PJH

For Defendants:

Michelle R. Lambert

U.S. Department of Justice

Environment and Natural Resources Division

Environmental Defense Section

P.O. Box 23986 

Washington, D.C. 20026-3986

Phone: (202) 616-7501

Fax: (202) 514-8865

Email: michelle.lambert@usdoj.gov

Geoffrey Wilcox

Office of General Counsel

U.S. Environmental Protection Agency

Ariel Rios Bldg., MC 2344A

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

Phone: (202) 564-5601

Fax: (202) 564-5603

Email: wilcox.geoffrey@epa.gov

Kara Christenson

Office of Regional Counsel

U.S. Environmental Protection Agency

75 Hawthorne Street, ORC-2

San Francisco, CA 94105

Phone: (415) 972-3881

Fax: (415) 947-3570

Email: christenson.kara@epa.gov

14. 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.

IT IS SO ORDERED.

Dated: _________________ __________________________________

PHYLLIS J. HAMILTON

UNITED STATES DISTRICT JUDGE

COUNSEL FOR PLAINTIFF:

Dated: October 12, 2010 /s/ Gideon Kracov (with permission) GIDEON KRACOV

801 S. Grand Avenue, Ste. 1100

Los Angeles, CA 90017

Phone: (213) 629-2071

Fax: (213) 623-7755

Email: gk@gideonlaw.net

RICHARD TOSHIYUKI DRURY

Lozeau - Drury LLP 

410 12th St., Suite 250 

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CONSENT DECREE - 6 - Case No. 10-cv-02859-PJH

Oakland, CA 94501 

Phone: (510) 836-4200

Fax: (510) 836-4205

Email: richard@lozeaudrury.com

Attorneys for Plaintiff Comite Civico del Valle, Inc.

COUNSEL FOR DEFENDANTS:

Dated: October 12, 2010 IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

 /s/ Michelle R. Lambert MICHELLE R. LAMBERT

Attorney, Environmental Defense Section

United States Department of Justice

301 Howard Street, Suite 1050

San Francisco, CA 94105

Tel: (202) 616-7501

Email: michelle.lambert@usdoj.gov

Attorneys for Defendants

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