### UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

WILDEARTH GUARDIANS, ) ) Plaintiff ) ) ) v. ) NO. 4:09-CV-02453-CW ) ) LISA JACKSON, in her official capacity as ) Administrator of the Environmental ) Protection Agency, ) ) Defendant )

JOINT MOTION TO MODIFY CONSENT DECREE Plaintiff Wildearth Guardians (“Wildearth”) and Defendant Lisa Jackson, in her official capacity as Administrator of the Environmental Protection Agency, (“EPA”) jointly move, pursuant to paragraph 9 of the Consent Decree, to modify the Consent Decree entered in this case on February 23, 2010 (Docket Entry 26) to: (1) extend the deadline in paragraph 7(a) of the Consent Decree to October 14, 2011 for the Administrator to sign a notice or notices approving a State Implementation Plan (“SIP”), promulgating a Federal Implementation Plan (“FIP”), or approving a SIP in part with promulgation of a partial FIP for Oklahoma to meet the requirement of 42 U.S.C. § 7410(a)(2)(D)(i)(II) regarding interfering with measures in other states related to protection of visibility; Case4:09-cv-02453-CW Document34 Filed04/28/11 Page1 of 41 / This requirement was added to the Consent Decree by the Court’s Order of January 14, 2011. Docket Entry 31. 2 (2) extend the deadline in paragraph 6(c) of the Consent Decree to November 10, 2011 for the Administrator to sign a notice or notices approving a SIP, promulgating a Federal Implementation Plan FIP, or approving a SIP in part with promulgation of a partial FIP for Oregon to meet the requirement of 42 U.S.C. § 7410(a)(2)(D)(i)(II) regarding interfering with measures in other states related to prevention of significant deterioration of air quality; (3) extend to July 21, 2011 the deadline for the Administrator to sign a notice proposing either approval of a SIP, promulgation of a FIP, or approval of a SIP in part with promulgation of a partial FIP for North Dakota to meet the requirement of 42 U.S.C. § 7410(a)(2)(D)(i)(II) regarding interfering with measures in other states related to protection of visibility; 1 / (4) extend the deadline in paragraph 7(a) of the Consent Decree to January 26, 2012 for the Administrator to sign a notice approving a SI P, promulgating a FIP, or approving a SIP in part with promulgation of a partial FIP for No rth Dakota to meet the requirement of 42 U.S.C. § 7410(a)(2)(D)(i)(II) regarding interfering with measures in other states related to protection of visibility; (5) extend the deadlines in paragraphs 6(a) and 6(b) of the Consent Decree to December 16, 2011 for the Administrator to sign a notice approving a SIP, promulgating a FIP, or approving a SIP in part with promulgation of a partial FIP for Oklahoma to meet the requirements of 42 U.S.C. § 7410(a)(2)(D)(i)(I) regarding contributing significantly to nonattainment in other states and interfering with maintenance of attainment in other states.

Case4:09-cv-02453-CW Document34 Filed04/28/11 Page2 of 42 / EPA and Wildearth have also stipulated to additional extensions pursuant to paragraph 9 of the Consent Decree. 3 Wildearth’s complaint in this matter alleged that EPA had failed to perform a non-discretionary duty to either approve a SIP or promulgate a FIP for California, Colorado, Idaho, New Mexico, North Dakota, Oklahoma, a nd Oregon to satisfy the requirements of Clean Air Act section 110(a)(2)(D)(i), 42 U.S.C. § 7410(a)(2)(D)(i), with regard to the 1997 National Ambient Air Quality Standards for 8-hour ozone and fine particulate matter. The case was resolved through a consent decree that was entered by the Court on February 23, 2010, Docket Entry 26, which has been modified on several occasions by stipulation or order of the Court. The consent decree requires EPA to approve a SIP or promulgate a FIP for each of the seven States for each of the elements of 42 U.S.C. § 7410(a)(2)(D)(i). The decree as originally entered required that EPA take specified actions by May 10, 2010, November 10, 2010, and May 10, 2011. All of the actions required by May 10, 2010 and November 10, 2010 have been taken (in some cases with extensions). However, EPA has determined that it needs additional time to comply with some of the actions required to be taken by May 10, 2011, and Wildearth has agreed to these extensions. 2 / Accordingly, pursuant to paragraph 9 of the Consent Decree, the parties jointly move the Court to modify the Consent Decree as described herein. A Proposed Order is attached. 

### Respectfully Submitted, April 28, 2011 IGNACIA S. MORENO Assistant Attorney General Environment and Natural Resources Division Case4:09-cv-02453-CW Document34 Filed04/28/11 Page3 of 44 

### /S/ Norman L. Rave, Jr. NORMAN L. RAVE, JR., Trial Attorney Environmental Defense Section U.S. Department of Justice P.O. Box 23986 Washington, DC 20026-3986 Telephone : (202) 616-7568 Fax: (202) 514-8865 Email: norman.rave@usdoj.gov Counsel for Defendant /S/ James J. Tutchton JAMES J. TUTCHTON (CA Bar No. 150908) WildEarth Guardians 1536 

### Wynkoop St., Suite 301 Denver, CO 80202 Telephone: (303) 573-4898 Email: jtutchton@wi1dearthguardians.org Of Counsel:
ROBERT UKEILEY Law Office of Robert Ukeiley 435R Chestnut Street, Suite 1 Berea, KY 40403 Tel: (859) 986-5402 Fax: (859) 618-1017 E-mail: rukeiley@igc.org Counsel for Plaintiff Case4:09-cv-02453-CW Document34 Filed04/28/11 Page4 of 4