IN THE UNITED STATES DI STRICT COURT FOR THE DISTRICT OF COLUMBIA SI ERRA CLUB and CALIFORNIA COMMUNITI ES ) AGAINST TOXI CS, ) ) Plaintiffs, ) Civil Action ) No. 13

- 1639 (RDM) v. ) ) GI NA MCCARTHY, Administrator, United States ) Environmental Protection Agency , ) ) Defendant. ) ________________________________________________) **CONSENT DECREE** WHEREAS, Plaintiffs Sierra Club and California Communities Against Toxics (jointly

re ferred to as “Plaintiffs”) filed this action pursuant to Clean Air Act (“CAA”) section 304(a)(2), 42 U.S.C. § 7604(a)(2), against Defendant Gina McCarthy , Administrator, United States Environmental Protection Agency (“EPA”) (Complaint, Dkt. 1); WHEREAS, P laintiffs’ Complaint alleges that EPA failed to perform a nondiscretionary duty under CAA section 112(d)(6), 42 U.S.C. § 7412(d)(6), to, within eight y ears of initial promulgation, “review, and revise as necessary ” the national emission standards for hazar dous air pollutants for publicly owned treatment works (“POTWs”) promulgated under § 112(d), 42 U.S.C. § 7412(d); see 64 Fed. Reg. 57,572 (Oct. 26, 1999) (codified at 40 C.F.R. Part 63, Subpart VVV) (“NESHAP subpart VVV”); WHEREAS, Plaintiffs’ Complaint further alleges that EPA failed to perform a nondiscretionary

dut y under CAA section 112(f)(2), 42 U.S.C. § 7412(f)(2), to, within eight ye ars of initial promulgation of NESHAP subpart VVV, either (1) promulgate “residual risk”2

standards for POTWs under se ction 112(f)(2); or (2) determine that residual risk standards for POTWs are not necessary to protect human health or the environment under § 112(f)(2); WHEREAS, the relief requested in Plaintiffs’ Complaint includes, among other things, an order from this Court to establish a date certain by when EPA must fulfill its obligations under CAA sections 112(d)(6) and 112(f)(2), 42 U.S.C. §§ 7412(d)(6), 7412(f)(2), with respect to POTWs and NESHAP subpart VVV (Compl. ¶ 48); WHEREAS, Plaintiffs and EPA (jointly referred to as “Parties”) have agreed to a settlement of all claims asserted b y Plaintiffs in their Complaint, without any admission or adjudication of fact or law, except as expressly provided herein; WHEREAS, by

entering into this Consent Decree, Plai ntiffs do not waive any claims or remedies and EPA does not waive an y defenses, on any grounds, related to any matters asserted in this action that are not resolved b y this Decree; WHEREAS, it is in the interest of the public, the Parties, and judicial economy to resolve Plaintiffs’ claims without further litigation; WHEREAS, the Parties believe and this Court finds and determines that this Consent Decree represents a just, fair, adequate and equitable resolution of the claims asserted b y Plaintiffs; NOW THEREFORE, it is hereb y ORDERED, ADJUDGED AND DECREED as follows: 1. This Court has jurisdiction over the claims set forth in the Complaint in this action and may order the relief contained in the Consent Decree. Venue is proper in the District of C olumbia. 2. EPA shall meet the following rulemaking schedule:3 (a) No later than December 8, 2016, EPA shall review the emission standards in NESHAP subpart VVV and shall:

(i) sign either a proposed rule to promulgate revised emission standards in NESHAP subpart VVV as necessary under CAA section 112(d)(6), 42 U.S.C. § 7412(d)(6), or a proposed determination that revision of NESHAP subpart VVV is not necessary under CAA section 112(d)(6); and (ii) sign either a proposed rule to promulgate residual risk standards for the POTW source category under CAA section 112(f)(2), 42 U.S.C. § 7412(f)(2), or a proposed determination that promulgation of such standards is not required under CAA section 112(f)(2). (b) No later than October 16, 2017, EPA shall: (i) sign a final rule promulgating revised emission standards in NESHAP subpart VVV as necessary under CAA section 112(d)(6) or sign a final determination that revision of NESHAP subpart VVV is not necessary under CAA section 112(d)(6); and (ii) sign a final rule promulgating residual risk standards for this source category under CAA section 112(f)(2) or sign a final determination that promulgation of such standards is not required und er CAA section 112(f)(2). 3. The deadlines established by this Consent Decree may be extended by

written stipulation executed by

counsel for EPA and Plaintiffs and filed with the Court, or by the Court upon motion made pursuant to the Federal Rules of Civ il Procedure b y EPA or Plaintiffs and upon consideration of any response and repl y b y the relevant Parties.4

4. EPA shall deliver to the Office of the Federal Register for publication the notices of proposed and final rulemaking described in Paragraph 2 n o later than 21 day s after signature of such notices. Following such delivery , EPA shall not take any action (other than as necessary to correct an y t ypographical error or other errors in form) to delay or otherwise interfere with publication of such noti ces in the Federal Register. In addition, EPA shall make available copies of said notices to Plaintiffs within 7 day s after signature. 5. EPA agrees that Plaintiffs are entitled to recover costs of litigation (including attorney s’ fees) (“litigation co sts”) incurred in this matter pursuant to section 304(d) of the CAA, 42 U.S.C. § 7604(d). The deadline for the filing of an y motion for litigation costs for activities performed prior to the entry of this Consent Decree by the Court is hereby

extended for a period of 120 day s after the Consent Decree is entered by the Court. During this time the Parties shall seek to resolve informally an y claim for litigation costs, and if they cannot reach a resolution, 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 additional litigation costs (including attorneys’ fees) incurred after the entry of this Consent Decree. EPA does not concede that Plaintiffs will be entitled to fees for any work performed after the entry of the Consent Decree, and the parties reserve all claims and defenses with respect to any future costs of litigation incurred after entry of this Consent Decree. 6. Plaintif

fs and EPA shall not challenge the terms of this Consent Decree or this Court’s jurisdiction to enter and enforce this Consent Decree. 7. Except for claims for litigation costs pursuant to Paragraph 5 above, Plaintiffs and EPA agree that this Consent Decr ee shall constitute a complete and final settlement of all claims that Plaintiffs asserted against the United States, including EPA, under an y provision of law, in5

this action. Plaintiffs therefore discharge and covenant not to sue the United States, incl uding EPA, for such claims. The Parties agree that this discharge and covenant not to sue shall not apply to an y claim that may

arise if any

final rule or determination signed pursuant to Paragraph 2 is vacated, withdrawn, or not published in the Federal Register. EPA retains all rights and defenses, including jurisdictional challenges, in the event an y such claim is filed by Plaintiffs. 8. Nothing in this Consent Decree shall be construed to limit or modify an y discretion accorded EPA by the CAA or by

g eneral principles of administrative law in taking the actions which are the subject of this Consent Decree, including the discretion to alter, amend, or revise an y final actions contemplated by this Consent Decree. EPA’s obligation to perform the actions specified b y Paragraph 2 does not constitute a limitation or modification of EPA’s discretion within the meaning of this paragraph. 9. Except as expressly provided herein, nothing in this Consent Decree shall be construed as an admission of an y issue of f act or law or to waive or limit any claim, remedy , or defense, on an y grounds, related to an y final action EPA may take with respect to the rulemaking identified in Paragraph 2 of this Consent Decree. 10. Nothing in this Consent Decree shall be construed to confer upon the district court jurisdiction to review any final rule issued by

EPA pursuant 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 th e exclusive jurisdiction of the United States Court of Appeals pursuant to 42 U.S.C. § 7607(b)(1). Nothing in this Consent Decree shall be construed to waive an y cl aims, remedies, or defenses the Parties may have under 42 U.S.C. § 7607(b)(1). 11. The Parties recognize and acknowledge that the obligations imposed upon EPA under this Consent Decree can onl y be undertaken using appropriated funds legally available for6

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

Deficiency

Act, 31 U.S.C. § 1341, or any other applicable provision of law. 12. The parties recognize that the possibility exists that a total lapse in the appropriation s that fund EPA resulting in an EPA shutdown could delay compliance with the timetables contained in this Consent Decree. Should a delay occur due to such a lapse in appropriations that occurs within 90 day s prior to a deadline in this Decree, such deadli ne shall be extended automatically one day for each day

of the lapse in appropriations. EPA will provide Plaintiffs with notice no later than 10 day s after the shutdown ends in the event that EPA invokes this paragraph of the Consent Decree. Plaintiffs may challenge the invocation of this paragraph of the Consent Decree after following the dispute resolution process described in Paragraph 14 of this Consent Decree. Nothing in this paragraph shall preclude EPA from seeking an additional extension, either b y stipulation or court order, pursuant to the procedures of Paragraph 3 above, nor limit Plaintiffs’ right to oppose an y such request for an additional extension. 13. Any

notices required or provided for by this Consent Decree shall be made by certified U.S. mail or by

email and sent to the following: For Plaintiffs : Emma C. Cheuse Seth L . Johnson James S. Pew Earthjustice 1625 Massachusetts Avenue, NW, Suite 702 Washington, DC 20036 echeuse@earthjustice.org sjohnson@earthjustice.org jpew@earthjustice.org7

For Defendant : Eileen T. McDonough Environmental Defense Section U.S. Department of Justice P.O. Box 7611 Washington, D.C. 20044 eileen.mcdonough@usdoj.gov Scott Jordan U.S. Environmental Protection Agency William Jefferson Clinton North Building 1200 Pennsylvania Avenue, NW Mail Code: 2344A Washington, D.C. 20460 jordan.scott@epa.gov 14. 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 Party with a written notice outlining the nature of the dispute and requesting inf ormal negotiations. The Parties shall meet and confer to attempt to resolve the dispute. If the Parties cannot reach an agreed

- upon resolution after 14 day s following receipt of a written notice requesting informal negotiations , any Part y ma y move the Co urt to resolve the dispute. 15. No motion or other proceeding seeking to enforce this Consent Decree or for contempt of court shall be properl y filed unless the Party seeking to enforce this Consent Decree has followed the procedure set forth in Paragraph 14. 16. The Court shall retain jurisdiction to determine and effectuate compliance with this Consent Decree, to resolve an y disputes thereunder, and to consider any requests for costs of litigation (including reasonable attorney s’ fees). After EPA’s obl ig ations under Paragraphs 2 and 4 have been completed and after publication of notice of the final action required b y Paragraph 2.b in the Federal Register, EPA may move to have this Consent Decree terminated. Plaintiffs shall have 30 day s in which to r espond to such motion.8

17. Itis hereby

expressl y understood and agreed that this Consent Decree was jointly drafted b y the Parties and that any and all rules of construction to the effect that ambiguit y is construed against the drafting party shall be in applicable in an y dispute concerning the terms, meaning, or interpretation of this Consent Decree. 18. The Parties agree and acknowledge that before this Consent Decree is entered b y the Court, EPA must provide notice of this Consent Decree in the Federal Register and an opportunity

for public comment pursuant to CAA section 113(g), 42 U.S.C. § 7413(g). Af ter this Consent Decree has undergone notice and comment, the Administrator and/or the Attorney General, as appropriate, shall promptly consider any

written comments received in determining whether to withdraw or withhold their consent to the Consent Decre e, in accordance with CAA section 113(g). If the Administrator and the Attorney General do not elect to withdraw or withhold consent, EPA shall promptly file a motion that requests that the Court enter this Consent Decree. 19

. 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 AGREED: COUNSELFOR PLAINTIFFS: Dated:_______________________ /s/ Emma C. Cheuse Emma C. Cheuse Seth L

. Johnson James S. Pew Earthjustice 1625 Massachusetts Ave., NW, Suite 702 Washington, D.C. 20036 echeuse@earthjustice.org sjohnson@earthjustice.org9 jpew@earthjustice.org (202) 667

- 4500 Counsel for Plaintiffs California Communities Against Toxics and Sierra Club

COUNSELFOR DEFENDANT: Dated:_______________________ JOHN C. CRUDEN Assistant Attorney

General Environment and Natural Resources Division /s/ Eileen T. McDonough United States Department of Justice Environmental De fense Section P.O. Box 7611 Washington, D.C. 20044 eileen.mcdonough@usdoj.gov (202) 514

- 3126 Counsel for Defendant Gina McCarthy, Administrator, U.S. Environmental Protection Agency Of Counsel SCOTT JORDAN U.S. Environmental Protection Agency Office of General Counsel ARN: MC

- 2344A 1200 Pennsylvania Ave., N.W. Washington, DC 20460 SO ORDERED this ___ day of ________________, 2015.

_________________________________ RANDOL PH D. MOSS UNITED STATES D ISTRI CT JUDGE