IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SIERRA CLUB and CALIFORNIA COMMUNITIES )

AGAINST TOXICS, )

)

Plaintiffs, ) Civil Action 

) No. 13-1639 (RDM)

v. )

)

GINA MCCARTHY, Administrator, United States )

Environmental Protection Agency, )

)

Defendant. )

________________________________________________)

CONSENT DECREE

WHEREAS, Plaintiffs Sierra Club and California Communities Against Toxics (jointly

referred 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, Plaintiffs’ 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 years of initial 

promulgation, “review, and revise as necessary” the national emission standards for hazardous 

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 duty under CAA section 112(f)(2), 42 U.S.C. § 7412(f)(2), to, within eight 

years of initial promulgation of NESHAP subpart VVV, either (1) promulgate “residual risk” 
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standards for POTWs under section 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 by 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, Plaintiffs do not waive any claims or 

remedies and EPA does not waive any defenses, on any grounds, related to any matters asserted 

in this action that are not resolved by 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 by 

Plaintiffs; 

NOW THEREFORE, it is hereby 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 

Columbia.

2. EPA shall meet the following rulemaking schedule:
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(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 under 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 Civil Procedure by EPA or Plaintiffs and 

upon consideration of any response and reply by the relevant Parties. 
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4. EPA shall deliver to the Office of the Federal Register for publication the notices 

of proposed and final rulemaking described in Paragraph 2 no later than 21 days after signature 

of such notices. Following such delivery, EPA shall not take any action (other than as necessary

to correct any typographical error or other errors in form) to delay or otherwise interfere with 

publication of such notices in the Federal Register. In addition, EPA shall make available copies 

of said notices to Plaintiffs within 7 days after signature. 

5. EPA agrees that Plaintiffs are entitled to recover costs of litigation (including 

attorneys’ fees) (“litigation costs”) incurred in this matter pursuant to section 304(d) of the CAA, 

42 U.S.C. § 7604(d). The deadline for the filing of any 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 days after the Consent Decree is entered by the Court. During this time the Parties shall 

seek to resolve informally any 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 any 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. Plaintiffs 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 Decree shall constitute a complete and final settlement of all claims 

that Plaintiffs asserted against the United States, including EPA, under any provision of law, in 
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this action. Plaintiffs therefore discharge and covenant not to sue the United States, including 

EPA, for such claims. The Parties agree that this discharge and covenant not to sue shall not 

apply to any 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 any such claim is filed by Plaintiffs.

8. 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 the discretion to alter, amend, or 

revise any final actions contemplated by this Consent Decree. EPA’s obligation to perform the 

actions specified by 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 any issue of fact or law or to waive or limit any claim, remedy, or 

defense, on any grounds, related to any 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 any 

issues that are within the 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 any claims, 

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 only be undertaken using appropriated funds legally available for 
6

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 AntiDeficiency 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 

appropriations 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 days prior to a deadline in this Decree, such deadline shall 

be extended automatically one day for each day of the lapse in appropriations. EPA will provide 

Plaintiffs with notice no later than 10 days 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 by stipulation or court order, pursuant to the procedures of Paragraph 3 above, 

nor limit Plaintiffs’ right to oppose any 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.org
7

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 informal 

negotiations. The Parties shall meet and confer to attempt to resolve the dispute. If the Parties 

cannot reach an agreed-upon resolution after 14 days following receipt of a written notice 

requesting informal negotiations, 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 properly 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 any disputes thereunder, and to consider any requests for costs of 

litigation (including reasonable attorneys’ fees). After EPA’s obligations under Paragraphs 2 

and 4 have been completed and after publication of notice of the final action required by 

Paragraph 2.b in the Federal Register, EPA may move to have this Consent Decree terminated. 

Plaintiffs shall have 30 days in which to respond to such motion.
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17. It is hereby expressly understood and agreed that this Consent Decree was jointly

drafted by the Parties 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.

18. 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 CAA section 113(g), 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 written comments received in determining 

whether to withdraw or withhold their consent to the Consent Decree, 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 Party or Parties they

represent to bind that Party or those Parties to the terms of this Consent Decree.

SO AGREED:

COUNSEL FOR 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.org
9

jpew@earthjustice.org

(202) 667-4500

Counsel for Plaintiffs California

Communities Against Toxics and Sierra

Club

COUNSEL FOR DEFENDANT:

Dated:_______________________ JOHN C. CRUDEN

Assistant Attorney General

Environment and Natural Resources Division

/s/ Eileen T. McDonough

United States Department of Justice

Environmental Defense 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.

_________________________________

RANDOLPH D. MOSS

UNITED STATES DISTRICT JUDGE