UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SIERRA CLUB,

 Plaintiff,

v.

LISA P. JACKSON, in her Official Capacity

as Administrator, United States Environmental 

Protection Agency,

 Defendant.

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Civ. No. 1:11-cv-00035-GK

CONSENT DECREE

WHEREAS, Plaintiff Sierra Club (“Plaintiff”) filed a Complaint in this action in the 

United States District Court for the District of Columbia on January 3, 2011;

WHEREAS, in Claim One, Plaintiff alleged that defendant Lisa Jackson, Administrator 

of the U.S. Environmental Protection Agency (“EPA”), has failed to promulgate Federal 

Implementation Plans as mandated by section 110(c)(1)(A) of the Clean Air Act (“CAA”), 42 

U.S.C. § 7410(c)(1)(A), for a number of areas designated as nonattainment for the 1997 8-hour 

ozone National Ambient Air Quality Standards (“NAAQS”). Specifically, Plaintiff alleged that 

the CAA required EPA to promulgate Federal Implementation Plans containing provisions for 

(1) the demonstration of attainment and reasonable further progress for the Milwaukee-Racine 

area in Wisconsin, (2) the demonstration of attainment and reasonable further progress for the 

Sheboygan area in Wisconsin, (3) the implementation of reasonable available control technology

(“RACT”) requirements for nitrogen oxides (“NOx”) for Illinois’ portion of the Metro St. Louis 
area, and (4) the implementation of RACT requirements for volatile organic compounds 

(“VOCs”) and NOx for Maine (except for the NOx RACT requirement in Northern Maine1);

WHEREAS, Plaintiff’s complaint in Claim One further alleged that EPA has failed to 

impose sanctions as mandated by section 179(a) of the CAA, 42 U.S.C. § 7509(a), on certain 

areas in Wisconsin, Illinois, and Maine for failure to submit a sufficient State Implementation 

Plan (“SIP”) for the 1997 8-hour ozone NAAQS for (1) the demonstrations of attainment and 

reasonable further progress for the Milwaukee-Racine area in Wisconsin, (2) the demonstrations

of attainment and reasonable further progress for the Sheboygan area in Wisconsin, (3) the 

implementation of RACT requirements for NOx for the Metro St. Louis area, and (4) the 

implementation of RACT requirements for VOCs and NOx for Maine (except for the NOx 

RACT requirement in Northern Maine);

WHEREAS, Plaintiff’s complaint in Claim Two alleged that EPA has failed to perform a 

duty mandated by section 110(k)(2) of the Clean Air Act (“CAA”), 42 U.S.C. § 7410(k)(2), to 

take final action by approving in full, disapproving in full, or approving in part and disapproving 

in part the SIP submittals from (1) Missouri addressing the NOx and VOC RACT requirements 

for the Missouri portion of the Metro St. Louis area for the 1997 8-hour ozone National Ambient 

Air Quality Standards; (2) Missouri addressing the demonstrations of attainment and reasonable 

further progress for the Missouri portion of the Metro St. Louis area; and (3) Illinois addressing 

the demonstrations of attainment and reasonable further progress for the Illinois portion of the 

Metro St. Louis area;

 

1

 The counties included in the Northern Maine exemption include Aroostook, Franklin, Oxford, 

Penobscot, Piscataquis, Somerset, Washington, and portions of Hancock and Waldo Counties. 

See 71 Fed. Reg. 5701 (Feb. 3, 2006).
WHEREAS, on March 1, 2011, EPA published in the Federal Register a final rule 

determining that the Milwaukee-Racine and Sheboygan areas have attained the 1997 8-hour 

ozone National Ambient Air Quality Standard;

WHEREAS, on February 22, 2011, EPA published in the Federal Register a final rule 

approving Illinois’ request to exempt sources of NOx in the Illinois portion of the Metro St. 

Louis areas from NOx RACT requirements for purposes of attaining the 1997 ozone 8-hour 

NAAQS;

WHEREAS, on June 9, 2011 (76 Fed. Reg. 33,647), EPA issued a final determination 

that the Missouri and Illinois portions of the Metro St. Louis area have attained the 1997 8-hour 

ozone NAAQS;

WHEREAS, on June 21, 2011, the State of Missouri withdrew the SIP submittals 

submitted on approximately June 21, 2007 addressing the requirements under CAA sections 42 

U.S.C. §§ 7513a(a)(1)(B) [attainment demonstration] and 7511a(b)(1) [reasonable further 

progress] for the Missouri portion of the Metro St. Louis area for the 1997 8-hour ozone 

NAAQS;

WHEREAS, on July 21, 2011 (76 Fed. Reg. 43,598), EPA issued a final rule exempting 

sources of NOx in the Missouri portion of the Metro St. Louis area from the RACT requirement 

of the CAA for the 1997 8-hour ozone NAAQS;

WHEREAS, on September 9, 2011, the State of Missouri withdrew its SIP submission 

submitted on approximately January 17, 2007 addressing the implementation of RACT for NOX 

for the 1997 8-hour ozone NAAQS for the Missouri portion of the Metro St. Louis area;

WHEREAS, it is in the interest of the public, the parties and judicial economy to resolve 

this matter without protracted litigation;
WHEREAS, the Court finds and determines that the settlement represents a just, fair, 

adequate and equitable resolution of all claims raised in this action.

NOW THEREFORE, it is hereby ORDERED, ADJUDGED and DECREED that:

1. This Court has subject matter jurisdiction over, and the power to order the relief 

contained in, this Consent Decree.

2. Venue lies in the United States District Court for the District of Columbia.

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

Court’s jurisdiction to enter and enforce this Consent Decree. Upon entry, no party shall 

challenge the terms of this Consent Decree. 

4. No later than January 31, 2012, the Administrator or her authorized delegatee 

shall sign a notice or notices, pursuant to section 110(k) of the Clean Air Act (“CAA”), 42 

U.S.C. § 7410(k), taking final action approving or disapproving the SIP submittal submitted on 

approximately January 17, 2007 by Missouri addressing the implementation of RACT for VOCs

for the 1997 8-hour ozone NAAQS for the Missouri portion of the Metro St. Louis area. 

5. No later than May 31, 2012, the Administrator shall sign a notice of the Agency’s 

final rule promulgating a FIP under 42 U.S.C. § 7410(c)(1) addressing the requirements under 42 

U.S.C. § 7511c(a) [RACT] for VOCs and NOx as they relate to the 1997 8-hour ozone NAAQS 

for Maine (except for the NOx RACT requirement in Northern Maine) addressing any VOC and 

NOx RACT obligation for which the Administrator or her authorized delegatee has not signed an 

approval notice or notices, pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k)(2).

6. (a) No later than May 31, 2012, the Administrator or her authorized delegatee 

shall sign a notice or notices, pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k) 

approving or disapproving, the SIP submittals submitted on approximately July 2, 2007 by
Illinois addressing the requirements under CAA sections 42 U.S.C. §§7513a(a)(1)(B) [attainment 

demonstration] and 7511a(b)(1) [reasonable further progress] for the Illinois portion of the Metro 

St. Louis area.

(b) The obligation in Paragraph 6(a) will be deemed met if EPA signs a final 

notice redesignating the Illinois portion of the Metro St. Louis area to attainment no later than 

May 31, 2012.

7. Within 15 business days following signature of such action required by

paragraphs 4 through 8, EPA shall deliver notice of such action to the Office of the Federal 

Register for publication. 

8. Any dates set forth in this Consent Decree may be extended by written agreement 

of the parties and notice to the Court. To the extent the parties are not able to agree to an 

extension, either party may move the Court to resolve the dispute.

10. The deadline for filing a motion for costs of litigation (including attorneys’ fees) 

for activities performed prior to execution of this Decree is hereby extended until 60 days after 

this Decree is entered by the Court. During this 60-day period, the Parties shall seek to resolve 

informally any claim for costs of litigation (including attorneys’ fees), and if they cannot, will 

submit that issue to the Court for resolution. Nothing in this paragraph shall be construed as an 

admission or concession by EPA that Plaintiffs are entitled to or eligible for recovery of any

costs or attorneys' fees.

11. The Court shall retain jurisdiction to determine and effectuate compliance with 

this Consent Decree. Upon EPA’s demonstration that it has satisfied all of the obligations of this 

Consent Decree it may move to have this decree terminated. Plaintiffs shall have twenty days in 

which to respond to such motion.
12. Nothing in this Consent Decree shall be construed to limit or modify any 

discretion accorded EPA by the Clean Air Act or by general principles of administrative law in 

taking the actions which are the subject of this Consent Decree.

13. The parties agree and acknowledge that final approval and entry of this proposed 

Consent Decree are subject to the requirements of Clean Air Act § 113(g), 42 U.S.C. § 7413(g). 

That subsection provides that notice of this proposed Decree be given to the public, that the 

public shall have a reasonable opportunity to make any comments, and that the Administrator or 

the Attorney General, as appropriate, must consider those comments in deciding whether to 

consent to this Consent Decree.

14. Nothing in the terms of this Consent Decree shall be construed to waive any 

remedies Plaintiffs may have under section 307(b)(1) of the Clean Air Act, 42 U.S.C. 

§ 7607(b)(1). 

15. 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 contact the other 

party to confer and attempt to reach an agreement on the disputed issue. If the parties cannot 

reach an agreed-upon resolution, then either party may move the Court to resolve the dispute. 

16. EPA’s commitments in this Decree are subject to the availability of appropriated 

funds. No provision of this Decree shall be interpreted as or constitute a commitment or 

requirement that EPA obligate funds in contravention of the Anti-Deficiency Act, 31 U.S.C. 

§ 1341 or any other applicable law or regulation.

17. The undersigned representatives of each party certify that they are fully 

authorized to consent to the Court’s entry of the terms and conditions of this Consent Decree.
Respectfully submitted,

Dated: ____________ 

ROBERT UKEILEY

Law Office of Robert Ukeiley

435R Chestnut Street, Suite 1

Berea, KY 40403

Tel: (859) 986-5402

Fax: (859) 618-1017

Counsel for Plaintiffs

IGNACIA MORENO

Assistant Attorney General

Dated:_______________ __________________________________ 

CHRISTINA L. RICHMOND

Trial Attorney

United States Department of Justice

Environment and Natural Resources Division

P.O. Box 23986

Washington, D.C. 20026-3986

Tel: (202) 514-3376

Fax: (202) 514-8865

Counsel for Defendant

IT IS SO ORDERED.

Dated: _________________ __________________________________

GLADYS KESSLER

United States District Judge