**UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA** 
SI ERRA CLUB, Plaintiff,
v. LISA P. JACKSON, in her Off icial Capacity as Administrator, United States Environmental Protection Agency , Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) 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 , Plaint i ff alleged that defendant Lisa Jackson, Administrator of the U.S. Environmental Protection Agency (“EPA”), has failed to promulgate Federal Implementation Plans as mandated b y 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”) . Specificall y, 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 availa ble control technology (“RACT”) requirements for nitrogen oxides (“NOx ”) f or Il linois’ portion of the Metro St. L ouisarea, and ( 4 ) the implementation of RACT requirements for volatile organic compounds

(“ VOCs ”) and NOx for Maine (except for the NOx RACT r equirement in Northern Maine 1 ) ; 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, I llinois, and Maine for failure to submit a sufficient State Implementation Plan (“SIP”) for the 1997 8

- hour ozone NAAQS for (1) the demonstration s of attainment and reasonable further progress for the Milwaukee

- Racine area in Wisconsin, ( 2 ) the demonstration s of attainment and r easonable 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. L ouis area for the 1997 8

- hour ozone Natio nal Ambient Air Quality

Standards; (2) Missouri addressing the demonstration s of attainment and reasonable further progress for the Missouri portion of the Metro St. L ouis area; and (3) Illinois addressing the demonstration s of attainment and reasonable further progress for the Illinois portion of the Metro St. L ouis 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 I llinois 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 I llinois portions of the Metro St. L ouis 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. L ouis 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. L ouis 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 po rtion of the Metro St. L ouis 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,

ad equate and equitable resolution of all claims raised in this action. NOW THEREFORE, it is hereb y 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. Ve nue 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 SI P 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. L ouis 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 th e NOx RACT requirement in Northern Maine) addressing an y VOC and NOx RACT obligation for which the Administrator or her authorized delegatee has not sign ed 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 SI P submittals submitted on approximately July 2, 2007 byIl linois 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. L ouis area to attainment no later than May 31, 2012. 7. Within 15 business day s f ollowing signature of such action required b y paragraph s 4 through 8 , EPA s hall 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 deadl ine for filing a motion for costs of litigation (including attorney s’ fees) for activities performed prior to execution of this Decree is hereb y extended until 60 day s after this Decree is entered b y the Court. During this 60

- day period, the Parties shall seek to resolve informally

any claim for costs of litigation (including attorney s’ 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 attorney s' 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 da ys in which to respond to such motion.12
. Nothing in this Consent Decree shall be construed to limit or modify an y discretion accorded EPA by the Clean Ai r Act or by general principles of administrative law in taking the actions which are the subject of this Consent Decree. 1 3
. 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. 1 4
. 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 Ac t, 42 U.S.C. § 7607(b)(1). 1 5
. In the event of a dispute between the parties concerning the interpretation or implementation of any

aspect of this Consent Decree, the disputing part y shall contact the other party to confer and attempt to reach an agreem ent on the disputed issue. If the parties cannot reach an agreed

- upon resolution, then either part y may move the Court to resolve the dispute. 1 6
. 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 an y other applicable law or regulation. 1 7
. The undersigned representatives of each part y certify that they are full y 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:_______________

______________ ____________________ CHRI STINA 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 KESSL ER United States District Judge