# .------------------------------------------------------------------------- Case 1:12-cv-01917-RMC Document 13 Filed 09/24/13 Page 1 of 7

UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA

SIERRA CLUB, Plaintiff, v. BOB PERCIASEPE, in his official capacity as Acting Administrator ofthe United States Environmental Protection Agency, Defendant. ) ) ) ) ) ) ) ) ) ) )



### ------------------------ ) Civil Action No. 1:12-cv-01917 Hon. Rosemary M. Collyer

CONSENT DECREE WHEREAS, on }.lovcmbcr 28, 2012, PlaintiffSierra Club filed a Complaint inthis matter against Defendant Lisa P. Jackson, in herofficial capacity as Administratorofthe United States Environmental Protection Agency (hereinafter, "EPA"), alleging that EPA failed to fulfill a nondiscretionary duty under Clean Air Act ("CAA'') sections ll0(k)(2) and (k)(3), 42 U.S.C. §§ 741 O(k)(2), (k)(3), to take final action on a State Implementation Plan ("SIP") submittal for the State ofWyoming regarding the infrastructure SIP requirements ofCAA sections 110(a)(2)(A)- (C), (E)-(H) and (J)-(M), 42 U.S.C §§ 741 O(a)(2)(A)-(C), (E)-(Il) and (J)-(M), with respect to the 1997 fine particulate matterNational Ambient Air Quality Standard ("Wyoming SIP Submittal"), and that such alleged failure is actionable under section 304(a)(2) ofthe CAA, 42 U.S.C. § 7604(a)(2); WHEREAS, SierraClub's Complaint further alleges that EPA failed to fulfill a nondiscretionary duty under CAA sections 110(k)(2) and (k)(3), 42 U.S.C. 

### §§ 7410(k)(2), (k.)(3), to take final action on a SIP submittal for the State ofConnecticut regarding the attainment demonstration requirements ofthe nonattainment SIP for the Greater Connecticut 1997 ozone

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National Ambient Air Quality Standardnonattainment area ("Connecticut SIP Submittal"), and that such alleged failure is actionable under section 304(a)(2) ofthe CAA, 42 U.S.C. § 7604(a)(2); WHEREAS, the Parties wish to effectuate a complete and final settlement ofSierra Club
v. Jachon, Case No. 1:12-cv-01917 (D.D.C.), without expensive and protracted litigation and without the admission ofany issue offact or Ia

### w; WHEREAS, onAugust 21, 2012, the United States Court ofappeals for the District of Columbia Circuitissued an opinion in EMEHomer City Generation v. EPA, No. 11-1302 (D.C. Cir. 2012), vacating a final rule issued by EPA, and that opinion concerns state and EPA obligations with respect to 42 U.S.C. § 7410(a)(2)(D)(i)(I); WHEREAS, the Parties, by entering into this Consent Decree, do not waive or limit any claim, remedy, or defense, onany grounds, related to any final EPA action; WHEREAS, the Parties considerthis Consent Decree to be an adequate and equitable resolution ofall ofthe claims in the above-captioned case; WHEREAS, the Court, by entering this Consent Decree, finds that the Consent Decree is fair, reasonable, in the public interest, and consistent with the CAA, 42 U.S.C. 

### §§ 7401-767lq; NOW THEREFORE, before the taking oftestimony, without trial ordetermination of any issue oflawor fact, and upon the consent ofthe Parties, it is hereby ORDERED, ADJUDGED and DECREED that: 1. This Courthas subject matterjurisdictionoverthe claims set forth in the Complaint and to order the reliefcontained in this Consent Decree. Venue is proper in the United States District Court for the District ofColumbia.



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2. The appropriate EPA official shall, no later than October 15, 2013, sign for publication in the Federal Register a notice offinal rulcmaking taking action on the Wyoming SIP Submittal. 3. The appropriate EPA official shall no later than December 16, 2013, sign for publication inthe Federal Register a notice offinal rulemaking taking action onthe Connecticut SIP Submittal. 4. After signing each ofthe notices described in Paragraphs 2 and 3 ofthis Consent Decree, EPJ\ shall deliver, within fifteen (15) business days, notice ofsuch actions to the Office ofFederal Register for review and publication. 5. The deadlines in Paragraphs 2, 3 and 11 may be extended by (a) \\Titten stipulation executed by counsel for SierraClub and EPA with notice to the Court, or (b) bythe Court on a motion ofEPA for 'good cause shown pursuantto the Federal Rules ofCivil Procedure, and upon consideration ofany response by Sierra Club and any reply by EPA. Any other provision ofthis Consent Decree may be modified by the Court following motion ofSierra Club orEPA tor good cause shown pursuant to the Federal Rules ofCivil Procedure and upon consideration ofany opposition by the non-moving party and any reply. 6. SierraClub and EPA shall not challenge the terms ofthis Consent Decree orthis Court'sjurisdictionto enter and enforce this Consent Decree. 

### 7. Sierra Club and EPA agree that this Consent Decree shall constitute a complete and final settlement ofall claims that Sierra Club has asserted against the United States, including EPA, under any provision oflaw in connection withSierra Club v. Jackson, CaseNo. I: 12-cv-01917 (D.D.C.). Sierra Club therefore discharges and covenants notto sue the United States, including EPA, for any such claims.

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8. Nothing in this Consent Decree shall be construed to limit or modify any discretion accorded EPA by the CAA or by general principles ofadministrative law in taking the actions which are the subject ofthis Consent Decree, including the discretion to alter, amend, or revise any responses or final actions contemplated by this ConsentDecree. EPA's obligationto perform the actions specified in this Consent Decree by the times specified herein does not constitute a limitation ormodification ofEPA's discretion withinthe meaning ofthis paragraph. 9. Nothing in this ConsentDecree shall be construed as an admission ofany issue of fact or lawto waive or limit any claim, remedy, or defense, onany grounds, related to any final action EPA may take withrespect to the actions addressed in this Consent Decree. 10. Nothing in this Consent Decree shall be construed to: (a) conferupon this Court jurisdictionto review any issues that are within the exclusivejurisdiction ofthe United States Courts ofAppeals pursuant to CAAsections 307(b)(l), 42 L'.S.C. §§ 7607(b)(l); or(b) waive any claims, remedies, ordefenses the Parties may have under CAA section 307(b)(1 ), 42 U.S.C. 

### §7607(b)(l). 11. The deadline for filing a motion for costs oflitigation, including reasonable attorney's fees, incurred prior to entry ofthis Consent Decree is hereby extended until sixty (60) days afterthe entry ofthis ConsentDecree by this Court. During this time, the Parties shall seek to resolve informally any claim for costs oflitigation, including reasonable attorney's fees, and if they cannot, will submitthat issue to the Court for resolution. The Cnited States does not waive
orlimit any defenses it may have to such claim. The Court shall retainjurisdiction to resolve any requests for costs oflitigation, including reasonable attorney's fees. 12. The Parties recognize and acknowledge that the obligations imposed upon EPA underthis Consent Decree can only be undertaken using appropriated funds legally available for



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such purpose. No provision ofthis Consent Decree shall be interpreted as orconstitute a commitment or requirement that the United States obligate or pay funds in contravention ofthe Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable provision oflaw. 13. Any notices required or provided for by this ConsentDecree shall be made in writing, via facsimile or othermeans, and sent to the following: ForPlaintiffSierra Club: KIMBERLY (KASEY) A. STURM 260 Peachtree Street, NW Suite 1200 Atlanta. Georgia 30312 Office: 404.525.9205 Fax: 404.522.0275 ksturm:§stack-envirolaw.com For Defendant EPA: SECTION CHIEf U.S. Department ofJustice Environment & Natural Resources Division Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044 fax: (202) 514-8865 MATTHEWMARKS Office ofthe General Counsel U.S. Environmental Protection Agency Ariel Rios Bldg., MC 2344A 1200 Pennsylvania Ave
.. N.W. Washington. D.C. 20460 Phone: (202) 564-3276 Fax: (202) 564-5603 Marks.Matthew@epa.gov 14. In the event ofa dispute between the Parties concerning the interpretation or implementation ofany aspect ofthis ConsentDecree, the**disput~ng** party shall provide the other party with a written notice outlining the nature ofthe dispute and requesting informal



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negotiations. Ifthe Parties cannotreach an agreed-upon resolution within fifteen (15) business days after receipt ofthe notice, eitherparty may move the Court to resolve the dispute. 15. l\o motion or otherproceeding seeking to enforce this Consent Decree or for contempt ofCourt shall beproperly tiled unless Sierra Club has followed the procedure set forth in Paragraph 14, and provided EPA with written notice received at least fifteen (15) business days before the filing ofsuchmotion or proceeding. J6. The Court shall retainjurisdiction to determine and effectuate compliance with this Consent Decree. When EPA's obligations under Paragraphs 2 and 3have been completed, any relevant notices have been published in the Federal Register, and any claim for costs of litigation, including reasonable attorney's fees, has been resolved pursuant to the process described in Paragraph 11, the above-captioned matter shall be dismissed with prejudice. EPA shall file an appropriate notice with the Court so thatthe Clerk may close the file. 1 7. The Parties agree and acknowledge that before this Consent Decree can be finalized and entered by the Court, EPA must provide notice 

### in the Federal Register and an opportunity for commentpursuantto CAA section ll3(g). 42 V.S.C. §7413(g). EPA will deliver a public notice ofthis Consent Decree to the Federal Register for review, publication, and public comment promptly after lodging this Consent Decree with the Court. After this Consent Decree has undergone an opportunity for notice and comment, the Administrator and the Attorney General, as appropriate, will promptly consider any such written comments in determining whether to withdraw or withhold consentto this Consent Decree, in accordance with section 113(g) ofthe CAA, 42 U.S.C. 

### § 7413(g). Ifthe Administrator and the Attorney General elect not to withdraw orwithhold consentto this ConsentDecree, the Parties will promptly file a motion that requests the Courtto enterthis ConsentDecree.



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18. The undersigned representatives ofeach party certify that they are fully authorized by the party they represent to bind that party to the terms ofthis Consent Decree.

Dated:

# J**V~**l.io, 2013

Dated: April 18, 2013

SO ORDERED: •2013 Respectfully submitted, Robert G. Dreher Acting Assistant Attorney General United States DepartmentofJustice Environment and Natural Resources Division By:

# ~ 

# ::2:--C::...··-- Heather

### E. Gange Environmental Defense Section D.C. BarNo. 452619 U.S. Department ofJustice P.O. Box 7611 Washington, D.C. 20044 Phone: (202) 514-4206 Fax: (202) 514-8865 Email: Heather.Gange@usdoj.gov Counselfor EPA By: s.· Ka.\'t'\'S'turm 

### KIMBERLY [KASEY] A. STURM 260 Peachtree Street, NW Suite 1200 Atlanta, Georgia 30312 Office: 404.525.9205 Fax: 404.522.0275 ksturm@stack-envirolaw.com Counsel for Plaintiff 

# aft/It/#/

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# a4**~ ~~·**  RosemAry M. Collyer 1 United States District Judge

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