1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL PARKS CONSERVATION ) ASSOCIATION, MONTANA ENVIRONMENTAL ) INFORMATION CENTER, GRAND CANYON ) TRUST, SAN JUAN CITI ZENS ALLIANCE, ) OUR CHILDREN'S EARTH FOUNDATION, ) PLAINS JUSTICE, POWDER RIVE R BASIN ) CIVIL ACTION NO. RESOURCE COUNCIL, SIERRA CLUB , ) 1: 11-cv-01548 (ABJ) AND ENVIRONMENTAL DEFENSE FUND ) ) Plaintiffs, ) ) v. ) ) LISA JACKSON, in her official capacity as ) Administrator, United States Environmental ) Protection Agency, ) ) Defendant. ) ________________________________________________)
CONSENT DECREE This Consent Decree is entered into by Plaintiffs National Parks Conservation Association, Montana Environmental Inform ation Center, Grand Canyon Trust, San Juan Citizens Alliance, Our Children's Earth Foundation, Plains Justice, Powder River Basin Resource Council, Sierra Club, and Environmental Defens e Fund (“Plaintiffs”), and by Defendant Lisa Jackson, in her official capacity as Administra tor of the United States Environmental Protection Agency (“EPA” or “t he Administrator”). WHEREAS, Section 110(c) of the Clean Air Act, 42 U.S.C. § 7410(c), requires the Administrator of EPA to promulga te a federal implementation plan (“FIP”) within two years of a finding that a state has failed to make a required state implementation plan (“SIP”) submittal. The pertinent provision of Section 110(c) states:2 (1) The Administrator shall promulgate a Fede ral implementation plan at any time within 2 years after the Administrator— (A) finds that a State has failed to make a re quired submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum criteria established under section 110(k)(1)(A). WHEREAS, on January 15, 2009, EPA f ound that the following 34 States 1 had failed to submit Clean Air Act SIPs addressing any of the required regional haze SIP elements of 40 C.F.R. § 51.308: Alaska, Califor nia, Connecticut, Dist rict of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Main e, Maryland, Massachusetts , Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey , New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakot a, Texas, Vermont, U.S. Virgin Islands, Virginia, Washington, and Wisconsi n. 74 Fed. Reg. 2392, 2393 (Jan. 15, 2009); WHEREAS, on January 15, 2009 EPA also found that the following five states had submitted some, but not all, of the required region al haze SIP elements set forth at 40 C.F.R. §§ 51.308 and 51.309: Arizona—40 C.F.R. § 51.309(g) and 40 C.F.R. § 51.309(d)(4); Colorado— 40 C.F.R. § 51.308(d) and 40 C.F.R. § 51.308(e) for two sources; Michigan—40 C.F.R. § 51.308(d) and 40 C.F.R. § 51.308(e) for six sour ces; New Mexico—40 C.F.R. § 51.309(g) and 40 C.F.R. § 51.309(d)(4); Wyoming—40 C.F.R. § 51.309(g). 74 Fed. Reg. at 2393; WHEREAS, on January 15, 2009, EPA stated that its finding “starts the two-year clock for the promulgation by EPA of a FIP. EPA is not required to promulgate a FIP if the state makes the required SIP submittal and EPA takes fi nal action to approve the submittal within two years of EPA’s finding.” 74 Fed. Reg. at 2393; WHEREAS, EPA did not, by January 15, 2011, promulgate regional haze FIPs or approve regional haze SIPs for any of the 34 states for which it found on January 15, 2009 a

1 Throughout this Consent Decree, the term “state ” or “State” has the meaning provided in 42 U.S.C. § 7602(d).3 failure to submit SIPs addressing any of the re quired regional haze SIP elements, and EPA also did not, by January 15, 2011, promulgate regional haze FIPs or approve regional haze SIPs correcting the non-submittal deficiencies that EPA found on January 15, 2009 with respect to the regional haze SIP requirements for Arizona, Colorado, Michigan, New Mexico and Wyoming; WHEREAS to meet the regional haze implemen tation plan requirements that were due by December 17, 2007 under EPA’s regiona l haze regulations the followi ng states (and one region) submitted regional haze SIPs to EPA prior to Ja nuary 15, 2009 (hereinafter, “regional haze SIP submittals”), and whereas EPA has yet to take final action on such submittals pursuant to 42 U.S.C. 7410(k): Alabama; Albuquerque, NM; Io wa; Louisiana; Mississippi; Missouri; North Carolina; South Carolina; Tennesse e; and West Virginia; WHEREAS, Plaintiffs served prior notice on the Administrator alleging that her failure to promulgate regional haze FIPs and take final action on regional haze SIPs as described above constituted failure to perform duties that are not discretionary under the Act, and of Plaintiffs’ intent to initiate the pr esent action. This notice was provided via certified letters, posted January 19, 2011, and addressed to the Administrator; WHEREAS, Plaintiffs filed a complaint pur suant to CAA section 304(a)(2), 42 U.S.C. § 7604(a)(2), alleging failure by the Administra tor to perform nondiscretionary duties as referenced above; WHEREAS, Plaintiffs and EPA (collectivel y, the “Parties”) wish to effectuate a settlement of the above-captioned case without e xpensive and protracted litigation, and without a litigated resolution of an y issue of law or fact;4 WHEREAS, the Parties consider this Consen t Decree to be an adequate and equitable resolution of the claims in the above-captioned case and consent to entry of this Consent Decree; and WHEREAS, the Court, by entering this Consen t Decree, finds that th is Consent Decree is fair, reasonable, in the public interest, a nd consistent with the CAA, 42 U.S.C. §§ 7401 et seq

. NOW THEREFORE, before the taking of te stimony, without trial or determination of any issue of fact or law, and upon the consen t of the Parties, it is hereby ORDERED, ADJUDGED, and DECREED that:
1. This Court has subject matter jurisdiction over the claims set forth in the Complaint and to order the relief containe d in this Consent Decree.
2. Venue is proper in the United States Dist rict Court for the District of Columbia. Resolution of Claims
3. By the “Proposed Promulgation Deadlines ” set forth in Table A below EPA shall sign a notice(s) of proposed rulemaking in which it proposes approval of a SIP, promulgation of a FIP, partial approval of a SIP and promulgation of a partial FIP, or approval of a SIP or promulgation of a FIP in the alternative, for each State therein, that collectively meet the regional haze im plementation plan requirements that were due by December 17, 2007 under EPA’s regional haze regulations.
4. By the “Final Promulgation Deadlines” set forth in Table A below, EPA shall sign a notice(s) of final rulemaking promulgating a FIP for each State therein to meet the regional haze implementation plan require ments that were due by December 17, 2007 under EPA’s regional haze regulations, excep t where, by such deadline EPA has for a State therein signed a notice of final ru lemaking unconditionally approving a SIP, or5 promulgating a partial FIP and unconditional approval of a portion of a SIP, that collectively meet the regional haze implement ation plan requirements that were due by December 17, 2007 under EPA’s regional haze regulations.
TABLE A Deadlines for EPA to Sign Notice of Promulgation for Proposed and Final Regional Haze FIPs and/or Appr oval of SIPs (“RH” = Regional Haze) Proposed Promulgation Deadlines Final Promulgation Deadlines State

December 13, 2011 Nevada Oklahoma (all BART elements) December 15, 2011 Kansas New Jersey November 15, 2011 March 15, 2012 District of Columbia Maine November 29, 2011 March 29, 2012 South Dakota January 17, 2012 May 15, 2012 Minnesota Illinois Indiana New York Ohio Pennsylvania Virginia February 15, 2012 June 15, 2012 Alaska (all BART elements) Georgia Maryland Nebraska New Hampshire New Mexico(all remaining RH SIP elements) Rhode Island Vermont Wisconsin March 15, 2012 July 13, 2012 Connecticut Massachusetts May 14, 2012 September 14, 2012 Hawaii Virgin Islands May 15, 2012 November 15, 2012 Alaska (all remaining RH SIP elements) Arizona Idaho (all remaining RH SIP elements) Florida Michigan Oklahoma (all remaining RH SIP elements) Oregon (all remaining RH SIP elements) Texas Washington6 5. By the “Proposed Promulgation Deadlines” se t forth in Table B below EPA shall sign a notice of proposed rulemaking in which it proposes to approve or disapprove, in accordance with 42 U.S.C. § 7410(k), the re gional haze SIP submittals for each state or area indicated.
6. By the “Final Promulgation Deadlines” set forth in Table B below, EPA shall sign a notice of final rulemaking in which it appr oves or disapproves, in accordance with 42 U.S.C. § 7410(k), the regional haze SIP submitta ls for each state or area indicated.
TABLE B Deadlines for EPA to Sign Notices of Promulgation for Proposed and Final Approval or Disapproval of Re gional Haze SIP Submissions Proposed Promulgation Deadlines Final Promulgation Deadlines State or Area

March 15, 2012 Tennessee West Virginia February 15, 2012 June 15, 2012 Alabama Albuquerque, NM Iowa Louisiana Mississippi Missouri North Carolina South Carolina General Provisions 7. The deadlines in Table A or B may be ex tended for a period of 60 days or less by written stipulation executed by counsel for EPA and Plaintiffs and filed with the Court. Any other extension of a deadline in Table A or B may be approved by the Court upon motion made pursuant to the Fe deral Rules of Civil Procedure by EPA and upon consideration of any response by Plaintiffs and reply by EPA.
8. EPA agrees that Plaintiffs are entitled to recover their costs of litigation (including attorneys’ fees) (“litigation costs”) incurre d in this matter pursuant to 42 U.S.C. §7 7604(d). The deadline for the filing of a ny motion for litigation costs for activities performed prior to the lodging of this decree with the C ourt is hereby extended for a period of 120 days. During this time the Par ties 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 C ourt shall retain jurisdiction to resolve any request for litigation costs. Plaintiffs reserv e their right to seek litigation costs for any work performed after the lodging of this C onsent Decree. EPA does not concede that Plaintiffs will be entitled to fees for a ny work performed after the lodging of the Consent Decree, and the parties reserve all claims and defenses with respect to any future costs of litigation claim.
9. No later than ten business days followi ng signature by the Administrator or her delegatee of the notice of any proposed or final rulemaking referenced above, EPA shall deliver the notice to the Office of th e Federal Register for review and prompt publication. Following such delivery to the Office of the Federal Register, EPA shall not take any action (other th an is necessary to correct any typographical errors or other errors in form) to delay or otherwise interfere with publicati on of such notice in the Federal Register. EPA shall make availa ble to Plaintiffs copies of the notices referenced herein within five business da ys following signature by the Administrator or her delegatee.
10. Plaintiffs and EPA shall not challenge the terms of this Consent Decree or this Court’s jurisdiction to enter a nd enforce this Consent Decree.
11. Nothing in this Consent Decree shall be c onstrued to limit or modify any discretion accorded EPA by the CAA or by general prin ciples of administrative law in taking8 the actions which are the subject of this Consent Decree, including the discretion to alter, amend, or revise any responses or final actions contemplated by this Consent Decree. EPA’s obligation to perform the ac tions specified by Paragraphs 3 through 6 does not constitute a limitation or modifi cation of EPA’s discretion within the meaning of this paragraph.
12. Nothing in this Consent Decree shall be c onstrued as an admission of any issue of fact or law or to waive or limit any clai m or defense, on any grounds, related to any final action EPA may take with respect to the SIPs or FIPs identified in paragraphs 3 through 6 of this Consent Decree.
13. Nothing in this Consent Decree shall be c onstrued to confer upon the district court jurisdiction to review any final decision made by EPA pursuant to this Consent Decree. Nothing in this C onsent Decree shall be construe d to confer upon the district court jurisdiction to review any issues that are within the exclusive jurisdiction of the United States Court of Appeals pursuan t to 42 U.S.C. §§ 7607(b)(1) and 7661d. Nothing in this Consent Decree shall be cons trued to waive any remedies or defenses the Parties may have under 42 U.S.C. § 7607(b)(1).
14. The Parties recognize and acknowledge that the obligations imposed upon EPA under this Consent Decree can only be underta ken using appropriated funds legally available for such purpose. No provision of this Consent Decree shall be interpreted as or constitute a commitment or requir ement that EPA obligate or pay funds in contravention of the Anti-D eficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law.9 15. Any notices required or provide d for by this Consent Decree shall be made in writing and sent via e-mail to the following: For Plaintiffs : David Baron dbaron@earthjustice.org Reed Zars rzars@lariat.org ForDefendant : Eileen T. McDonough eileen.mcdonough@usdoj.gov Lea Anderson anderson.lea@epa.gov

16. In the event of a disput e among the Parties concerni ng the interpretation or implementation of any aspect of this C onsent Decree, the disputing Party shall provide the other Party with a written noti ce outlining the nature of the dispute and requesting informal negotiations. If the Parties cannot re ach an agreed-upon resolution, any Party may move the Court to resolve the dispute.
17. No motion or other proceeding seeking to enforce this Consent Decree or for contempt of court shall be properly filed unless the Party seeki ng to enforce this Consent Decree has followed the pro cedure set forth in Paragraph 16.
18. The Court shall retain jurisdiction to dete rmine and effectuate compliance with this Consent Decree, to resolve any disputes th ereunder, and to consider any requests for costs of litigation (including reasonable attorneys’ fees). After EPA’s obligations under Paragraphs 3 through 6 have been co mpleted, EPA may move to have this10 consent decree terminated. Plaintiffs shall ha ve 14 days in which to respond to such motion. 19. The Parties agree and acknowledge that before this Consent Decree can be finalized and entered by the Court, EPA must provide notice in the Federa l Register and an opportunity for comment pursuant to 42 U.S. C. § 7413(g). EPA will deliver a public notice of this Consent Decree to the Fe deral Register for publication and public comment within 10 business days after lodgi ng this Consent Decree with the Court. After this Consent Decree has undergone an opportunity for notice and comment, EPA’s Administrator and the Attorney Ge neral, as appropriate, will promptly consider any such written comments in dete rmining whether to withdraw or withhold consent to this Consent Decr ee, in accordance with sec tion 113(g) of the Clean Air Act. If the Administrator or the Attorney General elects not to withdraw or withhold consent to this Consent Decree, the Parties will promptly file a motion that requests the Court to enter this Consent Decree. If a motion to enter the Consent Decree is not filed within 60 days after th e notice is published in the Federal Register, any party may file dispositive motions in this matter.
20. It is hereby expressly understood and agr eed that this Consent Decree was jointly drafted by the Parties and that any and all rules of constr uction to the effect that ambiguity is construed agains t the drafting party shall be inapplicable in any dispute concerning the terms, meaning, or inte rpretation of this Consent Decree.11 21. 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 term s of this Consent Decree.

SO ORDERED this day of 2011.

HON. AMY BERMAN JACKSON United States District Judge
SO AGREED:
FOR PLAINTIFFS
/s/ REED ZARS /s/ DAVID BARON Attorney at Law Earthjustice 910 Kearney Street 1625 Massachusetts Ave., NW, #702 Laramie, WY 82070 Washington, DC 20036 307-745-7979 202-667-4500 ext.203 rzars@lariat.org dbaron@earthjustice.org
FOR DEFENDANT
IGNACIA S. MORENO Assistant Attorney General Environment and Natura l Resources Division
/s/ EILEEN T. MCDONOUGH Environmental Defense Section U.S. Department of Justice P.O. Box 23986 Washington, D.C. 20026-3986 (202) 514-3126 Of Counsel:
M. LEA ANDERSON Office of General Counsel U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N. W. Washington, DC 20460 (202) 564-5571 anderson.lea@epa.gov