P ROPOSED C ONSENT D ECREE C ASE N O . 3:12-cv-4078-JST 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division United States Department of Justice LESLIE M. HILL (D.C. Bar No. 476008) Leslie.Hill@usdoj.gov Environmental Defense Section 601 D Street N.W., Suite 8000 Washington D.C. 20004 Telephone (202) 514-0375 Facsimile (202) 514-8865 Attorneys for Defendant

JAMES N. SAUL saul@mwbattorneys.com 211 S. Paterson Street, Suite 320 Madison, WI 53703 Telephone (608) 310-3560 [additional Attorneys for Plainti ff included in signature block] Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

SIERRA CLUB, Plaintiff,

v. ROBERT PERCIASEPE, Acting Administrator of the United States Environmental Protection Agency, 1

Defendant. Case. No.: 3:12-cv-4078-JST PROPOSED CONSENT DECREE

1 The named defendant, Lisa P. Jackso n, no longer holds the designated position. Pursuant to Fed. R. Civ. P. 25, the Acting Ad ministrator is substituted for Ms. Jackson. Case3:12-cv-04078-JST Document27-1 Filed03/27/13 Page1 of 8P ROPOSED C ONSENT D ECREE C ASE N O . 3:12-cv-4078-JST 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, on August 2, 2012, Plaintiff Si erra Club filed the above-captioned matter against Lisa P. Jackson, in her offici al capacity as Admini strator of the United States Environmental Protection Agency (hereinafter “EPA” or “Defendant”); WHEREAS, Plaintiff alle ges that EPA has failed to undertake certain nondiscretionary duties under the Clean Ai r Act (“CAA”), 42 U.S.C. §§ 7401-7671q, and that such alleged failure is actionable under section 304(a)(2 ) of the CAA, § 7604(a)(2); WHEREAS, Plaintiffs allege that EPA has failed to perform a duty mandated by CAA sections 110(k)(2) and (3), 42 U.S.C. §§ 7410(k)(2) and (3), to take timely final action to approve, disapprove, or partially approve/disapprove five regulations submitted by the State of Nevada for inclusion in the Clark County portion of Nevada’s state implementation plan (“SIP”), see Compl. ¶ 1 (Dkt. No. 1); WHEREAS, the relief request ed in the Complaint includes, among other things, an order from this Court to establish a date certain by which EPA must fulfill its obligations for each of the regulations (called “Sections”) listed therein; WHEREAS, pursuant to CAA sections 110(k)(3) and 301(a), 42 U.S.C. §§ 7410(k)(3) and 7601(a), EPA took final action on four of these regul ations (Sections 0, 12.2, 12.3, and 12.4) and notice of such final acti on was published in the Federal Register on October 18, 2012, Limited Approval and Disapproval of Air Quality Implementation Plans; Nevada; Clark County; Stationary Source Permits , 77 Fed. Reg. 64039 (Oct. 18, 2012); WHEREAS, Sierra Club’s claims rela ted to Sections 0, 12.2, 12.3, and 12.4 of the Clark County portion of the Neva da SIP are therefore moot; WHEREAS, EPA has not take n final action pursuant to CAA section 110(k) with respect to the fifth regulation identified in the Complaint, Section 25 of the Clark County Air Quality Regulations, as amended May 18, 2010 and submitted to EPA on September 1, 2010 (referred to herein as “Section 25”); WHEREAS, Plaintiff and EPA have agreed to a settlement of this action without admission of any issue of fact or law, except as expressly provided herein; Case3:12-cv-04078-JST Document27-1 Filed03/27/13 Page2 of 8P ROPOSED C ONSENT D ECREE C ASE N O . 3:12-cv-4078-JST 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, Plaintiff and EPA, by enteri ng into this Consent Decree, do not waive or limit any claim, remedy, or defens e, on any grounds, related to any final EPA action; WHEREAS, Plaintiff and EPA consider th is Consent Decree to be an adequate and equitable resolution of all the claims in th is matter and therefore wish to effectuate a settlement; WHEREAS, it is in the interest of th e public, Plaintiff Sierra Club, Defendant EPA, and judicial economy to resolve th is matter without protracted litigation; WHEREAS, Plaintiff and EPA agree that this Court has jurisdiction over this matter pursuant to the citizen suit provisi on in CAA section 304(a)(2), 42 U.S.C. § 7604(a)(2), and that venue is proper in the No rthern District of Ca lifornia pursuant to 28 U.S.C. § 1391(e) and N.D. Cal. Civ. Local Rule 3-2(c)-(d); WHEREAS, the Court, by entering this Consent Decree, finds that the Consent Decree is fair, reasonable, in the public intere st, and consistent with the Clean Air Act; NOW THEREFORE, before the taki ng of testimony, without trial or determination of any issues of fact or law, and upon the consent of Plaintiff Sierra Club and Defendant EPA, it is hereby or dered, adjudged and decreed that: 1. No later than December 2, 2013, EPA sh all sign a notice of the Agency’s final action on Section 25 pursuant to section 110( k) of the CAA, 42 U.S.C. § 7410(k), and thereafter send the notice to the Office of the Federal Register for publication. 2. After EPA has completed the action set forth in Paragraph 1 of this Consent Decree, EPA may move to have this Decree term inated. Plaintiff shall have fourteen (14) days in which to respond to such a motion, unl ess the parties stipulat e to a longer time for Plaintiff to respond. 3. The deadline established in Paragr aph 1 may be extended (a) by written stipulation of Plaintiff and EPA with notice to the Court, or (b) by the Court upon motion of EPA for good cause shown and upon considerat ion of any response by Plaintiff. Case3:12-cv-04078-JST Document27-1 Filed03/27/13 Page3 of 8P ROPOSED C ONSENT D ECREE C ASE N O . 3:12-cv-4078-JST 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Sierra Club and EPA agree that th is Consent Decree shall constitute a complete and final settlement of all claims that Sierra Club has asserted against the United States, including EPA, under any provision of law in connection with Sierra Club v. Jackson, Case No. 3:12-cv-4078-JST (N.D. Cal. ). Sierra Club therefore discharges and covenants not to sue the United States, including EPA, for any such claims. 5. In the event of a dispute betw een Plaintiff and EPA concerning the interpretation or implementation of any aspect of this Consent Decr ee, the disputing party shall provide the other party with a written notice outlining the nature of the dispute and requesting informal negotiations. These parties shall meet and confer in order to attempt to resolve the dispute. If th ese parties are unable to resolv e the dispute within ten (10) business days after receipt of the notice, eith er party may petition the Court to resolve the dispute. 6. No motion or other proceeding seeking to enforce this Consent Decree or for contempt of Court shall be f iled unless the procedure set forth in Paragraph 5 has been followed. 7. This Court shall retain jurisdiction over this matter to enforce the terms of this Consent Decree and to consider any requests for costs of li tigation, including attorney fees. 8. Nothing in the terms of this Consent Decree shall be construed (a) to confer upon this Court jurisdiction to review any fi nal rule or determination issued by EPA pursuant to this Consent Decree, (b) to confer upon this Cour t jurisdiction to review any issues that are within the exclusive jurisdic tion of the United States Courts of Appeals under CAA section 307(b)(1), 42 U.S.C. § 7607( b)(1), or (c) to waive any claims, remedies, or defenses that the partie s may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1). 9. 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 s ubject of this Consen t Decree, including the Case3:12-cv-04078-JST Document27-1 Filed03/27/13 Page4 of 8P ROPOSED C ONSENT D ECREE C ASE N O . 3:12-cv-4078-JST 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discretion to alter, amend, or revise any final actions pr omulgated pursuant to this Consent Decree. EPA’s obligation to perfor m each action specified in this Consent Decree does not constitute a limitation or m odification of EPA’s discretion within the meaning of this paragraph. 10. Except as expressly provided herein, not hing in this Consent Decree shall be construed as an admission of any issue of f act or law nor to waive or limit any claim, remedy, or defense, on any grounds, related to any final action EPA takes with respect to the actions addressed in this Consent Decree. 11. EPA shall pay, as soon as reason ably practicable, $10,880 to Plaintiff’s counsel, McGillivray Westerberg & Bender LLC, by electronic funds transfer (“EFT”) in accordance with EFT instructions provided to EPA’s Counsel by Plaintiff’s Counsel within ten (10) calendar days after entry of the Consent Decree by the Court. Such payment represents full and final payment to all counsel for Plaintiff in connection with any request for fees and costs which could be brought by Plaintiffs up to and including entry of the Consent Decree. 12. Plaintiff reserves the right to seek additional co sts of litiga tion, including reasonable attorney fees, incurred subsequent to entry of this Cons ent Decree and arising from Plaintiff’s need to enforce or defend against efforts to modify its terms or the underlying schedule outlined herein, or for any other unforeseen continuation of this action. EPA reserves the ri ght to oppose any such reque st for additional costs of litigation, including reas onable attorney fees. 13. It is hereby expressly understood and agreed that this Consent Decree was jointly drafted by Plaintiff a nd EPA. Accordingly, the par ties hereby agree that any and all rules of construction to the effect that ambiguity is cons trued against the drafting party shall be inapplicable in any dispute concerning the terms, meaning, or interpretation of this Consent Decree. 14. 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 Case3:12-cv-04078-JST Document27-1 Filed03/27/13 Page5 of 8P ROPOSED C ONSENT D ECREE C ASE N O . 3:12-cv-4078-JST 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 an opportunity for public comment pursuant to CAA section 113(g), 42 U.S.C. § 7413(g). After this Consent Decree has undergone notic e and comment, the Administrator and/or the Attorney General, as appropriate, shall pr omptly consider any such written comments in determining whether to withdraw or wit hhold their consent to th e Consent Decree, in accordance with CAA section 113(g). If the Administrator and/or the Attorney General do not elect to withdraw or withhold consen t, EPA shall promptly file a motion that requests that the Court enter this Consent Decree. 15. Any notices required or provided fo r by this Consent Decree shall be in writing, via electronic mail or other means, and sent to the following (or to any new address of counsel as filed and listed in the docket of the above-captioned matter, at a future date): For Plaintiff Sierra Club : James N. Saul McGillivray Westerberg & Bender LLC 211 S. Paterson Street, Suite 320 Madison, WI 53703 Tel. (608) 310-3560 saul@mwbattorneys.com Kristin Henry Sierra Club 85 Second Street, 2nd Floor San Francisco, CA 94105 Telephone (415) 977-5716 Email: Kristin.Henry@sierraclub.org

For Defendant EPA : Leslie M. Hill U.S. Department of Justice Environment & Natural Resources Division Environmental Defense Section 601 D Street N.W., Suite 8000 Washington D.C. 20004 Tel. (202) 514-0375 Email: Leslie.Hill@usdoj.gov

16. EPA and Plaintiff rec ognize and acknowledge that the obligations imposed upon EPA under this Consent Decree can onl y be undertaken using appropriated funds legally available for such purpose. No pr ovision of this Consent Decree shall be Case3:12-cv-04078-JST Document27-1 Filed03/27/13 Page6 of 8P ROPOSED C ONSENT D ECREE C ASE N O . 3:12-cv-4078-JST 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 interpreted as or constitute a commitment or requirement that the United States obligate or pay funds in contravention of the Anti-De ficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law. 17. If for any reason the Court should dec line to approve this Consent Decree in the form presented, this agreement is voidable at the sole discretion of either party and the terms of the proposed Consent Decree may not be used as evidence in any litigation between the parties. 18. The undersigned representatives of Pl aintiff Sierra Club and Defendant EPA certify that they are fully authorized by the pa rty they represent to consent to the Court’s entry of the terms and conditions of this Decree. SO ORDERED on this _____ day of _____________________, 2013.

_______________________________________________ JON S. TIGAR United States District Judge

COUNSEL FOR PLAINTIFF:

___________________________________ JAMES N. SAUL McGillivray Westerberg & Bender LLC 211 S. Paterson Street, Suite 320 Madison, WI 53703 Tel. (608) 310-3560 Email: saul@mwbattorneys.com

KRISTIN HENRY Sierra Club 85 Second Street, 2nd Floor San Francisco, CA 94105 Tel. (415) 977-5716 Email: Kristin.Henry@sierraclub.org Attorneys for Plaint iff Sierra Club Case3:12-cv-04078-JST Document27-1 Filed03/27/13 Page7 of 8P ROPOSED C ONSENT D ECREE C ASE N O . 3:12-cv-4078-JST 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COUNSEL FOR DEFENDANT:

IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division

___________________________________ LESLIE M. HILL (D.C. Bar No. 476008) Environmental Defense Section 601 D Street N.W., Suite 8000 Washington D.C. 20004 Tel. (202) 514-0375 Email: Leslie.Hill@usdoj.gov Attorneys for Defendant EPA Case3:12-cv-04078-JST Document27-1 Filed03/27/13 Page8 of 8