1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
SIERRA CLUB, Plaintiff,

v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and LISA P. JACKSON, Administrator of the United States Environmental Protection Agency, Def endant. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 10

- cv - 1541 (CKK)

PARTIAL CONSENT DECREE WHEREAS, Plaintiff Sierra Club filed this action pursuant to section 304(a)(2) of the Clean Air Act (“CAA”), 42 U.S.C. § 7604(a)(2), alleging that Defendant s United States Environmental Protection Agency and Lisa P. Jackson , Administrator of the United States Environmental Protection Agency ( collectively “EPA”), failed to perform duties mandated by CAA section 110(c)(1) and (k)(2 ) , 42 U.S.C. § 7410(c)(1), (k)( 2 ) , to : (1) promulgate a federal implementation plan (“FIP”) for the State of Te xas that meets the requirements of CAA section 110(a)(2)(D)(i) for the 1997 fine particula te matter (“PM2.5” ) and ozone national ambient air quality standards (“ NAAQS ”) ; (2) pr omulgate a FIP for the State of Texas that meets the requirements of CAA Section 110(a)(2) for the 1997 ozone NAAQS; and (3) take final approval/ disapproval action pursuant to CAA section 110(k)(3) on the state implementation plan (“SIP”) that Texas submi tted for implemen tation of the 1997 PM2.5 NAAQS ;2 WHEREAS, Plaintiff and EPA (collectively the “Parties”) wish to effectuate a settlement of the above

- captioned case without expensive and protracted litigation and without the admission of any issue of fact or law; WHEREAS, the Parties have jointly moved to stay Plaintiff’s claim with respect to EPA’s obligation to promulgate a FIP for the State of Texas that satisfies the requirements of CAA section 110(a)(2)(D)(i)(I) for the 1997 ozone NAAQS and the 1997 P M 2. 5 NAAQS; WHEREAS, the Parties consider this Partial Consent Decree to be an adequate and equitable resolution of the remaining claims in the above

- captioned case ; WHEREAS, the Parties, by entering into this Partial Consent Decree, do not waive or limit any claim, remedy, or defense, on any grounds, related to any final EPA action; WHEREAS, the Court, by ente ring this Partial Consent Decree, finds that this Consent Decree is fair, reasonable, in the public interest, and consistent with the CAA, 42 U.S.C. §§ 7401
et seq ; NOW THEREFORE, before the taking of testimony, without trial or determination of any issue of fact or law, and upon the consent of the Parties, it is hereby ORDERED, ADJUDGED and DECREED that:
1. This Court has subject matter jurisdiction o ver the claims set forth in the Complaint and to order the relief contained in this Partial Consent Decree. Venue is proper in the United States District Court for the District of Columbia

. 2

. ( a ) Pursuant to CAA section 110(c) (1) , EPA shall , by December 16, 2011, sign for publication in the Federal Register a notice or notices promulgating a FIP for the State of Texas3 that satisfies the requirements of CAA s ection 110(a)(2)(A) , (B), (C) ( except to the extent subsection (a)(2)(C) refers to a permit progra m as required in part D Title I of the CAA ), (D)(ii), (E)

- (H), (J)

- (M), and the requirement in section 110(a)(2)(D)(i)(II) that implementation plans contain adequate provisions prohibiting emissions that will interfere with measures in other states related to prevent ion of significant deterioration of air quality for the 1997 ozone NAAQS

. If, by December 16, 2011, EPA signs a notice or notices unconditionally approving a SIP or promulgating a partial FIP and unconditional approval of a partial SIP, collect ively satisfying the requirements of CAA section 110(a)(2)(A), (B), (C) (except to the extent subsection (a)(2)(C) refers to a permit program as required in part D Title I of the CAA), (D)(ii), (E)

- (H), (J)

- (M), and the requirement in section 110(a)(2)(D)( i)(II) that implementation plans contain adequate provisions prohibiting emissions that will interfere with measures in other states related to prevention of significant deterioration of air quality for the 1997 ozone NAAQS, EPA shall have complied with th e obligations of this paragraph. ( b ) Pursuant to CAA section 110(c)(1), EPA shall, by December 16, 2011, sign for publication in the Federal Register a notice or notices promulgating a FIP for the State of Texas that satisfies the requirement in CAA sect ion 110(a)(2)(D)(i)(II) that implementation plans contain adequate provisions prohibiting emissions that will interfere with measures in other States related to prevention of significant deterioration of air quality for the 1997 PM2.5 NAAQS. If, by Decemb er 16, 2011, EPA signs a notice or notices unconditionally approving a SIP or promulgating a partial FIP and unconditional approval of a partial SIP, collectively satisfying the requirement in CAA section 110(a)(2)(D)(i)(II) that implementation plans conta in adequate provisions prohibiting emissions that will interfere with measures in other states related4 to prevention of significant deterioration of air quality for the 1997 PM2.5 NAAQS, EPA shall have complied with the obligations of this paragraph. ( c ) EPA shall, by December 16, 2011, sign for publication in the Federal Register a notice or notices of the Agency’s final action approving or disapproving, in accordance with CAA section 110(k), the State of Texas’ April 4, 2008 SIP submittals for implementa tion of the 1997 PM2.5 NAAQS regarding the requirements of CAA section 110(a)(2)(A), (B), (C) (except to the extent subsection (a)(2)(C) refers to a permit program as required in part D Title I of the CAA), (D)(ii), (E)

- (H), (J)

- (M)

. ( d ) Pursuant to CAA section 110(c) (1) , EPA shall , by November 15 , 2012, sign for publication in the Federal Register a notice or notices promulgating a FIP , for the State of Texas that satisfies the CAA requirement in section 1 10(a)(2)(D)(i)(II) that implementation plans

con tain adequate provisions prohibiting emissions that will interfere with measures in other
States related to the protect ion of visibility for the 1997 ozone and 1997 PM2.5 NAAQS

. If, by November 15, 2012, EPA signs a notice or notices unconditionally appro ving a SIP or promulgating a partial FIP and unconditional approval of a partial SIP, collectively satisfying the requirements of CAA section 110(a)(2)(D)(i)(II) that implementation plans contain adequate provisions prohibiting emissions that will interfer e with measures in other States related to the protection of visibility for the 1997 ozone and 1997 PM2.5 NAAQS , EPA shall have complied with the obligations of this paragraph

. 3. Within ten ( 10 ) business days of signing a final rule or determination as described in paragraph 2 of this Partial Consent Decree, EPA shall deliver notice of such actions to the Office of the Federal Register for review and publication. Following such delivery to the Office5 of the Federal Register, EPA shall not take any actio n (other than is necessary to correct typographical errors or other errors in form) to delay or otherwise interfere with the publication of such notices in the Federal Register. In addition, EPA shall provide notice and make available to Plaintiff a copy of each such rule or determination within five (5) business days of delivery to the Office of the Federal Register.
4

. The deadlines in paragraph 2 of this Partial Consent Decree may be extended by (a) written stipulation of the Plaintiff and EPA with no tice to the Court, or (b) by the Court on a motion of EPA for good cause shown pursuant to the Federal Rules of Civil Procedure, and upon consideration of any response by the Plaintiff. Any other provision of this Partial Consent Decree may be modified by the Court following motion of Plaintiff or EPA for good cause shown pursuant to the Federal Rules of Civil Procedure and upon consideration of any opposition by the non

- moving party. 5

. Plaintiff and EPA shall not challenge the terms of this Decree or thi s Court’s jurisdiction to enter and enforc e thi s Decree.
6

. Nothing in this Partial Consent Decree shall be construed to limit or modify any discretion accorded EPA by the CAA or by general principles of administrative law in taking the actions which are the subject of this Partial Consent Decree, including the discretion to alter, amend or revise any responses or final actions contemplated by this Decree. EPA’s obligation to perform the actions specifi ed in this Partial Consent Decree by the time s speci fied herein does not constitute a limitation or modification of EPA’s discretion within the meaning of this paragraph.6 7

. Nothing in this Partial Consent Decree shall be construed as an admission of any issue of fact or law nor to waive or limit any claim , remedy, or defense, on any grounds, related to any final action EPA may take with respect to the actions addressed in this Partial Consent
Decree

. 8

. Nothing in this Partial Consent Decree shall be construed to : (a) confer upon this
C ourt jurisdiction to review any final decision made by EPA pursuant to this Partial Consent
Decree ; (b) confer upon this C ourt jurisdiction to review any issues that are within the exclusive jurisdiction of the United States Courts of Appeals pursuant to CAA section s 307(b) (1) and 505, 42 U.S.C. § § 7607(b)(1), 7661d ; or (c) waive any claims, remedies , or defenses the Parties may have under CAA s ection 307(b)(1), 42 U.S.C. § 7607(b)(1).
9

. The deadline for filing a motion for costs of litigation, including attorneys’ fees,
i ncurred prior to entry of this Partial Consent Decree is hereby extended until sixty (60) days after the entry of this Partial Consent Decree by this Court. During this time, 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 this Court for resolution. The United States does not waive or limit any defenses it may have to such claim. This Court shall retain jurisdiction to resolve any requests for costs o f litigation, including attorneys’ fees.
1 0

. Plaintiff reserves the right to seek additional costs of litigation, including attorneys’ fees, incurred subsequent to entry of this Partial Consent Decree and arising from Plaintiff’s ne ed to enforce or defend against efforts to modify its terms of the underlying schedule outlined herein, or for any other unforeseen continuation of this action. The Unite d States reserves the right to challenge any such claim.7 1 1

. The Parties recognize and acknowledge that the obligations imposed upon EPA under this Partial Consent Decree can only be undertaken using appropriated funds legally available for such purpose. No provision of this Decree shall be interpreted as or constitute a commitment or requirement that the Unit ed States obligate or pay funds in contravention of the Anti

- Deficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law.
1 2

. Any notices required or provided for by this Partial Consent Decree shall be made in writing, via facsimile or ot her means, and sent to the following: For Plaintiff : KHUSHI K. DESAI DAVID S. BARON EARTHJUS T ICE 1625 Massachusetts Ave., NW, Suite 702 Washington, DC 20036 Tel: (202) 667

- 4500 Fax: (202) 667

- 2356 kdesai@earthjustice.org dbaron@earthjustice.org For Defen dant : STEPHANIE J. TALBERT Environmental Defense Section Environment & Natural Resources Division P.O. Box 23986 Washington, D.C. 20026

- 3986 T el: (202 ) 514

- 2617 Fax: (202) 514

- 8865 Stephanie.talbert@usdoj.gov
GEOFF REY WILCOX U.S. Environmental Protecti on Agency Office of General Counsel (2344A) 1200 Pennsylvania Ave., N.W. Washington, D

. C

. 20460 Tel: (202) 564

- 5601 Wilcox.geoff rey @epa.gov8 ABIRAMI VIJAYAN U.S. Environmental Protection Agency Office of Regional Counsel 1445 Ross. Ave. (6 RC

- M) Dallas, TX 75202 Tel: (214) 665

- 7303 Fax: (214) 665

- 2182 Vijayan.abi@epa.gov
1 3

. In the event of a dispute between the Parties concerning the interpretation or implementation of any aspect of this Decree, the disputing Party shall provide the other Party with a written notice outlining the nature of the dispute and requesting informal negotiations. If the Parties cannot reach an agreed

- upon resolution within ten (10) business days after receipt of the notice, either P arty may move the Court to resolve the dispu te. 1 4

. No motion or other proceeding seeking to enforce this Decree or for contempt of Court shall be properly filed unless Plaintiff has followed the pro cedure set forth in p aragraph 1 3 , and provided EPA with written notice received at least ten ( 10 ) bus iness days before the filing of such motion or proceeding.
1 5

. The Court shall retain jurisdiction to determine and effectuate compliance with this Partial Consent Decree. When EPA’s obligations under paragraph 2 have been completed, EPA may move to have this Decree terminated. Plaintiff shall have fourteen (14) days in which to respond to such motion.
1 6

. The Parties agree and acknowledge that before this Partial Consent Decree can be finalized and entered by the Court, EPA must provide notice in the Fe deral Register and an opportunity for comment pursuant to CAA section 113(g), 42 U.S.C. § 7413(g). EPA will deliver a public notice of this Partial Consent Decree to the Federal Register for publication and9 public comment within ten (10) business days aft er lodging this Partial Consent Decree with the
Court . After this Partial 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 d etermining whether to withdraw or withhold consent to this Partial Consent Decree, in accordance with section 113(g) of the CAA. If the Administrator or the Attorney General elects not to withdraw or withhold consent to this Partial Consent Decree, the
Pa rties will promptly file a motion that requests the Court to enter this Partial Consent Decree

. 1 7

. The undersigned representatives of each Party certify that they are fully authorized by the Party they represent to bind that Party to the terms of this Par tial Consent Decree. SO ORDERED on this day of 201 1

.

___________________________________ JUDGE COLLEEN KOLLAR

- KOTELLY

SO AGREED: FOR PLAINTIFF /s/ Khushi K. Desai KHUSHI K. DESAI EARTHJUS T ICE 1625 Massachusett s Ave., NW, Suite 702 Washington, DC 20036 Tel: (202) 667

- 4500 Fax: (202) 667

- 2356 kdesai@earthjustice.org

DATED: August 26, 201110 FOR DEFENDANT IGNACIA S. MORENO Assistant Attorney Gen eral Environment & Natural Resources Division

/s/ Stephanie J. Talbert STEPHANIE J. TALBERT Environmental Defense Section Environment & Natural Resources Division United States Department of Justice P.O. Box 23986 Washington, D.C. 20026

- 3986 Phone (2 02) 514

- 2617 Fax (202) 514

- 8865 Stephanie.talbert@usdoj.gov
DATED: September 12, 2011

Of Counsel for Defendant:
GEOFF REY WILCOX U.S. Environmental Protection Agency Office of General Counsel (2344A) 1200 Penns ylvania Ave., N.W. Washington, DC 20460 Tel: (202) 564

- 5601 Wilcox.geoff rey @epa.gov