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28 SAM HIRSCH Acting 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

ROBERT UKEILEY , Admitted Pro Hac Vice rukeiley@igc.org Law Office of Robert Ukeiley 507 Center St. Berea, KY 40403 Telephone (859) 986

- 5402

[additional a ttorneys fo r Plaintiff included in signature block]
Attorney s for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

SIERRA CLUB
,
Plaint i ff,

v.
GINA McCARTHY, in her official capacity as the Administrat or of the United States Environmental Protection Agency,

Defendant. Case No.: 3:14

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28 WHEREAS, on March 3 , 201 4 , Plaintiff Sierra Club (“Plaintiff”) filed the above

captioned matter against Gina McCarthy , in her offic ial capacity as Administrator of the United States Environmental Protection Agency (hereinafter “EPA” or “ Defendant”); WHEREAS, Plaintiff alleges that EPA has failed to undertake certain non

discretionary 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, Plaintiff allege s that EPA has failed to perform a duty mandated by CAA section 110(k)( 1 ) (B) , 42 U.S.C. § 7410(k) ( 1 ) (B) , to find that certain states , as follows, failed to submit state implementation plan (“SIP”) revisions for the state or

certain areas to address the PM 2.5 prevention of significant deterioration (“ PSD ”)

increments and implementing regulations as pro mulgated by EPA on October 20, 2010
, F inal Rule
, Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)

-- Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC) , 75 Fed. Re g. 64,864 (Oct. 20, 2010):

AREA/STATE Pinal County, Arizona

Arkansas Clark County, Nevada

Vermont

Ohio North Coast Management District, California

Wisconsin

WHEREAS, Plaintiff alleges that EPA required states to submit SIPs addressing these requir ements by July 20, 2012, 75 Fed. Reg. at 64,898;
WHEREAS, Arizona’s statewide SIP submission, which became complete by operation of law on April 29, 2013
, addresses these requirements for Pinal County, Case3:14-cv-00964-JD Document27-1 Filed07/23/14 Page2 of 9[P ROPOSED ] C ONSENT D ECREE C ASE N O

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28 Arizona , and therefore
, as to Pinal County , Arizona, t he complaint fails to state a claim upon which relief can be granted ; WHEREAS, EPA took final action finding that Arkansas failed to submit a SIP

revision to address the PM 2.5 PSD increments and implementing regulations, Final Rule, Finding of Failure To S ubmit a Prevention of Significant Deterioration State Implementation Plan Revision for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 );

Arkansas , 79 Fed. Reg. 29,354 (May 22, 2014) , and therefore the claim as to Arkansas is

moot ; WHEREAS, Nevada submi tted a SIP revision addressing these requirements for Clark County, Nevada on April 1, 2014, which EPA determined was complete on May 5, 2014, and therefore the claim as to Clark County, Nevada, is moot;
WHEREAS, Ohio submitted a SIP revision addressing th ese requirements for the state on June 19, 2014, which EPA determined was complete on June 27, 2014, and
therefore the claim as to Ohio is moot; WHEREAS, the relief requested in the Complaint includes, among other things,

an order from this Court to establ ish a date certain by which EPA must fulfill its obligations ; 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; WHEREAS, Plaintiff and EPA, by entering into this Consent Decree, do not waive or limit any claim, remedy, or defense, on any grounds, related to any final EPA
action; WHEREAS, Plaintiff and EPA consider this Consent Decree to be an adequate and equitable resolution of all the claims in this ma tter and therefore wish to effectuate a
settlement; WHEREAS, it is in the interest of the public, Plaintiff Sierra Club , Defendant EPA, and judicial economy to resolve this matter without protracted litigation; Case3:14-cv-00964-JD Document27-1 Filed07/23/14 Page3 of 9[P ROPOSED ] C ONSENT D ECREE C ASE N O

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28 WHEREAS, Plaintiff and EPA agree that this Court has jurisdiction over this matter pursuant to the citizen suit provision in CAA section 304(a)(2), 42 U.S.C. § 7604(a)(2), and that venue is proper in the Northern District of California pursuant to 28 U.S.C. § 1391(e) and N.D. Cal. Civ. Local Rule 3

- 2(c)

- (d); and WHEREAS, the Court, by entering this Consent Decree, finds that the Consent Decree is fair, reasonable, in the public interest, and consistent with the Clean Air Act; NOW THEREFORE, before the taking of testimony, without trial or

determinat ion of any issues of fact or law, and upon the consent of Plaintiff Sierra Club and Defendant EPA, it is hereby ordered, adjudged and decreed that:

1. The appropriate EPA official shall sign a notice or notices by no later than August 15, 2014, finding t hat Vermont, Wisconsin, and California (as to the North Coast Management District) have failed to submit SIP s addressing the PM 2.5 PSD increments

and implementing regulations
, as promulgated by EPA on October 20, 2010

. 2

. If any of these State s makes a co mplete submission addressing these requirements prior to August 15, 2014 , then EPA’s obligation to take the action required by Paragraph 1 is automatically terminated.
3. EPA shall, within 15 days of signature , deliver notice of each action taken
pursuant to paragraph 1 of this Consent Decree to the Office of the Federal Register for review and publication.

4. After EPA has completed the action s set forth in Paragraph 1 of this Consent

Decree and after notice of each final action required by paragraph 1 h as been published in the Federal Register
, and the issue of costs of litigation, including attorneys fees has been
resolved, EPA may move to have this Decree terminated and the action dismissed

. Plaintiff shall have fourteen (14) days in which to respond to such motion , unless the parties stipulate to a longer time for Plaintiff to respond

. 5

. The deadline s established by this Consent Decree 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 pursuant to the Federal Rules of Civil Procedure Case3:14-cv-00964-JD Document27-1 Filed07/23/14 Page4 of 9[P ROPOSED ] C ONSENT D ECREE C ASE N O

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28 and upon consideration of any response by Plaintiff and any reply by EPA

. Any other provision of this Consent Decree also may be modified by the Court following motion of an undersigned party for good cause shown pursuant to the Federal Rules of Civil Procedure and upon consideration of any response by a non

- moving party and any reply. 6. If a lapse in appropriations occurs within one hundred and twenty (120) days prior to the deadline in Paragraph 1 in this Decree, that deadline shall be extended automatically one day for each day of the lapse in appropriations.

7

. Plaintiff and EPA agree that this Consent Decree shall constitute a complete

and final settlement of all cl aims that Plaintiff has asserted in this case

. The Sierra Club therefore discharges and covenants not to sue the United States, including EPA, for any

such claims.

8

. In the event of a dispute between Plaintiff and EPA concerning the interpretation or im plementation of any aspect of this Consent Decree, 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 these parties are unable to resolve the dispute within ten (10) business days after receipt of the notice, either party may petition the Court to resolve the dispute.

9 . No motion or other proceeding seeking to enforce this Conse nt Decree or for contempt of Court shall be properly filed unless the procedure set forth in Paragraph 8

has been followed , and the moving party has provided the other party with written notice received at least ten (10) business days before the filing of such motion or proceeding

. 10

. The deadline for filing a motion for costs of litigation (including attorney fees) for activities performed prior to entry of the Consent Decree is hereby extended until ninety (90) days after this Consent Decree is entered by the Court. During this period, the Parties shall seek to resolve informally any claim for costs of litigation (including attorney fees), and if they cannot, the Sierra Club will file a motion for costs of litigation (including attorney fees) or a stipu lation or motion to extend the deadline to file Case3:14-cv-00964-JD Document27-1 Filed07/23/14 Page5 of 9[P ROPOSED ] C ONSENT D ECREE C ASE N O

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28 such a motion. EPA reserves the right to oppose any such request. The Court shall retain jurisdiction to resolve any requests for costs of litigation, including attorney fees.

1 1 . This Court shall retain ju risdiction over this matter to enforce the terms of this Consent Decree and to consider any requests for costs of litigation, including attorney fees.

1 2 . Nothing in the terms of this Consent Decree shall be construed ( a ) to confer upon this Court jurisdi ction to review any issues that are within the exclusive jurisdiction of the United States Courts of Appeals under CAA section 307(b)(1),

42 U.S.C

. § 7607(b)(1), including final action take pursuant to section 110(k) of the
CAA, 42 U.S.C. § 7410(k), approv ing, disapproving, or approving in part and disapproving in part a SIP submittal
, or ( b ) to waive any claims, remedies, or defenses that the parties may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1).

1 3 . 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 subject of this Consent Decree, including the discretion to alter, amend, or revise any final a ctions promulgated pursuant to this Consent Decree. EPA’s obligation to perform each action specified in this Consent

Decree does not constitute a limitation or modification of EPA’s discretion within the meaning of this paragraph.

1 4 . Except as expressl y provided herein, nothing in this 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 takes with respect to

the actions addresse d in this Consent Decree.

1 5 . Plaintiff reserves the right to seek additional costs of litigation, including reasonable attorney fees, incurred subsequent to entry of this Consent Decree and arising from Plaintiff’s need to enforce or defend against eff orts to modify its terms or the underlying schedule outlined herein, or for any other unforeseen continuation of this Case3:14-cv-00964-JD Document27-1 Filed07/23/14 Page6 of 9[P ROPOSED ] C ONSENT D ECREE C ASE N O

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28 action. EPA reserves the right to oppose any such request for additional costs of litigation, including attorney fees.

1 6 . It is hereb y expressly understood and agreed that this Consent Decree was jointly drafted by Plaintiff and EPA. Accordingly, the parties hereby agree that any and all rules of construction to the effect that ambiguity is construed against the drafting party

shall be inapplicable in any dispute concerning the terms, meaning, or interpretation of

this Consent Decree.

1 7 . The parties agree and acknowledge that before this Consent Decree can be

finalized and entered by the Court, EPA must provide notice of this Consent Decree in the Federal Register and an opportunity for public comment pursuant to CAA section 113(g), 42 U.S.C. § 7413(g). After this Consent Decree has undergone notice and comment, the Administrator and/or the Attorney General, as appropriate, shall prom ptly consider any written comments in determining whether to withdraw or withhold their consent to the Consent Decree, in accordance with CAA section 113(g). If the Administrator and/or the Attorney General do not elect to withdraw or withhold consent,

EP A shall promptly file a motion that requests that the Court enter this Consent Decree.

1 8 . Any notices required or provided for by this Consent Decree shall be in writing, via electronic mail or other means, and sent to the following (or to any new

addres s of counsel as filed and listed in the docket of the above

- captioned matter, at a future date):

For Plaintiff Sierra Club : Robert Ukeiley 507 Center Street Berea, KY 40403 Tel. (859) 986

- 5402 Email: rukeiley@igc.org
Kristin Henry (Cal. Bar. No. 220908) S ierra Club 85 Second Street, 2nd Floor San Francisco, CA 94105 Tel. (415) 977

- 5716 Email: kristin.henry@sierraclub.org Case3:14-cv-00964-JD Document27-1 Filed07/23/14 Page7 of 9[P ROPOSED ] C ONSENT D ECREE C ASE N O

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28 For Defendant EPA : Leslie M. Hill U.S. Department of Justice Environment & Natural Resources Division Environmental Defense Section 60 1 D Street N.W., Suite 8000 Washington D.C. 20004 Tel. (202) 514

- 0375 Email: l eslie. h ill@usdoj.gov

1 9 . EPA and Plaintiff recognize and acknowledge that the obligations imposed upon EPA under this Consent Decree can only be undertaken using appropriate d funds legally available for such purpose. No provision of this Consent Decree shall be interpreted as or constitute a commitment or requirement that the United States obligate or pay funds in contravention of the Anti

- Deficiency Act, 31 U.S.C. § 1341, o r any other applicable provision of law.

20 . If for any reason the Court should decline 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 m ay not be used as evidence in any litigation between the parties.

2 1 . The undersigned representatives of Plaintiff Sierra Club and Defendant EPA certify that they are fully authorized by the party they represent to consent to the Court’s entry of the term s and conditions of this Decree.

SO ORDERED on this _____ day of _____________________, 201 4

.

________________________________ JAMES DONATO UNITED STATES DISTRICT JUDGE

//

// Case3:14-cv-00964-JD Document27-1 Filed07/23/14 Page8 of 9[P ROPOSED ] C ONSENT D ECREE C ASE N O

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28 COUNSEL FOR PLAINTIFF:

/s/ Robert Ukeiley (email authorization 7 / 22 /1 4 ) Robert Ukeiley, Admitted Pro Hac Vice Law Office of Robert Ukeiley 507 Center Street Berea, KY 40403 Tel: (859) 986

- 5402 Email: rukeiley@igc.org

KRISTIN HENRY (Cal. Bar. No. 220908) Sierra Club 85 Second Street, 2nd Floor San Francisco, CA 94105 Telephone (415) 977

- 5716 kristin.henry@sierraclub.org
Attorneys for Plaintiff Sierra Club

C OUNSEL FOR DEFENDANT: SAM HIRSCH Acting Assistant Attorney General Environment & Nat ural Resources Division

/s/ Leslie M. Hill 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

Of counsel :
Stephanie Hogan Office of General Counsel U.S. Environmental Protection Agency Case3:14-cv-00964-JD Document27-1 Filed07/23/14 Page9 of 9