[PROPOSED] CONSENT DECREE

CASE NO. 3:14-cv-00964-JD

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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 attorneys for Plaintiff 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.

GINA McCARTHY, in her official capacity 

as the Administrator of the United States 

Environmental Protection Agency,

Defendant.

Case No.: 3:14-cv-00964-JD

[PROPOSED] CONSENT DECREE

Case3:14-cv-00964-JD Document27-1 Filed07/23/14 Page1 of 9
[PROPOSED] CONSENT DECREE

CASE NO. 3:14-cv-00964-JD

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WHEREAS, on March 3, 2014, Plaintiff Sierra Club (“Plaintiff”) filed the abovecaptioned matter against Gina McCarthy, in her official capacity as Administrator of the 

United States Environmental Protection Agency (hereinafter “EPA” or “Defendant”);

WHEREAS, Plaintiff alleges that EPA has failed to undertake certain nondiscretionary duties under the Clean Air 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 alleges 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 PM2.5 prevention of significant deterioration (“PSD”)

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

Final 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. Reg. 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 requirements 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
[PROPOSED] CONSENT DECREE

CASE NO. 3:14-cv-00964-JD

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Arizona, and therefore, as to Pinal County, Arizona, the 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 PM2.5 PSD increments and implementing regulations, Final Rule, 

Finding of Failure To Submit a Prevention of Significant Deterioration State 

Implementation Plan Revision for Particulate Matter Less Than 2.5 Micrometers (PM2.5); 

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

moot;

WHEREAS, Nevada submitted 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 these 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 establish 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 matter 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
[PROPOSED] CONSENT DECREE

CASE NO. 3:14-cv-00964-JD

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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 

determination 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 that Vermont, Wisconsin, and California (as to the North Coast 

Management District) have failed to submit SIPs addressing the PM2.5 PSD increments 

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

2. If any of these States makes a complete 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 actions set forth in Paragraph 1 of this Consent 

Decree and after notice of each final action required by paragraph 1 has 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 deadlines 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
[PROPOSED] CONSENT DECREE

CASE NO. 3:14-cv-00964-JD

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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 claims 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 implementation 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 Consent 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 stipulation or motion to extend the deadline to file 

Case3:14-cv-00964-JD Document27-1 Filed07/23/14 Page5 of 9
[PROPOSED] CONSENT DECREE

CASE NO. 3:14-cv-00964-JD

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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.

11. This Court shall retain jurisdiction over this matter to enforce the terms of 

this Consent Decree and to consider any requests for costs of litigation, including 

attorney fees.

12. Nothing in the terms of this Consent Decree shall be construed (a) to confer 

upon this Court jurisdiction 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), approving, 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).

13. 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 actions 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.

14. Except as expressly 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 addressed in this Consent Decree.

15. 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 efforts 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
[PROPOSED] CONSENT DECREE

CASE NO. 3:14-cv-00964-JD

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action. EPA reserves the right to oppose any such request for additional costs of 

litigation, including attorney fees. 

16. It is hereby 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.

17. 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 promptly 

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, 

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

18. 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 

address 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)

Sierra 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
[PROPOSED] CONSENT DECREE

CASE NO. 3:14-cv-00964-JD

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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

19. EPA and Plaintiff recognize and acknowledge that the obligations imposed 

upon EPA under this Consent Decree can only be undertaken using appropriated 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, or 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 may not be used as evidence in any litigation 

between the parties.

21. 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 terms and conditions of this Decree.

SO ORDERED on this _____ day of _____________________, 2014. 

 

 

________________________________

JAMES DONATO

UNITED STATES DISTRICT JUDGE

//

//

Case3:14-cv-00964-JD Document27-1 Filed07/23/14 Page8 of 9
[PROPOSED] CONSENT DECREE

CASE NO. 3:14-cv-00964-JD

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COUNSEL FOR PLAINTIFF:

 /s/ Robert Ukeiley (email authorization 7/22/14) 

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

COUNSEL FOR DEFENDANT: SAM HIRSCH

Acting Assistant Attorney General

Environment & Natural 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