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

__________________________________________) SIERRA CLUB, ) Civil Action No. ) 1:12
- cv - 00705
- CKK Plaintiff, ) ) v. ) ) LISA P. JACKSON, Administrator, ) U.S. Environmental Protection Agency
. ) ) Defendant. ) __________________________________________) **CONSENT DECREE** WHEREAS, on May

2 , 2012, Plaintiff Sierra Club filed a Complaint in this matter against Defendant L isa P. Jackson, in her official capacity as Administrator of the United States Environmental Protection Agency (hereinafter, “EPA” or “the Agency”), alleging 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, 42 U.S.C. § 7604(a)(2); WHEREAS, Sierra Club’s Complaint alleges that EPA has failed to perform a duty mandated b y CAA sections 110(k)(2) and (3), 42 U .S.C. §§ 7410(k)(2) and (3), to take timel y final action to approve, disapprove, or partially approve/disapprove the state implementation plan (“SIP”) submission made by Oklahoma o n July

16, 2010, that is captioned “Excess Emissions Reporting Requirements ” (referred to herein as “OK SIP”) ; WHEREAS, the Parties wish to effectuate a complete and final settlement of Sierra Club v. Jackson , Case No. 1:12
- cv - 00705
- CKK (D.D.C.), without expensive and protracted litigation and without the admission of an y issue of fact or law;2

WHEREAS, the Parties, by entering into this Consent Decree, do not waive or limit any claim, remedy, or defense, on an y grounds, related to any final EPA action; WHEREAS, the Parties consider this Consent Decree to be an adequate and equi table resolution of all of the claims in the above

- captioned case; WHEREAS, the Court, by entering this Consent Decree, finds that the Consent Decree is fair, reasonable, in the public interest, and consistent with the CAA, 42 U.S.C. §§ 7401

- 7671q; NOW THE REFORE, before the taking of testimony , without trial or determination of any issue of law or fact, and upon the consent 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 contained in this Consent Decree. Venue is proper in the United States District Court for the District of Columbia. 2. Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), the appropriate EPA official shall n o later than May 31, 2013, sign for publication in the Federal Register a notice of proposed rulemaking to approve, disapprove, or approve in part and disapprove in part the OK SIP. 3. Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), the appropri ate EPA official shall no later than January 31, 201 4 , sign for publication in the Federal Register a notice of final rulemaking to approv e , disapprov e , or approv e in part and disapprov e in part the OK SIP
. 4. If Oklahoma withdraws the OK SIP submittal , then EPA’s obligation to take the action s required b y Paragraphs 2 and 3 is automatically terminated.3

5. Within 15 business days following issuance or signature of such notice(s) as set out in paragraph s 2 and 3 above, EPA shall send notice of such action to th e Office of the Federal Register for review and publication. 6. The deadlines in Paragraphs 2 and 3 may be extended by

(a) written stipulation executed by

counsel for Sierra Club and EPA with notice 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 an y response by Sierra Club and any

repl y b y EPA. An y other provision of this Consent Decree may

be modified by

the Court following motion of Sierra Club 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 and an y reply. 7. Sierra Club and EPA shall not challenge the terms of this Consent Decree or this Court’s jurisdiction to enter and enforce this Consent Decree. 8. Sierra Club and EPA agree that this 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. 1:12
- cv - 00705
- CKK (D.D.C.). Sierra Club therefore discharges and covenants not to sue the United States, including EPA, for an y such claims. 9. Nothing in this Consent Decree shall be construed to limit or m odify an y discretion accorded EPA by the CAA 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 an y responses or final actions contemplated by this Consent Decree. EPA’s obligation to perform the actions specified in this Consent Decree b y the times specified herein does not constitute a limitation or modification of EPA’s discretion within the meaning of this paragraph.4

10. Nothing in this Conse nt Decree shall be construed as an admission of an y issue of fact or law to waive or limit any claim, remedy , or defense, on any grounds, related to an y final action EPA may

take with respect to the actions addressed in this Consent Decree. 11. Nothing in this Consent Decree shall be construed to: (a) confer upon this Court jurisdiction to review any issues that are within the exclusive jurisdiction of the United States Courts of Appeals pursuant to CAA sections 307(b)(1), 42 U.S.C. §§ 7607(b)(1) , including fi nal action taken 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) waive an y claims, remedies, or defenses the Parties may have under CAA section 307(b )(1), 42 U.S.C. § 7607(b)(1). 12. The deadline for filing a motion for costs of litigation, including reasonable attorney ’s fees, incurred prior to entry of this Consent Decree is hereb y extended until sixty (60) day s after the entry

of this Consent Decr ee by this Court. During this time, the Parties shall seek to resolve informall y an y claim for costs of litigation, including reasonable attorney’s fees, and if they cannot, will submit that issue to the Court for resolution. The United States does not w aive or limit any

defenses it may

have to such claim. The Court shall retain jurisdiction to resolve any requests for costs of litigation, including reasonable attorney ’s fees. 13. The Parties recognize and acknowledge that the obligations imposed upon EPA
un der this Consent Decree can onl y 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. 14. Any

notices required or provided for by this Consent Decree shall be made in5

writing, via facsimile or other means, and sent to the following: For Plai ntiff Sierra Club : ROBERT UKEILEY Law Office of Robert Ukeiley 435R Chestnut Street, Suite 1 Berea, KY 40403 Phone : (859) 986

- 5402 Fax: (866) 618

- 1017 rukeiley @igc.org For Defendant EPA : EI LEEN T. MCDONOUGH Trial Attorney U.S. Department of Justice Envi ronment & Natural Resources Division Environmental Defense Section P.O. Box 7611 Washington, D.C. 200 44 Phone : (202) 514

- 3376 Fax: (202) 514

- 8865 eileen.mcdonough @usdoj.gov KAYTRUE TING Office of the General Counsel U.S. Environmental Protection Agency Ariel Rios Bldg., MC 2344A 1200 Pennsylvania Ave., N.W. Washington, D.C. 20460 Phone: (202) 564

- 6380 Fax: (202) 564

- 5603 ting.kay true@epa.gov RI CHARD H. BARTLEY Office of Regional Counsel, R egion 6 U.S. Envi ronmental Protection Agency 1445 Ross Avenue , Suite 1200 Mail Code: 6RC Dallas, TX 75202

- 2733 Phone: (214 ) 665

- 8046 Fax: (214) 665
- 2172 bartley .richard @epa.gov 15. In the event of a dispute between the Parties concerning the interpretation or6

implementat ion of any

aspect of this Consent Decree, the disputing part y shall provide the other party with a written notice , which includes email, outlining the nature of the dispute and requesting informal negotiations. I f the Parties cannot reach an agreed

- upon r esolution within ten (10) business day s after receipt of the notice, either party may move the Court to resolve the dispute. 16. No motion or other proceeding seeking to enforce this Consent Decree or for contempt of Court shall be properl y filed unless Sierra Club has followed the pro cedure set forth in Paragraph 1 5 , and provided EPA with written notice received at least ten ( 10 ) business day s before the filing of such motion or proceeding. 17. The Court shall retain jurisdiction to determine and effectuate compli ance with this Consent Decree. When EPA’s obligations under Paragraphs 2 and 3 have been completed, any relevant notices have been published in the Federal Register, and any claim for costs of litigation, including reasonable attorney ’s fees, has been res olved pursuant to the process described in Paragraph 1 2 , the above

- captioned matter shall be dismissed with prejudice. EPA shall file an appropriate notice with the Court so that the Clerk may close the file. 18. The Parties agree and acknowledge that before this Consent Decree can be finalized and entered b y the Court, EPA must provide notice in the Federal Register and an opportunity

for comment pursuant to CAA section 113(g), 42 U.S.C. § 7413(g). EPA will promptly deliver a public notice of this Consent De cree to the Federal Register for review, publication , and public comment after lodging this Consent Decree with the Court
. After this Consent Decree has undergone an opportunity for notice and comment, the Administrator and the Attorney

General, as approp riate, will promptly consider any

such written comments in determining whether to withdraw or withhold consent to this Consent Decree, in accordance with7

section 113(g) of the CAA , 42 U.S.C. § 7413(g) . If the Administrator or the Attorney General elects n ot 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
. 19. The undersigned representatives of each p arty certify that they are full y authorized by

the p art y they represent to bind that p arty to the terms of this Consent Decree. SO ORDERED on this day of 201 2
.

__________________________________ HON. COLLEEN KOLLAR KOTELLEY UNITED STATES DISTRI CT JUDGE SO AGREED: FOR PLAI

NTIFF SI ERRA CLUB ROBERT UKEILEY Law Office of Robert Ukeiley 435R Chestnut Street, Suite 1 Berea, KY 40403 Phone : (859) 986

- 5402 Fax: (866) 618

- 1017 rukeiley @igc.org DATED: FOR DEFENDANT EPA IGNACIA S. MORENO Assistant Attorney

General Env ironment & Natural Resources Division
EI LEEN T. MCDONOUGH Trial Attorney United States Department of Justice Environment & Natural Resources Division Environmental Defense Section P.O. Box 7611 Washington, D.C. 20 044 Phone : (202) 514

- 3126 Fax : (202) 514

- 8865 eileen.mcdonough @usdoj.gov8 DATED: Of Counsel for Defendant: KAYTRUE TING Office of the General Counsel U.S. Environmental Protection Agency Ariel Rios Bldg., MC 2344A 1200 Pennsylvania Ave., N.W. Washington, D.C. 20460 Phone: (202) 564

- 6380 Fax: (202) 564

- 5603 ting.kay true@epa.gov RI CHARD H. BARTLEY Office of Regional Counsel, R egion 6 U.S. Environmental Protection Agency 1445 Ross Avenue Suite 1200 Mail Code: 6RC Dallas, TX 75202

- 2733 Phone: (214 ) 665

- 8046 Fax: (214) 665
- 2172 bartley .richard @epa.gov