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 Lisa 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 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 the state implementation 

plan (“SIP”) submission made by Oklahoma on 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 any issue of fact or law; 
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WHEREAS, the Parties, 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, the Parties consider this Consent Decree to be an adequate and equitable 

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 THEREFORE, 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 no 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 appropriate EPA 

official shall no later than January 31, 2014, sign for publication in the Federal Register a notice 

of final rulemaking to approve, disapprove, or approve in part and disapprove in part the OK 

SIP.

4. If Oklahoma withdraws the OK SIP submittal, then EPA’s obligation to take the 

actions required by Paragraphs 2 and 3 is automatically terminated. 
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5. Within 15 business days following issuance or signature of such notice(s) as set 

out in paragraphs 2 and 3 above, EPA shall send notice of such action to the 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 any response by Sierra Club and any reply by EPA. Any 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 any 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 any such claims. 

9. Nothing in this 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 Consent Decree, including the discretion to alter, amend, or 

revise any responses or final actions contemplated by this Consent Decree. EPA’s obligation to 

perform the actions specified in this Consent Decree by the times specified herein does not 

constitute a limitation or modification of EPA’s discretion within the meaning of this paragraph.
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10. Nothing in this Consent Decree shall be construed as an admission of any issue of 

fact or law 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 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 final 

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 any 

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 hereby extended until sixty (60) 

days after the entry of this Consent Decree by this Court. During this time, the Parties shall seek 

to resolve informally any 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 waive 

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 

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.

14. Any notices required or provided for by this Consent Decree shall be made in 
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writing, via facsimile or other means, and sent to the following:

For Plaintiff 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:

EILEEN T. MCDONOUGH

Trial Attorney

U.S. Department of Justice

Environment & Natural Resources Division

Environmental Defense Section

P.O. Box 7611

Washington, D.C. 20044

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.kaytrue@epa.gov

RICHARD H. BARTLEY

Office of Regional Counsel, Region 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

15. In the event of a dispute between the Parties concerning the interpretation or 
6

implementation of any aspect of this Consent Decree, the disputing party shall provide the other 

party with a written notice, which includes email, 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 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 properly filed unless Sierra Club has followed the procedure set forth 

in Paragraph 15, and provided EPA with written notice received at least ten (10) business days 

before the filing of such motion or proceeding.

17. The Court shall retain jurisdiction to determine and effectuate compliance 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 resolved pursuant to the process 

described in Paragraph 12, 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 by 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 Decree 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 appropriate, will promptly consider any such written comments in 

determining whether to withdraw or withhold consent to this Consent Decree, in accordance with 
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section 113(g) of the CAA, 42 U.S.C. § 7413(g). If the Administrator or the Attorney General 

elects not 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 party certify that they are fully 

authorized by the party they represent to bind that party to the terms of this Consent Decree.

SO ORDERED on this day of 2012.

__________________________________

HON. COLLEEN KOLLAR KOTELLEY

UNITED STATES DISTRICT JUDGE

SO AGREED:

FOR PLAINTIFF 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

DATED:

FOR DEFENDANT EPA IGNACIA S. MORENO

 Assistant Attorney General

 Environment & Natural Resources Division

EILEEN T. MCDONOUGH

Trial Attorney

United States Department of Justice 

Environment & Natural Resources Division

Environmental Defense Section

P.O. Box 7611

Washington, D.C. 20044

Phone: (202) 514-3126

Fax: (202) 514-8865

eileen.mcdonough@usdoj.gov
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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.kaytrue@epa.gov

RICHARD H. BARTLEY

Office of Regional Counsel, Region 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