IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

SIERRA CLUB, 

 ) 

 Plaintiff, ) CIVIL ACTION NO. 

 ) 11-2180-RBW 

 v. ) 

 ) 

LISA JACKSON, in her official capacity as ) 

Administrator, United States Environmental ) 

Protection Agency, ) 

 ) 

 Defendant. ) 

________________________________________________) 

CONSENT DECREE 

 This Consent Decree is entered into by Plaintiff Sierra Club, and by Defendant Lisa 

Jackson, in her official capacity as Administrator of the United States Environmental Protection 

Agency (“EPA” or “the Administrator”). 

 WHEREAS, Sierra Club filed this action pursuant to section 304(a)(2) of the Clean Air 

Act (“CAA”), 42 U.S.C. § 7604(a)(2), which authorizes suits against EPA alleging that the 

Agency has failed to perform a nondiscretionary duty required by the CAA; 

 WHEREAS, Sierra Club alleges that EPA has failed to perform a nondiscretionary duty 

to take action on the state implementation plan (“SIP”) submissions identified in Attachment A 

by the statutory deadline established by CAA section 110(k)(2), 42 U.S.C. § 7410(k)(2); 

 WHEREAS, Sierra Club and EPA (collectively, the “Parties”) wish to effectuate a 

settlement of the above-captioned case without expensive and protracted litigation, and without a 

litigated resolution of any issue of law or fact; 

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 WHEREAS, the Parties consider this Consent Decree to be an adequate and equitable 

resolution of the claims in the above-captioned case and consent to entry of this Consent Decree; 

and 

 WHEREAS, the Court, by entering this 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 and 

ADJUDGED that: 

 1. This Court has subject matter jurisdiction over the claims set forth in the Third 

Amended Complaint and to order the relief contained in this Decree. Venue is proper in the 

United States District Court for the District of Columbia. 

 2. EPA shall sign one or more notices of final rulemaking to approve or disapprove, 

in whole or in part, pursuant to CAA section 110(k) (3) and (4), 42 U.S.C. § 7410(k)(3) and (4), 

each SIP submission (or portion thereof on which EPA has not yet taken final action) identified 

in Attachment A by the applicable deadline; provided that nothing in this decree shall require 

EPA to act on any submission or portion thereof that is withdrawn prior to the applicable 

deadline. 

 3. Within 15 business days following issuance or signature of such notice(s) as set 

out in paragraph 2 above, EPA shall send notice of such action to the Office of the Federal 

Register for review and publication. 

 4. Any provision of this Decree may be modified by (a) written stipulation of the 

Parties with notice to the Court, or (b) by the Court following motion of any party to this Decree, 

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pursuant to the Federal Rules of Civil Procedure, and upon consideration of any response by the 

non-moving party. 

 5. Sierra Club and EPA shall not challenge the terms of this Decree or this Court’s 

jurisdiction to enter and enforce this Decree. Upon entry, no party shall challenge the terms of 

this Decree. 

 6. EPA agrees that Sierra Club is entitled to recover its costs of litigation (including 

attorneys’ fees) (“litigation costs”) incurred in this matter pursuant to 42 U.S.C. § 7604(d). The 

deadline for the filing of any motion for litigation costs for activities performed prior to the 

lodging of this decree with the Court is hereby extended for a period of 120 days. During this 

time the Parties shall seek to resolve informally any claim for litigation costs, and if they cannot 

reach a resolution, Sierra Club may seek such litigation costs from the Court. The Court shall 

retain jurisdiction to resolve any request for litigation costs. Sierra Club reserves its right to seek 

litigation costs for any work performed after the lodging of this Consent Decree. EPA does not 

concede that Plaintiff will be entitled to fees for any work performed after the lodging of the 

Consent Decree, and the parties reserve all claims and defenses with respect to any future costs 

of litigation claim. 

 7. Nothing in this 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 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 

specified in Paragraph 2 and 3 by the time specified therein does not constitute a limitation or 

modification of EPA’s discretion within the meaning of this paragraph. 

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 8. Nothing in this Decree shall be construed as an admission of any issue of fact or 

law nor to waive or limit any claim or defense, on any grounds, related to any final EPA action 

may take pursuant to Paragraph 2 above. 

 9. Nothing in this 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). 

 10. The obligations imposed upon EPA under this Decree can only be undertaken 

using appropriated funds. No provision of this Decree shall be interpreted as or constitute a 

commitment or requirement that EPA obligate or pay funds in contravention of the 

Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable federal statute. 

 11. Any notices required or provided for by this Decree shall be made in writing, via 

email or other means, and sent to the following: 

For Plaintiff: 

ROBERT UKEILEY 

Law Office of Robert Ukeiley 

435R Chestnut Street, Suite 1 

Berea, KY 40403 

rukeiley@igc.org 

For Defendant: 

EILEEN T. MCDONOUGH 

United States Department of Justice 

Environmental Defense Section 

P.O. Box 23986 

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Washington, D.C. 20026-3986 

eileen.mcdonough@usdoj.gov 

DAVID ORLIN 

U.S. Environmental Protection Agency 

Office of General Counsel 

ARN: MC-2344A 

1200 Pennsylvania Ave., N.W. 

Washington, DC 20460 

orlin.david@epa.gov 

 12. 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, any party may move the Court to resolve the dispute. 

 13. 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 12, and provided EPA with written notice received at least ten (10) business days 

before the filing of such motion or proceeding. 

 14. 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 Clean Air Act section 113(g), 42 U.S.C. § 7413(g). EPA 

will expeditiously prepare such notice and forward it to the Office of Federal Register after 

lodging the draft Consent Decree with the Court. After this Consent Decree has undergone an 

opportunity for notice and comment, the Administrator and/or the Attorney General, as 

appropriate, shall promptly consider any such written comments in determining whether to 

withdraw or withhold consent to this Consent Decree, in accordance with section 113(g) of the 

Clean Air Act. If the federal government elects not to withdraw or withhold consent to this 

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Consent Decree, the parties shall promptly file a motion that requests the Court to enter this 

Consent Decree. 

 15. The Court shall retain jurisdiction to determine and effectuate compliance with 

this Decree. When EPA’s obligations under Paragraphs 2 and 3 have been completed, and the 

Plaintiff’s claims for costs of litigation have been resolved pursuant to the process described in 

Paragraph 6, the above-captioned matter shall be dismissed with prejudice. The Parties shall file 

the appropriate notice with the Court so that the Clerk may close the file. 

 16. 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 Decree. 

 SO ORDERED on this day of , 2012. 

_____________________________ 

REGGIE B. WALTON 

UNITED STATES DISTRICT JUDGE 

SO AGREED: 

FOR PLAINTIFF ______________________ 

 ROBERT UKEILEY 

Law Office of Robert Ukeiley 

435R Chestnut Street, Suite 1 

Berea, KY 40403 

rukeiley@igc.org

FOR DEFENDANT IGNACIA S. MORENO 

 Assistant Attorney General 

 Environment and Natural Resources Division 

____________________________ 

EILEEN T. MCDONOUGH 

United States Department of Justice 

Environmental Defense Section 

P.O. Box 7611 

Washington, D.C. 20004 

eileen.mcdonough@usdoj.gov 

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Of Counsel 

DAVID ORLIN 

U.S. Environmental Protection Agency 

Office of General Counsel 

ARN: MC-2344A 

1200 Pennsylvania Ave., N.W. 

Washington, DC 20460 

orlin.david@epa.gov 

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Attachment A 

EPA Region One Submittal Date Final Action Date 

 

Eastern MA – NOx and VOC RACT January 31, 2008 March 29, 2013 

Eastern MA – 8-hour ozone Attainment Demonstration January 31, 2008 March 29, 2013 

Western MA – NOx and VOC RACT January 31, 2008 March 29, 2013 

Western MA – 8-hour ozone Attainment Demonstration January 31, 2008 March 29, 2013 

MA – Submission for revisions to 310 CMR 7.02(8), 

7.03, 7.04(4), 7.12, 7.26(30-(36) 

February 13, 2008 March 29, 2013 

MA – Visible emission rule September 14, 

2006 

March 29, 2013

CT – NOx and VOC RACT December 8, 2006 March 29, 2013 

CT – Revisions to recordkeeping, monitoring and 

visible emissions rule 

December 1, 2004 March 29, 2013

CT – Single source NOx credits for RACT December 2, 2002 March 29, 2013 

EPA Region Two Submittal Date Final Action Date 

 

NJ – 8-hour ozone attainment plan for the 

Philadelphia-Wilmington-Atlantic City area 

October 29, 2007 Feb. 28, 2013 

NJ – 8-hour ozone attainment demonstration for New 

York-Northern New Jersey 

October 29, 2007 June 28, 2013 

NY – 8-hour ozone attainment demonstration for New 

York-Northern New Jersey 

February 8, 2008 June 28, 2013 

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EPA Region Three Submittal Date Final Action Date 

 

PA – Pittsburgh/Beaver Valley PM 2.5 attainment 

demonstration, contingency measures, emissions 

inventory, & RACM/RACT 

November 10, 

2009 

Dec. 15, 2012 

PA – NOx and non-CTG for major sources Allegheny 

County RACT 

May 5, 2009 Feb. 28, 2013

PA – Amendment to general plan requirements 25 Pa. 

Code Chap. 127 

April 14, 2009 March 29, 2013

PA – Allegheny County PSD; 110(a)(2)(C), (D)(i) & 

(J)

June 26, 2008 Feb. 28, 2013

PA – 8-hour ozone attainment plan for the Philadelphia 

area 

August 29, 2007 Feb. 28, 2013 

PA – 1997 8-hour RACT for Philadelphia County Sept. 25, 2006 June 28, 2013 

PA – PM Attainment plan for Philadelphia area April 12, 2010 Aug. 15, 2012

MD – Revision #07-13; NSR, COMAR 26.11.17 October 24, 2007 March 29, 2013 

MD – Revision #06-07; RACT NOx and non-CTG 

VOC for major sources 

Sept. 12, 2006 Feb. 28, 2013

MD – Revision 03-11; FBE solid fuel cutoffs December 1, 

2003 

Feb. 28, 2013 

DE – Emissions inventory for 1997 PM-2.5 April 3, 2008 Feb. 28, 2013 

DE – Philadelphia PM-2.5 attainment plan April 3, 2008 Dec. 15, 2012

DE – Revision to Reg. 1102 Nov. 1, 2007 Feb. 28, 2013

DE – 8-hour ozone attainment plan for the PhiladelphiaWilmington area June 13, 2007 Feb. 28, 2013 

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