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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

ENVIRONMENTAL DEFENSE FUND, 

 Plaintiff,

 v.

LISA P. JACKSON, Administrator, United 

States Environmental Protection Agency, in 

her official capacity,

 Defendant.

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) Case No. 11 Civ. 04492 (KBF)

) ECF CASE

)

) PROPOSED

) CONSENT DECREE

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WHEREAS, on June 30, 2011, Plaintiff Environmental Defense Fund (“EDF” or 

“Plaintiff”) filed the above-captioned matter against Lisa P. Jackson, in her official capacity as 

Administrator of the United States Environmental Protection Agency (“EPA” or “Defendant”); 

WHEREAS, Plaintiff alleges that EPA failed to perform its obligations under Clean Air 

Act (“CAA”) section 111(b)(1)(B), 42 U.S.C. § 7411(b)(1)(B), to “review and, if appropriate, 

revise” the new source performance standards (“NSPS”) for municipal solid waste landfills 

(“MSW landfills”), 40 C.F.R. Part 60, Subpart WWW (40 C.F.R. §§ 60.750 – 60.759), 

“following the procedure required by [42 U.S.C. § 7411(b)(1)(B)] for promulgation of such 

standards,” no later than 8 years after the promulgation of these standards, 42 U.S.C. § 

7411(b)(1)(B), see Compl. ¶¶ 25-30, 32-33, 46-48 (Dkt. 1);
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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 satisfy its section 111(b)(1)(B) 

obligations for MSW landfills, see Compl. at 15; 

WHEREAS, EPA originally promulgated the NSPS in 1996 pursuant to CAA section 

111(b)(1)(B), and simultaneously promulgated emission guidelines for MSW landfills pursuant 

to CAA section 111(d), see EPA Answer ¶ 18 (Dkt. 14);

WHEREAS, EPA, in its answer, stated that it has “not completed the review of the MSW 

landfills NSPS,” has “not promulgated a determination that such a review is ‘not appropriate,’”

has “not finalized a revision of the MSW landfills NSPS,” and has “not promulgated a 

determination that such a revision is ‘not appropriate,’” pursuant to CAA section 111(b)(1)(B), 

see EPA Answer ¶¶ 28-29, 31, 46-47; 

WHEREAS, before filing the complaint in this action, Plaintiff served notice on EPA as 

required by the CAA to inform EPA of Plaintiff’s intent to initiate the present action, see EPA 

Answer ¶ 2; 

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 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 EDF, Defendant EPA, and judicial 

economy to resolve this matter without protracted litigation; 
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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 Southern District of New York pursuant to 28 U.S.C. § 1391(e); 

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 EDF and Defendant EPA, it is hereby 

ordered, adjudged and decreed that:

1. This Court has jurisdiction over the claims set forth in the Complaint and may 

order the relief contained in the Consent Decree. Venue is proper in the United States District 

Court for the Southern District of New York.

2. For the Municipal Solid Waste Landfills source category:

a. No later than May 1, 2013, EPA shall: (i) perform an appropriate review and sign

for publication one or a combination of the following: (A) a proposed rule 

containing revisions to the MSW Landfills NSPS, 40 C.F.R. Part 60, Subpart 

WWW (“NSPS Subpart WWW”), under CAA section 111(b)(1)(B), 42 U.S.C. § 

7411(b)(1)(B); or (B) a proposed determination under CAA section 111(b)(1)(B) 

not to revise NSPS Subpart WWW; or (ii) sign for publication a determination 
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that “review is not appropriate in light of readily available information on the 

efficacy of [the] standard,” i.e., NSPS Subpart WWW.

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b. If EPA signs a proposed rule or a proposed determination pursuant to paragraph 

2.a(i) above, then no later than May 1, 2014, EPA shall sign one or a combination 

of the following: (i) a final rule containing revisions to NSPS Subpart WWW 

under CAA section 111(b)(1)(B), 42 U.S.C. § 7411(b)(1)(B), based on an 

appropriate review; or (ii) a final determination under CAA section 111(b)(1)(B) 

not to revise NSPS Subpart WWW, based on an appropriate review.

3. Within ten (10) days of signing each proposed rule or determination (or 

combination thereof) and each final rule or determination (or combination thereof) as described 

in paragraph 2 of this Consent Decree, EPA shall deliver signed notice of each such action to the 

Office of the Federal Register for prompt publication. Following such delivery to the Office of 

the Federal Register, EPA shall not take any action (other than is necessary to correct any 

typographical errors or other errors in form) to delay or otherwise interfere with the publication 

of each such notice in the Federal Register. In addition, EPA shall provide a copy of each such 

notice to Plaintiff within seven (7) days of delivery to the Office of the Federal Register.

4. Once EPA has completed all of the actions set forth above, and after publication 

of notice of the final action required by paragraph 2 in the Federal Register, EPA may move to 

 1 The parties do not agree on the legal question of whether notice and comment is required in the 

event that EPA takes action only pursuant to paragraph 2.a(ii). In view of this, the parties agree 

that nothing in this Consent Decree precludes Plaintiff from challenging any such action on the 

basis that notice and comment was not provided, or on any other grounds, as stated generally in 

Paragraph 11; and nothing prevents EPA from raising any defenses in response to such a 

challenge.
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have this Consent Decree terminated, and the action dismissed. Plaintiff shall have fourteen (14) 

days in which to respond to such motion.

5. The deadlines established by this Consent Decree may be modified by (a) written 

stipulation of Plaintiff 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 the Plaintiff. Any other provision of this Consent Decree may be modified by 

the Court following motion of either Plaintiff or EPA for good cause shown pursuant to the 

Federal Rules of Civil Procedure and upon consideration of any response by the non-moving 

party.

6. 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. The parties shall meet and confer in order to attempt to resolve the dispute. If the 

parties are unable to resolve the dispute within fourteen (14) days after receipt of the notice, 

either party may petition the Court to resolve the dispute.

7. No motion or other proceeding seeking to enforce this Consent Decree or for 

contempt of Court shall be properly filed unless Plaintiff has followed the procedure set forth in 

paragraph 6, and provided EPA with written notice received at least fourteen (14) business days 

before filing of such motion or proceeding.

8. 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.
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9. Nothing in the terms of this Consent Decree shall be construed (a) to confer upon 

this Court jurisdiction to review any final rule or determination issued by EPA pursuant to this 

Consent Decree, (b) 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), or (c) 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).

10. 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.

11. Except as expressly provided herein, nothing in this Consent Decree shall be 

construed as an admission of any issue of fact or law. By entering into this Consent Decree, 

EPA and Plaintiff do not 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.

12. 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 90 days after 

this Consent Decree is entered by the Court. During this 90-day period, the parties shall seek to 

resolve informally any claim for costs of litigation (including attorney fees), and if they cannot, 

Plaintiff will file a motion for costs of litigation (including attorney fees). Nothing in this 
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paragraph shall be construed as an admission or concession by EPA that Plaintiff is entitled to or 

eligible for recovery of any costs or attorney fees.

13. Plaintiff reserves the right to seek additional costs of litigation, including 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 action. EPA reserves the right to oppose any 

such request. In the event that Plaintiff intends to file a claim for any such additional costs of 

litigation, including attorney fees, the parties agree to confer pursuant to Paragraph 6 of this

Consent Decree to allow Plaintiff to assess the potential to resolve such a claim informally 

before acting.

14. 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.

15. The parties agree and acknowledge that before this Consent Decree is 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). EPA will 

deliver a public notice of this Consent Decree to the Federal Register for publication and public 

comment within fourteen (14) days after lodging this Consent Decree with the Court. After this 

Consent Decree has undergone notice and comment, the Administrator and/or the Attorney 

General, as appropriate, shall promptly consider any written comments received in determining 
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whether to withdraw or withhold their consent to the Consent Decree, in accordance with CAA 

section 113(g). If the Administrator and 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. If a motion to enter the Consent Decree is not filed within ninety (90) days 

after the notice is published in the Federal Register, any party may file dispositive motions in this 

matter.

16. Any notices required or provided for by this Consent Decree shall be in writing, 

via electronic mail or certified mail, and sent to each of the following counsel (or to any new 

address of the parties’ counsel as filed and listed in the docket of the above-captioned matter, at a 

future date):

a. For Plaintiff EDF: 

Emma Cheuse

Seth Johnson

Earthjustice

1625 Massachusetts Avenue, N.W., Suite 702 

Washington, D.C. 20036 

E-mail: echeuse@earthjustice.org

E-mail: sjohnson@earthjustice.org

Deborah Goldberg

Earthjustice

156 William Street, Suite 800

New York, NY 10038

E-mail: dgoldberg@earthjustice.org

Elizabeth deLone Paranhos

Delone Law, Inc.

1555 Jennine Place

Boulder, CO 80304

E-mail: elizabethparanhos@delonelaw.com

b. For Defendant EPA:
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Louis A. Pellegrino

Assistant United States Attorney

86 Chambers Street, 3rd Floor

New York, New York 10007

E-mail: louis.pellegrino@usdoj.gov

Richard H. Vetter

U.S. Environmental Protection Agency

Office of Air Quality Planning and Standards

109 T.W. Alexander Drive

MD – D205-01

Research Triangle Park, North Carolina 27711

E-mail: vetter.rick@epa.gov 

17. 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.

18. 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.

19. The undersigned representatives of Plaintiff Environmental Defense Fund 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 Consent Decree.
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COUNSEL FOR PLAINTIFF:

Dated: Washington, D.C. 

_________, 2012 __________________________

Emma C. Cheuse

Seth L. Johnson

EARTHJUSTICE

1625 Massachusetts Avenue, N.W., Suite 702

Washington, D.C. 20036

Tel: (202) 667-4500

echeuse@earthjustice.org

sjohnson@earthjustice.org

Deborah Goldberg

EARTHJUSTICE

156 William Street, Suite 800

New York, NY 10038

Tel: (212) 791-1881

dgoldberg@earthjustice.org

Elizabeth deLone Paranhos

DELONE LAW, INC.

1555 Jennine Place

Boulder, CO 80304

Tel: (303) 880-4285

elizabethparanhos@delonelaw.com

Attorneys for Plaintiff Environmental Defense Fund
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COUNSEL FOR DEFENDANT:

Dated: New York, New York

_________, 2012

PREET BHARARA

United States Attorney for the

Southern District of New York

Attorney for Defendant EPA

By: ____________________________

LOUIS A. PELLEGRINO

Assistant United States Attorney

86 Chambers Street, Third Floor

New York, New York 10007

Telephone: (212) 637-2689

Facsimile: (212) 637-2686

Email: louis.pellegrino@usdoj.gov

SO ORDERED on this _____ day of _____________________, 2012.

___________________________________

KATHERINE B. FORREST

United States District Judge