IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SIERRA CLUB, )

)

Plaintiff, )

)

v. ) Case No.: 1:08

- cv

- 00424

- RWR

)

UNITED STATES ENVIRONMENTAL )

PROTECTION AGENCY and )

LISA P. JACKSON, Administrator, )

United States Environmental Protection Agency, )

)

Defendants. )

)

CONSENT DECREE

WHEREAS, Plaintiff Serra Club fil ed this action pursuant to Clean Air Act (“ CAA ”)

section 304(a)(2), 42 U.S.C. § 7604(a)(2), against D efendants United States Environmental

Protection Agency and Lisa P. Jackson, Administrator (jointly referred to as “EPA”) ;

WHEREAS, the complaint alleges that EPA failed to perform a mandatory duty imposed

by CAA section 112(e)(1)(E)

, 42 U.S.C. § 7412(e)(1)(E), to promulgate emission standards for

hazardous air pollutant emission s from brick and structural clay products manufacturing facilities

and clay cer amics manufacturing facilities located at major sources by November 15, 2 000;

WHEREAS, this Court has ruled that it has jurisdiction over this action under

CAA § 304(a)(2), 42 U.S.C. § 7604(a)(2) , Memorandum Opinion and Order (Mar. 27, 2012)

(Docket N o. 24);

WHEREAS, it is in the interest of the public, the parties, and judicial economy to resolve

Sierra Club’s claims without further litigation;2

WHEREAS, Sierra Club and EPA have agreed to a settlement of Sierra Club’s claims,

without any admission or adjudication of fact or law, which they consider to be a just, fair,

adequate and equitable resolution of said claims;

WHEREAS, the Court finds and determines that the settlement represents a just, fair,

adequate and equitable resolution of said claims ;

WHEREAS, by entering into this Consent Decree, Sierra Club does not waive any claims

and EPA does not waive any defenses, on any grounds, related to any matters asserted in this

action that are not resolved by this Decree;

NOW THEREFORE, it is hereby ORDERED, ADJUDGED AND DECREED as

follows:

1. No later than August 30, 2013 , EPA shall sign a notice of proposed rulemaking

to set national emission standards for hazardous air pollutants ( “ NESHAP ” ) for brick and

structural clay products manufacturing facilities located at major sources and clay ceramics

manufacturing facilities located at major sources

, pursuant to Clean Air Act § 112(d), 42 U.S.C.

§ 7412(d).

2. No later than July 31, 201 4, EPA shall s ign a notice of final rulemaking

to set NESHAP s for brick and structural clay products manufacturing facilities located at major

sources and clay ceramics manufacturing facilities located at major sources , pursuant to Clean

Air Act § 112(d), 42 U.S.C. § 7412(d).

3. EPA shall deliver to the Office of the Federal Register for publication the notices

of proposed and final rulemaking covered by this Decree no later than ten business days after

signature of such notices. Following such delivery, EPA shall not take any action (other than as

necessary to correct any typographical error or other errors in form) to delay or otherwise3

interfere with publication of such notices in the Federal Register. In addition, EPA shall make

available copies of said notices to Sierra Club within five business days after signature.

4. The deadlines in Paragraphs 1 and 2 above may be extended by written stipulation

executed by counsel for EPA and Sierra Club and filed with the Court, or by the Court upon

motion made pursuant to the Federal Rules of Civil Procedure by EPA and upon consideration of

any response by Sierra Club and reply by EPA.

5. EPA agrees that Sierra Club is entitled to reco ver 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 decr ee 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 reserve s its right to seek

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

concede that Sierra Club will be entit led 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.

6

. Sierra Club and EPA shall not challenge the terms of this Consent Decr ee or this

Court’s jurisdiction to enter and enforce this Consent Decree.

7. 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,

includi ng EPA, under any provision of law

, in Sierra Club v. EPA

, Case No. 1:08

- cv

- 00424

-

RWR . Sierra Club therefore discharges and covenants not to sue the United States, including4

EPA, for such claims. The Parties agree that this discharge and covenant not to sue shall not

apply to any claim that may arise if any final rule signed pursuant to Paragraph 2 is vacated or

withdrawn

. EPA retains all rights and defenses, including jurisdictional challenges, in the event

any such claim is filed by Sierra Club.

8

. N othing 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 final actions contemplated by this Consent Decree. EPA’s obligation to perform the

actions specified by Paragraphs 1 and 2 does not constitute a limitation or modification of EPA’s

discretion within the meaning of this paragraph.

9

. Nothing in this Consent Decree shall be construed as an admission of any issue of

fact or law or to waive or limit any claim or defense, on any grounds, related to any final action

EPA may take with respect to the rulemakings identified in P aragraphs 1 an d 2 of this Consent

Decree.

10

. Nothing in this Consent Decree shall be construed to confer upon the district court

jurisdiction to review any final decision made by EPA pursuant to this Consent Decree. Nothing

in this Consent Decree shall be construed to confer upon the district court jurisdiction to review

any issues that are within the exclusive jurisdiction of the United States Court of Appeals

pursuant to 42 U.S.C. § 7607(b)(1). Nothing in this Consent Decree shall be construed to waive

any remedi es or defenses the Parties may have under 42 U.S.C. § 7607(b)(1).

1 1

. 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 a5

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 provision of law.

1 2

. Any notice s required or provided for by this Consent Decree shall be made in

writing and sent to the following:

For Plaintiffs:

James S. Pew

Earthjustice

1625 Massachusetts Ave., NW, #702

Washington, D

. C

. 20036

(202) 745

- 5214

jpew @earthjustice.org

For Defendant:

Eileen T. McDonough

Environmental Defense Section

U.S. Department of Justice

P.O. Box 7611

Washington, D.C. 200 44

(202) 514

- 3126

eileen.mcdonough@usdoj.gov

Scott Jordan

U

. S . Environmental Protection Agency

Ariel Rios North Building

1200 Pennsylvania A venue, NW

Mail Code: 2344A

Washington, D

. C

. 20460

(202) 564

- 7508

jordan.scott@e pa.gov

13

. In the event of a dispute among the Parties 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 inf ormal

negotiations. The parties shall meet and confer to attempt to resolve the dispute. If the Parties6

cannot reach an agreed

- upon resolution after ten (10) business days following receipt of the

written notice , any Party may move the Court to resolve the dispute.

1 4

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

contempt of court shall be properly filed unless the Party seeking to enforce this Consent Decree

has followed the procedure set forth in Paragraph 1 3

.

1 5

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

this Consent Decree, to resolve any disputes thereunder, and to consider any requests for costs of

litigation (including reasonable attorneys’ fees). After EPA’s obligations under Paragraphs 1

and 2 have been completed, EPA may move to have this Consent Decree terminated. Sierra

Club shall have 14 days in which to respond to such motion.

16

. 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 §113(g), 42 U.S.C. § 7413(g). EPA will

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

comment within 15 business days after lodging this Consent Decree with the Court. After this

Consent Decree has undergone an opportunity for notice and comment, EPA’s 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

section 113(g) of the Clean Air Act. If the Ad ministrator 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.

1 7

. It is hereby expressly understood and agreed that th is Consent Decree was jointly

drafted by the Parties and that any and all rules of construction to the effect that ambiguity is7

construed against the drafting party shall be inapplicable in any dispute concerning the terms,

meaning, or interpretation of th is Consent Decree

.

18

. The undersigned certify that they are fully authorized by the Party or Parties they

represent to bind that Party or those Parties to the terms of this Consent Decree.

SO ORDERED this

___ day of

________________, 2012.

_________________________________ HON. RICHARD W. ROBERTS

UNITED STATES DISTRICT JUDGE

SO AGREED:

FOR PLAINTIFFS /s/ James S. Pew

JAMES S. PEW

Earthjustice

1625 Massachusetts Ave., NW, #702

Washington, DC 20036

(202) 745

- 5214

FOR DEFENDANT IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

/s/ Eileen T. McDonough

EILEEN T. MCDONOUGH

Environmental Defense Section

U.S. Department of Justice

P.O. Box 7611

Of Counsel: Washington, D.C. 20044

( 202) 514

- 3126

SCOTT JORDAN

Office of General Counsel

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, N. W.

Washington, DC 20460

(202) 564

- 7508

jordan.scott @epa.gov