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 filed this action pursuant to Clean Air Act (“CAA”)

section 304(a)(2), 42 U.S.C. § 7604(a)(2), against Defendants 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 emissions from brick and structural clay products manufacturing facilities 

and clay ceramics manufacturing facilities located at major sources by November 15, 2000; 

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 No. 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, 2014, EPA shall sign a notice of final rulemaking 

to set NESHAPs 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 otherwise 
3

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 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 Sierra Club 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. 

6. 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.

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, 

including 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, including 
4

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. 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 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 Paragraphs 1 and 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 remedies or defenses the Parties may have under 42 U.S.C. § 7607(b)(1).

11. 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 
5

commitment or requirement that EPA obligate or pay funds in contravention of the AntiDeficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law.

12. Any notices 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. 20044

(202) 514-3126

eileen.mcdonough@usdoj.gov

Scott Jordan

U.S. Environmental Protection Agency

Ariel Rios North Building 

1200 Pennsylvania Avenue, NW

Mail Code: 2344A 

Washington, D.C. 20460

(202) 564-7508

jordan.scott@epa.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 informal 

negotiations. The parties shall meet and confer to attempt to resolve the dispute. If the Parties 
6

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.

14. 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 13. 

15. 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 

deliver 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 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. 

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

drafted by the Parties and that any and all rules of construction to the effect that ambiguity is 
7

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

meaning, or interpretation of this 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