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GIDEON KRACOV (SBN 179815)

801 S. Grand Avenue, Ste. 1100

Los Angeles, CA 90017

Phone: (213) 629-2071

Fax: (213) 623-7755

Email: gk@gideonlaw.net

RICHARD TOSHIYUKI DRURY (SBN 163559)

Lozeau - Drury LLP 

1516 Oak Street, Suite 216

Alameda, CA 94501

Phone: (510) 749-9102

Fax: (510) 749-9103

Email: richard@lozeaudrury.com

Attorneys for Plaintiff

IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

ROCHELLE L. RUSSELL (Cal. Bar No. 244992)

Trial Attorney

United States Department of Justice

Environmental Defense Section

301 Howard Street, Suite 1050

San Francisco, CA 94105

Telephone: (415) 744-6566

Fax: (415) 744-6476

Email: rochelle.russell@usdoj.gov

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

 FOR THE NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

COMITE CIVICO DEL VALLE, INC.,

 Plaintiff,

v.

LISA JACKSON, in her official capacity as

Administrator of the United States

Environmental Protection Agency, and

JARED BLUMENFELD, in his official

capacity as Regional Administrator for Region

IX of the United States Environmental

Protection Agency,

 Defendants.

Case No. 10-cv-00946 PJH

CONSENT DECREE

CONSENT DECREE Case No. 10-cv-00946 PJH

Case4:10-cv-00946-PJH Document9-1 Filed06/11/10 Page1 of 7
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CONSENT DECREE - 1 - Case No. 10-cv-00946 PJH

WHEREAS, on March 5, 2010, Plaintiff Comite Civico Del Valle, Inc. filed the

complaint in the above-captioned matter against Defendants Lisa Jackson, in her official capacity

as Administrator of the United States Environmental Protection Agency, and Jared Blumenfeld,

in his official capacity as Regional Administrator for Region IX of the United States

Environmental Protection Agency (collectively, “EPA”), alleging that EPA has failed to

undertake a certain nondiscretionary duty 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, section 110(a)(1) of the CAA, 42 U.S.C. § 7410(a)(1), requires States to

adopt and submit to EPA for review state implementation plans (“SIPs”), which establish

specific control measures and other requirements that apply to particular sources of air pollution

within a State and are designed to attain, maintain, and enforce National Ambient Air Quality

Standards established by EPA that specify the maximum permissible concentrations for those 

pollutants in the ambient air, see 42 U.S.C. §§ 7408, 7409; 

WHEREAS, section 110(k) of the CAA, 42 U.S.C. § 7410(k), sets forth the process by

which EPA is to review SIP submissions, including SIP revisions;

WHEREAS, Plaintiff’s complaint alleges that EPA has a nondiscretionary duty to act on

SIP submissions and revisions submitted to EPA within the time lines set forth in section

110(k)(2) of the CAA, 42 U.S.C. § 7410(k)(2);

WHEREAS, Plaintiff’s complaint alleges that EPA has failed to take timely final action

to approve, disapprove, or partially approve/disapprove the Imperial County Air Pollution

Control District Rule 420, which was submitted to EPA on or about August 24, 2007 and

includes measures to control particulate matter emissions from beef feedlot operations within the

Imperial Valley (hereinafter, “Rule 420”);

WHEREAS, on May 19, 2010, EPA published a notice in the Federal Register of its

proposed approval of Rule 420, see 75 Fed. Reg. 27,975 (May 19, 2010); 

WHEREAS, Plaintiff’s complaint seeks an order from this Court directing EPA to take

final action on Rule 420 pursuant to section 110(k) of the CAA;

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CONSENT DECREE - 2 - Case No. 10-cv-00946 PJH

WHEREAS, the parties have agreed to a settlement of this action without admission of

any issue of fact or law;

WHEREAS, the parties, by entering into this Consent Decree, do not waive or limit any

claim 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 this matter;

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

this matter without protracted litigation; 

WHEREAS, the parties agree that this Court has jurisdiction over this matter pursuant to

the citizen suit provision in section 304(a)(2) of the CAA and that venue lies in the Northern

District of California; 

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;

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, adjudged and

decreed that:

1. EPA shall sign for publication in the Federal Register no later than November 15,

2010 a notice of the Agency’s final action on Rule 420 pursuant to section 110(k) of the CAA. 

Once signed, EPA shall deliver the notice to the Office of the Federal Register for publication. 

2. When EPA’s obligations under Paragraph 1 have been completed, the parties will

file a joint request to the Court to dismiss this matter with prejudice.

3. The parties may extend the deadlines established in Paragraphs 1 and 9 by written

stipulation executed by counsel for the parties and filed with the Court. In addition, the deadlines

established in Paragraphs 1 and 9 may be extended by the Court upon motion by any party to this

Consent Decree for good cause shown, after consideration of any response by the non-moving

party. 

4. Nothing in this Consent Decree shall be construed to limit or modify the

discretion accorded EPA by the CAA and by general principles of administrative law, including

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CONSENT DECREE - 3 - Case No. 10-cv-00946 PJH

the discretion to alter, amend or revise any response and/or final action contemplated by this

Consent Decree. EPA’s obligation to take the action set forth in Paragraph 1 by the time

specified therein does not constitute a limitation or modification of EPA’s discretion within the

meaning of this paragraph.

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

jurisdiction to review any decision made in the final action identified in Paragraph 1. 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 Courts of Appeals pursuant

to sections 307(b)(1) and 505 of the CAA, 42 U.S.C. §§ 7607(b)(1), 7661d.

6. This Court shall retain jurisdiction to enforce the terms of this Consent Decree

and to consider any requests for costs of litigation, including attorneys’ fees. 

7. In the event of a dispute between 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. 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. 

8. No motion or other proceeding seeking to enforce this Consent Decree shall be

considered properly filed, unless Plaintiff has followed the procedure set forth in Paragraph 7 and

provided EPA with written notice received at least ten (10) business days before the filing of

such motion or proceeding.

9. EPA agrees that, pursuant to section 304(d) of the CAA, 42 U.S.C. § 7604(d),

Plaintiff is both eligible and entitled to recover its costs of litigation in this action, including

reasonable attorneys’ fees, incurred prior to entry of this Consent Decree. The deadline for filing

a bill of costs pursuant to Local Rule 54-1 and a motion for costs of litigation, including

reasonable attorneys’ fees, pursuant to Local Rule 54-6 for activities performed in this case prior

to entry of this Consent Decree, is hereby extended until 90 days after the date on which the

Court enters this Consent Decree. During this time the parties shall seek to resolve informally

any claim for costs of litigation, including reasonable attorneys’ fees. 

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CONSENT DECREE - 4 - Case No. 10-cv-00946 PJH

10. The obligations imposed upon EPA under this Consent Decree may only be

undertaken using appropriated funds. No provisions of this Consent 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 law. 

11. Plaintiff and EPA shall not challenge the terms of this Consent Decree or this

Court’s jurisdiction to enter this Consent Decree.

12. 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 section 113(g) of the CAA, 42 U.S.C. § 7413(g). 

After this Consent Decree has undergone 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 their consent to the Consent Decree, in accordance

with section 113(g) of the CAA. If the Administrator and/or the Attorney General do not elect to

withdraw or withhold their consent, EPA shall promptly file a motion that requests the Court to

enter this Consent Decree.

13. Any notices required or provided for by this Consent Decree shall be made in

writing, via facsimile, e-mail or other means, and sent to the following:

For Plaintiff:

Gideon Kracov 

801 S. Grand Avenue, Ste. 1100

Los Angeles, CA 90017

Phone: (213) 629-2071

Fax: (213) 623-7755

Email: gk@gideonlaw.net

For Defendants:

Rochelle L. Russell

U.S. Department of Justice

Environment and Natural Resources Division

Environmental Defense Section

301 Howard Street, Suite 1050

San Francisco, CA 94105

Phone: (415) 744-6566

Fax: (415) 744-6476

Email: rochelle.russell@usdoj.gov

Geoffrey Wilcox

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CONSENT DECREE - 5 - Case No. 10-cv-00946 PJH

Office of General Counsel

U.S. Environmental Protection Agency

Ariel Rios Bldg., MC 2344A

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

Phone: (202) 564-5601

Fax: (202) 564-5603

Email: wilcox.geoffrey@epa.gov

Kara Christenson

Office of Regional Counsel

U.S. Environmental Protection Agency

75 Hawthorne Street, ORC-2

San Francisco, CA 94105

Phone: (415) 972-3881

Fax: (415) 947-3570

Email: christenson.kara@epa.gov

14. The undersigned representatives of each party certify that they are fully authorized

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

IT IS SO ORDERED.

Dated: _________________ __________________________________

PHYLLIS J. HAMILTON

UNITED STATES DISTRICT JUDGE

COUNSEL FOR PLAINTIFF:

Dated: June 11, 2010 /s/ Gideon Kracov (with permission) 

GIDEON KRACOV

801 S. Grand Avenue, Ste. 1100

Los Angeles, CA 90017

Phone: (213) 629-2071

Fax: (213) 623-7755

Email: gk@gideonlaw.net

RICHARD TOSHIYUKI DRURY

Lozeau - Drury LLP 

1516 Oak Street, Suite 216

Alameda, CA 94501 

Phone: (510) 749-9102

Fax: (510) 749-9103

Email: richard@lozeaudrury.com

Attorneys for Plaintiff Comite Civico del Valle, Inc.

COUNSEL FOR DEFENDANTS:

Dated: June 11, 2010 IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

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CONSENT DECREE - 6 - Case No. 10-cv-00946 PJH

 /s/ Rochelle L. Russell 

ROCHELLE L. RUSSELL

Attorney, Environmental Defense Section

United States Department of Justice

301 Howard Street, Suite 1050

San Francisco, CA 94105

Tel: (415) 744-6566

Email: rochelle.russell@usdoj.gov

Attorneys for Defendants

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