UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STATE OF NEW YORK, et al., )

)

Plaintiffs, ) Civil Action 

) No. 13 -1553 (GK)

v. )

) and consolidated case

GINA MCCARTHY, Administrator, )

Environmental Protection Agency, and ) Civil Action

ENVIRONMENTAL PROTECTION AGENCY, ) No. 13 -1555 (GK)

)

Defendants. )

________________________________________________)

PARTIAL CONSENT DECREE

WHEREAS, Plaintiffs, the States of New York, Connecticut, Maryland, Oregon, Rhode 

Island, and Vermont; the Commonwealth of Massachusetts; and Puget Sound Clean Air Agency

(jointly referred to as “State Plaintiffs”), filed Civil Action No. 13-1553 (GK) pursuant to Clean 

Air Act (“CAA”) section 304(a)(2), 42 U.S.C. § 7604(a)(2), against Defendants Gina McCarthy, 

Administrator, and the United States Environmental Protection Agency (jointly referred to as 

“EPA”);

WHEREAS, Plaintiffs, American Lung Association; Environmental Defense Fund; Clean 

Air Council; and Environment and Human Health, Inc. (jointly referred to as “Environmental 

Plaintiffs”), filed Civil Action No. 13-1555 (GK) pursuant to Clean Air Act (“CAA”) section 

304(a)(2), 42 U.S.C. § 7604(a)(2), against EPA;

WHEREAS, the Court consolidated Civil Action Nos. 13-1553 and 13-1555 (GK);

WHERAS, the Court granted the motion to intervene as Plaintiff filed by the Hearth, 

Patio & Barbecue Association (“Association Plaintiff”); 
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WHEREAS, the complaints filed by the State, Environmental, and Association Plaintiffs 

each allege that EPA failed to perform a nondiscretionary duty under CAA section 111(b)(1)(B), 

42 U.S.C. § 7411(b)(1)(B) to, at least every 8 years, review and, if appropriate, revise the new 

performance standards for new residential wood heaters that were promulgated by EPA in 1988. 

40 C.F.R. Part 60, Subpart AAA (“Wood Heater NSPS Standards”); 

WHEREAS, the relief requested in the Complaints filed by the State, Environmental, and 

Association Plaintiffs includes, among other things, an order from this Court to establish a date 

certain by when EPA must fulfill its obligations under CAA section 111(b)(1)(B), 42 U.S.C. § 

7411(b)(1)(B), with respect to the Wood Heater NSPS Standards;

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

claims without further litigation;

WHEREAS, the State and Environmental Plaintiffs and EPA (jointly referred to as 

“Parties”) have agreed to a settlement of all claims asserted by the State and Environmental 

Plaintiffs in their Complaints, 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 Association Plaintiff has not agreed to settle its claims against EPA and 

does not join in this Consent Decree;

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

adequate and equitable resolution of the claims asserted by the State and Environmental 

Plaintiffs;

WHEREAS, by entering into this Consent Decree, the State and Environmental Plaintiffs 

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

follows:

1. This Court has jurisdiction over the claims set forth in the Complaints of the State 

and Environmental Plaintiffs in these consolidated actions and may order the relief contained in 

the Consent Decree. Venue is proper in the District of Columbia.

2. No later than February 3, 2015, EPA shall sign a Federal Register notice taking 

final action with respect to the Wood Heater NSPS Standards, 40 C.F.R. Part 60, Subpart AAA, 

with such modifications as EPA deems appropriate under CAA section 111(b)(1)(B), 42 U.S.C. 

§ 7411(b)(l )(B).

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

of final rulemaking described in Paragraph 2 no later than ten business days after signature of 

such notice. 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 interfere with 

publication of such notice in the Federal Register. In addition, EPA shall make available copies 

of said notice to the State and Environmental Plaintiffs within five business days after signature. 

4. The deadlines in Paragraphs 2 and 3 above may be extended by written stipulation 

executed by counsel for EPA and the State and Environmental Plaintiffs 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 these Plaintiffs and reply by EPA.

5. EPA agrees that the State and Environmental Plaintiffs are entitled to recover 

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 
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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, the State and Environmental Plaintiffs may

seek such litigation costs from the Court. The Court shall retain jurisdiction to resolve any 

request for litigation costs. The State and Environmental Plaintiffs reserve their right to seek 

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

concede that the State and Environmental Plaintiffs 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. The State and Environmental Plaintiffs and EPA shall not challenge the terms of 

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

7. Except for claims for litigation costs pursuant to Paragraph 5 above, the State and

Environmental Plaintiffs and EPA agree that this Consent Decree shall constitute a complete and 

final settlement of all claims that the State and Environmental Plaintiffs asserted against the 

United States, including EPA, under any provision of law, in State of New York, et al. v. EPA, 

Case No. 1:13-cv-1553-GK (and consolidated case). The State and Environmental Plaintiffs

therefore discharge and covenant not to sue the United States, including 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

the State or Environmental Plaintiffs. 

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 
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revise any final actions contemplated by this Consent Decree. EPA’s obligation to perform the 

actions specified by Paragraph 2 and 3 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 rulemaking identified in Paragraph 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 rule issued 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 claims 

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 

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 or by email and sent to the following:

For State Plaintiffs:

Michael J. Myers

New York State Attorney General

Environmental Protection Bureau

The Capitol
6

Albany, NY 12224

Email:Michael.Myers@ag.ny.gov

Scott N. Koschwitz

State of Connecticut

Office of the Attorney General

P.O. Box 120 

55 Elm Street

Hartford, CT 06141-0120

Email:Scott.Koschwitz@ct.gov

Mary E. Raivel

Office of the Attorney General of Maryland

Maryland Department of the Environment 

1800 Washington Boulevard Suite 6048

Baltimore, MD 21230

Email:Mary.Raivel@maryland.gov

Frederick D. Augenstern

Office of the Attorney General

1 Ashburton Place 18th Floor

Boston, MA 02108

Email:Fred.Augenstern@state.ma.us

Paul A. Garrahan

Oregon Department of Justice

Natural Resources Section, General Counsel Division 

1515 SW Fifth Avenue Suite 400

Portland, OR 97239

Email:Paul.Garrahan@doj.state.or.us

Gregory S. Schultz

Rhode Island Department of Attorney General

Civil Unit 150 South Main Street

Providence, RI 02903

Email:Gschultz@riag.ri.gov

Thea Schwartz

State of Vermont 

Office of the Attorney General

109 State Street

Montpelier, VT 05609-1001

Email:Tschwartz@atg.state.vt.us

Laurie Halvorson
7

Puget Sound Clean Air Agency

1904 Third Avenue Suite 105

Seattle, WA 98101

Email:Laurieh@pscleanair.org

For Environmental Plaintiffs:

Timothy D. Ballo

Earthjustice

1625 Massachusetts Avenue, NW Suite 702

Washington, DC 20036

Email:Tballo@earthjustice.org

Tomás Carbonell

Environmental Defense Fund

1875 Connecticut Ave., NW

Sixth Floor

Washington, DC 20009

Email:Tcarbonell@edf.org

For Defendant:

Eileen T. McDonough

Environmental Defense Section

U.S. Department of Justice

P.O. Box 7611

Washington, D.C. 20044

eileen.mcdonough@usdoj.gov

Scott Jordan

U.S. Environmental Protection Agency

William Jefferson Clinton North Building 

1200 Pennsylvania Avenue, NW

Mail Code: 2344A 

Washington, D.C. 20460

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 
8

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 2

and 3 have been completed and after publication of notice of the final action required by

Paragraph 2 in the Federal Register, EPA may move to have this Consent Decree terminated. 

The State and Environmental Plaintiffs shall have 14 days in which to respond to such motion. 

16. 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 

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

meaning, or interpretation of this Consent Decree.

17. 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 Office of the Federal Register for 

publication and public comment within twenty-one (21) 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 whether to withdraw or withhold their consent to the Consent Decree, in 
9

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.

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 ________________, 2014.

 

_________________________________

HON. GLADYS KESSLER

UNITED STATES DISTRICT JUDGE

SO AGREED:

For State Plaintiffs: /s/ Michael J. Myers

Michael J. Myers

New York State Attorney General

Environmental Protection Bureau

The Capitol

Albany, NY 12224

Email:Michael.Myers@ag.ny.gov

/s/ Scott N. Koschwitz

Scott N. Koschwitz

State of Connecticut

Office of the Attorney General

P.O. Box 120 

55 Elm Street

Hartford, CT 06141-0120

Email:Scott.Koschwitz@ct.gov

/s/ Mary E. Raivel

Mary E. Raivel

Office of the Attorney General of Maryland

Maryland Department of the Environment 
10

1800 Washington Boulevard Suite 6048

Baltimore, MD 21230

Email:Mary.Raivel@maryland.gov

/s/ Frederick D. Augenstern

Frederick D. Augenstern

Office of the Attorney General

1 Ashburton Place 18th Floor

Boston, MA 02108

Email:Fred.Augenstern@state.ma.us

/s/ Paul A. Garrahan

Paul A. Garrahan

Oregon Department of Justice

Natural Resources Section, General Counsel 

Division 

1515 SW Fifth Avenue Suite 400

Portland, OR 97239

Email:Paul.Garrahan@doj.state.or.us

/s/ Gregory S. Schultz

Gregory S. Schultz

Rhode Island Department of Attorney General

Civil Unit 150 South Main Street

Providence, RI 02903

Email:Gschultz@riag.ri.gov

/s/ Thea Schwartz

Thea Schwartz

State of Vermont 

Office of the Attorney General

109 State Street

Montpelier, VT 05609-1001

Email:Tschwartz@atg.state.vt.us

/s/ Laurie Halvorson

Laurie Halvorson

Puget Sound Clean Air Agency

1904 Third Avenue Suite 105

Seattle, WA 98101

Email:Laurieh@pscleanair.org

For Environmental Plaintiffs: /s/ Timothy D. Ballo

Timothy D. Ballo
11

Earthjustice

1625 Massachusetts Avenue, NW Suite 702

Washington, DC 20036

Email:Tballo@earthjustice.org

For Defendant: Robert G. Dreher

Acting Assistant Attorney General

/s/ Eileen T. McDonough

Eileen T. McDonough

Environmental Defense Section

U.S. Department of Justice

P.O. Box 7611

Washington, D.C. 20044

eileen.mcdonough@usdoj.gov

Scott Jordan

U.S. Environmental Protection Agency

William Jefferson Clinton North Building 

1200 Pennsylvania Avenue, NW

Mail Code: 2344A 

Washington, D.C. 20460

jordan.scott@epa.gov