UNITED STATES DISTRI CT COURT FOR THE DI STRICT OF COLUMBIA STATE OF NEW YORK , et al., ) ) Plaintiff s , ) Civil Action ) No. 13

- 155 3 (GK) v. ) ) and consolidated case GI NA MCCARTHY, Administrator, ) Environmental Protection Agency , and ) Civil Action ENVIRONMENTAL PROTECTION AGENCY , ) No. 13

- 1555 (GK) ) Defendant s. ) ________________________________________________) **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) purs uant to Clean Air Act (“ CAA ”) section 304(a)(2), 42 U.S.C. § 7604(a)(2), against D efendants Gina McCarth y, 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 Env ironment and Human Health, Inc. (jointly referred to as “Environmental Plaintiffs”) , filed Civil Action No. 13

- 155 5 (GK) pursuant to Clean Air Act (“ CAA ”) section 304(a)(2), 42 U.S.C. § 7604(a)(2), aga inst 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 b y the Hearth, Patio & Barbecue Association (“Association Plaintiff”);2

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 pe rformance standards for new residential wood heaters that were promulgated b y EPA in 1988. 40 C.F.R. Part 60, Subpart AAA (“Wood Heater NSPS Standards”) ; WHEREAS, the relief requested in the Complaints f iled by the State, Environmental, and Association P laintiffs includes, among other things, an order from this Court to establish a date certain b y 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 i s 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 b y the State and Envir o nmental 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 h as 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 b y the State and Environmental Plaintiffs; WHEREAS, by

entering into this Consent Decree, the State and Environmental Plaintiffs do not waive an y cl aims and EPA does not waive any defenses, on any

grounds, related to an y matters asserted in this action that are not resolved by this Decree;3

NOW THEREFORE, it is hereb y ORDERED, ADJUDGED AND DECREED as follows: 1. This Court has jurisdiction over the claims set forth in the Complaint s 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 P aragraph 2 no later than ten business day s after signature of such notice. Following such delivery , EPA shall not take any action (other than as necessary to correct an y t ypographical error or other errors in form) to delay or otherwise interfere with pub lication 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 day s after signature. 4. The deadline s in Paragraph s 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 Plaintiff s and repl y b y EPA

. 5. EPA agrees that the State and Environmental Plaintiffs are entitled to recover costs of litigation (including attorney s’ fees) (“litigation costs”) incurred in this matter pursuant to 42 U.S.C. § 7604(d). The de adline 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 a4

period of 120 day s. During this time the Parties shall seek to resolve informally an y claim for l itigation 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 Pla intiffs 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 an y 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 Conse nt 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 an y 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 an y 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 i n this Consent Decree shall be construed to limit or modify an y 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, or5

revise an y final actions contemplated by this Consent Decree. EPA’s obligation to perform the action s specified b y 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 P aragraph 2 of th is 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 claim s or defense s 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 onl y be undertaken using appropriated funds legally available for such purpose. No provisi on 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 provision of law. 12
. Any

notices required or provided for b y this Consent Decree shall be made in writing or b y email and sent to the following:
For State Plaintiffs : Michael J. Myers New York State Attorney General Environmental Protection Bureau The Capitol6

Albany , NY 12224 Email:Michael.Myers@ag.n y. 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 o f 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 I sland 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 Halvorson7

Puget Sound Clean Air Agency 1904 Third Avenue Suite 105 Seattle, WA 98101 Email:L aurieh@pscleanair.org
For Environmental Plaintiffs : Timothy D
. Ball o Earthjustice 1625 Massachusetts Avenue, NW Suite 702 Washington, DC 20036 Email:Tballo@earthjustice.o rg Tomás Carbonell Environmental Defense Fund 1875 Connecticut Ave., NW Sixth Floor Washington, DC 20009 Email: T carbonell@edf.org For Defendant : Eileen T. McDonough Environmental Defense Section U.S. Department of Justice P.O. Box 7611 Washington, D.C. 20044 eileen.mcdon ough@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 inf ormal negotiations. The P arties shall meet and confer to attempt to resolve the dispute. If the Parties8

cannot reach an agreed

- upon resolution after ten (10) business day s following receipt of the written notice , an y Part y 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 properl y 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 an y disputes thereunder, and to consider any requests for costs of litigation (including reasonable attorney s’ fees). After EPA’s obligations under Paragraph s 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
. Itis hereby

expressl y understood and agreed that this Consent Decree was jointly drafted b y 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 c oncerning the terms, meaning, or interpretation of this Consent Decree

. 17. The P arties agree and acknowledge that before th is Consent Decree is entered b y the Court, EPA must provide notice of this Consent Decree in the Fede ral 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 Regi ster for publication and public comment within twenty
- one ( 2 1) day s after lodging this Conse nt De cree with the Court. After this Consent Decree has undergone notice and comment, the Administrator and/or the Attorney General, as appropriate, shall promptly consider an y written c omments received in determining whether to withdraw or withhold their consent to the Consent Decree, in9

accordance with CAA section 113(g). If the Administrator and the Attorney Gene ral 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 no t filed within ninety (90) day s after the notice is published in the Federal Register, any party may f ile dispositive motions in this matter. 1 8
. The undersigned certify that they are fully authorized by

the Part y or Parties they represent to bind that Party or those Parties to the terms of this Consent Decree. SO ORDERED this

___ day of ________________, 201 4
.

_________________________________ HON. GLADYS KESSLER UNITED STATES DISTRI CT 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.n y. 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 o f Maryland Maryland Department of the Environment10 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 I sland 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:L aurieh@p scleanair.org
For Environmental Plaintiffs : /s/ Timothy D

. Ballo Timothy D
. Ballo11 Earthjustice 1625 Massachusetts Avenue, NW Suite 702 Washington, DC 20036 Email:Tballo@earthjustice.o rg
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