Consent Decree 

No. C-12-04968 JWT

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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

CENTER FOR BIOLOGICAL DIVERSITY,

et al.,

Plaintiffs,

v.

 

LISA P. JACKSON, in her official capacity 

as Administrator, United States 

Environmental Protection Agency, 

 

Defendant.

 No. C-12-04968 JWT

 CONSENT DECREE

WHEREAS, on September 24, 2012, Plaintiffs Center for Biological Diversity and 

Center for Environmental Health filed a complaint (“Complaint”) in this matter against 

Defendant Lisa P. Jackson, in her official capacity as Administrator of the United States 

Environmental Protection Agency (“EPA”), alleging that EPA failed to undertake certain 

nondiscretionary duties 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, Plaintiffs alleged that EPA has failed to perform a duty mandated by CAA 

section 110(k)(1)(B), 42 U.S.C. 7410(k)(1)(B), to make a finding of failure to submit 

infrastructure state implementation plans (SIPs) for Colorado, Hawaii, Illinois, Maryland, 

Massachusetts, New Jersey, Oklahoma, Oregon, Pennsylvania, South Dakota, Vermont, and 
Consent Decree 

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Washington with regard to the 2008 lead National Ambient Air Quality Standard (2008 lead 

NAAQS);

WHEREAS, on February 15, 2013, EPA signed a notice making certain findings that 

Hawaii, Illinois, Massachusetts, New Jersey, Oregon, Vermont and Washington had failed to 

submit complete infrastructure SIPs for the 2008 lead NAAQS, and noted that as of February 14, 

2013, Colorado, Maryland, Oklahoma, Pennsylvania, and South Dakota had submitted complete 

infrastructure SIPs for the 2008 lead NAAQS, see 78 Fed. Reg. 12961;

WHEREAS, Plaintiffs alleged that EPA failed to perform a duty mandated by CAA 

section 110(k)(2) and (3), 42 U.S.C. 7410(k)(2) and (3), to take final action on the infrastructure 

state implementation plan submitted by Tennessee with regard to the 2008 Lead NAAQs;

WHEREAS, Plaintiffs alleged that EPA failed to perform a duty mandated by CAA 

section 179(c)(1) and (2), 42 U.S.C. 7509(c)(1) and (2), to determine whether the Herculaneum 

nonattainment area, in Jefferson County, Missouri attained the 1978 lead National Ambient Air 

Quality Standard (1978 lead NAAQS) by its attainment date;

WHEREAS, the parties have agreed to settle 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 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; 
Consent Decree 

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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. This Court has jurisdiction over this matter pursuant to the citizen suit provision 

in section 304(a)(2) of the CAA, 42 U.S.C. § 7604(a)(2), and venue lies in the Northern District 

of California.

2. The Court, by entering this Consent Decree, finds that the Consent Decree is fair, 

reasonable, in the public interest, and consistent with the CAA.

3. Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall no later 

than August 15, 2013, sign for publication in the Federal Register a notice of EPA’s action 

approving, disapproving, or approving in part and disapproving in part the infrastructure SIP for 

the 2008 lead NAAQS submitted to EPA by Tennessee. 

4. Pursuant to section 179(c) of the CAA, 42 U.S.C. § 7509(c), EPA shall no later 

than August 15, 2013, sign for publication in the Federal Register a notice of EPA’s 

determination whether the Herculaneum nonattainment area, in Jefferson County, Missouri 

attained the 1978 lead NAAQS by its applicable attainment date. Notwithstanding the foregoing,

EPA shall be relieved of the obligation to sign for publication in the Federal Register a

determination whether the Herculaneum nonattainment area attained the 1978 lead NAAQS if 

either of the following events occurs on or before August 15, 2013: (1) EPA issues a 

determination that it has received from Missouri a nonattainment area SIP for the 2008 lead 

NAAQS for the Herculaneum nonattainment area that is in compliance with 40 C.F.R. § 

51.103(a); or (2) EPA signs for publication in the Federal Register a notice finding that Missouri 
Consent Decree 

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has failed to submit a complete nonattainment area SIP for the 2008 Pb NAAQS for the 

Herculaneum nonattainment area.

5. After taking an action required in Paragraphs 3-4, EPA shall promptly deliver 

notice of such action to the Office of the Federal Register for review and publication. 

6. The parties may extend the deadlines set forth in Paragraphs 3-4 by written 

stipulation executed by counsel and filed with the Court. If the parties do not agree to an 

extension, either party may move the Court for an extension.

7. Plaintiffs may seek to recover its costs of litigation (including attorneys’ fees) 

(“litigation costs”) from the Court 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 60 days. During this time the Parties shall seek to 

resolve informally any claim for litigation costs, and if they cannot reach a resolution, Plaintiffs

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

request for litigation costs. 

8. The parties will file a joint request to the Court to dismiss this matter with 

prejudice within 15 business days after notice appears in the Federal Register of EPA taking the 

last rulemaking action required under Paragraphs 3-4 of this Consent Decree and the final 

resolution of Plaintiffs’ claim for litigation costs. 

9. 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 

the discretion to alter, amend or revise any responses and/or actions contemplated by this 

Consent Decree. EPA’s obligation to take the actions set forth in Paragraphs 3-4 by the time 
Consent Decree 

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

meaning of this paragraph. 

10. 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) of the CAA, 42 U.S.C. §§ 7607(b)(1).

11. The Court shall retain jurisdiction to enforce the terms of this Consent Decree. 

12. In the event of a dispute between the parties concerning the interpretation or 

implementation of any aspect of this Consent Decree, the party that raised the dispute shall 

provide the other party with a written notice, including written notice sent via email, 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 notice, the party that raised 

the dispute may move the Court to resolve the dispute. 

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

considered properly filed unless the moving party has followed the procedure set forth in 

Paragraph 12 and has provided the non-moving party with written notice received at least ten 

(10) business days before the filing of such motion or proceeding. 

14. The obligations imposed on 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. 

15. Plaintiffs and EPA shall not challenge the terms of this Consent Decree or this 

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

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16. 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 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. 

17. 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 Plaintiffs:

Robert Ukeiley

Law Office of Robert Ukeiley

507 Center Street 

Berea, KY 40403

Tel: 859-986-5402

Fax: 866-618-1017

rukeiley@igc.org

For Defendant:

C. Scott Spear

Trial Attorney

U.S. Department of Justice

Environment and Natural Resources Division

Environmental Defense Section

P.O. Box 7611

Washington, D.C. 20044-7611

Tel: (202) 305-1593

Fax: (202) 514-8865

Email: scott.spear@usdoj.gov
Consent Decree 

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David Orlin

Office of the General Counsel

U.S. Environmental Protection Agency

Ariel Rios Bldg. MC 2344A

1200 Pennsylvania Ave., NW

Washington, D.C. 20460

Phone: (202) 564-1222

Fax: (202) 564-5603

Email: orlin.david@epa.gov

18. 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: ________________ _____________________________________

UNITED STATES DISTRICT JUDGE

__________________________ 

Robert Ukeiley (Admitted Pro Hac Vice)

Law Office of Robert Ukeiley

507 Center Street

Berea, KY 40403

Tel: 859-986-5402

Fax: 866-618-1017

rukeiley@igc.org

Counsel for Plaintiffs

Dated: 

IGNACIA S. MORENO

Assistant Attorney General

Environment & Natural Resources Division

_____________________________________

C. Scott Spear

Trial Attorney

U.S. Department of Justice

Environmental Defense Section

P.O. Box 7611

Washington, D.C. 20044-7611

Tel: (202) 305-1593

Fax: (202) 514-8865

scott.spear@usdoj.gov

Counsel for Defendant

Dated: _______
Consent Decree 

No. C-12-04968 JWT

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