**Consent Decree** No. C

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- 04968 JWT 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTHE UNITED STATES DI STRICT COURT NORTHERN DI STRI CT OF CALIFORNIA SAN FRANCI SCO DIVISI ON
CENTER FOR BIOLOGICAL DIVERSITY, et al. , Plaintiff

s ,
v. LISA P. JACKSON, in her official capacity as Administrator, United States Environmental Protection Agency ,

Defendant

. No. C

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- 04968 JWT

**CONSENT DECREE**

WHEREAS, on September 24 , 201 2 , Plaintiffs Center for Biological Diversity and Center for Environmental Health filed a complaint (“Complaint”) in this matter against Defendant L isa 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 (SIP s ) for Colorado, Hawaii, I llinois, Maryland, Massachusetts, New Jersey , Oklaho ma, Oregon, Pennsylvania, South Dakota, Vermont, and**Consent Decree** No. C

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- 04968 JWT 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Washington with regard to the 200 8 lead N ational Ambient A ir Q uality S tandard (2008 l ead NAAQS) ; WHEREAS, on February 15, 2013, EPA signed a notice making certain finding s that Hawaii, Illinois, Massachusetts, New Jersey , Oregon, Vermont and Washington had failed to submit complete infrastructure SIPs for the 2008 lead NAAQS, and not ed that as of February 14, 2013, Colorado, Maryland, Oklahoma, Penns yl vania, and South Dakot a 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 L ead 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

no nattainment area, in Jefferson County , Missouri attained the 1978 l ead N ational Ambient A ir Q uality Standard (1978 lead NAAQS) by its attainment date ; WHEREAS, the parties have agreed to settle this action without admission of any is sue 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 an y final EPA action; WHEREAS, the parties consider this Consent Decree to be an adequate and equitab le 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** No. C

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- 04968 JWT 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOW THEREFORE, before the taking of testimony , without trial or determi nation of
any issue of fact or law, and upon the consent of the parties, it is hereb y ordered, adjudged and decreed that: 1. T his 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. T he 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 i n part and disapproving in part the infrastructure SIP for the 200 8 lead NAAQS submitted to EPA by Tennessee

. 4

. Pursuant to section 179 (c ) of the CAA, 42 U.S.C. § 7 509(c ), EPA shall no late r than August 15 , 2013 , sign for publication in the Fede ral Register a notice of EPA ’s determination whether the Herculaneum no nattainment 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 determin ation that it has received from Missouri a non attainment area SIP for the 2008 lead NAAQS for the Herculaneum nonattainm ent 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** No. C

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- 04968 JWT 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 has failed to submit a complete non attainment area SIP for the 2008 Pb NAAQS for the He rculaneum nonattainment area. 5

. A fter 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 lit igation (including attorney s’ fees) (“litigation costs”) from the Court pursuant to 42 U.S.C. § 7604(d)

. The deadline for the filing of an y motion for litigation costs for activities performed prior to the lodging of this decree with the Court is he reb y e xtended for a period of 6 0 day s. During this time the Parties shall seek to resolve informall y an y claim for litigation costs, and if they cannot reach a resolution, Plaintiffs
may seek such litigation costs from the Court. The Court shall retain jurisdi ction to resolve an y request for litigation costs. 8

. The parties will file a joint request to the Court to dismiss this matter with prejudice within 15 business day s 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 E PA by the CAA and by

general principles of administrative law, including the discretion to alter, amend or revise any response s and/or action s contemplated by this Consent Decree. EPA ’s obligation to take the action s set forth in Paragraphs 3

- 4 by the tim e**Consent Decree** No. C

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- 04968 JWT 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 specified therein does not constitute a limitation or modification of EPA ’s discretion within the meaning of this paragraph. 1 0

. 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). 1 1

. The Court shall retain jurisdiction to enforce the terms of thi s Consent Decree

. 1 2

. In the event o f 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 (1 0) business days after receipt of notice, the party that raised the dispute may

move the Court to resolve the dispute. 1 3

. No motion or other proceeding seeking to enforce this Consent Decree shall be considered properl y filed unless the moving party has followed the procedure set forth in Paragraph 1 2 and has provided the non

- moving party with written notice received at least ten (1 0) business day s before the filing of such motion or proceeding. 1 4

. The obligations imposed on EPA under this Consent Decree may onl y 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. 1 5

. Plaintiffs and EPA shall not challenge the terms of this Co nsent Decree or this Court’s jurisdiction to enter this Consent Decree.**Consent Decree** No. C

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- 04968 JWT 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 6

. 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 opportuni ty

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 promptl y consider an y 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 m otion 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** No. C

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- 04968 JWT 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 full y 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 DISTRI CT JUDGE

__________________________ Robert Ukeil e y (

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

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