MODIFICATION OF SETTLEMENT AGREEMENT

Sierra Club et al. v. Jackson

No. 3:10-cv-04060-CRB (N.D. Cal.)

WHEREAS, on August 10, 2011 Plaintiffs Sierra Club and WildEarth Guardians filed

their second amended complaint in Sierra Club v. Jackson, No. 3:10-cv-04060-CRB (N.D. Cal.)

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, 42 U.S.C. §§ 7404-7671q; and

WHEREAS, on June 30, 2011, Sierra Club submitted a petition for rulemaking to EPA,

requesting that EPA act on specific alleged State Implementation Plan ("SIP") deficiencies

related to provisions in SIPs related to excess emissions during periods of startup, shutdown, or

malfunction at sources ("Plaintiff's SSM Petition"); and

WHEREAS, on November 30, 2011, the Parties executed a settlement agreement

("Agreement") resolving the lawsuit in Sierra Club v. Jackson, No. 3:10-cv-04060-CRB (N.D.

Cal.); and

WHEREAS, Paragraph 19 of the Agreement provides that the Parties may modify any

deadline in the Agreement by mutual written consent; and

WHEREAS, Paragraph 15 of the Agreement, as modified by a previous stipulation,

provides:

Sierra Club submitted Plaintiff's SSM Petition on June 30, 2011. Plaintiff's SSM

Petition addresses certain specifically identified provisions in the SIPs of states

that Sierra Club contends are contrary to the CAA and EPA's policies for

emissions during SSM events, and explains the basis for that contention with

respect to each identified provision. EPA shall propose action to grant or to deny

Plaintiff's SSM Petition by December 14, 2012. EPA shall take final action to

grant or to deny Plaintiff's SSM Petition by June 28, 2013. Plaintiffs agree that

EPA may meet these obligations in one or more administrative actions, as EPA

determines appropriate, and that EPA may elect to grant or to deny Plaintiff's

SSM Petition with respect to individual alleged illegal SSM provisions, as EPA

determines is consistent with the CAA and its policies. EPA further agrees that

for purposes of this Settlement Agreement, a grant of the petition in question with

respect to an alleged illegal SSM provision shall entail the issuance of a final SIP

call under CAA section 110(k)(5) or of a final error correction under CAA section

110(k)(6), as EPA deems appropriate, by June 28, 2013, deadline. Nothing in this

Settlement Agreement shall be construed as precluding the Plaintiff from

challenging EPA's response to Plaintiff's SSM Petition in whole or in part.

WHEREAS, Paragraph 28 was added to the Agreement by a previous stipulation, and

provides that counsel for EPA shall confer with counsel for Sierra Club concerning the Agency's
progress towards meeting these obligations on November 2 and December 2, 2012, and January

8, February 2, March 2, Apri12, May 2 and June 2, 2013, or on such other date that is mutually

agreeable.

WHEREAS, the Parties wish to extend the deadlines for EPA to propose action and to

take final action by 60 days, and to continue to confer on the Agency's progress toward these

obligations on a monthly basis;

NOW, THEREFORE, the Parties agree as follows:

1. The references in Paragraph 15, as modified by previous stipulations, to "December 14,

2012" and "June 28, 2013" are hereby replaced by "February 12, 2013" and "August 27, 2013,"

respectively.

2. The references in Paragraphsl6 and 17, as modified by previous stipulations, to

"December 14, 2012 or June 28, 2013 deadlines" are hereby replaced by "February 12, 2013 or

August 27, 2013 deadlines."

3. Paragraph 28 is replaced by:

The Parties agree that counsel for EPA shall confer with counsel for Sierra Club

concerning the Agency's progress towards meeting these obligations on a

mutually agreeable date at the beginning of each month until EPA takes final

action to grant or to deny Plaintiff's SSM Petition.

4. The modification changes only the above-specified text, and does not change any other

requirement or term of the Agreement.

5. Each undersigned representative of the Parties certifies that he or she is fully authorized

by that Party to enter into and execute the terms of this modification, and to legally bind such

Party to this modification.

6. This modification may be executed in any number of counterpart originals, all of which

shall collectively constitute one agreement.

FOR PLAINTIFFS:

Robert Ukeiley

Law Office of Robert Ukeiley

2
507 Center Street

Berea, KY 40403

(859) 986-5402

(866) 618-1017

rukeiley@igc.org

Dated: 12/15/12

Counsel for Plaintiffs

FOR EPA:

IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources

Division

Christina L. Richmond ~~

U.S. Department of Justice

Environment and Natural Resources

Division

P.O. Box 7611

Washington, DC 20044

(202) 514-3376

(202) 514-8865

Christina.Richmond2@usdoj . gov

Dated: I ~~- ~ ~ ~L'1~--

Counsel for Defendant

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