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

JOHN C. CRUDEN

Assistant Attorney General

Environment & Natural Resources Division

United States Department of Justice

LESLIE M. HILL (D.C. Bar No. 476008)

Leslie.Hill@usdoj.gov

Environmental Defense Section

601 D Street N.W., Suite 8000

Washington D.C. 20004

Telephone (202) 514-0375

Facsimile (202) 514-8865

Attorneys for Defendant

Richard H. Mays (AR Bar No. 61043)

RICHARD MAYS LAW FIRM, PLLC

115 South Third Street

Heber Springs, AR 72543

Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

SIERRA CLUB,

Plaintiff,

v.

GINA McCARTHY, in her official capacity 

as the Administrator of the United States 

Environmental Protection Agency,

Defendant.

Case No. 4:14-cv-00643-JLH

[PROPOSED] CONSENT DECREE

WHEREAS, on August 6, 2014, Plaintiff Sierra Club (“Plaintiff”) filed the abovecaptioned matter in the U.S. District Court for the Northern District of California against 

Gina McCarthy, in her official capacity as Administrator of the United States 

Environmental Protection Agency (hereinafter “EPA” or “Defendant”);

1 [PROPOSED] CONSENT DECREE

CASE NO. 4:14-cv-00643-JLH

Case 4:14-cv-00643-JLH Document 30-1 Filed 02/11/15 Page 1 of 10
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

WHEREAS, by Order dated October 30, 2014, the U.S. District Court for the 

Northern District of California transferred this case to this District;

WHEREAS, Plaintiff alleges that EPA has 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, § 7604(a)(2);

WHEREAS, Plaintiff alleges that EPA has failed to perform a duty mandated by 

CAA section 110(c)(1)(B), 42 U.S.C. § 7410(c)(1)(B), to promulgate a Federal 

implementation plan within 2 years after disapproving a state implementation plan 

(“SIP”) submission in whole or in part;

WHEREAS, Plaintiff alleges that on March 12, 2012, EPA disapproved, in part, a 

revision to the Arkansas SIP intended to address the regional haze (“RH”) requirements 

of section 169A(b)(2)(B), 42 U.S.C. § 7491(b)(2)(B), and the implementing regulations 

set forth at 40 C.F.R. § 51.308(d)(1)(A), Final Rule, 77 Fed. Reg. 14,604 (Mar. 12, 

2014);

WHEREAS, Plaintiff alleges that on March 12, 2012, EPA also partially

disapproved the portion of the Arkansas SIP submittal that addresses the visibility 

requirement of section 110(a)(2)(D)(i)(II), 42 U.S.C. § 7410(a)(2)(D)(i)(II), for the 1997 

8-hour ozone, Final Rule, 62 Fed. Reg. 38,856 (Jul. 18, 1997), and 1997 fine particulate 

matter (“PM2.5”), Final Rule, 62 Fed. Reg. 38,652 (Jul. 18, 1997), national ambient air 

quality standards (“NAAQS”) that the Arkansas SIP contain adequate provisions to

prohibit emissions from interfering with measures required in another state to protect 

visibility, 77 Fed. Reg. at 14,604;

WHEREAS, on March 12, 2012, EPA stated that it “must, within 24 months 

following a final disapproval, either approve a SIP or promulgate a Federal 

Implementation Plan [“FIP”]. We will of course consider, and would prefer, approving a 

SIP if the state submits a revised plan that we can approve before the expiration of the 

mandatory FIP clock for the portions of the SIP we are disapproving in this rulemaking 

action,” 77 Fed. Reg. at 14,606;

2 [PROPOSED] CONSENT DECREE

CASE NO. 4:14-cv-00643-JLH

Case 4:14-cv-00643-JLH Document 30-1 Filed 02/11/15 Page 2 of 10
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

WHEREAS, Plaintiff alleges that the referenced EPA partial disapproval 

decisions took effect on April 11, 2012;

WHEREAS, EPA did not, by April 11, 2014, promulgate a regional haze FIP or

approve a revised regional haze SIP for Arkansas;

WHEREAS, EPA did not, by April 11, 2014, promulgate a FIP or approve a 

revised SIP for Arkansas addressing the requirements of section 110(a)(2)(D)(i)(II), 42 

U.S.C. § 7410(a)(2)(D)(i)(II), for the 1997 8-hour ozone NAAQS and the 1997 PM2.5

NAAQS;

WHEREAS, the relief requested in the Complaint includes, among other things, 

an order from this Court to establish a date certain by which EPA must fulfill its 

obligations;

WHEREAS, Plaintiff and EPA have agreed to a settlement of this action without 

admission of any issue of fact or law, except as expressly provided herein;

WHEREAS, Plaintiff and EPA, by entering into this Consent Decree, do not 

waive or limit any claim, remedy, or defense, on any grounds, related to any final EPA 

action;

WHEREAS, Plaintiff and EPA consider this Consent Decree to be an adequate 

and equitable resolution of all the claims in this matter and therefore wish to effectuate a 

settlement;

WHEREAS, it is in the interest of the public, Plaintiff Sierra Club, Defendant 

EPA, and judicial economy to resolve this matter without protracted litigation;

WHEREAS, Plaintiff and EPA agree that this Court has jurisdiction over this 

matter pursuant to the citizen suit provision in CAA section 304(a)(2), 42 U.S.C. § 

7604(a)(2); and

WHEREAS, the Court, by entering this Consent Decree, finds that the Consent 

Decree is fair, reasonable, in the public interest, and consistent with the Clean Air Act;

3 [PROPOSED] CONSENT DECREE

CASE NO. 4:14-cv-00643-JLH

Case 4:14-cv-00643-JLH Document 30-1 Filed 02/11/15 Page 3 of 10
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 

determination of any issues of fact or law, and upon the consent of Plaintiff Sierra Club

and Defendant EPA, it is hereby ordered, adjudged and decreed that:

1. The appropriate EPA official shall:

a. either sign a notice of proposed rulemaking in which it proposes 

approval of a revised SIP submission from Arkansas, promulgation of a FIP, or partial 

approval of a revised SIP submission and promulgation of a partial FIP for Arkansas that 

collectively addresses the deficiencies in Arkansas’ regional haze SIP identified by EPA 

in its March 12, 2012 action, 77 Fed. Reg. 14,604, no later than March 6, 2015; and sign 

a notice of final rulemaking to address these requirements no later than December 15, 

2015; and

b. either sign a notice of proposed rulemaking in which it proposes

approval of a revised SIP submission, promulgation of a FIP, or partial approval of a 

revised SIP submission and promulgation of a partial FIP for Arkansas that collectively 

addresses the deficiencies in Arkansas’ SIP related to the requirements of CAA section 

110(a)(2)(D)(i)(II), 42 U.S.C. § 7410(a)(2)(D)(i)(II), for the 1997 8-hour ozone NAAQS 

and the 1997 PM2.5 NAAQS, identified by EPA in its March 12, 2012 action, 77 Fed. 

Reg. 14,604, no later than March 6, 2015; and sign a notice of final rulemaking to address 

these requirements no later than December 15, 2015.

2. EPA shall, within 15 business days of signature, deliver notice of each action 

taken pursuant to paragraph 1 of this Consent Decree to the Office of the Federal Register 

for review and publication.

3. After EPA has completed the actions set forth in Paragraph 1 of this Consent 

Decree and after notice of each proposed and final action required by paragraph 1 has 

been published in the Federal Register, EPA may move to have this Decree terminated

and the action dismissed. Plaintiff shall have fourteen (14) days in which to respond to 

such motion, unless the parties stipulate to a longer time for Plaintiff to respond.

4 [PROPOSED] CONSENT DECREE

CASE NO. 4:14-cv-00643-JLH

Case 4:14-cv-00643-JLH Document 30-1 Filed 02/11/15 Page 4 of 10
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

4. The deadlines established by this Consent Decree may be extended (a) by 

written stipulation of Plaintiff and EPA with notice to the Court, or (b) by the Court upon 

motion of EPA for good cause shown pursuant to the Federal Rules of Civil Procedure 

and upon consideration of any response by Plaintiff and any reply by EPA. Any other 

provision of this Consent Decree also may be modified by the Court following motion of 

an undersigned party for good cause shown pursuant to the Federal Rules of Civil 

Procedure and upon consideration of any response by a non-moving party and any reply.

5. If a lapse in appropriations for EPA occurs within one hundred and twenty 

(120) days prior to any deadline in Paragraph 1 in this Decree, that deadline shall be 

extended automatically one day for each day of the lapse in appropriations. 

6. Plaintiff and EPA agree that this Consent Decree shall constitute a complete 

and final settlement of all claims that Plaintiff has asserted in this case. The Sierra Club

therefore discharges and covenants not to sue the United States, including EPA, for any 

such claims.

7. In the event of a dispute between Plaintiff and EPA 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. These parties shall meet and confer in order to attempt 

to resolve the dispute. If these parties are unable to resolve the dispute within ten (10) 

business days after receipt of the notice, either party may petition the Court to resolve the 

dispute.

8. No motion or other proceeding seeking to enforce this Consent Decree or for 

contempt of Court shall be properly filed unless the procedure set forth in Paragraph 7 

has been followed, and the moving party has provided the other party with written notice 

received at least ten (10) business days before the filing of such motion or proceeding.

9. EPA agrees that Plaintiff is entitled to recover “costs of litigation” (including 

reasonable attorney fees) incurred in this matter pursuant to 42 U.S.C. § 7604(d). The 

deadline for filing a motion for costs of litigation (including attorney fees) for activities 

5 [PROPOSED] CONSENT DECREE

CASE NO. 4:14-cv-00643-JLH

Case 4:14-cv-00643-JLH Document 30-1 Filed 02/11/15 Page 5 of 10
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

performed prior to entry of the Consent Decree is hereby extended until ninety (90) days 

after this Consent Decree is entered by the Court. During this period, the Parties shall 

seek to resolve informally any claim for costs of litigation (including attorney fees), and 

if they cannot, Plaintiff will file a motion for costs of litigation (including attorney fees) 

or a stipulation or motion to extend the deadline to file such a motion. Plaintiff reserves 

its right to seek litigation costs for any work performed after the lodging of this Consent 

Decree. EPA does not concede that Plaintiff will be entitled to recover costs incurred 

after the lodging of this Consent Decree, and the parties reserve all claims and defenses 

with respect to any future claim for costs of litigation.

10. This Court shall retain jurisdiction over this matter to enforce the terms of 

this Consent Decree and to consider any requests for costs of litigation, including 

attorney fees.

11. Nothing in the terms of this Consent Decree shall be construed (a) to confer 

upon this Court jurisdiction to review any issues that are within the exclusive jurisdiction 

of the United States Courts of Appeals under CAA section 307(b)(1), 

42 U.S.C. § 7607(b)(1) or (b) to waive any claims, remedies, or defenses that the parties 

may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1).

12. Nothing in this Consent Decree shall be construed to limit or modify any 

discretion accorded EPA by the Clean Air Act 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 revise any final actions promulgated pursuant to this 

Consent Decree. EPA’s obligation to perform each action specified in this Consent 

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

meaning of this paragraph.

13. Except as expressly provided herein, nothing in this Consent Decree shall be 

construed as an admission of any issue of fact or law nor to waive or limit any claim, 

remedy, or defense, on any grounds, related to any final action EPA takes with respect to 

the actions addressed in this Consent Decree.

6 [PROPOSED] CONSENT DECREE

CASE NO. 4:14-cv-00643-JLH

Case 4:14-cv-00643-JLH Document 30-1 Filed 02/11/15 Page 6 of 10
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

14. It is hereby expressly understood and agreed that this Consent Decree was 

jointly drafted by Plaintiff and EPA. Accordingly, the parties hereby agree 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.

15. The parties agree and acknowledge that before this Consent Decree can be 

finalized and 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). After this Consent Decree has undergone notice and 

comment, the Administrator and/or the Attorney General, as appropriate, shall promptly 

consider any written comments in determining whether to withdraw or withhold their 

consent to the Consent Decree, in accordance with CAA section 113(g). If the 

Administrator and/or 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.

16. Any notices required or provided for by this Consent Decree shall be in 

writing, via electronic mail or other means, and sent to the following (or to any new 

address of counsel as filed and listed in the docket of the above-captioned matter, at a 

future date):

For Plaintiff Sierra Club:

Richard H. Mays, Esq.

RICHARD MAYS LAW FIRM, PLLC

115 South Third Street

Heber Springs, AR 72543

Casey A. Roberts

Tony G. Mendoza

Sierra Club

85 Second Street, 211d Floor

San Francisco, CA 94105

(415) 977-5710 (Roberts)

(415) 977-5589 (Mendoza)

(415) 977-5793 (facsimile)

casey.roberts@sierraclub.org

tony.mendoza@sierraclub.org

7 [PROPOSED] CONSENT DECREE

CASE NO. 4:14-cv-00643-JLH

Case 4:14-cv-00643-JLH Document 30-1 Filed 02/11/15 Page 7 of 10
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

For Defendant EPA:

Leslie M. Hill

U.S. Department of Justice

Environment & Natural Resources Division

Environmental Defense Section

601 D Street N.W., Suite 8000

Washington D.C. 20004

Tel. (202) 514-0375

Email: leslie.hill@usdoj.gov

17. EPA and Plaintiff 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 the United States obligate 

or pay funds in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other 

applicable provision of law. 

18. If for any reason the Court should decline to approve this Consent Decree in 

the form presented, this agreement is voidable at the sole discretion of either party and 

the terms of the proposed Consent Decree may not be used as evidence in any litigation 

between the parties.

19. The undersigned representatives of Plaintiff Sierra Club and Defendant EPA 

certify that they are fully authorized by the party they represent to consent to the Court’s 

entry of the terms and conditions of this Decree.

SO ORDERED on this _____ day of _____________________, 2015.

________________________________

J. LEON HOLMES

UNITED STATES DISTRICT JUDGE

8 [PROPOSED] CONSENT DECREE

CASE NO. 4:14-cv-00643-JLH

Case 4:14-cv-00643-JLH Document 30-1 Filed 02/11/15 Page 8 of 10
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

COUNSEL FOR PLAINTIFF:

RICHARD H. MAYS (AR Bar No. 61043)

RICHARD MAYS LAW FIRM, PLLC

115 South Third Street

Heber Springs, AR 72543

CASEY A. ROBERTS (CA Bar No. 253474)

SIERRA CLUB

85 Second Street, 211d Floor

San Francisco, CA 94105

(415) 977-5710

(415) 977-5793 (facsimile)

casey.roberts@sierraclub.org

TONY G. MENDOZA

SIERRA CLUB

85 Second Street, 2nd Floor

San Francisco, CA 94105

(415) 977-5589

(415) 977-5793 (facsimile)

tony.mendoza@sierraclub.org

Attorneys for Plaintiff Sierra Club

9 [PROPOSED] CONSENT DECREE

CASE NO. 4:14-cv-00643-JLH

Case 4:14-cv-00643-JLH Document 30-1 Filed 02/11/15 Page 9 of 10
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

COUNSEL FOR DEFENDANT: JOHN C. CRUDEN

Assistant Attorney General

Environment & Natural Resources Division

LESLIE M. HILL (D.C. Bar No. 476008)

Environmental Defense Section

601 D Street N.W., Suite 8000

Washington D.C. 20004

Tel. (202) 514-0375

Email: Leslie.Hill@usdoj.gov

Attorneys for Defendant EPA

Of counsel:

Barbara A. Nann

Assistant Regional Counsel

Region 6

U.S. Environmental Protection Agency

10 [PROPOSED] CONSENT DECREE

CASE NO. 4:14-cv-00643-JLH

Case 4:14-cv-00643-JLH Document 30-1 Filed 02/11/15 Page 10 of 10