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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 W ashington 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 D ISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

SIERRA CLUB
,
Plaint i ff,

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 , 201 4 , Plaintiff Sierra Club (“Plaintiff”) filed the above

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

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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, Pla intiff alleges that EPA has failed to undertake certain non

discretionary dut ies 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 alle ge s 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;

WHE REAS, 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 for th 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 disapprov ed the portion of the Arkansas SIP submittal that addresses the visibility requirement of sec tion 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 ( “ PM 2.5 ” )
, Final Rule , 62 Fed. Reg. 38
, 652 ( Jul

. 18, 1997 )
, national ambient air qualit y 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 , 20 12 , EPA stated that it “must, with in 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 expirati on of the mandatory FIP clock for the portions of the SIP we are disapproving in this rulemaking
action, ” 7 7 Fed. Reg. at 14
, 606 ;

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28 WHERE AS, Plaintiff alleges that the referenced EPA partial disapproval decisions took effect on April 11, 2012;
WHEREAS, EPA d id not, by April 11, 2014 , promulgate a regional haze FIP or

approve a revised regional haze SIP for A rkansas; 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 PM 2.5 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 fulfi ll 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

se ttlement; 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 purs uant 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;

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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 s hall :

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

approv al of a revised SIP submission from Arkansas , promulgation of a FIP
, or partial approval of a revised SIP submission and promulgation of a partial F IP for Arkansas that

colle ctively 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 F IP for Arkansas that collectively

address es 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 PM 2.5 NAAQS
, identified by EPA in its March 12, 2012 act ion, 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 action s set forth in Paragraph 1 of this Consent

Decree and after notice of each proposed and final action req uired 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 tim e for Plaintiff to respond

.

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28 4

. The deadline s 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 R ules 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 Fe deral 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 de adline 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

. Th e 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 proper ly 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 Pla intiff 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

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28 performed p rior 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 liti gation.

1 0 . 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

. 1 1 . Nothing in the terms of this Consent Decree shall be construe d ( 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 t he parties may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1).

1 2 . 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 con stitute a limitation or modification of EPA’s discretion within the meaning of this paragraph.

1 3 . 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.

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28 1 4 . 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 De cree.
1 5 . 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.

1 6 . 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

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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: l eslie. h ill@usdoj.gov

1 7 . 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 appl icable 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 a s 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. L EON HOLMES UNITED STATES DISTRICT JUDGE

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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 Clu b

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28 C OUNSEL 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. N ann Assistant Regional Counsel Region 6 U.S. Environmental Protection Agency

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