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Case No. 3:14

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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 Washington D.C. 2 0004 Tel. (202) 514

- 0375 Fax (202) 514

- 8865
Attorneys for Defendant

Jonathan Evans (Cal. Bar #247376) Center for Biological Diversity 351 California St., Suite 600 San Francisco, CA 94104 Tel. (415) 436

- 9682 x318 jevans@biologicaldiversity.org
Kimberly A. Sturm (Ga. Bar # 690615) 260 Peachtree Street, N.W. Suite 1200 Atlanta, GA. 30303 Center Street Tel. (404) 525

- 9205 ksturm@stackenv.com
Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISIO N

CENTER FOR BIOLOGICAL DIVERSITY, et al.

Plaint i ff s ,

v.
GINA McCARTHY, in her official capacity as the Administrator of the United States Environmental Protection Agency,

Defendant. Case No. 3:14

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[PROPOSED] CONSENT DECREE2

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28 WHEREAS, on November 20, 2014, Plaintiffs Center for Biological Diversity

and Center for Environmental Health (“Plaintiffs”) filed the above

- captioned matter against Gina McCarthy, in her official capacity as Administrator of the United States

Environmental Protection Agency (hereinafter “EPA” or “ Defendant”);
WHEREAS, Plaintiffs filed a first amended complaint (Dkt. No. 22) on February
2, 2015 ; WHEREAS, Plaintiff s allege that EPA has failed to undertake certain non

discretionary 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, in Claim 1, Plaintiff s allege 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 find that Iowa and Puerto Rico failed to submit nonattainment state implementation plans (“SIPs”) for the Pottawattamie and Arecibo areas, respectively, designated nonattainment for the 2008

lead National Ambien t Air Quality Standard (“NAAQS”), see First Am. Compl. ¶¶ 32

- 37 (Dkt. No. 22); WHEREAS, on February 9, 2015, EPA received a nonattainment SIP submission from Iowa addressing the requirements of CAA section 110(a)(2)(I), 42 U.S.C. §
7410(a)(2)(I)
, for the 2 008 lead NAAQS as to the Pottawattamie area; WHEREAS, in a letter dated March 18, 2015, pursuant to CAA section 110(k)(1)(B), 42 U.S.C. § 7410(k)(1)(B), EPA determined that the submission was administratively complete ( see Dkt. No. 35

- 1);
WHEREAS, on Janua ry 30, 2015, EPA received a nonattainment SIP submission

from Puerto Rico addressing the requirements of CAA section 110(a)(2)(I), 42 U.S.C. §
7410(a)(2)(I)
, for the 2008 lead NAAQS as to the Arecibo area; WHEREAS, in a letter dated February 26 , 2015 , purs uant to CAA section 110(k)(1)(B), 42 U.S.C. § 7410(k)(1)(B), EPA determined that the submission was administratively complete ( see Dkt. No. 35

- 2);3

Case No. 3:14

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28 WHEREAS, Claim 1 is therefore now moot; WHEREAS, in Claim 2, Plaintiffs allege that EPA has failed to perfor m a duty mandated by CAA section 110(k)(2)

- (4), 42 U.S.C. § 7410(k)(2)

- (4), to take final action to approve or disapprove, in whole or in part, certain 2008 lead NAAQS nonattainment

SIP submissions from Florida (Tampa area), Minnesota (Eagan area), Texas ( Frisco area), Indiana (Muncie area), and Ohio (Cleveland and Delta areas) addressing the requirements of 42 U.S.C. § 7410(a)(2)(I)
, see First Am. Compl. ¶¶ 42

- 58 ; WHEREAS, on November 17, 2014, Indiana partially withdrew its 2008 lead NAAQS nonattainment S IP for the Muncie area, addressing the requirements of 42
U.S.C. § 7410(a)(2)(I), specifically the attainment demonstration, and also requested that EPA make a clean data determination for the area as soon as three years of complete monitoring data are ava ilable (period ending December 2015), and, therefore, Claim 2 is moot as to the withdrawn portions of Indiana ’s 2008 lead NAAQS nonattainment SIP for
the Muncie area;
WHEREAS, in the absence of a clean data determination
, a future SIP submission addressing the withdrawn portions of the 2008 lead NAAQS nonattainment SIP for the

Muncie area , which is not a part of this Consent Decree, may be required;

WHER E AS, the sole point source of lead emission s in the Frisco, Texas
nonattainment area, the Exide Frisco B attery Recycling Center, 7471 South Fifth Street, Frisco, Collin County, Texas
, a secondary lead smelter, closed on November 30, 2012 ; WHEREAS, the Parties believe that the current Texas SIP submission was based upon the existence of this sole source and, therefore, EPA action on the pending submission would not be appropriate in light of the current circumstances;
WHEREAS, Plaintiffs agreed to withdraw Claim 2 as to the Frisco area ; WHEREAS, on April 3, 2015, EPA took final action approv ing revisions to th e
SIP , submitted by the State of Florida through the Florida Department of Environmental Protection, to EPA on June 29, 2012, as amended on June 27, 2013, for the purpose of providing for attainment of the 2008 l ead NAAQS in the Hillsborough area, Final Ru le
,4

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28 80 Fed. Reg. 20,441 (Apr. 16, 2015), and, therefore, Claim 2 is now moot as to the Hillsborough area ; WHEREAS, EPA has not taken final action pursuant to CAA sections 110(k)(2)

- (4), 42 U.S.C. §§ 7410(k)(2)

- (4), to approve or disapprove, in whole or in part, certain plan submissions or relevant portions thereof , with respect to the remaining four

nonattainment areas ( i. e

. , Minnesota (Eagan area), Ohio (Cleveland and Delta areas), and Indiana (Muncie area)) ; WHEREAS, in Claim 3 Plaintiffs allege that EPA has failed to perform a duty mandated by CAA section 110(k)(2)

- (4), 42 U.S.C. § 7410(k)(2)

- (4), to take final action to approve or disapprove, in whole or in part, North Carolina’s infrastructure SIP submission addressing the requirements of 42 U.S.C. § 7 410(a)(2) for the 2008 lead
NAAQS
, see First Am. Compl. ¶¶ 64

- 65; WHEREAS, on February 20, 2015, EPA took final action approving North Carolina’s infrastructure SIP submission for the 2008 lead NAAQS addressing the requirements of CAA §§ 110(a)(2)(A), 110 (a)(2)(B), 110(a)(2)(D)(i)(I) (prong 1), 110(a)(2)(D)(i)(I) (prong 2), 110(a)(2)(D)(i)(II) ( prong 4 ) , 110(a)(2)(D)(ii), 110(a)(2)(E)(i), 110(a)(2)(E)(iii), 110(a)(2)(F), 110(a)(2)(G), 110(a)(2)(H), 110(a)(2)(K), 110(a)(2)(L), and 110(a)(2)(M), Final Rule
, 80 Fed. Reg. 12343 (Mar. 9, 2015), and,
therefore, Claim 3 is moot as to those elements; WHEREAS, the relief requested in the First Amended Complaint includes, among other things, an order from this Court to establish a date certain by which EPA must

fulfi ll its obligations for Claims 1, 2, and 3;
WHEREAS, Plaintiff s 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 s 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;5

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28 WHEREAS, Plaintiff s and EPA consider this Consent Decree to be an adequate and equitable resolution of all the claims in this matter and therefor e wish to effectuate a
settlement; WHEREAS, it is in the interest of the public, Plaintiffs, EPA, and judicial economy to resolve this matter without protracted litigation; WHEREAS, Plaintiffs 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 that venue is proper in the Northern District of California pursuant to 28
U.S.C. § 1391(e); WHEREAS, the Court, by entering this Consent Decree, finds that the C onsent Decree is fair, reasonable, in the public interest, and consistent with the Clean Air Act; NOW THEREFORE, before the taking of testimony, without trial or determination of any issues of fact or law, and upon the consent of Plaintiffs Center for

Biol ogical Diversity and Center for Environmental Health and Defendant EPA, it is hereby ordered, adjudged and decreed that: 1. The appropriate EPA official shall: a. sign a notice of final rulemaking to approve , disapprove, or approve in part and disapprove in part, certain SIP submissions p ursuant to section 110(k) (2)

- (4) of
the CAA, 42 U.S.C. § 7410(k)( 2)

- (4), no later than the date indicated below for the following areas designated nonattainment addressing the requirements of section
110(a)(2)(I), 42 U.S.C . § 7410 (a)(2)(I), for the 200 8 lead NAAQS:

i. Minnesota

- Eagan area by November 27, 2015;

ii. Ohio

- Cleveland area by September 25, 2015 ;
iii. Ohio

- Delta area by September 25, 2015 ; and

iv. Indiana

- Muncie area by November 27, 2015. b. sign a notice of final rulemaking to approve , disapprove, or approve in part and disapprove in part, an infrastructure SIP p ursuant to section 110(k) (2)

- (4) of the
CAA, 42 U.S.C. § 7410(k)( 2)

- (4), no later than May 31, 2016
, for North Carolina6

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28 addressing the requiremen ts of CAA §§ 110(a)(2)(C), 110(a)(2)(D)(i)(II) ( prong 3

- interfere with measures required to be included in the applicable implementation plan for any other State under part C of this subchapter to protect visibility ), 110(a)(2)(E)(ii), and
110(a)(2)(J), for the 200 8 lead NAAQS. 2. If any State withdraws its above

- listed submittal or any portion thereof, then EPA’s obligation to take the action required by Paragraph 1 with respect to such withdrawn portions is automatically terminated.

3. EPA shall have no further obligation as to the following areas under Paragraph 1(a) if EPA signs a final rulemaking determining that the area has attained the 2008 lead
NAAQS before EPA completes its obligation under Paragraph 1(a):

i. Minnesota

- Eagan area ;
ii . Ohio

- Cleveland area;

iii. Ohio

- Delta area; or

iv. Indiana

- Muncie area. 4. EPA shall, within 15 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 pu blication. 5. After EPA has completed the actions set forth in Paragraph 1 of this Consent Decree and after notice of each final action required by Paragraph 1 has been published in the Federal Register and the issue of costs of litigation, including reas onable attorneys fees has been resolved, EPA may move to have this Decree terminated and the action dismissed. Plaintiffs shall have fourteen (14) days in which to respond to such a motion, unless the parties stipulate to a longer time for Plaintiffs to r espond.

6. The deadline s established by this Consent Decree may be extended (a) by written stipulation of Plaintiff s 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

Proce dure and upon consideration of any response by Plaintiff s and any reply by EPA

.7

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28 7. If a lapse in appropriations occurs within one hundred and twenty (120) days prior to the deadline in Paragraph 1 in this Decree, that deadline shall be extended

automati cally one day for each day of the lapse in appropriations. Nothing in this paragraph shall preclude EPA from seeking additiona l time pursuant to Paragraph 6.

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

and final settl ement of all claims that Plaintiff s have asserted against the United States, including EPA, under any provision of law in connection with Center for Biological Diversity v. McCarthy , Case No. 3:14

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- WHO (N.D. Cal.). The Center for Biological Divers ity and Center for Environmental Health therefore discharge and covenant not to sue the United States, including EPA, for any such claims. 9. In the event of a dispute between Plaintiffs and EPA concerning the interpretation or implementation of any aspec t 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. 10. No motion seeking to enforce this Consent Decree or for contempt of Court

shall be properly filed unless the procedure set forth in Paragraph 9 has been followed,

and the non

- moving party has been provided with written notice at least ten (10) business days before the filing of such motion.

11

. The deadline for filing a motion for costs of litigation (including reasonable attorney fees) for activities 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 re solve informally any claim for costs of litigation (including reasonable attorney fees), and if they cannot, Plaintiffs will file a motion for costs of litigation (including reasonable attorney fees) or a stipulation or motion to extend

the deadline to fil e such a motion. EPA reserves the right to oppose any such request.8

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28 12. 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 reasonable attorney fees. 13. 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), including final action pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), approving, disapproving, or approving in part and disapproving in part a SIP

submittal or (b) to waive any claims, remedies, or defenses that the parties m ay have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1). 14. 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 whi ch 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 li mitation or modification of EPA’s discretion within the meaning of this paragraph. 15. 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,

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

the actions addressed in this Consent Decree.

1 6 . Plaintiff s reserve the right to seek additional costs of litigation, including reasonable attorney fees, incurred subse quent to entry of this Consent Decree and arising

from Plaintiffs ’ need to enforce or defend against efforts to modify its terms or the underlying schedule outlined herein, or for any other unforeseen continuation of this action. EPA reserves the right to oppose any such request for additional costs of litigation, including reasonable attorney fees.9

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28 17. It is hereby expressly understood and agreed that this Consent Decree was jointly drafted by Plaintiffs and EPA. Accordingly, the parties hereby agree th at 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. 18. The parties agree and acknowledge t hat 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. 19. Any notices required or provided for by this Conse nt 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 s Center for Biological Diversi t y and Center for Environmental Health :
Jonathan Evans (Cal. Bar #247376) Center for Biological Diversity 351 California St., Suite 600 San Francisco, CA 94104 Tel. (415) 436

- 9682 x318 Email: jevans@biologicaldiversity.org
Kimberly A. Sturm (Ga. Bar # 690 615) 260 Peachtree Street, N.W. Suite 1200 Atlanta, GA. 30303 Center Street Tel. (404) 525

- 9205 Email: ksturm@stackenv.com10

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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: Leslie.Hill@usdoj.gov

20. EPA and Plaintiffs recognize and acknowledge that the obligations imposed upon EPA under this Consent Decree can only be undertaken using appropr iated 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. § 134 1, or any other applicable provision of law. 21. 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 Decr ee may not be used as evidence in any litigation between the parties. 22. The undersigned representatives of Plaintiffs Center for Biological Diversity and Center for Environmental Health and Defendant EPA certify that they are fully authorized by the par ty they represent to consent to the Court’s entry of the terms and

conditions of this Decree.

SO ORDERED on this _____ day of _____________________, 2015.

________________________________ WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE

//11

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28 COUN SEL FOR PLAINTIFF:

/s/ Jonathan Evans (email authorization) Jonathan Evans (Cal. Bar #247376) Center for Biological Diversity 351 California St., Suite 600 San Francisco, CA 94104 Tel. (415) 436

- 9682 x318 Email: jevans@biologicaldiversity.org

Attorney for Plaintiff Center for Biological Diversity
Kimberly A. Sturm (Ga. Bar # 690615) 260 Peachtree Street, N.W. Suite 1200 Atlanta, GA. 30303 Center Street Tel. (404) 525

- 9205 Email: ksturm@stackenv.com
Attorney for Plaintiff Center for Environmental He alth

COUNSEL FOR DEFENDANT: JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division

/s/ Leslie M. Hill LESLIE M. HILL (D.C. Bar No. 476008) Environmental Defense Section 601 D Street N.W., Suite 8000 Washington D.C. 20004 T el. (202) 514

- 0375 Email: Leslie.Hill@usdoj.gov
Attorneys for Defendant EPA

Of counsel:

Jonathan Skinner

- Thompson Office of General Counsel U.S. Environmental Protection Agency