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Case No. 3:14-cv-05138-WHO

[PROPOSED] CONSENT DECREE

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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

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 DIVISION

CENTER FOR BIOLOGICAL 

DIVERSITY, et al.

Plaintiffs,

v.

GINA McCARTHY, in her official capacity 

as the Administrator of the United States 

Environmental Protection Agency,

Defendant.

Case No. 3:14-cv-05138-WHO

[PROPOSED] CONSENT DECREE
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Case No. 3:14-cv-05138-WHO

[PROPOSED] CONSENT DECREE

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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, Plaintiffs allege 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, 42 U.S.C. § 

7604(a)(2);

WHEREAS, in Claim 1, Plaintiffs 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 Ambient 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 2008 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 January 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, 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. 35-2);
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Case No. 3:14-cv-05138-WHO

[PROPOSED] CONSENT DECREE

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WHEREAS, Claim 1 is therefore now moot; 

WHEREAS, in Claim 2, 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, 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 SIP 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 available (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;

WHEREAS, the sole point source of lead emissions in the Frisco, Texas 

nonattainment area, the Exide Frisco Battery 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 approving revisions to the 

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 lead NAAQS in the Hillsborough area, Final Rule, 
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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. § 7410(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 

fulfill its obligations for Claims 1, 2, and 3;

WHEREAS, Plaintiffs 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, Plaintiffs 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;
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Case No. 3:14-cv-05138-WHO

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WHEREAS, Plaintiffs 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, 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 Consent 

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 

Biological 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 pursuant 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 2008 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 pursuant 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 Carolina 
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Case No. 3:14-cv-05138-WHO

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addressing the requirements 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 2008 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 publication.

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 reasonable 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 respond.

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

written stipulation of Plaintiffs 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 Plaintiffs and any reply by EPA. 
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Case No. 3:14-cv-05138-WHO

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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 

automatically one day for each day of the lapse in appropriations. Nothing in this 

paragraph shall preclude EPA from seeking additional time pursuant to Paragraph 6.

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

and final settlement of all claims that Plaintiffs 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-cv-05138-WHO (N.D. Cal.). The Center for 

Biological Diversity 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 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.

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 resolve 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 file such a motion. EPA reserves the right to oppose any such request. 
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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 may 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 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.

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, 

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

the actions addressed in this Consent Decree.

16. Plaintiffs reserve the right to seek additional costs of litigation, including 

reasonable attorney fees, incurred subsequent 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.
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Case No. 3:14-cv-05138-WHO

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

jointly drafted by Plaintiffs 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.

18. 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.

19. 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 Plaintiffs Center for Biological Diversity 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 # 690615)

260 Peachtree Street, N.W. Suite 1200

Atlanta, GA. 30303 Center Street

Tel. (404) 525-9205

Email: ksturm@stackenv.com
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Case No. 3:14-cv-05138-WHO

[PROPOSED] CONSENT DECREE

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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 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. 

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 Decree 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 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.

________________________________

WILLIAM H. ORRICK

UNITED STATES DISTRICT JUDGE

//
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COUNSEL 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 

Health

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

Tel. (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