IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

NATIONAL PARKS CONSERVATION )

ASSOCIATION, MONTANA ENVIRONMENTAL )

INFORMATION CENTER, GRAND CANYON )

TRUST, SAN JUAN CITIZENS ALLIANCE, )

OUR CHILDREN'S EARTH FOUNDATION, )

PLAINS JUSTICE, POWDER RIVER BASIN ) CIVIL ACTION NO.

RESOURCE COUNCIL, SIERRA CLUB, ) 1: 11-cv-01548 (ABJ)

AND ENVIRONMENTAL DEFENSE FUND )

)

Plaintiffs, )

)

v. )

)

LISA JACKSON, in her official capacity as )

Administrator, United States Environmental )

Protection Agency, )

)

Defendant. )

________________________________________________)

SECOND PARTIAL CONSENT DECREE

This Second Partial Consent Decree (hereinafter “Consent Decree” or “decree”) is 

entered into by Plaintiffs National Parks Conservation Association, Montana Environmental 

Information Center, Grand Canyon Trust, San Juan Citizens Alliance, Our Children's Earth 

Foundation, Plains Justice, Powder River Basin Resource Council, Sierra Club, and 

Environmental Defense Fund (“Plaintiffs”), and by Defendant Lisa Jackson, in her official 

capacity as Administrator of the United States Environmental Protection Agency (“EPA” or “the 

Administrator”).

WHEREAS, Section 110(c) of the Clean Air Act, 42 U.S.C. § 7410(c), requires the 

Administrator of EPA to promulgate a federal implementation plan (“FIP”) within two years of a 
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finding that a state has failed to make a required state implementation plan (“SIP”) submittal. 

The pertinent provision of Section 110(c) states:

(1) The Administrator shall promulgate a Federal implementation plan at any time within 2 years 

after the Administrator—

(A) finds that a State has failed to make a required submission or finds that the plan or 

plan revision submitted by the State does not satisfy the minimum criteria established 

under section 110(k)(1)(A).

WHEREAS, on January 15, 2009, EPA found that a number of States, including Florida,

had failed to submit Clean Air Act SIPs addressing any of the required regional haze SIP 

elements of 40 C.F.R. § 51.308, 74 Fed. Reg. 2392, 2393 (Jan. 15, 2009);

WHEREAS, on January 15, 2009, EPA stated that its finding “starts the two-year clock 

for the promulgation by EPA of a FIP. EPA is not required to promulgate a FIP if the state 

makes the required SIP submittal and EPA takes final action to approve the submittal within two 

years of EPA’s finding.” 74 Fed. Reg. at 2393; 

WHEREAS, EPA did not, by January 15, 2011, promulgate regional haze FIPs or 

approve regional haze SIPs for any of the States, including Florida, for which it found on January 

15, 2009 a failure to submit SIPs addressing any of the required regional haze SIP elements;

WHEREAS, Plaintiffs served prior notice on the Administrator alleging that her failure to 

promulgate regional haze FIPs as described above constituted failure to perform duties that are 

not discretionary under the Act, and of Plaintiffs’ intent to initiate the present action. This notice 

was provided via certified letters, posted January 19, 2011, and addressed to the Administrator;

WHEREAS, Plaintiffs filed a complaint pursuant to CAA section 304(a)(2), 42 U.S.C. § 

7604(a)(2), alleging failure by the Administrator to perform nondiscretionary duties as 

referenced above; 
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WHEREAS, on March 30, 2012, the Court entered a Partial Consent Decree resolving all 

claims asserted by Plaintiffs in this matter except for claims with respect to Florida; 

WHEREAS, on May 25, 2012, EPA published a notice of proposed rulemaking at 77 

Fed. Reg. 31240 entitled, Approval and Promulgation of Air Quality Implementation Plans; State 

of Florida; Regional Haze State Implementation Plan. 

WHEREAS, Plaintiffs and EPA (collectively, the “Parties”) wish to effectuate a 

settlement of Plaintiffs’ claims in this matter with respect to Florida without expensive and 

protracted litigation, and without a litigated resolution of any issue of law or fact;

WHEREAS, the Parties consider this Consent Decree to be an adequate and equitable 

resolution of the claims with respect to Florida asserted in this case and consent to entry of this 

Consent Decree; and

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

fair, reasonable, in the public interest, and consistent with the CAA, 42 U.S.C. §§ 7401 et seq.

NOW THEREFORE, before the taking of testimony, without trial or determination of 

any issue of fact or law, and upon the consent of the Parties, it is hereby ORDERED, 

ADJUDGED, and DECREED that:

1. This Court has subject matter jurisdiction over the claims set forth in the Complaint and 

to order the relief contained in this Consent Decree. 

2. Venue is proper in the United States District Court for the District of Columbia.

3. By November 15, 2012, EPA shall sign a notice(s) of final rulemaking taking action on 

the matters addressed in the May 25, 2012, notice of proposed rulemaking, published at 

77 Fed. Reg. 31240, entitled Approval and Promulgation of Air Quality Implementation 

Plans; State of Florida; Regional Haze State Implementation Plan. Such notice of final 
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rulemaking shall include, but not be limited to, unconditional approval of SIP, 

promulgation of a FIP, or promulgation of a partial FIP and unconditional approval of a 

portion of a SIP, that collectively meet the requirements of 40 C.F.R. §51.308(e) with 

respect to each of the following sources (or Units, where specified): a) Tampa Electric 

Company – Big Bend Station (Units 1, 2, 3); b) City of Tallahassee – Purdom Generation 

Station (Unit 7); c) Florida Power & Light – Port Everglades Power Plant (Units 3,4); d) 

CEMEX; and e) White Springs Agricultural Chemical – SR/SC Complex.

4. By December 3, 2012, EPA shall sign a notice(s) of proposed rulemaking in which it 

proposes approval of a SIP, promulgation of a FIP, partial approval of a SIP and 

promulgation of a partial FIP, or approval of a SIP or promulgation of a FIP in the 

alternative, for Florida that collectively meet all remaining regional haze implementation 

plan requirements that were due by December 17, 2007 under EPA’s regional haze 

regulations. 

5. By July 15, 2013, EPA shall sign a notice(s) of final rulemaking promulgating a FIP for 

Florida to meet all remaining regional haze implementation plan requirements that were 

due by December 17, 2007 under EPA’s regional haze regulations, unless, by such 

deadline EPA has for Florida signed a notice of final rulemaking unconditionally

approving a SIP, or promulgating a partial FIP and unconditional approval of a portion of 

a SIP, that collectively meet all remaining regional haze implementation plan 

requirements that were due by December 17, 2007 under EPA’s regional haze 

regulations.

6. The deadlines in Paragraphs 3 through 5 above may be extended by written stipulation 

executed by counsel for EPA and Plaintiffs and filed with the Court, or by the Court upon 
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motion made pursuant to the Federal Rules of Civil Procedure by EPA and upon 

consideration of any response by Plaintiffs and reply by EPA. 

7. EPA agrees that Plaintiffs are entitled to recover their costs of litigation (including 

attorneys’ fees) (“litigation costs”) incurred in connection with Plaintiffs’ claims with 

respect to Florida pursuant to 42 U.S.C. § 7604(d). The deadline for the filing of any 

motion for litigation costs for activities performed prior to the lodging of this decree with 

the Court is hereby extended for a period of 120 days. During this time the Parties shall 

seek to resolve informally any claim for litigation costs, and if they cannot reach a 

resolution, Plaintiffs may seek such litigation costs from the Court. The Court shall 

retain jurisdiction to resolve any request for litigation costs. Plaintiffs reserve their right 

to seek litigation costs for any work performed after the lodging of this Consent Decree. 

EPA does not concede that Plaintiffs will be entitled to fees for any work performed after 

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

respect to any future costs of litigation claim. 

8. No later than ten business days following signature by the Administrator or her delegatee

of the notice of any proposed or final rulemaking referenced above, EPA shall deliver the 

notice to the Office of the Federal Register for review and prompt publication. Following 

such delivery to the Office of the Federal Register, EPA shall not take any action (other 

than is necessary to correct any typographical errors or other errors in form) to delay or 

otherwise interfere with publication of such notice in the Federal Register. EPA shall 

make available to Plaintiffs copies of the notices referenced herein within five business 

days following signature by the Administrator or her delegatee. 
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9. Plaintiffs and EPA shall not challenge the terms of this Consent Decree or this Court’s 

jurisdiction to enter and enforce this Consent Decree.

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

accorded EPA by the CAA 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 responses or final actions contemplated by this Consent Decree. 

EPA’s obligation to perform the actions specified by Paragraphs 3 through 5, and 8, does 

not constitute a limitation or modification of EPA’s discretion within the meaning of this 

paragraph.

11. Nothing in this Consent Decree shall be construed as an admission of any issue of fact or 

law or to waive or limit any claim or defense, on any grounds, related to any final action 

EPA may take with respect to the SIPs or FIPs identified in paragraphs 3 through 5 of 

this Consent Decree. 

12. Nothing in this Consent Decree shall be construed to confer upon the district court 

jurisdiction to review any final decision made by EPA pursuant to this Consent Decree. 

Nothing in this Consent Decree shall be construed to confer upon the district court 

jurisdiction to review any issues that are within the exclusive jurisdiction of the United 

States Court of Appeals pursuant to 42 U.S.C. §§ 7607(b)(1) and 7661d. Nothing in this 

Consent Decree shall be construed to waive any remedies or defenses the Parties may

have under 42 U.S.C. § 7607(b)(1).

13. The Parties 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 
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constitute a commitment or requirement that EPA obligate or pay funds in contravention 

of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law.

14. Any notices required or provided for by this Consent Decree shall be made in writing and 

sent via e-mail to the following:

For Plaintiffs:

David Baron

dbaron@earthjustice.org

Reed Zars

rzars@lariat.org

ForDefendant:

Eileen T. McDonough

eileen.mcdonough@usdoj.gov

Lea Anderson

anderson.lea@epa.gov

15. In the event of a dispute among the Parties 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. If the Parties cannot reach an agreed-upon resolution, any Party 

may move the Court to resolve the dispute.

16. No motion or other proceeding seeking to enforce this Consent Decree or for contempt of 

court shall be properly filed unless the Party seeking to enforce this Consent Decree has 

followed the procedure set forth in Paragraph 15. 

17. The Court shall retain jurisdiction to determine and effectuate compliance with this 

Consent Decree, to resolve any disputes thereunder, and to consider any requests for 
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costs of litigation (including reasonable attorneys’ fees). After EPA’s obligations under 

Paragraphs 3 through 5 have been completed, EPA may move to have this Consent 

Decree terminated. Plaintiffs shall have 14 days in which to respond to such motion. 

18. The Parties agree and acknowledge that before this Consent Decree can be finalized and 

entered by the Court, EPA must provide notice in the Federal Register and an opportunity

for comment pursuant to Clean Air Act §113(g), 42 U.S.C. § 7413(g). EPA will deliver a 

public notice of this Consent Decree to the Federal Register for publication and public 

comment within 10 business days after lodging this Consent Decree with the Court. After 

this Consent Decree has undergone an opportunity for notice and comment, EPA’s 

Administrator and the Attorney General, as appropriate, will promptly consider any such 

written comments in determining whether to withdraw or withhold consent to this 

Consent Decree, in accordance with section 113(g) of the Clean Air Act. If the 

Administrator or the Attorney General elects not to withdraw or withhold consent to this 

Consent Decree, the Parties will promptly file a motion that requests the Court to enter 

this Consent Decree. 

19. It is hereby expressly understood and agreed that this Consent Decree was jointly drafted 

by the Parties and 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. 
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20. The undersigned certify that they are fully authorized by the Party or Parties they

represent to bind that Party or those Parties to the terms of this Consent Decree.

SO ORDERED this day of 2012.

 

HON. AMY BERMAN JACKSON

United States District Judge

SO AGREED:

FOR PLAINTIFFS

/s/ /s/ 

Attorney at Law Earthjustice

910 Kearney Street 1625 Massachusetts Ave., NW, #702

Laramie, WY 82070 Washington, DC 20036

307-745-7979 202-667-4500 ext.203

rzars@lariat.org dbaron@earthjustice.org

FOR DEFENDANT

IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

/s/ 

Environmental Defense Section

U.S. Department of Justice

P.O. Box 23986

Washington, D.C. 20026-3986

(202) 514-3126

Of Counsel:

M. LEA ANDERSON

Office of General Counsel

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, N. W. 

Washington, DC 20460

(202) 564-5571

anderson.lea@epa.gov