IN THE UNITED STATES DI STRICT COURT FOR THE DISTRICT OF COLUMBIA
NATIONAL PARKS CONSERVATION ) ASSOCIATION, MONTANA ENVI RONMENTA L ) IN FORMAT ION CENTER, GRAND CANYON ) TRUST, SAN JUAN CITI ZENS ALLIANCE, ) OUR CHILDREN'S EARTH FOU NDATION, ) PLAI NS JUSTI CE, POWDER R IVER BASIN ) CIVI L ACTION NO. RESOURCE COUNCIL, SI ERRA CLUB, ) 1: 11

- cv - 01 5 48 (ABJ) AND ENVI RONMENTALDE FENSE FUND ) ) Plaintiffs, ) ) v. ) ) LISA JACKSON, in her official capacit y as ) Admi nistrator, United States Environmental ) Protection Agency , ) ) Defendant. ) ________________________________________________) SECOND PARTIAL CONSENT DECREE This Second Partial Consent Decree (hereinafter “Consent Decree” or “decree ”) is entered into b y Plaintiffs National Parks Conservation Association, Montana Environmental In formation Center , Grand Cany on 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 L isa 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 Ac t, 42 U.S.C. § 7410(c), requires the Administrator of EPA to promulgate a federal implementation plan (“ FIP ”) within two y ears of a2

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 y ears after the Administrator

— (A) finds that a State has failed to make a required submission or finds that the plan or plan revision submitt ed 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 regio nal 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

- ye ar clock for the promulgation b y EPA of a FI P. EPA is not required to promulgate a FIP if th e state makes the required SIP submittal and EPA takes final action to approve the submittal within two ye ars 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 SIP s for an y 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 element s; WHEREAS, Plaintiffs served prior notice on the Administrator alleg ing 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 b y the Administrator to perform nondiscretionary duties as referenced above;3

WHEREAS, on March 30, 2012, the Court entered a Partial Consent Decree resolving all claims asserted b y 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 entit led, Approval and Promulgation of Air Quality Implementation Plans; State of Florida; Regional Haze State Implementation Plan. WHEREAS , Plaintiffs and EPA (collectivel y, 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 t o 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. §§ 740 1 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 act ion 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 Qualit y Implementation Plans; State of Florida; Regional Haze State Implementation Plan. Such notic e of final4

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 collectivel y meet the requirements of 40 C.F.R. §51.30 8(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 promul gation of a partial FIP, or approval of a SIP or promulgation of a FIP in the alternative, for Florida that collectivel y meet all remaining regional haze implementation plan requirements that were due b y December 17, 2007 under EPA’s regional haze regulati ons. 5. By

July 1 5 , 201 3 , 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 SI P, or promulgating a partial FIP and unconditional approval of a portion of a SI P, that collectively

meet all remaining regional haze implementation plan
re quirements 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 upon5

motion made pursuant to the Federal Rules of Civil Procedure b y EPA and upon consideration of an y response by Plaintiffs and reply

by EPA. 7. EPA agrees that Plaintiffs are entitled to recover their costs of litigation (including attorney s’ fees) (“lit igation 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 an y motion for litigation costs for activities performed prior to the lodging of this decree with the Co urt is hereb y extended for a period of 120 days. During this time the Parties shall seek to resolve informal ly any claim for litigation costs , and if they cannot reach a resolution, Plaintiffs may seek such litigation costs from the Court. The Court shal l retain jurisdiction to resolve an y 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 w ill be entitled to fees for an y work performed after the lodging of the Consent Decree, and the parties reserve all claims and defenses with respect to an y future costs of litigation claim. 8. No later than ten business day s following signature by the Administrator or her delegatee of the notice of an y 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

ty pographical 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 day s following signature by the Administrator or her delegatee

.6

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 Con sent Decree shall be construed to limit or modify an y discretion accorded EPA b y the CAA or b y 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 an y 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 paragra ph. 11. Nothing in this Consent Decree shall be construed as an admission of an y 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 FI Ps 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 constr ued 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 wa ive 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 or7

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

not ices 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 **For Defendant**  **:** Eileen T. McDonough eileen.mcdonough@usdoj.gov Lea Anderson anderson.lea@epa.gov
15. In the event of a dispute among th e Parties concerning the interpretation or implementation of any

aspect of this Consent Decree, the disputing Party shall provide the other Part y with a written notice outlining the nature of the dispute and requesting informal negotiations. If the Partie s cannot reach an agreed

- upon resolution, any Part y 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 properl y filed unless the Part y seeking to enforce this Co nsent Decree has followed the pro cedure set forth in Paragraph 15

. 17. The Court shall retain jurisdiction to determine and effectuate compliance with this Consent Decree, to resolve an y disputes thereunder, and to consider an y re quests for8

costs of litigatio n (including reasonable attorney s’ fees). After EPA’s obligations under Paragraphs 3 through 5 have been completed, EPA may move to have this C onsent D ecree terminated. Plaintiffs shall have 14 day s in which to respond to such motion. 18. The Parties agree and acknowledge that before this Consent Decree can be finalized and entered b y 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 no tice of this Consent Decree to the Federal Register for publication and public comment within 10 business day s 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 an y 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 th e 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. Itis hereby

expressl y 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.9

20. The undersigned certify that they are fully authorized by

the Part y 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 PLAI

NTIFFS /s/ /s/ Attorney at Law Earthjustice 910 Kearney

Street 1625 Ma ssachusetts 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

Gen eral 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. L EA 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