1 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 

DONALD van der VAART, in his official 

capacity as Secretary of the North Carolina 

Department of Environmental Quality; and 

the NORTH CAROLINA DEPARTMENT 

OF ENVIRONMENTAL QUALITY, 

Plaintiffs, 

v. 

GINA McCARTHY, in her official capacity 

as the Administrator of the United States 

Environmental Protection Agency; 

HEATHER McTEER TONEY, in her 

official capacity as Regional Administrator 

of the Southeast Region of the United States 

Environmental Protection Agency; and the 

UNITED STATES ENVIRONMENTAL 

PROTECTION AGENCY, 

Defendants. 

Case No. 5:15-cv-593-FL 

[PROPOSED] CONSENT DECREE 

[PROPOSED] CONSENT DECREE 

WHEREAS, on November 13, 2015, Plaintiffs Donald van der Vaart 

in his official capacity as Secretary of North Carolina Department of Environmental 

Quality and the North Carolina Department of Environmental Quality (collectively 

“NCDEQ”) filed a Complaint for Declaratory and Injunctive Relief in the abovecaptioned matter against Gina McCarthy, in her official capacity as Administrator of the 

United States Environmental Protection Agency, Heather McTeer Toney, in her official 

capacity as Regional Administrator of the Southeast Region of the United States 

Environmental Protection Agency, and the United States Environmental Protection 

Agency (collectively “EPA”); 

Case 5:15-cv-00593-FL Document 20-1 Filed 03/23/16 Page 1 of 9
2 

WHEREAS, NCDEQ alleges 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, pursuant to CAA section 166(a), 42 U.S.C. § 7476(a), EPA 

promulgated a final rule issuing prevention of significant deterioration (“PSD”) program 

increments and implementing regulations for the National Ambient Air Quality Standard 

(“NAAQS”) for particulate matter less than 2.5 microns in diameter (“PM2.5”) on October 

20, 2010, Final Rule, Prevention of Significant Deterioration (PSD) for Particulate 

Matter Less Than 2.5 Micrometers (PM2.5)--Increments, Significant Impact Levels (SILs) 

and Significant Monitoring Concentration (SMC), 75 Fed. Reg. 64,864 (Oct. 20, 2010) 

(“PM2.5 Increments Rule”); 

WHEREAS, pursuant to CAA section 166(b), 42 U.S.C. § 7476(b), state 

implementation plan (“SIP”) revisions addressing regulations promulgated pursuant to 

CAA section 166(a), 42 U.S.C. § 7476(a), are due to be submitted to the Administrator 

within 21 months after such date of promulgation. In the case of the PM2.5 Increments 

Rule, SIP submissions addressing the PM2.5 increments and implementing regulations 

were due July 20, 2012; 

WHEREAS, EPA must determine whether a state’s submission is complete 

within six months after EPA receives the submission. 42 U.S.C. § 7410(k)(1)(B). If 

EPA does not determine completeness of the plan or revision embodied in the SIP 

submission within six months, then the submission is deemed complete by operation of 

law after six months. Id.; 

WHEREAS, within 12 months of a determination of completeness or 

completeness by operation of law, EPA must act on the plan or revision. 42 U.S.C. § 

7410(k)(2). EPA must approve, disapprove, or conditionally approve, in whole or in part, 

the plan or revision. Id. § 7410(k)(3)-(4); 

Case 5:15-cv-00593-FL Document 20-1 Filed 03/23/16 Page 2 of 9
3 

WHEREAS, Plaintiffs submitted a SIP revision to address the PM2.5 PSD 

increments and implementing regulations to EPA on September 5, 2013; 

WHEREAS, EPA issued a determination of completeness as to Plaintiffs’ 

September 5, 2013 SIP revision addressing the PM2.5 PSD increments and implementing 

regulations on December 13, 2013; 

WHEREAS, Plaintiffs allege that EPA has failed to perform a duty mandated by 

CAA sections 110(k)(2)-(4), 42 U.S.C. §§ 7410(k)(2)-(4), to take final action to approve, 

disapprove, or conditionally approve, in whole or in part, their September 5, 2013 SIP 

revisions addressing the PM2.5 PSD increments and implementing regulations; 

WHEREAS, EPA admits that it has not taken final action on Plaintiffs’ 

September 5, 2013 SIP revision addressing the PM2.5 PSD increments and implementing 

regulations; 

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 fulfill its 

obligations; 

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; 

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, NCDEQ, EPA, and judicial 

economy to resolve this matter without protracted litigation; 

 WHEREAS, NCDEQ 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. § 

Case 5:15-cv-00593-FL Document 20-1 Filed 03/23/16 Page 3 of 9
4 

7604(a)(2), and that venue is proper in the Eastern District of North Carolina 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 NCDEQ and EPA, it 

is hereby ordered, adjudged and decreed that: 

 1. The appropriate EPA official shall sign a notice of final rulemaking to 

approve, disapprove, or conditionally approve, in whole or in part, pursuant to sections 

110(k)(2)-(4) of the CAA, 42 U.S.C. §§ 7410(k)(2)-(4), the portion of North Carolina’s 

September 5, 2013 SIP revision addressing the PM2.5 PSD increments and implementing 

regulations, by no later than September 23, 2016.

2. EPA shall, within 12 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. If North Carolina withdraws the submittal described above in Paragraph 1, 

then EPA’s obligation to take the action required by Paragraph 1 with respect to that 

submittal is automatically terminated. 

4. After EPA has completed the action set forth in Paragraph 1 of this Consent 

Decree and after notice of the action required by Paragraph 1 has been published in the 

Federal Register and the issue of costs of litigation, including 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 motion, unless the 

parties stipulate to a longer time for Plaintiffs to respond. 

5. The deadline 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. 

Case 5:15-cv-00593-FL Document 20-1 Filed 03/23/16 Page 4 of 9
5 

6. If a lapse in appropriations for EPA occurs within one hundred and twenty 

(120) days prior to the deadline in Paragraph 1 of this Consent 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 an additional extension pursuant to 

Paragraph 5. 

 7. NCDEQ and EPA agree that this Consent Decree shall constitute a complete 

and final settlement of all claims NCDEQ asserts against the United States, including 

EPA, under any provision of law in connection with DONALD van der VAART, et al. v. 

McCarthy, et al., Case No. 5:15-cv-593-FL (E.D. N.C.). NCDEQ therefore discharges 

and covenants not to sue the United States, including EPA, for any such claims. 

8. In the event of a dispute between NCDEQ 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. 

9. No motion seeking to enforce this Consent Decree or for contempt of Court 

shall be properly filed unless the procedure set forth in Paragraph 8 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. 

10. Upon entry of the Consent Decree, EPA agrees that Plaintiffs are entitled to 

recover costs of litigation (including reasonable attorney fees) (“litigation costs”) 

incurred in this matter pursuant to 42 U.S.C. § 7604(d). The deadline for filing a motion 

for litigation costs is hereby extended until 120 days after entry of this Consent Decree by 

the Court. During this time, Plaintiffs and EPA shall seek to resolve informally any 

claim for litigation costs, and if they cannot reach a resolution, Plaintiffs may seek such 

Case 5:15-cv-00593-FL Document 20-1 Filed 03/23/16 Page 5 of 9
6 

litigation costs from the Court. The Court shall retain jurisdiction to resolve any request 

for litigation costs. 

11. 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. 

12. 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 taken pursuant to section 110(k) of the 

CAA, 42 U.S.C. § 7410(k), approving, disapproving, or conditionally approving in whole 

or in part the SIP submission; 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). 

13. 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 that 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. 

14. 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. 

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

reasonable attorney fees, incurred subsequent to entry of this Consent Decree. EPA 

reserves the right to oppose any such request for additional costs of litigation, including 

reasonable attorney fees. 

Case 5:15-cv-00593-FL Document 20-1 Filed 03/23/16 Page 6 of 9
7 

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

jointly drafted by NCDEQ 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. 

17. 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. 

18. Any notices required or provided for by this Consent Decree shall be in 

writing 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 NCDEQ: Sam M. Hayes 

General Counsel 

North Carolina Department of Environmental 

Quality 

1601 Mail Service Center 

Raleigh, North Carolina 27699-1601 

Tel. (919) 707-8616 

Email: sam.hayes@ncdenr.gov 

For Defendant EPA: Debra J. Carfora 

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) 514-2640 

Email: Debra.Carfora@usdoj.gov 

Case 5:15-cv-00593-FL Document 20-1 Filed 03/23/16 Page 7 of 9
8 

19. EPA and NCDEQ 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. 

20. 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. 

21. The undersigned representatives of Plaintiffs and Defendants 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 _______, 2016. 

 ________________________________ 

 Louise Wood Flanagan 

 UNITED STATES DISTRICT JUDGE 

COUNSEL FOR PLAINTIFF: 

 

Sam M. Hayes, NC Bar No. 25552 

General Counsel 

North Carolina Department of Environmental 

Quality 

1601 Mail Service Center 

Raleigh, North Carolina 27699-1601 

Ph: (919) 707-8616 Fax: (919) 707-8626 

sam.hayes@ncdenr.gov 

Attorney for Plaintiffs 

Case 5:15-cv-00593-FL Document 20-1 Filed 03/23/16 Page 8 of 9
9 

COUNSEL FOR DEFENDANT: JOHN C. CRUDEN 

Assistant Attorney General 

Environment & Natural Resources Division 

 

Debra J. Carfora 

Environmental Defense Section 

601 D Street N.W., Suite 8000 

Washington D.C. 20004 

Tel. (202) 514-2640 

Email: Debra.Carfora@usdoj.gov 

Attorneys for Defendant EPA

Case 5:15-cv-00593-FL Document 20-1 Filed 03/23/16 Page 9 of 9