[PROPOSED] CONSENT DECREE 

CASE NO.: 3:13-cv-3953-SI 

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SAM HIRSCH 

Acting Assistant Attorney General 

Environment and Natural Resources Division 

MARTHA C. MANN 

U.S. Department of Justice 

Environmental Defense Section 

P.O. Box 7611 

Washington, D.C. 20044 

Tel: (202) 514-2664 

Fax: (202) 514-8865 

Email: martha.mann@usdoj.gov 

Attorneys for Defendant Gina McCarthy, 

Administrator, United States 

Environmental Protection Agency 

[Additional counsel listed on signature page] 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

SIERRA CLUB and NATURAL 

RESOURCES DEFENSE COUNCIL, 

 Plaintiffs, 

 

 v. 

GINA MCCARTHY, in her official 

capacity as Administrator of the United 

States Environmental Protection Agency, 

 Defendant. 

Case No.: 3:13-cv-3953-SI 

[PROPOSED] CONSENT DECREE 

 

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[PROPOSED] CONSENT DECREE 

CASE NO.: 3:13-cv-3953-SI 

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WHEREAS, on August 26, 2013, Plaintiffs Sierra Club and Natural Resources Defense 

Council (“Plaintiffs”) filed the complaint (“Complaint”) in the above-captioned matter against 

Defendant Regina McCarthy in her official capacity as Administrator of the United States 

Environmental Protection Agency (“EPA”) alleging that EPA has failed to undertake a certain 

nondiscretionary duty 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, within one year after promulgation of a revised national ambient air 

quality standard (“NAAQS”), section 107(d)(1)(A) of the CAA directs states to submit lists of 

initial designations of all areas, or portions thereof, as attainment, nonattainment, or 

unclassifiable for the revised NAAQS, 42 U.S.C. § 7407(d)(1)(A); 

WHEREAS, EPA is required to promulgate designations for all areas of the country 

(including tribal areas and certain U.S. territories) within two years of promulgation of the 

revised NAAQS, or within three years if EPA has insufficient information to promulgate the 

designations within two years, pursuant to section 107(d)(1)(B) of the CAA, 42 U.S.C. 

§ 7407(d)(1)(B); 

WHEREAS, EPA is required to publish a notice in the Federal Register promulgating 

designations, pursuant to section 107(d)(2)(A) of the CAA, 42 U.S.C. § 7407(d)(2)(A); 

WHEREAS, EPA revised the primary NAAQS for sulfur dioxide (“SO2”) on June 2, 

2010, see 75 Fed. Reg. 35,520 (June 22, 2010); 

WHEREAS, states were directed to submit their area designations for the 2010 revised 

primary SO2 NAAQS by June 2, 2011, see 75 Fed. Reg. at 35,385/col. 2; 

WHEREAS, on August 3, 2012, EPA invoked the additional year to issue designations, 

see 77 Fed. Reg. 46,295 (Aug. 3, 2012); 

WHEREAS, on August 5, 2013, EPA published designations under the 2010 revised 

primary SO2 NAAQS for twenty-nine areas in sixteen states, thus removing such areas from 

the potential scope of the above-captioned matter, see 78 Fed. Reg. 47,191 (Aug. 5, 2013); 

WHEREAS, the Complaint alleges that EPA has a nondiscretionary duty to promulgate 

and publish the remaining area designations for the 2010 revised primary SO2 NAAQS within 

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[PROPOSED] CONSENT DECREE 

CASE NO.: 3:13-cv-3953-SI 

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the time lines set forth in section 107(d)(1)(B) of the CAA, 42 U.S.C. § 7407(d)(1)(B), 

(d)(2)(A); 

WHEREAS, on October 29, 2013, Plaintiffs filed a Motion for Summary Judgment on 

the issue of liability in the above-captioned matter, reserving for future briefing the issue of 

remedy; 

WHEREAS, on November 12, 2013, EPA filed its response to Plaintiffs’ Motion for 

Summary Judgment and did not dispute the claim of liability; 

WHEREAS, on December 6, 2013, the Court granted Plaintiffs’ Motion for Summary 

Judgment, and directed the parties to meet and confer on the remedy; 

WHEREAS, the Plaintiffs and EPA have agreed to a settlement of this action; 

WHEREAS, the Plaintiffs and EPA, by entering into this Consent Decree, do not waive 

or limit any claim or defense, on any grounds, related to any EPA final action; 

WHEREAS, the Plaintiffs and EPA consider this Consent Decree to be an adequate and 

equitable resolution of all the claims in this matter; 

WHEREAS, it is in the interest of the public, the Plaintiffs and EPA, and judicial 

economy to resolve this matter without unnecessary protracted litigation; 

WHEREAS, the Administrator has proposed and anticipates promulgating a 

rulemaking that would direct states to conduct additional information collection and analyses 

regarding certain stationary sources of SO2, for purposes of informing future area designations 

under the 2010 revised primary SO2 NAAQS, see 79 Fed. Reg. 27,449 (May 13, 2014); 

WHEREAS, the Plaintiffs and EPA agree that this Court has jurisdiction over this 

matter pursuant to the citizen suit provision of section 304(a)(2) of the CAA, 42 U.S.C. 

§ 7604(a)(2); 

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

is fair, reasonable, in the public interest, and consistent with the CAA; 

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

any additional issue of fact or law that the Court has not already addressed in this matter, and 

upon consent of the Plaintiffs and EPA, it is hereby ordered, adjudged and decreed, that: 

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[PROPOSED] CONSENT DECREE 

CASE NO.: 3:13-cv-3953-SI 

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1. EPA shall sign for publication in the Federal Register no later than sixteen (16) 

months from the date of this Court’s entry of this Order a notice of EPA’s promulgation of 

designations for the 2010 revised primary SO2 NAAQS pursuant to section 107(d) of the CAA, 

and within ten (10) business days following such signature deliver the notice to the Office of 

the Federal Register for review and prompt publication, for remaining undesignated areas 

which: 

(a) based on air quality monitoring in the three (3) full calendar years preceding 

such deadline have monitored violations of the 2010 revised primary SO2

NAAQS; or 

(b) contain any stationary source that has not been “announced for retirement” 

pursuant to subparagraph (c) by the date of this Consent Decree, and that, 

according to the data in EPA’s Air Markets Database, either (1) emitted more 

than 16,000 tons of SO2 in 2012, or (2) emitted more than 2,600 tons of SO2 and 

had an annual average emission rate of 0.45 lbs SO2/Mmbtu or higher in 2012; 

where 

(c) “announced for retirement” means any stationary source in the United States 

with a coal-fired unit that as of January 1, 2010, had a capacity of over five (5) 

megawatts (MW) and that has announced that it will cease burning coal at that 

unit through a company public announcement, public utilities commission 

filing, consent decree, public legal settlement, final state or federal permit filing, 

or other similar means of communication. 

2. EPA shall sign for publication in the Federal Register no later than December 

31, 2017, a notice of EPA’s promulgation of designations for the 2010 revised primary SO2

NAAQS pursuant to section 107(d) of the CAA, and within ten (10) business days following 

such signature deliver the notice to the Office of the Federal Register for review and prompt 

publication, for remaining undesignated areas in which, by January 1, 2017, states have not 

installed and begun operating a new SO2 monitoring network meeting EPA specifications 

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[PROPOSED] CONSENT DECREE 

CASE NO.: 3:13-cv-3953-SI 

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referenced in EPA’s anticipated rulemaking directing states to collect and analyze additional 

information regarding SO2 emissions concentrations. 

3. EPA shall sign for publication in the Federal Register no later than December 

31, 2020, a notice of EPA’s promulgation of designations for the 2010 revised primary SO2

NAAQS pursuant to section 107(d) of the CAA, and within ten (10) business days following 

such signature deliver the notice to the Office of the Federal Register for review and 

publication, for all remaining undesignated areas. 

4. After EPA’s obligations under Paragraphs 1 through 3 have been completed, 

and after the notices required by Paragraphs 1 through 3 have been published in the Federal 

Register, EPA may move to terminate the Consent Decree. The Plaintiffs shall have fourteen 

(14) days in which to respond to such motion. 

5. Following delivery of the notices of promulgation of designations described in 

Paragraphs 1 through 3 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 notices in the Federal Register. EPA shall make 

available to the Plaintiffs copies of the notices within five (5) business days following 

signature by the Administrator. 

6. The Plaintiffs and EPA may extend the deadlines established in Paragraphs 1 

through 3 for a period of sixty (60) days or less by written stipulation executed by counsel for 

the Plaintiffs and EPA and filed with the Court. In addition, the deadlines established in 

Paragraphs 1 through 3 may be extended by the Court upon motion by any party to this 

Consent Decree for good cause shown, after consideration of any response by the non-moving 

party to this Consent Decree. Any party to this Consent Decree seeking to extend deadlines by 

motion and without stipulation must provide written notice to all other parties to this Consent 

Decree of the deadlines the party is seeking to extend at least ten (10) business days prior to 

filing with the Court such motion. No motion to extend a deadline shall be considered properly 

filed unless notice pursuant to this Paragraph is provided, or the moving party demonstrates 

why it could not have provided the advance written notice. 

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[PROPOSED] CONSENT DECREE 

CASE NO.: 3:13-cv-3953-SI 

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7. Nothing in this Consent Decree shall be construed to limit or modify the 

discretion accorded EPA by the CAA and by general principles of administrative law, 

including the discretion to alter, amend or revise any response and/or final action contemplated 

by this Consent Decree. EPA’s obligations to take the actions set forth in Paragraphs 1 through 

3 by the dates specified do not constitute limitations or modifications of EPA’s discretion 

within the meaning of this paragraph. 

8. 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 section 307(b)(1) of the CAA, 42 U.S.C. § 7607(b)(1). Nothing in the 

terms of this Consent Decree shall be construed to waive any remedies or defenses the parties 

may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1). 

9. This Court shall retain jurisdiction to enforce the terms of this Consent Decree 

and to consider any requests for costs of litigation, including attorneys’ fees. 

10. In the event of a dispute between the parties to this Consent Decree 

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 within ten (10) business days after receipt of notice, any party may move the Court 

to resolve the dispute. 

11. No motion or other proceeding seeking to enforce this Consent Decree shall 

be considered properly filed, unless the Plaintiffs have followed the procedure set forth in 

Paragraph 10. 

12. The United States, on behalf of EPA, agrees that the Plaintiffs are entitled to 

recover their costs of litigation (including reasonable attorneys’ 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 

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[PROPOSED] CONSENT DECREE 

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

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

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

costs. 

13. The obligations imposed upon EPA by this Consent Decree may only be 

undertaken using appropriated funds. No provisions of this Consent Decree shall be 

interpreted as or 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 federal 

law. 

14. The parties recognize that the possibility exists that a lapse in the 

appropriations that fund EPA could delay compliance with the timetables contained in this 

Consent Decree. Should a delay occur due to a lapse in appropriations, any deadlines 

occurring within ninety (90) days of the termination of the delay shall be extended one day for 

each day of the delay. EPA will provide Plaintiffs with notice as soon as is reasonably possible 

under the circumstances in the event that EPA invokes this Paragraph of the Consent Decree 

and will provide Plaintiffs with an explanation of EPA's basis for invoking this Paragraph. 

Plaintiffs may challenge the invocation of this Paragraph of the Consent Decree under the 

dispute resolution terms of this Consent Decree, and EPA shall bear the burden of justifying its 

invocation of this Paragraph. 

15. The Plaintiffs and EPA shall not challenge the terms of this Consent Decree or 

this Court’s jurisdiction to enter this Consent Decree. 

16. The Plaintiffs and EPA agree and acknowledge that before this Consent 

Decree is entered by the Court, EPA must provide notice of this Consent Decree in the Federal 

Register and provide an opportunity for public comment pursuant to section 113(g) of the 

CAA, 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 such 

written comments in determining whether to withdraw or withhold their consent to the Consent 

Decree, in accordance with section 113(g) of the CAA. If the Administrator and/or the 

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[PROPOSED] CONSENT DECREE 

CASE NO.: 3:13-cv-3953-SI 

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Attorney General do not elect to withdraw and withhold their consent, EPA shall promptly file 

a motion that requests the Court to enter this Consent Decree. 

17. Any notices required or provided by this Consent Decree shall be made in 

writing, via facsimile, e-mail, or other means, and sent to the following: 

For Plaintiffs: 

 Nicholas Morales 

 David S. Baron 

 Earthjustice 

 1625 Massachusetts Ave., STE 702 

 Washington, DC 20036 

 nmorales@earthjustice.org 

 dbaron@earthjustice.org 

 Fax: 202-667-2356 

 Zachary M. Fabish 

 The Sierra Club 

 50 F Street, NW – 8th Floor 

 Washington, DC 20001 

 zachary.fabish@sierraclub.org 

 Fax: 202-547-6009 

 Emily K. Davis 

 Natural Resources Defense Council 

 1152 15th Street, NW, Suite 300 

 Washington, DC 20005 

 edavis@nrdc.org 

 Fax: 202-289-1060 

For Defendant: 

 

 Martha C. Mann 

 United States Department of Justice 

 Environmental Defense Section 

 P.O. Box 7611 

 Washington, DC 20044 

 martha.mann@usdoj.gov 

 Fax: 202-514-8865 

Case3:13-cv-03953-SI Document163 Filed03/02/15 Page8 of 10

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COUNSEL FOR DEFENDANT:

Dated: ~) us~- ~ ~'LQ~~

~~~

SO ORDERED on this day of

SAM HIRSCH

Acting Assistant Attorney General

Environment &Natural Resources Division

MARTHA C. MANN

United States Department of Justice

Environment &Natural Resources Division

P.O. Box 7611

Washington, D.C. 20044

Tel: (202) 514-2664

E-mail: martha.mann(a~usdoj~ov_

Counsel for Defendant EPA

2014

SUSAN ILLSTON

United States District Judge

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[PROPOSED] CONSENT DECREE

CASE No.: 3:13-cv-3953-SI

2nd March

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