IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

KENTUCKY ENVIRONMENTAL

FOUNDATION,

Plaintiff,

v.

LISA P. JACKSON, in her

official capacity as

Administrator, United States

Environmental Protection

Agency,

Defendant.

10-CV-1814-PLF

Hon. Paul L. Friedman

CONSENT DECREE

WHEREAS, Plaintiff Kentucky Environmental Foundation ("KEF") filed its Complaint

(Civil Case No. 10-CV-1814) on October 22, 2010 pursuant to Section 304(a) of the Clean Air

Act ("Act"), 42 U.S.C. § 7604(a); and

WHEREAS, Plaintiff alleges that Defendant Lisa P. Jackson, in her official capacity as

Administrator, United States Environmental Protection Agency (hereinafter ``the Administrator")

has failed to perform a nondiscretionary duty to take final action pursuant to Section 110(k)(2) of

the Act, 42 U.S.C. § 7410(k)(2), on an attainment demonstration contained within a State

Implementation Plan submittal from the State of Kentucky for the 1997 fine particulate matter

National Ambient Air Quality Standard in the Kentucky portion of the Huntington-Ashland area

("Attainment Demonstration"); and

WHEREAS, Plaintiff and the Administrator (collectively ``the Parties") wish to effectuate

a settlement in the above-captioned matter without expensive and protracted litigation; and
WHEREAS, the Parties consider this Consent Decree ("Decree") to be an adequate and

equitable resolution of the claims in the above-captioned matter; and

WHEREAS, the Court, by entering this Decree, finds that the Decree is fair, reasonable,

in the public interest, and consistent with the Act, 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:

This Court has subject matter jurisdiction over the claims set forth in the

Complaint and to order the relief contained in this Decree. Venue is proper in the United States

District Court for the District of Columbia.

2. On or before March 30, 2012, the appropriate Environmental Protection Agency

("EPA") official shall sign, and thereafter forward within 15 business days to the Office of the

Federal Register for review and publication, a final action on the Attainment Demonstration.

3. Any provision of this Decree may be modified by: (a) written stipulation of the

Parties with notice to the Court; or (b) the Court following motion of any Party to this Decree,

pursuant to the Federal Rules of Civil Procedure, and upon consideration of any response by the

non-moving Party and any reply.

4. Plaintiff and the Administrator shall not challenge the terms of this Decree or this

Court's jurisdiction to enter and enforce this Decree.

5. The deadline for filing a motion for costs of litigation (including attorneys' fees)

for activities performed prior to execution of this Decree is hereby extended until 60 days after

this Decree is entered by the Court. During this time, the Parties shall seek to resolve informally

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any claim for costs of litigation (including attorneys' fees) and if they cannot, will submit that

issue to the Court for resolution. Nothing in this paragraph shall be construed as an admission or

concession by the Administrator that Plaintiff is entitled to or eligible for recovery of any costs

or attorneys' fees.

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

accorded the Administrator by the Act or by general principles of administrative law in taking

the actions which are the subject of this Decree.

law.

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

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

jurisdiction to review any final decision made by the Administrator pursuant to this Decree.

Nothing in this 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 Courts of Appeals

pursuant to Section 307(b}(1) ofthe Act, 42 U.S.C. fi 7607(b)(1). Nothing in the terms of this

Decree shall be construed to waive any remedies or defenses the Parties may have under Section

307(b)(1) of the Act, 42 U.S.C. § 7607(b)(1).

9. The obligations imposed on the Administrator under this Decree can only be

undertaken using appropriated funds. No provision of this Decree shall be interpreted as or

constitute a commitment or requirement that the Administrator obligate or pay funds in

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

statute.

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10. Any notices required or provided for by this Decree shall be made in writing, via

facsimile or other means, and sent to the following:

For Plaintiff:

Robert Ukeiley

435R Chestnut St. Ste 1

Berea, KY 40403

Telephone: (859) 986-5402

Fax: (866) 618-1017

Email: rukeileynigc.org

For Defendants:

Heather E. Game

Environmental Defense Section

Environment and Natural Resources Division

United States Department of Justice

P.O. Box 23986

Washington, D.C. 20Q26-3986

Attn: DJ # 9052416726

Telephone: (202) 514-0996

Fax: (202) 514-8865

Email: Heather.Gange@usdoj.gov

Lucia Mendez

United States EPA Region 4

MC 9T25

61 Forsyth St., S.W.

Atlanta, GA 30303

Telephone: (404) 562-9637

Email: Mendez.Lucia@epa.gov

Geoffrey L. Wilcox

United States EPA

Office of General Counsel

Air and Radiation Law Office, MC 2344A

1200 Pennsylvania Avenue, NW

Washington DC 20460

Telephone: (?02) 564- 5601

Email: Wilcox.Geoffrey@epa.gov

or such other person as either Party may subsequently identify in writing to the other Party.

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11. In the event of a dispute between the Parties concerning the interpretation or

implementation of any aspect of this 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 thirty (30) days after receipt of the

notice, any Party may move the Court to resolve the dispute.

12. 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 section 113(g), 42 U.S.C. § 7413(g). EPA

will expeditiously prepare such notice and forward it to the Office of Federal Register after

lodging the draft Consent Decree with the Court. After this Consent Decree has undergone an

opportunity for 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 consent to this Consent Decree, in accordance with section 113(g) of the

Clean Air Act. If the federal government elects not to withdraw or withhold consent to this

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

Consent Decree.

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

this Decree. When the Administrator's obligations under Paragraph 2 have been completed, and

Plaintiff s claims for costs of litigation have been resolved pursuant to the process described in

Paragraph 5, the above-captioned matter shall be dismissed with prejudice. The Administrator

shall file an appropriate notice with the Court so that the Clerk may close the file.

14. The undersigned representatives of each Party certify that they are fully

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authorized by the Party they represent to bind that Party to the terms of this Decree.

Respectfully submitted,

Ignacia S. Moreno

Assistant Attorney General

United States Department of Justice

Environment and Natural Resources Division

Dated: , 2011 By: ~~ ~~~----~

Heather E. Gauge

Environmental Defense Section

D.C. Bar No. 452619

U.S. Department of Justice

P.O. Box 23986

Washington, D.C. 20026-3986

Voice: (202) 514-4206

Fax: (202) 514-8$65

Email: Heather.Gange@usdoj.gov

Counsel fc~r EPA

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Dated: April ~, 2011

Robert Ukeiley

435R Chestnut St., Ste 1

Berea, KY 40403

Tel.: (859) 986-5402

Fax: (866) 618-1017

Email: rukeiley@igc.org

SO ORDERED: , 2011

Counsel for Plaintiff

~~

Hon. Paul L. Friedman

United States District Judge