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)ofthe 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 ofthe 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 ofthe 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 oftestimony, without trial or determination of any issue offact or law,and upon the consent ofthe 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 reliefcontained 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 ofthe Federal Register for review and publication, a final action on the Attainment Demonstration. 3. Any provision ofthis Decree may be modified by: (a)written stipulation ofthe 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 ofany response by the non-moving Party and any reply. 4. Plaintiffand the Administrator shall not challenge the terms ofthis Decree or this Court's jurisdiction to enter and enforce this Decree. 5. The deadline for filing a motion for costs oflitigation (including attorneys' fees) for activities performed prior to execution ofthis 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
-2-any claim for costs of litigation (including attorneys' fees)and ifthey 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 ofany 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 ofadministrative 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 offact 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 ofthe United States Courts ofAppeals pursuant to Section 307(b}(1)ofthe Act, 42 U.S.C. fi 7607(b)(1). Nothing in the terms ofthis 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.

-3-10. 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.

~'~

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

implementation ofany aspect ofthis Decree,the disputing Party shall provide the other Party with a written notice outlining the nature ofthe dispute and requesting informal negotiations. If the Parties cannot reach an agreed-upon resolution within thirty (30)days after receipt ofthe 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 ofFederal 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)ofthe Clean Air Act. Ifthe 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 Plaintiffs 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

-5-authorized by the Party they represent to bind that Party to the terms ofthis 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 ofJustice 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



### ~1.~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