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IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

ROCHELLE L. RUSSELL

Trial Attorney

United States Department of Justice

Environment and Natural Resources Division

Environmental Defense Section

301 Howard Street, Suite 1050

San Francisco, CA 94105

Telephone: (415) 744-6566

Fax: (415) 744-6476

Email: rochelle.russell@usdoj.gov

IN THE UNITED STATES DISTRICT COURT

 FOR THE DISTRICT OF ARIZONA [PHOENIX DIVISION]

SANDRA L. BAHR, DIANE E. BROWN,

and DAVID MATUSOW,

 Plaintiffs,

v.

LISA JACKSON, in her official capacity as

Administrator of the United States

Environmental Protection Agency, and the

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

 Defendants.

CV 09-2511-PHX-MHM

CONSENT DECREE

CONSENT DECREE CV 09-2511-PHX-MHM

Case 2:09-cv-02511-MHM Document 16-1 Filed 06/23/10 Page 1 of 7
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CONSENT DECREE - 1 - CV 09-2511-PHX-MHM

WHEREAS, on December 2, 2009, Plaintiffs Sandra L. Bahr, Diane E. Brown,

and David Matusow filed the complaint in the above-captioned matter against Defendants

Lisa Jackson, in her official capacity as Administrator of the United States Environmental

Protection Agency, and the United States Environmental Protection Agency (collectively,

“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, section 110(a)(1) of the CAA, 42 U.S.C. § 7410(a)(1), requires States

to adopt and submit to EPA for review state implementation plans (“SIPs”), which

establish specific control measures and other requirements that apply to particular sources

of air pollution within a State and are designed to attain, maintain, and enforce National

Ambient Air Quality Standards established by EPA that specify the maximum permissible

concentrations for those pollutants in the ambient air, see 42 U.S.C. §§ 7408, 7409; 

WHEREAS, section 189(d) of the CAA, 42 U.S.C. § 7513a(d), requires States to

adopt and submit to EPA SIP revisions to meet specific additional requirements for

serious PM-10 nonattainment areas that have failed to meet the standard by the applicable

attainment date;

WHEREAS, section 110(k) of the CAA, 42 U.S.C. § 7410(k), sets forth the

process by which EPA is to review SIP submissions, including SIP revisions;

WHEREAS, Plaintiffs’ complaint alleges that EPA has a nondiscretionary duty to

act on SIP submissions and revisions submitted to EPA within the time lines set forth in

section 110(k)(2) of the CAA, 42 U.S.C. § 7410(k)(2); 

WHEREAS, Plaintiffs’ complaint alleges that EPA has failed to take timely action

under CAA section 110(k)(2) on the “MAG 2007 Five Percent Plan for PM-10 for the

Maricopa County Nonattainment Area,” Maricopa Association of Governments, 2007

(the “5% Plan”), a SIP revision submitted to EPA in December 2007 by the State of

Arizona pursuant to section 189(d);

WHEREAS, Plaintiffs’ complaint seeks an order from this Court directing EPA to

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CONSENT DECREE - 2 - CV 09-2511-PHX-MHM

either approve or disapprove, in whole or in part, the 5% Plan on a specific timetable;

WHEREAS, the parties have agreed to a settlement of this action without

admission of any issue of fact or law; 

WHEREAS, the parties, by entering into this Consent Decree, do not waive or

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

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

equitable resolution of all of the claims in this matter; 

WHEREAS, it is in the interest of the public, the parties, and judicial economy to

resolve this matter without protracted litigation; 

WHEREAS, the parties agree that this Court has jurisdiction over this matter

pursuant to the citizen suit provision in section 304(a)(2) of the CAA and that venue lies

in the District of Arizona; 

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 issue of fact or law, and upon the consent of the parties, it is hereby ordered,

adjudged and decreed that:

1. EPA shall sign for publication in the Federal Register:

(a) no later than September 3, 2010, a notice of the Agency’s proposed

action on the 5% Plan pursuant to section 110(k) of the CAA. Once

signed, EPA shall deliver the notice to the Office of the Federal

Register for publication; and 

(b) no later than January 28, 2011, a notice of the Agency’s final action

on the 5% Plan pursuant to section 110(k) of the CAA. Once signed,

EPA shall deliver the notice to the Office of the Federal Register for

publication.

2. When EPA’s obligations under Paragraph 1 have been completed, the

parties will file a joint request to the Court to dismiss this matter with prejudice.

Case 2:09-cv-02511-MHM Document 16-1 Filed 06/23/10 Page 3 of 7
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CONSENT DECREE - 3 - CV 09-2511-PHX-MHM

3. The deadlines in Paragraphs 1 and 9 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 and upon consideration of any response by Plaintiffs. 

4. 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 obligation to take the actions set forth in

Paragraph 1 by the time specified therein does not constitute a limitation or modification

of EPA’s discretion within the meaning of this paragraph.

5. Nothing in this Consent Decree shall be construed to confer upon the

district court jurisdiction to review any decision made in the final action identified in

Paragraph 1. 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 Courts of Appeals pursuant to sections 307(b)(1) and 505 of the CAA,

42 U.S.C. §§ 7607(b)(1), 7661d.

6. 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. 

7. In the event of a dispute between the parties 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 the notice, any party may move the Court to resolve the

dispute. 

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

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

Paragraph 7 and provided EPA with written notice received at least ten (10) business days

before the filing of such motion or proceeding.

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CONSENT DECREE - 4 - CV 09-2511-PHX-MHM

9. EPA agrees that, pursuant to section 304(d) of the CAA, 42 U.S.C. §

7604(d), Plaintiffs are both eligible and entitled to recover their costs of litigation in this

action, including reasonable attorneys’ fees, incurred prior to entry of this Consent

Decree. The deadline for filing a motion for costs of litigation, including reasonable

attorneys’ fees, is hereby extended until 90 days after the date on which the Court enters

this Consent Decree. During this time the parties shall seek to resolve informally any

claim for costs of litigation, including reasonable attorneys’ fees. 

10. The obligations imposed upon EPA under 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. 

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

this Court’s jurisdiction to enter this Consent Decree.

12. The parties 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 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 Attorney General do not elect to withdraw or withhold their consent, EPA shall

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

13. Any notices required or provided for by this Consent Decree shall be made

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

For Plaintiffs:

Joy E. Herr-Cardillo 

Arizona Center for Law in the Public Interest 

2205 E. Speedway Blvd. 

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CONSENT DECREE - 5 - CV 09-2511-PHX-MHM

Tucson, AZ 85719 

Phone: (520) 529-1798 

Fax: (520) 529-2927 

Email: jherrcardillo@aclpi.org 

For Defendants:

Rochelle L. Russell

U.S. Department of Justice

Environment and Natural Resources Division

Environmental Defense Section

301 Howard Street, Suite 1050

San Francisco, CA 94105

Phone: (415) 744-6566

Fax: (415) 744-6476

Email: rochelle.russell@usdoj.gov

Geoffrey Wilcox

Office of General Counsel

U.S. Environmental Protection Agency

Ariel Rios Bldg., MC 2344A

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

Phone: (202) 564-5601

Fax: (202) 564-5603

Email: wilcox.geoffrey@epa.gov

Jan Taradash

Office of Regional Counsel

U.S. Environmental Protection Agency

75 Hawthorne Street, ORC-2

San Francisco, CA 94105

Phone: (415) 972-3907

Fax: (415) 947-3570

Email: taradash.jan@epa.gov 

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

authorized by the party that they represent to bind that party to the terms of this Consent

Decree.

IT IS SO ORDERED.

Dated: _________________ __________________________________

MARY H. MURGUA

UNITED STATES DISTRICT JUDGE

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CONSENT DECREE - 6 - CV 09-2511-PHX-MHM

COUNSEL FOR PLAINTIFFS:

Dated: June 23, 2010 /s/ Joy E. Herr-Cardillo (with permission) 

JOY E. HERR-CARDILLO

TIMOTHY M. HOGAN

Arizona Center for law in the Public Interest

2205 E. Speedway Blvd.

Tucson, AZ 85719

Phone: (520) 529-1798

Email: jherrcardillo@aclpi.org

Email: thogan@aclpi.org

Counsel for Plaintiffs

COUNSEL FOR DEFENDANTS:

IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

Dated: June 23, 2010 /s/ Rochelle L. Russell 

ROCHELLE L. RUSSELL

Trial Attorney

United States Department of Justice

Environment and Natural Resources Division

Environmental Defense Section

301 Howard Street, Suite 1050

San Francisco, CA 94105

Phone: (415) 744-6566

Email: rochelle.russell@usdoj.gov

Attorney for Defendants

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