UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

SIERRA CLUB and WILDEARTH

GUARDIANS,

Plaintiffs

v.

LISA JACKSON, in her official capacity as

Administrator, U.S. Environmental Prote ction

Agency,

Defendant. )

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) Civil Action No. 1:10

- cv

- 133(PLF)

CONSENT DECREE

WHEREAS, plaintiffs Sierra Club and WildEarth Guardians (“Plaintiffs”) filed a First

Amended C omplaint in this action in the United States District Court for the District of

Columbia on January 27, 2010;

WHEREAS, Plaintiffs’ complaint alleged that defendant Lisa Jackson, Administrator of

the U.S. Environmental Protection Ag ency (“EPA”), has failed to perform a duty mandated by

section 110(k)(2) of the Clean Air Act (“CAA”), 42 U.S.C. § 7410(k)(2), to take final action on

the State Implementation Plan (“SIP”) infrastructure submittals for Maine, Rhode Island,

Connecticut, New Hampshire, Alabama, Kentucky, Mississippi, South Carolina, Wisconsin,

Indiana, Michigan, Ohio, Louisiana, Kansas, Nebraska, Missouri, Colorado, Montana, South

Dakota, Utah, and Wyoming with regard to the 1997 8

- hour ozone National Ambient Air Quality

Stan dards;

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

this matter without protracted litigation; Case 1:10-cv-00133-PLF Document 9-1 Filed 04/29/10 Page 2 of 62 WHEREAS, the Court finds and determines that the settlement represents a just, fair,

adequate and equitable resolu tion of all claims raised in this action.

NOW THEREFORE, it is hereby ORDERED, ADJUDGED and DECREED that:

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

complaint and to order the relief contained in this Consent Decree.

2. Venue lies in the United States District Court for the District of Columbia.

3. Plaintiff and EPA shall not challenge the terms of this Consent Decree or this

Court’s jurisdiction to enter and enforce this Consent Decree. Upon entry, no party shall

challenge the terms of this Consent Decree.

4. No later than April 29, 2011, the Administrator or her authorized delegatee shall

sign a notice or notices, pursuant to section 110(k)(2) of the Clean Air Act (“CAA”), 42 U.S.C. §

7410(k)(2), either approving, disapproving, o r approving in part and disapproving in part, the

1997 8

- hour ozone NAAQS Infrastructure SIPs for Maine, Rhode Island, Connecticut, New

Hampshire, Alabama, Kentucky, Mississippi, South Carolina, Wisconsin, Indiana, Michigan,

Ohio, Louisiana, Kansas, Nebras ka, Missouri, Colorado, Montana, South Dakota, Utah, and

Wyoming.

5. Within 15 business days f ollowing signature of such action required by paragraph

4, EPA shall deliver notice of such action to the Office of the Federal Register for publication.

Following such delivery to the Office of the Federal Register, EPA shall not take any step (other

than as necessary to correct within 10 business days after submittal any typographical or other

errors in form) to delay or otherwise interfere with publication of such notice in the Federal

Register. Case 1:10-cv-00133-PLF Document 9-1 Filed 04/29/10 Page 3 of 63 6. Any dates set forth in this Consent Decree may be extended by written agreement

of the parties and notice to the Court. To the extent the parties are not able to agree to an

extension, either party may move the Court to re solve the dispute.

7. 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 60

- day period, the Parties shall seek to resolve

informally 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 EPA that Plaintiffs are entitled to or eligible for recovery of any

costs or attorneys' fees.

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

this Consent Decree. Upon EPA’s demonstration that it has s atisfied all of the obligations of this

Consent Decree it may move to have this decree terminated. Plaintiff s shall have twenty days in

which to respond to such motion.

9. Nothing in this Consent Decree shall be construed to limit or modify any

discretio n accorded EPA by the Clean Air Act or by general principles of administrative law in

taking the actions which are the subject of this Consent Decree.

10. The parties agree and acknowledge that final approval and entry of this proposed

Consent Decree are subject to the requirements of Clean Air Act § 113(g), 42 U.S.C. § 7413(g).

That subsection provides that notice of this proposed Decree be given to the public, that the

public shall have a reasonable opportunity to make any comments, and that the Adminis trator or

the Attorney General, as appropriate, must consider those comments in deciding whether to

consent to this Consent Decree. Case 1:10-cv-00133-PLF Document 9-1 Filed 04/29/10 Page 4 of 64 11. Nothing in the terms of this Consent Decree shall be construed to waive any

remedies P laintiff s may have under section 307(b)(1) of the Clean Air Act, 42 U.S.C.

§ 7607(b)(1).

12. 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 contact the other

party to confer and attempt to reach an agreement on the disputed issue. If the parties cannot

reach an agreed

- upon resolution, then either party may move the Court to resolve the dispute.

13. EPA’s commitments in this Decree are subject to the availability of appropri ated

funds. No provision of this Decree shall be interpreted as or constitute a commitment or

requirement that EPA obligate funds in contravention of the Anti

- Deficiency Act, 31 U.S.C.

§ 1341 or any other applicable law or regulation.

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

authorized to consent to the Court’s entry of the terms and conditions of this Consent Decree.

Respectfully submitted,

Dated: ____________

ROBERT UKEILEY

Law Office of Robert Ukeiley

435R Chestnut Street, Suite 1

Berea, KY 40403

Tel: (859) 986

- 5402

Fax: (859) 618

- 1017

Counsel for Plaintiffs Case 1:10-cv-00133-PLF Document 9-1 Filed 04/29/10 Page 5 of 65 IGNACIA MORENO

Assistant Attorney General

Dated:_______________

__________________________________ CHRISTINA L. RICHMOND

Trial Attorney

United States Department of Justice

Environment and Natural Resources Division

P.O. Box 23986

Washington, D.C. 20026

- 3986

Tel: (202) 514

- 3376

Fax: (202) 514

- 8865

Counsel for Defendant

IT IS SO ORDERED.

Dated: _________________

__________________________________ PAUL L. FRIEDMAN

United States District Judge Case 1:10-cv-00133-PLF Document 9-1 Filed 04/29/10 Page 6 of 6