IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SIERRA CLUB, )

)

Plaintiff, )

)

v. ) Case No.: 1:10-CV-01541-CKK

) 

)

UNITED STATES ENVIRONMENTAL )

PROTECTION AGENCY and )

GINA McCARTHY,

1 Administrator, )

United States Environmental Protection )

Agency, )

) 

Defendants. ) 

)

EPA’S NOTICE OF LODGING OF PROPOSED PARTIAL CONSENT DECREE

Defendants United States Environmental Protection Agency and Gina McCarthy, 

Administrator (“EPA”), with this notice lodge with the Court a proposed Partial Consent Decree 

that contains the terms of a proposed settlement between EPA and Plaintiff Sierra Club. See

Exhibit A. The proposed Partial Consent Decree should not be signed or entered by the Court 

at this time.

Pursuant to 42 U.S.C. § 7413(g) and Paragraph 18 of the proposed Partial Consent 

Decree, after the proposed Partial Consent Decree is lodged with the Court, EPA will submit a 

notice of the proposed Partial Consent Decree for publication in the Federal Register, and will 

then accept public comment on the proposed Partial Consent Decree for 30 days. After the close 

of the public comment period, EPA will review the comments and will move the Court for entry 

of the proposed Partial Consent Decree if appropriate in light of the comments received. 

 1 Gina McCarthy is substituted for Lisa P. Jackson pursuant to Fed. R. Civ. P. 25(d). 

Case 1:10-cv-01541-CKK Document 62 Filed 07/27/15 Page 1 of 2
Pursuant to 42 U.S.C. § 7413(g), the United States reserves the right to withhold or 

withdraw its consent to the entry of the proposed Partial Consent Decree if the comments 

received disclose facts which indicate that the proposed judgment is inappropriate, improper, or 

inadequate. At the close of the public comment period, EPA will further advise the Court of the 

status of its consent to the proposed Partial Consent Decree.

Dated: July 27, 2015 Respectfully submitted,

JOHN C. CRUDEN

Assistant Attorney General

 /s/ Stephanie J. Talbert 

STEPHANIE J. TALBERT

U.S. Department of Justice

Environment & Natural Resources Division

Environmental Defense Section

999 18TH Street

South Terrace, Suite 370

Denver, CO 80202

(303) 844-7231

Stephanie.talbert@usdoj.gov

Case 1:10-cv-01541-CKK Document 62 Filed 07/27/15 Page 2 of 2
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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SIERRA CLUB,

Plaintiff,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, and GINA 

McCARTHY,

1 Administrator of the United 

States Environmental Protection Agency,

Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

)

Case No. 10-cv-1541 (CKK)

PARTIAL CONSENT DECREE

WHEREAS, Plaintiff Sierra Club filed this action pursuant to section 304(a)(2) of the 

Clean Air Act (“CAA”), 42 U.S.C. § 7604(a)(2), alleging that Defendants United States 

Environmental Protection Agency and Gina McCarthy, Administrator of the United States 

Environmental Protection Agency (collectively “EPA”), failed to perform duties mandated by 

CAA section 110(c)(1) and (k)(2), 42 U.S.C. § 7410(c)(1), (k)(2), to: (1) promulgate a federal 

implementation plan (“FIP”) for the State of Texas that meets the requirements of CAA section 

110(a)(2)(D)(i) for the 1997 fine particulate matter (“PM2.5”) and ozone national ambient air 

quality standards (“NAAQS”); (2) promulgate a FIP for the State of Texas that meets the 

requirements of CAA Section 110(a)(2) for the 1997 ozone NAAQS; and (3) take final approval/ 

 1 Gina McCarthy is substituted for Lisa P. Jackson pursuant to Fed. R. Civ. P. 25(d). 

Case 1:10-cv-01541-CKK Document 62-1 Filed 07/27/15 Page 1 of 10
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disapproval action pursuant to CAA section 110(k)(3) on the state implementation plan (“SIP”) 

that Texas submitted for implementation of the 1997 PM2.5 NAAQS;

WHEREAS, Plaintiff and EPA (collectively the “Parties”) wish to effectuate a settlement 

of Plaintiff’s claim regarding EPA’s duty to promulgate a FIP that meets the interstate transport 

requirements of CAA section 110(a)(2)(D)(i)(I) for the 1997 ozone NAAQS for Texas without 

expensive and protracted litigation and without the admission of any issue of fact or law;

WHEREAS, this Partial Consent Decree does not resolve Plaintiff’s claim with respect to 

the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 1997 PM2.5 

NAAQS for Texas, a claim that, as of the date of lodging this Partial Consent Decree, is the 

subject of cross-motions that remain pending before the Court;

WHEREAS, the Court entered a Partial Consent Decree with respect to the other claims 

at issue in the case on November 28, 2011;

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

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

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

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

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

Complaint and to order the relief contained in this Partial Consent Decree. Venue is proper in 

the United States District Court for the District of Columbia.

2. EPA shall, by September 22, 2015, sign for publication in the Federal Register a 

notice or notices of proposed rulemaking that (a) proposes to find that an existing FIP satisfies 

CAA section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS for Texas; (b) proposes a 

FIP for Texas that satisfies the requirements of CAA section 110(a)(2)(D)(i)(I) with respect to 

the 1997 ozone NAAQS for Texas; or (c) proposes to unconditionally approve a SIP or 

promulgate a partial FIP and unconditionally approve a partial SIP that collectively satisfy the 

requirements of CAA section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS for 

Texas.

3. EPA shall, by February 22, 2016, sign for publication in the Federal Register a 

notice or notices of final action that (a) determines that an existing FIP satisfies CAA section 

110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS for Texas; (b) promulgates a FIP for 

Texas that satisfies the requirements of CAA section 110(a)(2)(D)(i)(I) with respect to the 1997 

ozone NAAQS for Texas; or (c) unconditionally approves a SIP or promulgates a partial FIP and 

unconditionally approves a partial SIP that collectively satisfy the requirements of CAA section 

110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS for Texas.

4. Within ten (10) business days after signing a proposed or final notice as described 

in paragraphs 2 and 3 of this Partial Consent Decree, EPA shall deliver notice of such actions to 

the Office of the Federal Register for review and publication. Following such delivery to the 

Office of the Federal Register, EPA shall not take any action (other than is necessary to correct 

Case 1:10-cv-01541-CKK Document 62-1 Filed 07/27/15 Page 3 of 10
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typographical errors or other errors in form) to delay or otherwise interfere with the publication 

of such notices in the Federal Register. In addition, EPA shall provide notice and make available 

to Plaintiff a copy of each such rule or determination within five (5) business days of delivery to 

the Office of Federal Register. 

5. The deadlines in paragraphs 2 and 3 of this Partial Consent Decree may be 

extended by (a) written stipulation of the Plaintiff and EPA with notice to the Court, or (b) by the 

Court on a motion of EPA for good cause shown pursuant to the Federal Rules of Civil 

Procedure, and upon consideration of any response by the Plaintiff. Any other provision of this 

Partial Consent Decree may be modified by the Court following motion of Plaintiff or EPA for 

good cause shown pursuant to the Federal Rules of Civil Procedure and upon consideration of 

any opposition by the non-moving party.

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

this Court’s jurisdiction to enter and enforce this Partial Consent Decree. 

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

discretion accorded EPA by the CAA or by general principles of administrative law in taking the 

actions which are the subject of this Partial Consent Decree, including the discretion to alter, 

amend or revise any responses or final actions contemplated by this Partial Consent Decree. 

EPA’s obligation to perform the actions specified in this Partial Consent Decree by the times

specified herein does not constitute a limitation or modification of EPA’s discretion within the 

meaning of this paragraph.

8. Nothing in this Partial Consent Decree shall be construed as an admission of any 

issue of fact or law nor to waive or limit any claim, remedy, or defense, on any grounds, related 

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to any final action EPA may take with respect to the actions addressed in this Partial Consent 

Decree.

9. Nothing in this Partial Consent Decree shall be construed to: (a) confer upon this

Court jurisdiction to review any final decision made by EPA pursuant to this Partial Consent 

Decree; (b) confer upon this Court jurisdiction to review any issues that are within the exclusive 

jurisdiction of the United States Courts of Appeals pursuant to CAA sections 307(b)(1), 42 

U.S.C. §§ 7607(b)(1); or (c) waive any claims, remedies, or defenses the Parties may have under 

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

10. The deadline for filing a motion for costs of litigation, including attorneys’ fees, 

incurred prior to entry of this Partial Consent Decree is hereby extended until ninety (90) days 

after the entry of this Partial Consent Decree by this Court. During this time, 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 this Court for resolution. The United States does not waive or 

limit any defenses it may have to such claim. This Court shall retain jurisdiction to resolve any 

requests for costs of litigation, including attorneys’ fees. 

11. Plaintiff reserves the right to seek additional costs of litigation, including 

attorneys’ fees, incurred subsequent to entry of this Partial Consent Decree and arising from 

Plaintiff’s need to enforce or defend against efforts to modify its terms of the underlying schedule 

outlined herein, or for any other unforeseen continuation of this action. The United States 

reserves the right to challenge any such claim. 

12. The Parties recognize and acknowledge that the obligations imposed upon EPA 

under this Partial Consent Decree can only be undertaken using appropriated funds legally 

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available for such purpose. No provision of this Decree shall be interpreted as or constitute a 

commitment or requirement that the United States obligate or pay funds in contravention of the 

Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law. 

13. The parties recognize that the possibility exists that a total lapse in the 

appropriations that fund EPA resulting in an EPA shutdown could delay compliance with the 

timetables contained in this Consent Decree. Should a delay occur due to such a lapse in 

appropriations that occurs within ninety (90) days prior to a deadline in this Decree, such 

deadline shall be extended automatically one day for each day of the lapse in appropriations. 

EPA will provide Plaintiff with notice no later than 10 days after the shutdown ends in the event 

that EPA invokes this paragraph of the Consent Decree. Plaintiff may challenge the invocation 

of this paragraph of the Consent Decree after following the dispute resolution process described 

in Paragraph 15 of this Consent Decree. Nothing in this paragraph shall preclude EPA from 

seeking an additional extension, either by stipulation or court order, pursuant to the procedures of 

paragraph 5 above, nor limit Plaintiff’s right to oppose any such request for an additional 

extension.

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

in writing, via email, and sent to the following:

For Plaintiff:

KHUSHI K. DESAI

DAVID S. BARON

EARTHJUSTICE

1625 Massachusetts Ave., NW, Suite 702

Washington, DC 20036

Tel: (202) 667-4500

Fax: (202) 667-2356

kdesai@earthjustice.org

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dbaron@earthjustice.org

For Defendant:

STEPHANIE J. TALBERT

Environmental Defense Section

Environment & Natural Resources Division

999 18th St., South Terrace, Suite 370

Denver, CO 80202

Tel: (303) 844-7231

Stephanie.talbert@usdoj.gov

STEPHANIE HOGAN

ABIRAMI VIJAYAN

U.S. Environmental Protection Agency

Office of General Counsel (2344A)

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

Tel: (202) 564-3244

Hogan.stephanie@epa.gov

Vijayan.abirami@epa.gov

JOSHUA OSLZEWSKI

U.S. Environmental Protection Agency

Office of Regional Counsel 

1445 Ross Ave. (6 RC-M)

Dallas, TX 75202

Tel: (214) 665-2178

Fax: (214) 665-2182

Olszewski.joshua@epa.gov

15. 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 ten (10) business days after receipt of 

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

16. No motion or other proceeding seeking to enforce this Decree or for contempt of 

Court shall be properly filed unless Plaintiff has followed the procedure set forth in paragraph 15, 

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and provided EPA with written notice received at least ten (10) business days before the filing of 

such motion or proceeding.

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

this Partial Consent Decree. When EPA’s obligations under paragraphs 2 and 3 have been 

completed, EPA may move to have this Decree terminated. Plaintiff shall have fourteen (14) 

days in which to respond to such motion.

18. The Parties agree and acknowledge that before this Partial 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 CAA section 113(g), 42 U.S.C. § 7413(g). EPA will 

deliver a public notice of this Partial Consent Decree to the Federal Register for publication and 

public comment within fifteen (15) business days after lodging this Partial Consent Decree with 

the Court. After this Partial Consent Decree has undergone an opportunity for notice and 

comment, the Administrator and the Attorney General, as appropriate, will promptly consider any 

such written comments in determining whether to withdraw or withhold consent to this Partial 

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

Attorney General elects not to withdraw or withhold consent to this Partial Consent Decree, the 

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

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

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

SO ORDERED on this day of 2015.

___________________________________

JUDGE COLLEEN KOLLAR-KOTELLY

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SO AGREED:

FOR PLAINTIFF

/s/ Khushi K. Desai

KHUSHI K. DESAI

EARTHJUSTICE

1625 Massachusetts Ave., NW, Suite 702

Washington, DC 20036

Tel: (202) 667-4500

Fax: (202) 667-2356

kdesai@earthjustice.org

DATED: July 16, 2015 

 

FOR DEFENDANT JOHN C. CRUDEN

 Assistant Attorney General

Environment & Natural Resources Division

/s/ Stephanie J. Talbert

STEPHANIE J. TALBERT

United States Department of Justice

Environment and Natural Resources Division

Environmental Defense Section

999 18th Street

South Terrace, Suite 370

Denver, CO 80202

Tel: (303) 844-7231

stephanie.talbert@usdoj.gov

DATED: July 27, 2015 

Of Counsel for Defendant:

STEPHANIE HOGAN

U.S. Environmental Protection Agency

Office of General Counsel (2344A)

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

Tel: (202) 564-3244

Hogan.stephanie@epa.gov

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ABIRAMI VIJAYAN

U.S. Environmental Protection Agency

Office of General Counsel (2344A)

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

Tel: (202) 564-3178

Vijayan.abi@epa.gov

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