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 (“E PA”), with this notice lodge with the Court a proposed P artial Consent D ecree

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 th e 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 public ation 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 Con sent Decree if appropriate in light of the comments received.

1 Gina McCarthy is substituted for Lisa P. Jackson pursuan t to Fed. R. Civ. P. 25(d). Case 1:10-cv-01541-CKK Document 62 Filed 07/27/15 Page 1 of 2Pursuant 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 disclos e 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 18 TH 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 21 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,

Def endant s

. )

)

)

)

)

)

)

)

)

)

)

)

) 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 Defendant s 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 Te xas that meets the requirements of CAA section

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

quality standards (“ NAAQS ”) ; (2) prom ulgate 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 102 disapproval action pursuant to CAA section 110(k)(3) on the state implementation plan (“SIP”)

that Texas submitt ed for implemen tation 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 se ction 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;

W H EREAS, this Partial Consent Decree does not resolve Plaintiff’s claim with respect to

the inter state 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 t o any final EPA action;

WHEREAS, the Court, by ente ring 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 test imony, 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: Case 1:10-cv-01541-CKK Document 62-1 Filed 07/27/15 Page 2 of 103 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 notice s 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 satisf y 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 SI P that collectively satisf y 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 a fter signing a proposed or final notice a s described

in paragraphs 2 and 3 of this Partial Co nsent 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 104 typog raphical 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 f ive (5) business days of delivery to

the Office of Federal Register.

5

. The deadlines in paragraph s 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 o n 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 t o enter and enforc e thi s 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 sub ject 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 specifi ed in this Partial Consent Decree by the tim e s

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 an y claim , remedy, or defense, on any grounds, related Case 1:10-cv-01541-CKK Document 62-1 Filed 07/27/15 Page 4 of 105 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

C ourt jurisdi ction to review any final decision made by EPA pursuant to this Partial Consent

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

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

U.S.C. § § 7607(b)(1) ; or (c) waive any claims, remedies

, or defenses the Parties may have under

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

10

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

incurre d prior to entry of this Partial Consent Decree is hereby extended until ninety (9 0) 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, inclu ding 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 lit igation, including attorneys’ fees.

1 1

. 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 ne ed to enforce or defend agai nst efforts to modify its terms of the underlying schedule

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

reserves the righ t to challenge any such claim.

1 2

. The Parties recognize and acknowledge that the obli gations imposed upon EPA

under this Partial Consent Decree can only be undertaken using appropriated funds legally Case 1:10-cv-01541-CKK Document 62-1 Filed 07/27/15 Page 5 of 106 available for such purpose. No provision of this Decree shall be interpreted as or constitute a

commitment or requirement that the United St ates 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 invoc ation

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 cour t order, pursuant t o the procedures of

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

extension.

1 4

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

in writing, via email , and s ent to the following:

For Plaintiff :

KHUSHI K. DESAI

DAVID S. BARON

EARTHJUS T ICE

1625 Massachusetts Ave., NW, Suite 702

Washington, DC 20036

Tel: (202) 667

- 4500

Fax: (202) 667

- 2356

kdesai@earthjustice.org Case 1:10-cv-01541-CKK Document 62-1 Filed 07/27/15 Page 6 of 107 dbaron@earthjustice.org

For Defendant :

STEPHANIE J. TALBERT

Environmental Defense Section

Environment & Natural Resources Division

999 18 th St., South Terrace, Suite 370

Denver, CO 80202

Tel: (303) 844

- 7231

Stephanie.talbert@usdoj.gov

STEPHANIE HOGAN

ABIRAMI VIJAYAN

U.S. Environmental Protection Agenc y

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 OSL ZEWSKI

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

1 5

. 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 t he 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 P arty may move the Court to resolve the dispute.

1 6

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

Court shall be properly filed unless Plaintiff has followed the pro cedure set forth in p aragraph 1 5

, Case 1:10-cv-01541-CKK Document 62-1 Filed 07/27/15 Page 7 of 108 and provided EPA with written notice received at least ten ( 10 ) business days before the filing of

such motion or proceeding.

1 7

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

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

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

days in which to respond to such motion.

1 8

. The Parties agree and acknowledge that before this Partial Consent Decree can be

finalized and entered by the Court, EPA m ust 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 withi n 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 conside r 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 thi s Partial Consent Decree, the

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

.

1 9

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

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

SO ORDERED on this day of 201 5

.

___________________________________ JUDGE COLLEEN KOLLAR

- KOTELLY Case 1:10-cv-01541-CKK Document 62-1 Filed 07/27/15 Page 8 of 109 SO AGREED:

FOR PLAINTIFF

/s/ Khushi K. Desai

KHUSHI K. DESAI

EARTHJUS T ICE

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

E nvironment & Natural Resources Division

/s/ Stephanie J. Talbert

STEPHANIE J. TALBERT

United States Department of Justice

Environment and Natural Resources Division

Environmental Defense Section

999 18 th Street

South Terrace, Suite 370

Denver, CO 802 02

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 Case 1:10-cv-01541-CKK Document 62-1 Filed 07/27/15 Page 9 of 1010 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 Case 1:10-cv-01541-CKK Document 62-1 Filed 07/27/15 Page 10 of 10