UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENVIRONMENTAL INTEGRITY PROJECT,and SIERRA CLUB, Plaintiffs,

~~ Civil Case No. 1:15-CV-745 (ABJ) GINA MCCARTHY,in her official capacity as Administrator,United States Environmental Protection Agency, Defendant.

CONSENT DECREE WHEREAS,Plaintiffs Environmental Integrity Project and Sierra Club (collectively, "Plaintiffs")filed this action pursuant to section 304(a)(2)ofthe Clean Air Act ("CAA"),42 U.S.C. § 7604(a)(2),alleging that Defendant Gina McCarthy,in her official capacity as Administrator, United States Environmental Protection Agency ("EPA"),failed to perform a non-discretionary duty under CAA § 505(b)(2),42 U.S.C. § 7661d(b)(2),to grant or deny an administrative petition submitted by Plaintiffs in October 2014 requesting that EPA object to a revised CAA Title V permit issued by the Texas Commission on Environmental Quality to the Southwestern Electric Power Company for operation ofthe H.W.Pirkey Power Plant in Harrison County,Texas ("Pirkey Petition"); WHEREAS,Plaintiffs and EPA (collectively, "the Parties")wish to effect a settlement of the above-captioned matter without expensive and protracted litigation; WHEREAS,the Parties consider this Consent Decree to be an adequate and equitable resolution ofthe claims in the above-captioned matter;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,42 U.S.C. §§ 7401 et seg:; 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 relief contained in this Consent Decree. Venue is proper in the United States District Court for the District ofColumbia. 2. On or before February 12, 2016,EPA shall sign a response to the Pirkey Petition, pursuant to 42 U.S.C. § 7661d(b)(2).

Following signature ofsuch response to the Pirkey Petition, EPA shall expeditiously deliver notice ofEPA's response to the Office ofthe Federal Register for publication. Following such transmission, EPA shall not take any step (other than as necessary to correct any typographical error or other errors in form)to delay or otherwise interfere with publication ofsuch notice in the Federal Register. 4. IfEPA's response includes the granting ofany portion ofthe Pirkey Petition in whole or in part, EPA shall promptly transmit its response to the Texas Commission on Environmental Quality.

The deadline for filing a motion for costs of litigation, including attorneys' fees, incurred prior to entry ofthis Consent Decree is hereby extended until sixty (60)days after the entry ofthis Consent Decree by this Court. During this time,the Parties shall seek to resolve informally any claim for costs oflitigation, including attorneys' fees, and ifthey cannot, will submit that issue to this Court fir resolution. The United States daes not waive cr limit any

~►•~defenses it may have to such claim. This Court shall retain jurisdiction to resolve any requests

for costs oflitigation, including attorneys' fees. 6. Any provision ofthis Consent Decree may be modified by (a)written stipulation ofthe Parties with notice to the Court,or (b)by the Court following motion ofany party to this Consent Decree,pursuant to the Federal Rules of Civil Procedure, and upon consideration ofany response by the non-moving party. 7. The Parties recognize that the possibility exists that a lapse in the appropriations that fund EPA could delay compliance with the timetables contained in this Consent Decree. Should a delay occur due to a lapse in appropriations, any resulting failure to meet the timetables set forth herein shall not constitute a failure to comply with the terms ofthis Consent Decree,and any deadlines occurring within one hundred twenty (120)days ofthe termination of the delay shall be automatically extended one day for each day ofthe delay. Nothing in this paragraph shall preclude EPA from seeking an additional extension through modification ofthis Consent Decree pursuant to Paragraph 6. 8. Plaintiffs and EPA shall not challenge the terms ofthis Consent Decree or this Court's jurisdiction to enter and enforce this Consent Decree. 9. Plaintiffs and EPA agree that this Consent Decree shall constitute a complete and final settlement ofall claims that Plaintiffs have asserted against the United States, including EPA,under any provision oflaw in connection with Environmental Inte~ty Project, et al. v. McCarthy,Civil Case No. 1:15-CV-745 (ABJ) (D.D.C.), except as provided in Paragraph 5 of this Consent Decree. Plaintiffs therefore discharge and covenant not to sue the United States, including EPA,for any such claims.

~c~10. Nothing in this Consent Decree shall be construed to limit or modify any

discretion accorded EPA by the CAA or by general principles ofadministrative law in taking the actions which are the subject ofthis Consent Decree, including discretion to alter, amend,or revise any responses or final actions contemplated by this Consent Decree. EPA's obligation to perform the actions specified in Paragraphs 2, 3 and 4 ofthis Consent Decree by the time specified therein does not constitute a limitation or modification ofEPA's discretion within the meaning ofthis paragraph. 11. Nothing in this Consent Decree shall be construed as an admission ofany issue of fact or law nor to waive or limit any claim or defense, on any grounds,related to any final action EPA may take with respect to the Pirkey Petition. 12. Nothing in this Consent Decree shall be construed to confer upon the District Courtjurisdiction to review any final decision made by EPA pursuant to this Consent Decree. Nothing in this Consent Decree shall be construed to confer upon the District Courtjurisdiction to review any issues that are within the exclusive jurisdiction ofthe United States Court of Appeals pursuant to CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1). Nothing in the terms of this Consent Decree shall be construed to waive any remedies or defenses the Parties may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1). 13. The obligations imposed upon EPA under this Consent Decree can only be undertaken using appropriated funds. No provision ofthis 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 provision oflaw. 14. Any notices required or provided for by this Consent Decree shall be made in writing and sent to each ofthe following:For Plaintiffs:

Ilan Levin Environmental Integrity Project 707 Rio Grande, Suite 200 Austin,TX 78701 Tel: (512)637-9479 ilevin@environmentalintegrity. org For Defendants: Chief,Environmental Defense Section Re: DJ # 90-5-2-4-20410 Environment and Natural Resources Division United States Department ofJustice P.O. Box 7611 Washington,DC 20044 Tel: (202)514-2219 Fax:(202)514-8865 Jonathan Skinner-Thompson Office ofthe General Counsel U.S. Environmental Protection Agency WJC North, MC 2344A 1200 Pennsylvania Ave.,N.W. Washington,D.C. 20460 Tel: (202)564-0291 Skinner-Thompson.

Jonathan@epa.

gov 15. In the event ofa dispute between the Parties concerning the interpretation or implementation ofany aspect ofthis Consent Decree,the disputing Party shall provide the other Party with a written notice outlining the nature ofthe dispute and requesting informal negotiations. Ifthe Parties cannot reach an agreed-upon resolution within twenty (20)business days after receipt ofthe notice, any party may move the Court to resolve the dispute. 16. No motion or other proceeding seeking to enforce this Consent Decree or for contempt of Court shall be filed unless the Plaintiffs have followed the procedure set forth in Paragraph 15.

-5-17. The Court shall retain jurisdiction to determine and effect compliance with this

Consent Decree. When EPA's obligations under Paragraphs 2through 4 ofthis Consent Decree have been completed, and Plaintiffs' claim for costs oflitigation has been resolved pursuant to Paragraph 5,the above-captioned matter shall be dismissed with prejudice. The Parties may either jointly notify the Court that the Consent Decree should be terminated and the case dismissed, or EPA may so notify the Court by motion. IfEPA notifies the Court by motion,then Plaintiffs shall have twenty (20)days in which to respond. 18. 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 CAA section 113(g), 42 U.S.C. § 7413(g). EPA shall promptly submit a public notice ofthis Consent Decree to the Federal Register for publication and public comment after lodging this 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 CAA. Ifthe federal government elects not to withdraw or withhold consent to this Consent Decree,the Parties promptly shall file a motion that requests the Court to enter this Consent Decree. Iffor any reason the Court does not enter the Consent Decree,the obligations set forth in this Consent Decree are null and void. 19. It is hereby expressly understood and agreed that this Consent Decree was jointly drafted by Plaintiffs and EPA and that any and all rules ofconstruction to the effect that ambiguity is construed against the drafting party shall be inapplicable in any dispute concerning the terms, meaning,ar interpretation aithis Consent Decree.20. The undersigned representatives ofeach Party certify that they ara futly

authorized by the Party they represent to bind that Party to the terms ofthis ConsentDecree. SO ORDERED on this _day of ,201S.

HON.AMY BERMAN JACKSON United States District Judge

SO AGREED: FOR PLAINTIFFS ~ ' Ilan Levin Environmental Integrity Project ?0? Rio Grande,Suite 200 Austin,TX 78701 Tet:(5I2)637-9479 ilevin@enviranrnentalintegrity.org

c ~ ~ ~.~ Dated: I

FOR DEFENDANT JOHN C.CRUDEN Assistant Attorney General Environment &Natural Resources Division .—Q.l Heather E.Gange United States Department ofJustice Environmental Defense Section P.O.Box 7611 Washington,DC 20444 Tel: {202)514-4206 Fax:(202} 514-8865 Heather.Gange@usdoj.gov Dated: ~U~ (p1

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