1 THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CENTER FOR BIOLOGICAL DIVERSITY,
Plaintiff,

v. GINA McCARTHY, in her official capacity as the Administrator of the United States Environmental Protection Agency,

Defendant. Case No. 15-cv-00268 TFH [PROPOSED] CONSENT DECREE

WHEREAS, on February 24, 2015, Plainti ff Center for Biological Diversity (“Plaintiff”) filed the above-captioned matter in the U.S. District Court for the District of Columbia against Gina McCarthy, in her official capacity as Administrator of the United States Environmental Protection Agency (her einafter “EPA” or “Defendant”); WHEREAS, Plaintiff allege s that on September 8, 2011, EPA found that Puerto Rico, Iowa, and Washington had failed to submit elem ents of their State implementation plans (“SIPs”) to satisfy the requirements of Clean Air Act Section 110, 42 U.S.C. § 7410(a)(2)(A)- (C); (D)(i)(II) (Prevent ion of Significant Deterioration pr ong only); (E)-(H); and (J)-(M) to implement the 2006 National Ambient Air Qualit y Standards (“NAAQS”) for fine particulate matter (“PM2.5”), 76 Fed. Reg. 55,577, 55,579 (Sept. 8, 2011); WHEREAS, pursuant to Section 110(c)(1) of the Clean Air Act, 42 U.S.C. § 7410(c)(1), EPA “shall promulgate a Federal implementation plan at any time within 2 years
after the Administrator” either “finds that a Stat e has failed to make a required submission . . .” or “disapproves a State implementation plan subm ission in whole or in pa rt,” “unless the State corrects the deficiency, and the Administrator approves the plan or plan revision, before the Administrator promulgates such Federal implementation plan”; Case 1:15-cv-00268-TFH Document 9-1 Filed 06/16/15 Page 1 of 82 WHEREAS, Plaintiff alleges th at EPA had a mandatory duty to promulgate a Federal implementation plan (“FIP”) addressing the requi rements listed above for Puerto Rico, Iowa, and Washington by October 11, 2013; WHEREAS, Plaintiff allege s that EPA failed to perform this mandatory duty; WHEREAS, EPA took final action on th e Washington SIP submission for the 2006 PM2.5 NAAQS for the elements listed above, Final Rule , 80 Fed. Reg. 27,102 (May 12, 2015), and therefore Plaintiff’s claim is moot as to Washington; WHEREAS, the relief requested in the Complaint includes, among other things, an
order from this Court to establish a date cert ain by which EPA must fulfill its obligations; WHEREAS, Plaintiff and EPA have agreed to a settlement of this action without admission of any issue of fact or law, except as expressly provided herein; WHEREAS, Plaintiff and EPA, by entering in to this Consent Decree, do not waive or limit any claim, remedy, or defense, on any grounds, related to a ny final EPA action; WHEREAS, Plaintiff and EPA consider this Consent Decree to be an adequate and equitable resolution of all the claims in this matter and therefore wish to effectuate a settlement; WHEREAS, it is in the intere st of the public, Plaintiff, EPA, and judicial economy to
resolve this matter withou t protracted litigation; WHEREAS, Plaintiff and EPA agree that this Court has jurisdiction over this matter pursuant to the citizen suit pr ovision in CAA section 304(a )(2), 42 U.S.C. § 7604(a)(2); WHEREAS, Plaintiff and EPA agree that ve nue lies in the District of Columbia; WHEREAS, the Court, by entering this Cons ent Decree, finds that the Consent Decree is fair, reasonable, in the public interest , and consistent with the Clean Air Act; NOW THEREFORE, before the taking of test imony, without trial or determination of any issues of fact or law, and upon the consent of Plaintiff Center for Biological Diversity and Defendant EPA, it is hereby orde red, adjudged and decreed that:
1. No later than April 1, 2016, the appropriate EPA official shall sign a notice or notices of final rulemaking either ap proving a SIP, promulgating a FIP, or Case 1:15-cv-00268-TFH Document 9-1 Filed 06/16/15 Page 2 of 83 approving a SIP in part with promulgation of a partial FIP, for Puerto Rico to meet the requirements of 42 U.S.C. § 7410(a )(2)(A)-(C); (D)(i)(I I) (Prevention of Significant Deterioration prong only); (E) -(H); and (J)-(M) to implement the 2006 PM2.5 NAAQS.
2. No later than September 30, 2016, the appropr iate EPA official shall sign a notice or notices of final rulemaking either approving a SIP, promulgating a FIP, or approving a SIP in part with promulgation of a partial FIP, for Iowa to meet the requirements of 42 U.S.C. § 7410(a)(2)(A)-(C ); (D)(i)(II) (Prevention of Significant Deterioration prong only); (E)-(H); a nd (J)-(M) to implement the 2006 PM2.5 NAAQS;
3. EPA shall, within 15 business days of si gnature, deliver notice of each action taken pursuant to paragraphs 1 and 2 of this C onsent Decree to the Office of the Federal Register for review and publication.
4. The deadlines established by this Consent Decree may be extended (a) by written stipulation of Plaintiff and EPA with no tice to the Court, or (b) by the Court upon motion of EPA for good cause shown pursuant to the Federal Rules of Civil Procedure and upon consideration of any response by Plaintiff and any reply by EPA. Any other provision of this Consent Decree also may be modified by the Court following motion of an undersigned party for good cause shown pursuant to
the Federal Rules of Civil Procedure a nd upon consideration of any response by a non-moving party and any reply.
5. If a lapse in appropriations for EPA occu rs within one hundred and twenty (120) days prior to any deadline in Paragraphs 1 and 2 in this Decree, that deadline shall be extended automatically one day for each day of the lapse in appropriations. Nothing in this paragraph shall preclude EPA from seeking an additional extension through modification of this Agreement pursuant to Paragraph 4. Case 1:15-cv-00268-TFH Document 9-1 Filed 06/16/15 Page 3 of 84 6. 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.
7. Plaintiff and EPA agree that this Consen t Decree shall constitute a complete and
final settlement of all claims that Plain tiff has asserted in this case. Plaintiff therefore discharges and covenants not to sue the United States, including EPA, for any such claims.
8. This Court shall retain jurisdiction over this matter to enforce the terms of this Consent Decree and to consider any reque sts for costs of li tigation, including attorney fees.
9. In the event of a dispute between Plainti ff and EPA concerning the interpretation or implementation of any aspect of this C onsent Decree, the di sputing party shall provide the other party with a written notice outlining the nature of the dispute and requesting informal negotiations. These par ties shall meet and c onfer in order to attempt to resolve the dispute. If thes e parties are unable to resolve the dispute within ten (10) business days after receipt of the notice, either party may petition the Court to resolve the dispute.
10. No motion or other proceeding seeking to enforce this Consent Decree or for contempt of Court shall be filed unless the procedure se t forth in Paragraph 9 has been followed, and the moving party has provided the other party with written notice received at least ten (10) business days before the filing of such motion or proceeding.
11. Nothing in the terms of this Consent D ecree shall be construed (a) to confer upon this Court jurisdiction to review any issues that are within the exclusive jurisdiction
of the United States Courts of A ppeals under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1) or (b) to waive any claims, remedies, or defenses that the parties may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1). Case 1:15-cv-00268-TFH Document 9-1 Filed 06/16/15 Page 4 of 85 12. Nothing in this Consent Decree shall be c onstrued to limit or modify any discretion accorded EPA by the Clean Air Act or by ge neral principles of administrative law in taking the actions which are the subject of this Consent D ecree, including the discretion to alter, amend, or revise any final actions pr omulgated pursuant to this Consent Decree. EPA’s obligation to perfor m each action specified in this Consent
Decree does not constitute a limitation or modification of EPA’s discretion within the meaning of this paragraph.
13. Except as expressly provided herein, not hing in this 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 to any final action EPA takes with respect to the actions addressed in this Consent Decree.
14. It is hereby expressly understood and agr eed that this Consent Decree was jointly drafted by Plaintiff and EPA. Accordingly, the parties hereby ag ree that any and all
rules of construction to the effect that ambiguity is construed against the drafting party shall be inapplicable in any di spute concerning the terms, meaning, or interpretation of this Consent Decree.
15. The parties agree and acknowledge that before this Consent Decree can be finalized and entered by the Court, EPA must provide notice of this Consent Decree in the Federal Register and an opportunity for public comment pursuant to CAA section 113(g), 42 U.S.C. § 7413(g). After this Consent Decree has undergone notice and comment, the Administrator an d/or the Attorney Genera l, as appropriate, shall promptly consider any written comments in determining whether to withdraw or
withhold their consent to the Consent D ecree, in accordance with CAA section 113(g). If the Administrator and/or the Attorney Genera l do not elect to withdraw or withhold consent, EPA shall promptly f ile a motion that requests that the Court
enter this Consent Decree.
16. Any notices required or provi ded for by this Consent Decree shall be in writing, via electronic mail or other means, and sent to the following (or to any new address of Case 1:15-cv-00268-TFH Document 9-1 Filed 06/16/15 Page 5 of 86 counsel as filed and listed in the docket of the above-captioned matter, at a future date):
For Plaintiff: ROBERT UKEILEY Law Office of Robert Ukeiley 255 Mountain Meadows Road Boulder, CO 80302 Telephone: (303) 442-4033 rukeiley@igc.org

For EPA: SIMI BHAT Environmental Defense Section P.O. Box 7611 Washington D.C. 20044 Telephone: (202) 514-0242 Facsimile: (202) 514-8865 simi.bhat@usdoj.gov

17. EPA and Plaintiff recognize and acknow ledge that the obligations imposed upon EPA under this Consent Decree can only be undertaken using appropriated funds legally available for such purpose. No pr ovision of this Consent 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.
18. The deadline for filing a motion for costs of litigation (including attorney fees) for activities performed prior to entry of th e Consent Decree is hereby extended until ninety (90) days after this Consent Decree is entered by the Court. During this period, the Parties shall seek to resolve informally any cl aim for costs of litigation (including attorney fees), and if they cannot, the Cent er for Biological Diversity will file a motion for costs of litigation (inc luding attorney fees) or a stipulation or
motion to extend the deadline to file such a motion. EPA reserves the right to oppose any such request. The Court shall re tain jurisdiction to resolve any requests for costs of litigation, including attorney fees. Case 1:15-cv-00268-TFH Document 9-1 Filed 06/16/15 Page 6 of 87 19. Plaintiff reserves the right to seek additional costs of litigation, including reasonable attorney fees, incurred subsequent to entr y of this Consent Decree. EPA reserves the right to oppose any such request for additional costs of litigation, including attorney fees.
20. If for any reason the Court should decline to approve this Consent Decree in the form presented, this agreement is voidable at the sole discretion of either party and the terms of the proposed Consent Decree may not be used as evidence in any litigation between the parties.
21. The undersigned representatives of Plain tiff and EPA certify that they are fully authorized by the party they represent to consent to the Court’s entry of the terms
and conditions of this Decree.

SO ORDERED on this _____ day of _____________________, 2015.

THOMAS F. HOGAN UNITED STATES DISTRICT JUDGE

COUNSEL FOR PLAINTIFF: /s Robert Ukeiley ROBERT UKEILEY DDC Bar No. MD 14062 Law Office of Robert Ukeiley 255 Mountain Meadows Road Boulder, CO 80302 Telephone: (303) 442-4033 rukeiley@igc.org Case 1:15-cv-00268-TFH Document 9-1 Filed 06/16/15 Page 7 of 88 COUNSEL FOR DEFENDANT: JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division

/s/Simi Bhat SIMI BHAT Environmental Defense Section 601 D Street N.W., Suite 8000 Washington D.C. 20004 Telephone: (202) 514-0242 Facsimile: (202) 514-8865 simi.bhat@usdoj.gov

Of counsel: Karen Bennett Bianco Attorney-Adviser Office of General Counsel U.S. Environmental Protection Agency Case 1:15-cv-00268-TFH Document 9-1 Filed 06/16/15 Page 8 of 8