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BRENT NEWELL (SBN 210312)

ALEGRIA DE LA CRUZ (SBN 229713)

Center on Race Poverty & the Environment

47 Kearny Street, Suite 804

San Francisco, CA 94108

Telephone: (415) 346-4179

Fax: (415) 346-8723

Email: bnewell@crpe-ej.org

 adelacruz@crpe-ej.org

Attorneys for Plaintiff

IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

MICHELLE R. LAMBERT

Trial Attorney

United States Department of Justice

Environmental Defense Section

P.O. Box 23986

Washington, D.C. 20026-3986

Telephone: (202) 616-7501

Fax: (202) 514-8865

Email: michelle.lambert@usdoj.gov

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

 FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

ASSOCIATION OF IRRITATED

RESIDENTS, an unincorporated association,

 Plaintiff,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, LISA JACKSON,

in her official capacity as Administrator of the

United States Environmental Protection

Agency, and JARED BLUMENFELD, in his

official capacity as Regional Administrator for

Region IX of the United States Environmental

Protection Agency,

 Defendants.

Case No. 3:10-CV-03051-WHA

CONSENT DECREE
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Consent Decree

Case No. 3:10-cv-03051-WHA 1

WHEREAS, on July 12, 2010, Plaintiff Association of Irritated Residents filed the

complaint in the above-captioned matter against Defendants United States Environmental

Protection Agency, Lisa Jackson, in her official capacity as Administrator of the United States

Environmental Protection Agency, and Jared Blumenfeld, in his official capacity as Regional

Administrator for Region IX of the United States Environmental Protection Agency

(collectively, “EPA”), alleging that EPA has failed to undertake a certain nondiscretionary duty

under the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401-7671q, and that such alleged failure is

actionable under section 304(a)(2) of the CAA, 42 U.S.C. § 7604(a)(2);

WHEREAS, section 110(a)(1) of the CAA, 42 U.S.C. § 7410(a)(1), requires States to

adopt and submit to EPA for review state implementation plans (“SIPs”), which establish

specific control measures and other requirements that apply to particular sources of air pollution

within a State and are designed to attain, maintain, and enforce National Ambient Air Quality

Standards established by EPA that specify the maximum permissible concentrations for those 

pollutants in the ambient air, see 42 U.S.C. §§ 7408, 7409; 

WHEREAS, section 110(k) of the CAA, 42 U.S.C. § 7410(k), sets forth the process by

which EPA is to review SIP submissions, including SIP revisions;

WHEREAS, Plaintiff’s complaint alleges that EPA has a nondiscretionary duty to act on

SIP submissions and revisions submitted to EPA within the time lines set forth in section

110(k)(2) of the CAA, 42 U.S.C. § 7410(k)(2); 

WHEREAS, Plaintiff’s complaint alleges that EPA has failed to take timely final action

to approve, disapprove, or partially approve/disapprove the 2008 PM2.5 San Joaquin Valley

Unified Air Pollution Control District Plan, which was submitted to EPA on or about June 30,

2008 and includes measures to control emissions of fine particulate matter and its precursors

within the San Joaquin Valley (hereinafter, “PM2.5 Plan”);

WHEREAS, Plaintiff’s complaint seeks an order from this Court directing EPA to take

final action on the PM2.5 Plan pursuant to section 110(k) of the CAA;

WHEREAS, EPA intends to provide public notice and an opportunity to comment on its

proposed action on any SIP submission, or revision thereto, that provides a basis for the final
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Consent Decree

Case No. 3:10-cv-03051-WHA 2

action specified in Paragraph 1 below, and to consider and address in that final action any

relevant comments received; 

 WHEREAS, the parties have agreed to a settlement of this action without admission of

any issue of fact or law; 

WHEREAS, the parties, by entering into this Consent Decree, do not waive or limit any

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

WHEREAS, the parties consider this Consent Decree to be an adequate and equitable

resolution of all of the claims in this matter; 

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

this matter without protracted litigation; 

WHEREAS, the parties agree that this Court has jurisdiction over this matter pursuant to

the citizen suit provision in section 304(a)(2) of the CAA and that venue lies in the Northern

District of California; 

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;

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:

1. No later than September 30, 2011, EPA shall sign a notice of the Agency’s final

action on the PM2.5 Plan pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k). No later

than 15 business days following signature, EPA shall send the notice to the Office of the Federal

Register for review and publication in the Federal Register. 

2. When EPA’s obligations under Paragraph 1 have been completed, the parties

shall file a joint request to the Court to dismiss this matter with prejudice.

3. The parties may extend the deadlines established in Paragraphs 1 and 9 by written

stipulation executed by counsel for the parties and filed with the Court. In addition, the

deadlines established in Paragraphs 1 and 9 may be extended by the Court upon motion by any

party to this Consent Decree for good cause shown and demonstrating that such modification is
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Consent Decree

Case No. 3:10-cv-03051-WHA 3

in the public interest, after consideration of any response by the non-moving party. 

4. Nothing in this Consent Decree shall be construed to limit or modify the

discretion accorded EPA by the CAA and by general principles of administrative law, including

the discretion to alter, amend or revise any response and/or final action contemplated by this

Consent Decree. EPA’s obligation to take the action set forth in Paragraph 1 by the time

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

meaning of this paragraph.

5. Nothing in this Consent Decree shall be construed to confer upon the district

court jurisdiction to review any decision made in the final action identified in Paragraph 1. 

Nothing in this Consent Decree shall be construed to confer upon the district court jurisdiction to

review any issues that are within the exclusive jurisdiction of the United States Courts of

Appeals pursuant to sections 307(b)(1) and 505 of the CAA, 42 U.S.C. §§ 7607(b)(1), 7661d.

6. This Court shall retain jurisdiction to enforce the terms of this Consent Decree

and to consider any requests for costs of litigation, including attorneys’ fees. 

7. 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 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, any party may move the Court to resolve the dispute. 

8. No motion or other proceeding seeking to enforce this Consent Decree shall be

considered properly filed, unless Plaintiff has followed the procedure set forth in Paragraph 7

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

such motion or proceeding.

9. EPA agrees that, pursuant to section 304(d) of the CAA, 42 U.S.C. § 7604(d),

Plaintiff is both eligible and entitled to recover its costs of litigation in this action, including

reasonable attorneys’ fees, incurred prior to entry of this Consent Decree. The deadline for filing

a bill of costs pursuant to Local Rule 54-1 and a motion for costs of litigation, including

reasonable attorneys’ fees, pursuant to Local Rule 54-6 for activities performed in this case prior
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Consent Decree

Case No. 3:10-cv-03051-WHA 4

to entry of this Consent Decree, is hereby extended until 90 days after the date on which the

Court enters this Consent Decree. During this time the parties shall seek to resolve informally

any claim for costs of litigation, including reasonable attorneys’ fees. 

10. Plaintiff reserves the right to seek recovery of costs of litigation, including

reasonable attorneys’ fees, consistent with section 304(d) of the CAA, for activities to enforce

this Consent Decree. EPA reserves the right to oppose any such request for costs of litigation.

11. The obligations imposed upon EPA under this Consent Decree may only be

undertaken using appropriated funds. No provisions of this 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 federal law. 

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

Court’s jurisdiction to enter this Consent Decree.

13. The parties agree and acknowledge that before this Consent Decree is entered by

the Court, EPA must provide notice of this Consent Decree in the Federal Register and an

opportunity for public comment pursuant to section 113(g) of the CAA, 42 U.S.C. § 7413(g). 

After this Consent Decree has undergone 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 their consent to the Consent Decree, in accordance

with section 113(g) of the CAA. If the Administrator and/or the Attorney General do not elect to

withdraw or withhold their consent, EPA shall promptly file a motion that requests the Court to

enter this Consent Decree.

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

writing, via facsimile, e-mail or other means, and sent to the following:

For Plaintiff:

Brent Newell

Alegria De La Cruz

Center on Race Poverty & the Environment

47 Kearny Street, Suite 804

San Francisco, CA 94108

Telephone: (415) 346-4179

Email: bnewell@crpe-ej.org

 adelacruz@crpe-ej.org 
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Consent Decree

Case No. 3:10-cv-03051-WHA 5

For Defendants:

Michelle R Lambert

Trial Attorney 

U.S. Department of Justice

Environmental Defense Section

P.O. Box 23986

Washington, D.C. 20026-3986

Phone: (202) 616-7501

Email: michelle.lambert@usdoj.gov

Geoffrey Wilcox

Office of General Counsel

U.S. Environmental Protection Agency

Ariel Rios Bldg., MC 2344A

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

Phone: (202) 564-5601

Fax: (202) 564-5603

Email: wilcox.geoffrey@epa.gov

Jeanhee Hong

Office of Regional Counsel

U.S. Environmental Protection Agency

75 Hawthorne Street, ORC-2

San Francisco, CA 94105

Phone: (415) 972-3921

Fax: (415) 947-3570

Email: hong.jeanhee@epa.gov

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

authorized by the party that they represent to bind that party to the terms of this Consent Decree.

16. This Consent Decree shall not preclude any right of action by a non-party to bring

a citizen suit pursuant to section 304 of the Clean Air Act, 42 U.S.C. § 7604, to enforce the nondiscretionary duties alleged in the Complaint. In any such matter, EPA preserves all its defenses. 

IT IS SO ORDERED.

Dated: _________________ __________________________________

WILLIAM H. ALSUP

UNITED STATES DISTRICT JUDGE

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Consent Decree

Case No. 3:10-cv-03051-WHA 6

COUNSEL FOR PLAINTIFFS:

Dated: November 12, 2010 /s/ Brent Newell (with permission) BRENT NEWELL (SBN 210312)

ALEGRIA DE LA CRUZ (SBN 229713)

Center on Race Poverty & the Environment

47 Kearny Street, Suite 804

San Francisco, CA 94108

Telephone: (415) 346-4179

Email: bnewell@crpe-ej.org

Email: adelacruz@crpe-ej.org

Counsel for Plaintiff

COUNSEL FOR DEFENDANTS:

Dated: November 12, 2010 IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

 /s/ Michelle R. Lambert 

MICHELLE R. LAMBERT

Trial Attorney 

U.S. Department of Justice

Environmental Defense Section

P.O. Box 23986

Washington, D.C. 20026-3986

Phone: (202) 616-7501

Email: michelle.lambert@usdoj.gov

Counsel for Defendants