1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 DECREE1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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 Blum enfeld, 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, wh ich 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 final1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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 Consen t 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 is1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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 exclus ive 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 D ecree, 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 Plainti ff has followed the procedure set forth inParagraph 7 and provided EPA with written notice received at l east 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 prior1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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 sec tion 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 th eir 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 pr omptly 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.org1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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 bi nd 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 bringa 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

//// ////1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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