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28 JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division United States Department of Justice LESLIE M. HILL (D.C. Bar No. 476008) Leslie.Hill@usdoj.gov Environmental Defense Section 601 D Street N.W., Suite 8000 Washington D.C. 2 0004 Telephone (202) 514

- 0375 Facsimile (202) 514

- 8865
Attorneys for Defendant

ROBERT UKEILEY , Admitted Pro Hac Vice rukeiley@igc.org Law Office of Robert Ukeiley 255 Mountain Meadows Road Boulder, CO 80302 Telephone (303) 442

- 4033

[additional a ttorney s for Plaintiff included in signature block]
Attorney s for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

SIERRA CLUB
,
Plaint i ff,

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

Defendant. Case No. 4:14

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- 3198

- JSW
[PROPOSED] PARTIAL CONSENT DECREE

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28 WHEREAS, on July 15 , 201 4 , Plaintiff Sierra Club (“Plaintiff”) filed the above

captioned matter against Gina McCarthy , i n her official capacity as Administrator of the United States Environmental Protection Agency (hereinafter “EPA” or “ Defendant”);
WHEREAS, on December 10 , 2014, pursuant to Fed. R. Civ. P. 15(a)(2) , Plaintiff

filed a first amended complaint (Dkt. No. 28 ) (the “Complaint”) ; WHEREAS, Plaintiff alleges that EPA has failed to undertake certain non

discretionary duties 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, § 7604(a)(2);
WHEREAS, on March 12, 2008, pursuant to CAA section 1 09 ( a )( 1 ), 42 U.S.C. §

74 09 ( d )( 1 ) , EPA promulgated a final rule revising the ozone National Ambient Air Quality Standard (“ NAAQS ”), Final Rule , 7 3 Fed. Reg. 16
, 436 ( Mar. 2 7, 2008 ) (the
“2008 ozone NAAQS”) ; WHEREAS, pursuant to CAA section 110( d )( 1 ), 42 U.S.C. § 7410( d )( 1 ), “[e]ach
State shall,

. . . submit to the Administrator, within 3 years

. . . after the promulgation of a [NAAQS] (or revision thereof) under section 740 9 of this title for any air pollutant, a plan

which provides for implementation, maintenance, and enforcement of such primary standard in each air quality control region (or portion thereof) with each State,” a state implementation plan (“SIP”), often refe rred to as an infrastructure SIP;
WHEREAS, s uch SIP submittal s must meet the requirements set forth in CAA section 110(a)(2)(A)

- (M)
, 42 U.S.C. § 7410(a)(2)(A)

- (M) ; WHEREAS, EPA must then determine whether a State’s submittal is complete

within six months a fter EPA receives the submission. 42 U.S.C. § 7410(k)(1)(B). If EPA does not determine completeness of the plan or revision within six months, then the submittal is deemed complete by operation of law after six months. Id. ; WHEREAS, pursuant to CAA sec tion 110 (k)( 2 )

- (4) , 42 U.S.C. § 7410(k)( 2 )

- (4)
, EPA was required to approve in whole or in part, disapprove, or conditionally approve in whole or in part
, each plan or revision , within 12 months of a determination of completeness by EPA or a determination deemed by operation of law to be complete;

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28 WHEREAS, pursuant to CAA section 110( d )( 1 ), 42 U.S.C. § 7410( d )( 1 ), states were required to submit infrastructure SIPs within 3 years of promulgation of the 200 8

ozone NAAQS, i.e., by March 12, 2011 ; WHEREAS, in C laim 2, Plaintiff alleges that EPA has failed to perform a duty mandated by CAA sections 110(k) (2)

- (4), 42 U.S.C. §§ 7410(k)( 2)

- (4), to take final

action to approve or disapprove, in whole or in part, certain 2008 ozone NAAQS

infrastructure SIP submissions addressing the following element or elements under

42 U.S.C. § 7410(a)(2) from the states listed below, see First Am. Compl. ¶ ¶ 31

- 106 (Dkt. No. 28 ) :
AREA/STATE ELEMENT(S) (under CAA section 110)

Alabama 110(a)(2)(A)

- (C), (D)(i)(II)

- (H), (J)

- (M)

Arizona 110(a)(2)(A)

- (H), (J)

- (M)

Colorado 110(a)(2)(A)

- (H), (J)

- (M)

Connecticut 110(a)(2)(A)

- (C), (D)(i)(II)

- (H), (J)

- (M) Georgia 1 10 (a)(2)(A)

- (C), (D)(i)(II)

- (H), (J)

- (M)

Idaho 110(a)(2) (D)(i)(I)(prongs 1 and 2)

Illinois 110 (a)(2) (A), (E)(ii) and (J) (visi bility p or tion) Indiana 1 10 (a)(2)(A)

- (H), (J)

- (M)

Iowa 110(a)(2) (A)

- (C), (D)(i)(II)

- (H), (J)

- (M)

Kansas 110(a)(2) (J) (visibility portion) Maryland 110(a)(2)(D)(i)(I)( prongs 1 and 2) Mississippi 110(a)(2)(A)

- (C), (D)(i)(II)

- (H), (J)

- (M)

Montana 110(a) (2) (A)

- (C), (D)(i)(II)

- (H), (J)

- (M)

Nebraska 110(a)(2) (A)

- (H), (J)

- (M) New Hampshire 1 10 (a)(2)(A)

- (C), (D)(i)(II)

- (H), (J)

- (M)

North Carolina 110(a)(2)(A)

- (C), (D)(i)(II)

- (H), (J)

- (M)

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28 AREA/STATE ELEMENT(S) (under CAA section 110)

North Dakota 110(a)(2)(A)

- (H), (J)

- (M)

Ohio 1 10 (a)(2) (C) ( P revention of Significant Deterioration ( “ PSD ” ) porti on), (D) (i)
, and (J) (PSD and visibility portions) Oregon 110(a)(2)(D)(i)(I)

Rhode Island 1 10(a)(2)(A)

- (C), (D)(i)(II)

- (H), (J)

- (M)

South Carolina 1 10(a)(2)(A)

- (C), (D)(i)(II)

- (H), (J)

- (M)

Texas 1 10(a)(2)(A)

- (H), (J)

- (M)

Utah 110(a)(2)(A)

- (H), (J)

- (M) West Virginia 110(a)(2)(E)(ii)

WHEREAS, the relief requested in the Complaint includes, among other things,

an order from this Court to establish a date certain by which EPA must fulfill its obligations ; WHEREAS, Plaintiff and EPA have agreed to a par tial settlement of this action without admission of any issue of fact or law, except as expressly provided herein; WHEREAS, Plaintiff and EPA agree to hold a conference call approximately

every 90 days, at a mutually agreeable time, during which EPA will a dvise Plaintiff of the current status of, and foreseeable difficulties with, EPA’s compliance with the
deadlines in this Consent Decree; WHEREAS, Plaintiff and EPA, by entering into this Consent Decree, do not waive or limit any claim, remedy, or defense, on any grounds, related to any final EPA
action; WHEREAS, Plaintiff and EPA consider this Consent Decree to be an adequate and equitable resolution of some of the claims in this matter and therefore wish to

effectuate a partial settlement;

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28 WHEREAS, it is i n the interest of the public, Plaintiff Sierra Club , Defendant EPA, and judicial economy to resolve this matter without protracted litigation; WHEREAS, Plaintiff and EPA agree that this Court has jurisdiction over this matter pursuant to the citizen suit p rovision in CAA section 304(a)(2), 42 U.S.C. § 7604(a)(2), and that venue is proper in the Northern District of California pursuant to 28 U.S.C. § 1391(e) and N.D. Cal. Civ. Local Rule 3

- 2(c)

- (d); and WHEREAS, the Court, by entering this Consent Decree, fi nds that the Consent Decree is fair, reasonable, in the public interest, and consistent with the Clean Air Act; NOW THEREFORE, before the taking of testimony, without trial or determination of any issues of fact or law, and upon the consent of Plaintiff Si erra Club and Defendant EPA, it is hereby ordered, adjudged and decreed that:

1. The appropriate EPA official shall sign a notice of final rulemaking to

approve , disapprove, conditionally approve, or approve in part and conditionally approve

or disapprove in part, certain plans p ursuant to sections 110(k) (2)

- (4) of the CAA, 42 U.S.C. §§ 7410(k)( 2)

- (4), no later than the date indicated below for the following states
and elements of section 110(a)(2), 42 U.S.C. §§ 7410( a )( 2) for the 200 8 ozone NAAQS:

STATE SIP ELEMENT(S) DATE

a. Alabama 110(a)(2)(A)

- (C), (D)(i)(II)

- (H), (J)

– (M) (excluding prong 4) October 31, 2015

b. Alabama 110(a)(2)(D)(i)(II) (prong 4) May 31, 2016

c. Arizona 110(a)(2)(A)

- (C), (D)(i)(II)

- ( H), (J)

- (M) (excluding prong 4) June 3 0, 2015

d. Ariz ona 110(a)(2)(D)(i)(I) (prongs 1 and 2) and (II) (prong 4) June 7, 2016

e. Colorado 110(a)(2)(A)

- (C), (D)(i)(II)

- (H), (J)

- (M) October 31, 2015

f. Colorado 110(a)(2)(D)(i)(I) (prongs 1 and 2) January 29, 2016

g. Connecticut 110(a)(2)(A)

- (C), (D)(i)(II)

- (H), (J )

- (M) December 31, 2015

h. Georgia 110(a)(2)(A)

- (C), (D)(i)(II)

- (H), October 31, 2015

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28 STATE SIP ELEMENT(S) DATE
(J)

- (M) (excluding prong 4) i. Georgia 110(a)(2)(D)(i)(II) (prong 4) May 31, 2016 j. Idaho 110(a)(2)(D)(i)(I) (prongs 1 and 2) January 29, 2016

k. Illinois 1 10(a)(2)(A) May 3 0, 2015

l. Illinois 110(a)(2)(E) (ii) and (J) (visibility portion ) August 31, 2015

m. Indiana 110(a)(2)(A)

- (C), (D)(i)(II)

- (H), (J)

- (M) (excluding prong 4 and (J) (visibility portion)) Ma y 31, 2015

n. Indiana 110(a)(2)(J) (visibility portion) August 31, 2015

o. Indiana 110(a)(2)(D)(i)(I) (prongs 1 and 2) and (D)(i)(II) (prong 4) June 7, 2016

p. Iowa 110(a)(2) (A)

- (C), (D)(i)(II)

- (H), (J)

- (M) September 30, 2016

q. Kansas 110(a)(2)(J) (visibility portion) November 30, 2015

r. Maryland 110(a)(2)(D)(i)(I) (prongs 1 and 2) January 29, 2016

s. Mississippi 110(a)(2)(A)

- (C), (D)(i)(II)

- (H), (J)

- (M) (excluding prong 4) October 31, 2015

t. Mississippi 110(a)(2)(D)(i)(II) (prong 4) May 31, 2016

u. Montana 110(a)(2)(A)

- (C), (D)(i)(II)

- (H), (J)

- (M) March 31, 2016

v. Nebraska 110(a)(2 )(A)

- (C), (D)(i)(II)

- (H), (J)

- (M) September 30, 2015

w. Nebraska 110(a)(2)(D)(i)(I) (prongs 1 and 2) January 29, 2016

x. New Hampshire 110(a)(2)(A )

- (C), (D)(i)(II)

- (H), (J)

- (M) December 31, 2015

y. North Carolina 110(a)(2)(A)

- (C), (D)(ii)

- (H), (J)

- (M) (exclud ing 110(a)(2)(C) (PSD portion), E(ii), and (J) (PSD portion)) October 31, 2015

z. North Carolina 110(a)(2)(C) (PSD portion), (D)(i)(II) (prongs 3 and 4), (E)(ii), and (J) (PSD portion) May 31, 2016

aa. North Dakota 110(a)(2)(A)

- (C), (D)(i)(II)

- (H), (J)

- (M) (e xcluding prong 4) December 17, 2015

bb. North Dakota 110(a)(2)(D)(i)(I) (prongs 1 and 2) and (II) (prong 4) January 29, 2016

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28 STATE SIP ELEMENT(S) DATE

cc. Ohio 110(a)(2) (C) (PSD portion), (D)(i)(II) (prong 3)
, and (J) (PSD portion) March 31, 2015

dd. Ohio 110(a)(2)(J) (visibility portion ) August 31, 2015

ee. Ohio 110(a)(2)(D)(i)(I)(prongs 1 and 2) and (II) (prong 4) June 7, 2016

ff. Oregon 110(a)(2)(D)(i)(I) (prongs 1 and 2) January 29, 2016

gg. Rhode Island 110(a)(2)(A)

- (C), (D) (i)(II)

- (H), (J)

- (M) December 31, 2015

hh. South Carolina 110(a)(2)( A)

- (C), (D)(i)(II)

- (H), (J)

- (M) (excluding prong 4) October 31, 2015

ii. South Carolina 110(a)(2)(D)(i)(II) (prong 4) May 31, 2016 jj. Texas 110(a)(2)(A)

- (C), (D)(i)(II)

- (H), (J)

- (M) (excluding prong 4) August 31, 2016

kk. Texas 110(a)(2)(D)(i)(II) (prong 4) Sep tember 4, 2015

ll. Texas 110(a)(2)(D)(i)(I) (prongs 1 and 2) June 7, 2016

mm West Virginia 110(a)(2)(E)(ii) May 31, 2015

nn. Utah 110(a)(2)(A)

- (C), (D)(i)(II)

- (H), (J)

- (M) (excluding prong 4) June 30, 2016

oo. Utah 110(a)(2)(D)(i)(I)(prongs 1 and 2) and (II) (pro ng 4) June 7 , 2016

2 . If any State withdraws an above

- listed submittal, then EPA’s obligation to take the action required by Paragraph 1 with respect to that submittal is automatically

terminated.
3. EPA shall, within 15 days of signature
, send the ru lemaking package for each action taken pursuant to paragraph 1 of this Consent Decree to the Office of the Federal Register for review and publication.

4. After EPA has completed the action s set forth in Paragraph 1 of this Consent

Decree and after notice of each final action required by paragraph 1 has been published in the Federal Register
, and the issue of costs of litigation, including attorney fees has been
resolved, EPA may move to have this Decree terminated and the action dismissed

.

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28 Plaintiff shal l have fourteen (14) days in which to respond to such motion , unless the parties stipulate to a longer time for Plaintiff to respond

. 5

. The deadline s established by this Consent Decree may be extended (a) by written stipulation of Plaintiff and EPA with notice 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 and upon consideration of any response by a non

- moving party and any reply.

6. If a lapse in EPA appropriations occurs within one hundred and twenty (120) days prior to a deadline in Paragraph 1 in this Decree, that deadline shall be extended automatically one day for each day of the lapse in appropriations.

7

. Plaintiff and EPA agree that this Consent Decree constitute s a complete

settlement of C laim 2 as described in Paragraph 1

. 8

. In the event of a dispute between Plaintiff and EPA concerning the interpretation or implementation of any aspect of this Consent Decree, the disputing party shall provide the other party w ith a written notice outlining the nature of the dispute and requesting informal negotiations. These parties shall meet and confer in order to attempt to resolve the dispute. If these parties are unable to resolve the dispute within ten (10) business day s after receipt of the notice, either party may petition the Court to resolve the dispute.

9 . No motion or other proceeding seeking to enforce this Consent Decree or for contempt of Court shall be properly filed unless the procedure set forth in Paragraph 8

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

. 10

. The deadline for filing a motion for costs of litigation (including at torney fees) for activities performed prior to entry of the Consent Decree is hereby extended until ninety (90) days after this Consent Decree is entered by the Court. During this

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28 period, the Parties shall seek to resolve informally any claim for costs of litigation (including attorney fees), and if they cannot, the Sierra Club will file a motion for costs of litigation (including attorney fees) or a stipulation or motion to extend the deadline to file such a motion. EPA reserves the right to oppose any s uch request. The Court shall retain jurisdiction to resolve any requests for costs of litigation, including attorney fees.

1 1 . This Court shall retain jurisdiction over this matter to enforce the terms of this Consent Decree and to consider any requests f or costs of litigation, including attorney fees.

1 2 . Nothing in the terms of this Consent Decree 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), including final action take pursuant to section 110(k) of the
CAA, 42 U.S.C. § 7410(k), approving, disapproving, or approving in part and disapproving in part a SIP submittal
, 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).

1 3 . Nothing in this Consent Decree shall be construed to limit or modify any discretion accorded EPA by the Clean Air Act or by general principles of administrative law in taking the actions which are the subject of this Consent Decree, including the discretion to alter, amend, or revise any final actions promulgated pursuant to this Consent Decree. EPA’s obligation to perform each action specified in this Consent

Decree does not constitute a limitation or modification of EPA’s discretion within the meaning of this paragraph.

1 4 . Except as expressly provided herein, nothing in this Consent Decree shall be construed as an admission of any issue of f act 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.

1 5 . Plaintiff reserves the right to seek additional costs of litigation, in cluding reasonable attorney fees, incurred subsequent to entry of this Consent Decree and arising

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28 from Plaintiff’s need to enforce or defend against efforts to modify its terms or the underlying schedule outlined herein, or for any other unforeseen continu ation of this action. EPA reserves the right to oppose any such request for additional costs of litigation, including attorney fees.

1 6 . It is hereby expressly understood and agreed that this Consent Decree was jointly drafted by Plaintiff and EPA. Ac cordingly, the parties hereby agree that any and all rules of construction to the effect that ambiguity is construed against the drafting party shall be inapplicable in any dispute concerning the terms, meaning, or interpretation of

this Consent Decree.

1 7 . 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 and/or the Attorney General, as appropriate, shall promptly consider any written comments in determining whether to withdraw or withhold their

consent to the C onsent Decree, in accordance with CAA section 113(g). If the Administrator and/or the Attorney General do not elect to withdraw or withhold consent, EPA shall promptly file a motion that requests that the Court enter this Consent Decree.

1 8 . Any notices required or provided 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 counsel as filed and listed in the docket of the above

- captioned matter, at a future date):

For Pla intiff Sierra Club : Robert Ukeiley 255 Mountain Meadows Road Boulder, CO 80302 Tel: 303

- 442

- 4033 Email: rukeiley@igc.org

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28 Kristin Henry (Cal. Bar. No. 220908) Sierra Club 85 Second Street, 2nd Floor San Francisco, CA 94105 Tel. (415) 977

- 5716 Email: kristi n.henry@sierraclub.org

For Defendant EPA : Leslie M. Hill U.S. Department of Justice Environment & Natural Resources Division Environmental Defense Section 601 D Street N.W., Suite 8000 Washington D.C. 20004 Tel. (202) 514

- 0375 Email: l eslie. h ill@usdoj. gov

1 9 . EPA and Plaintiff recognize and acknowledge that the obligations imposed upon EPA under this Consent Decree can only be undertaken using appropriated funds legally available for such purpose. No provision of this Consent Decree shall be interp reted 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.

20 . If for any reason the Court should decline to app rove 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.

2 1 . The undersigned represent atives of Plaintiff Sierra Club and Defendant 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.

//

//

/ /

//

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28 SO ORDERED on this _____ day of _____________________, 2015

.

________________________________ JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

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28 COUNSEL FOR PLAINTIFF:

/s/ Robert Ukeiley (email authorization 1 / 2 1 /1 5 ) Robert Ukeiley, Admitted Pro Hac Vice Law Office of Robert Ukeiley 255 Mountain Mea dows Road Boulder, CO 80302 Tel. (303) 442

- 4033 Email: rukeiley@igc.org

KRISTIN HENRY (Cal. Bar. No. 220908) Sierra Club 85 Second Street, 2nd Floor San Francisco, CA 94105 Tel

. (415) 977

- 5716 kristin.henry@sierraclub.org
Attorneys for Plaintiff Sierra C lub

C OUNSEL FOR DEFENDANT: JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division

/s/ Leslie M. Hill LESLIE M. HILL (D.C. Bar No. 476008) Environmental Defense Section 601 D Street N.W., Suite 8000 Washington D.C. 20004 Tel. (202) 514

- 0375 Email: Leslie.Hill@usdoj.gov
Attorneys for Defendant EPA

Of counsel:

Karen Bianco Abi rami Vijayan Office of General Counsel U.S. Environmental Protection Agency

[P ROPOSED ] P ARTIAL C ONSENT D ECREE C ASE N O

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- JSW 13 Case4:14-cv-03198-JSW Document38-1 Filed01/21/15 Page13 of 13