UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) SIERRA CLUB, ) ) Plaintiff, ) ) Civil Case No. 1:14

- cv - 00222 v. ) ) GINA McCARTHY , in her official ) capacity as Administrator, UNITED ) STATES ENVIRONMENTAL ) PROTECTION AGENCY, ) ) Defendant. ) ____________________________________) CONSENT DECREE WHEREAS, on February 17, 2014 , Plaintiff Sierra Club filed a Complaint in this matter

a gainst Defendant Gina McCarthy , in her official capacity as Administrator of the United States Environmental Protection Agency (hereinafter, “EPA” or “the Agency”), alleging that EPA has failed to undertake a certain mandatory 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, Sierra Club’s Complaint alleges that EPA has failed to perform a duty mandated b y CAA sections 110(c)(1)(A) , 42 U.S.C. §§ 7410(c)(1)(A), to promulgate a Federal Implementation Plan (“FIP”) for Montana’s Prevention of Significant Deterioration (“PSD”) program to properly regulate nitrogen oxides as an ozone precursor ; WHEREAS, the Parties wish to effectuate a com plete and final settlement of Sierra Club

v. McCarthy , Case No. 1:14

- cv - 00222 (D.D.C.), without expensive and protracted litigation and without the admission of any issue of fact or law;WHEREAS, the Parties, 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, the Parties consider this Consent Decree to be an adequate and equitable resolution of all of the claims in the above

- captioned case; 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

- 7671q; NOW THEREFORE, before the taking of testimony, without trial or determination of any issue o f law or fact, and upon the consent of the Parties, it is hereby ORDERED, ADJUDGED and DECREED that:
1. This Court has subject matter jurisdiction over the claims set forth in the
C omplaint and to order the relief contained in this Consent Decree. Venue is proper in the United States District Court for the District of Columbia.
2. Pursuant to CAA section 110(c)(1), EPA shall, by November 7, 2014 , sign for publication in the Federal Register a notice or notices promulgating a FIP for the State of Montana’s PSD program that addresses nitrogen oxide as a precursor to ozone, thereby satisfying the PSD requirements in CAA section 110(a)(2)(C) and (J) for the 1997 ozone NAAQS . If, by
Nove mber 7, 2014 , EPA signs a notice or notices unconditionally approving a SIP or promulgating a partial FIP and unconditional approval of a partial SIP, collectively satisfying the
PSD requirement s in CAA section 110(a)(2)( C) and (J) for the 1997 ozone NAAQS , EPA shall have complied with the obligations of this paragraph.
3. After signing a final rule as described in Paragraph 2 of this Consent Decree, EPA shall deliver , within fifteen (15) business days, notice of such actions to the Office of Federal Register for review and publication.4. The deadline s in Paragraph s 2 , 3 and 11 may be extended by (a) written stipulation executed by counsel for Sierra Club and EPA with notice to the Court, or (b) by the Court on a motion of EPA for good cause shown pursuant to t he Federal Rules of Civil Procedure, and upon consideration of any response by Sierra Club and any reply by EPA. Any other provision of this Consent Decree may be modified by the Court following stipulation of the parties or motion of Sierra Club or EPA f or good cause shown pursuant to the Federal Rules of Civil Procedure and upon consideration of any opposition by the non

- moving party and any reply.
5. If a lapse in appropriations occurs within one hundred and twenty (120) days prior to the deadline in Par agraph 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, either by stipulation or court order, pursuant t o the procedures of Paragraph 4.
6. Sierra Club and EPA shall not challenge the terms of this Consent Decree or this Court’s jurisdiction to enter and enforce this Consent Decree.
7. Sierra Club and EPA agree that this Consent Decree shall constitute a complete and final settlement of all claims that Sierra Club has asserted against the United States, including EPA, under any provision of law in connection with Sierra Club v. McCarthy , Case
No. 1:14

- cv - 00222 (D.D.C.). Sierra Club therefore discharges and covenan ts not to sue the United States, including EPA, for any such claims.
8. Nothing in this Consent Decree shall be construed to limit or modify any discretion accorded EPA by the CAA or by general principles of administrative law in taking the actions which ar e the subject of this Consent Decree, including the discretion to alter, amend , orrevise any responses or final actions contemplated by this Consent Decree. EPA’s obligation to perform the actions specified in this Consent Decree by the times specified h erein does not constitute a limitation or modification of EPA’s discretion within the meaning of this paragraph.
9. Nothing in this Consent Decree shall be construed as an admission of any issue of fact or law to waive or limit any claim, remedy, or defense, on any grounds, related to any final action EPA may take with respect to the actions addressed in this Consent Decree.
10. Nothing in this Consent Decree shall be construed to: (a) confer upon this Court jurisdiction to review any issues that are within the e xclusive jurisdiction of the United States Courts of Appeals pursuant to CAA sections 307(b)(1), 42 U.S.C. §§ 7607(b)(1) , including final action taken pursuant to section 110(c) or (k ) of the CAA, 42 U.S.C. § 7410 (c) or (k) ; or ( b ) waive any claims, remedies, or defenses the Parties may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1).
11. The deadline for filing a motion for costs of litigation, including reasonable attorney’s fees, incurred prior to entry of this Consent Decree is hereby extende d until sixty (60) days after the entry of this Consent Decree by this Court. During this time, the Parties shall seek to resolve informally any claim for costs of litigation, including reasonable attorney’s fees, and if they cannot, will submit that issu e to the Court for resolution. The United States does not waive or limit any defenses it may have to such claim. The Court shall retain jurisdiction to resolve any requests for costs of litigation, including reasonable attorney’s fees.
12. The Parties recogn ize 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 interpreted as or constitute a commitment or requirement that the United States obligate or pay funds in contravention of theAnti

- Deficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law.
13. Any notices required or provided for by this Consent Decree shall be made in writing, by em ail , and sent to the following: For Plaintiff Sierra Club : KIMBERLY ANN STURM Stack & Associates, P.C. 260 Peachtree Street, Suite 1200 Atlanta, GA 30303 Phone: (404) 525

- 9204 ksturm@stack

- envirolaw.com Sierra Club Coordinating Attorney 85 Second Street, 2nd Floor, San Francisco, CA 94105 Aaron.isherwood@sierraclub.org For Defendant EPA : STEPHANIE J. TALBERT Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Environmental Defense Section P.O. Box 7611 Was hington, D.C. 200 44 Phone : (202) 514

- 2617 Stephanie.talbert @usdoj.gov
STEPHANIE L. HOGAN Office of the General Counsel U.S. Environmental Protection Agency Ariel Rios Bldg., MC 2344A 1200 Pennsylvania Ave., N.W. Washington, D.C. 20460 Phon e: (202) 564

- 3244 hogan.stephanie @epa.gov
14. 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 otherparty with a written notice outlining the natu re 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, either P arty may move the Court to resolve the dispute.
15. No motion or other proceeding seeking to enforce this Consent Decree or for contempt of Court shall be properly filed unless Sierra Club has followed the pro cedure set forth in Paragraph 1 4 , and provided EPA with written notice received at least ten ( 10 ) business days before the filing of such motion or proceeding.
16. The Court shall retain jurisdiction to determine and effectuate compliance with this Consent Decree. When EPA’s obligations under Paragraph 2 and 3 have been completed, any relevant notices have been published in the Federal Register, and any claim for costs of litigation, including reasonable attorney’s fees, has been resolved pursuant to the process described in Paragraph 1 1 , the above

- captioned matter shall be dismissed with prejudice. EPA shall file an appropriate notice with the Court so that the Clerk may close the file.
17. 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 CA A section 113(g), 42 U.S.C. § 7413(g). After this Consent Decree has undergone an opportunity for notice and comment, the Administrator and the Attorney General, as appropriate, will promptly consider any such written comments in determining whether to wi thdraw or withhold consent to this Consent Decree, in accordance with section 113(g) of the CAA , 42 U.S.C. § 7413(g) . If the Administrator or the Attorney General elects not to withdraw or withhold consent to this Consent Decree, the Parties will promptly file a motion that requests the Court to enter this Consent Decree

. 18. The undersigned representatives of each p arty certify that they are fullyauthorized by the p arty they represent to bind that p arty to the terms of this Consent Decree.

SO ORDERED on thi s day of 201 4

.

________________________________________ THE HONORABLE AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE SO AGREED:

FOR PLAINTIFF Sierra Club /s/ Kimberly Ann Sturm KIMBERLY ANN STURM Stack & Associates, P.C. 260 Peachtree Street, Suite 1200 Atlanta, GA 30303 Phone: (404) 525

- 9204 ksturm@stack

- Envirolaw.com
DATED: August 11, 2014

FOR DEFENDANT EPA SAM HIRSCH Acting Assistant Attorney General Env ironment & Natural Resources Division
/s/ Stephanie J. Talbert STEPHANIE J. TALBERT Trial Attorney United States Department of Justice Environment & Natural Resources Division Environmental Defense Section P.O. Box 7611 Washington, D.C. 20 044 Phone : (202) 514

- 2617 talbert.stephanie@usdoj.gov
DATED: August 12, 2014