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 SAMANTHA RUSCAVAGE-BARZ NM State Bar No. 23276 WildEarth Guardians 516 Alto Street Santa Fe, NM 87501 Tel: (505) 988-9126 ext. 1158 Fax: (505) 213-1895 sruscavagebarz@wildearthguardians.org Attorney for Plaintiff IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division MICHELLE R. LAMBERT Trial Attorneys Environmental Defense Section P.O. Box 23986 Washington, D.C. 20026-3986 Tel: (202) 616-7501 Fax: (202) 514-8865 michelle.lambert@usdoj.gov Attorneys for Defendant

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA WILDEARTH GUARDIANS, Plaintiff,

v. LISA JACKSON, Administrator of the U.S. Environmental Protection Agency, sued in her o fficial capacity, Defendant. No. 2:11-cv-01661-ROS CONSENT DECREE

WHEREAS, on August 24, 2011, Plain tiff WildEarth Guardians filed the complaint (“Complaint”) in the above-caption ed matter against Defendant Lisa Jackson, in her official capacity as Administrator of the United States Environmental Protection Agency (“EPA”) alleging that EPA has failed to undertake a certain nondiscretionary duty Case 2:11-cv-01661-ROS Document 17-1 Filed 12/12/11 Page 1 of 81 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

2 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, within one year after promul gation of the revised National Ambient Air Quality Standards (“NAAQS”), section 107(d)(1)(A) of the CAA, 42 U.S.C. § 7407(d)(1)(A) requires States to submit a lis t of initial designations of all areas, or portions thereof, as attainment, nonattainment, or unclassifiable for the revised NAAQS; WHEREAS, EPA is required to promulgate the designation for all of the country within two years of the date of the promulga tion of the revised NAAQS, or within three years if EPA has insufficient information to promulgate the designation within two years, pursuant to section 107(d)(1)(B) of th e CAA, 42 U.S.C. § 7407(d)(1)(B); WHEREAS, EPA revised the NAAQS for ground-level oz one on March 12, 2008; WHEREAS, the States were required to su bmit their area designations for the 2008 ground-level ozone NAAQ S by March 12, 2009; WHEREAS, on January 19, 2010, EPA determined th at it had insufficient information to promulgate th e designations and invoked th e additional year to issue designations, see 75 Fed. Reg. 2,9 36 (Jan. 19, 2010); WHEREAS, the Complaint alleges that EPA has a nondiscretionary duty to promulgate the area designations for the 200 8 ground-level ozone NAAQS within the

time lines set forth in secti on 107(d)(1)(B) of the CAA, 42 U.S.C. § 7407(d)(1)(B); WHEREAS, the Complaint seeks an orde r from this Court directing EPA to promulgate area designations for the 2008 ground-level ozone NAAQS pursuant to section 107(d)(1)(B) of the CAA; Case 2:11-cv-01661-ROS Document 17-1 Filed 12/12/11 Page 2 of 81 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

3 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 th is 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 Co nsent Decree to be an adequate and equitable resolution of all th e claims in this matter; WHEREAS, it is in the interest of the pub lic, the parties, and judicial economy to

resolve this matter withou t 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; WHEREAS, the Court, by entering this C onsent Decree, finds that the Consent Decree is fair, reasonable, in the public interest, and consistent with the CAA; NOW THEREFORE, before the taking of te stimony, without trial or determination of any issue of fact or law, and upon the co nsent of the parties, it is hereby ordered, adjudged, and decreed that: 1. EPA shall sign for publication in the Federal Register no later than May 31, 2012 a notice of the Agency ’s promulgation of area desi gnations for the 2008 groundlevel ozone NAAQS pursuant to section 107(d) of the CAA, and within 10 business days following signature of the notice, EPA will se nd the notice to the Federal Register for review and publication. 2. When EPA’s obligations under Para graph 1 have been completed, the parties will file a joint request to the Co urt to terminate the Consent Decree. Case 2:11-cv-01661-ROS Document 17-1 Filed 12/12/11 Page 3 of 81 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

4 3. The parties may extend the deadline established in Para graph 1 by written stipulation executed by counsel for the parties and filed with the Court. In addition, the deadline established in Paragraph 1 may be extended by the Court upon motion by any party to this Consent Decree for good cause sh own, after considerati on of any response by the non-moving party. 4. Nothing in this Consent Decree sha ll 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 specifi ed does not constitute a lim itation or modification of

EPA’s discretion within the me aning of this paragraph. 5. Nothing in this Consent Decree shall be construed to confer upon the district court jurisdiction to review any final decisi on made by EPA pursuant to this Consent Decree. Nothing in this Cons ent Decree shall be construed to confer upon the district court jurisdiction to review any issues that are within the exclusiv e jurisdiction of the United States Courts of Appeals pursuant to section 307(b)(1) of the CAA, 42 U.S.C. § 7607(b)(1). Nothing in the terms of this Consent Decree shall be construed to waive any remedies or defenses the parties may ha ve under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1).

6. This Court shall retain jurisdiction to enforce the terms of this Consent Decree and to consider any requests for co sts of litigation, incl uding attorneys’ fees. 7. In the event of a dispute between th e parties concerning the interpretation or Case 2:11-cv-01661-ROS Document 17-1 Filed 12/12/11 Page 4 of 81 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

5 implementation of any aspect of this Consent Decree, the disputing party shall provide the other party with a written notice outlining th e 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 notice, any party may move the Court to resolve the dispute. 8. No motion or other pro ceeding seeking to enforce th is Consent Decree shall be considered properly filed, unless Plain tiff has followed the procedure set forth in Paragraph 7 and pr ovided EPA with wr itten notice received at leas t ten (10) business days before the filing of such motion or proceeding. 9. The United States, on behalf of EPA, agrees to pay Plaintiff in full

settlement of all claims for atto rneys’ fees, costs, and expenses incurred as of the date of entry of this Consent Decree the sum of $3, 600, as soon as reasonably practicable, by

electronic funds transfer in accordance with instructions provided to the undersigned defense counsel by counsel for Plaintiff. Noth ing in this paragraph shall be construed as an admission or concession by EPA that Plaintiff is entitled to or eligible for recovery of any costs or attorneys’ fees. 10. The obligations imposed upon EPA u nder 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. 11. Plaintiff and EPA shall not challenge the terms of this Consent Decree or Case 2:11-cv-01661-ROS Document 17-1 Filed 12/12/11 Page 5 of 81 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

6 this Court’s jurisdiction to enter this Consent Decree. 12. The parties agree and acknowledge th at before this Consent Decree is entered by the Court, EPA must provide notic e 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 th is 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 th e CAA. If the Administrator and/or the Attorney general do not elect to withdraw and withhold their consent, EPA shall promptly file a motion that requests th e 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 ot her means, and sent to the following:

For Plaintiff: Samantha Ruscavage-Barz NM State Bar No. 23276 WildEarth Guardians 516 Alto Street Santa Fe, NM 87501 Tel: (505) 988-9126 ext. 1158 Fax: (505) 213-1895 sruscavagebarz@wildearthguardians.org For Defendant: Michelle R. Lambert United States Department of Justice Environmental Defense Section P.O. Box 23986 Washington, D.C. 20026-3986 Tel: (202) 616-7501 Fax: (202) 514-8865 michelle.lambert@usdoj.gov Jan Tierney Office of the General Counsel Case 2:11-cv-01661-ROS Document 17-1 Filed 12/12/11 Page 6 of 81 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

7 U.S. Environmental Protection Agency Ariel Rios Bldg. MC 2344A 1200 Pennsylvania Ave., NW Washington, D.C. 20460 Phone: (202) 564-5598 Fax: (202) 564-5603 tierney.jan@epa.gov

15. The undersigned representatives of ea ch party certify that they are fully authorized by the party that they represent to bind that party to the terms of this Consent

Decree.

IT IS SO ORDERED. Dated: _____________

________________ ________________ UNITED STATES DISTRICT JUDGE

COUNSEL FOR PLAINTIFF:

Dated: December 12, 2011 /s/ Samantha Ruscavage-Barz (with permission) Samantha Ruscavage-Barz NM State Bar No. 23276 WildEarth Guardians 516 Alto Street Santa Fe, NM 87501 Tel: (505) 988-9126 ext. 1158 Fax: (505) 213-1895 sruscavagebarz@wildearthguardians.org

COUNSEL FOR DEFENDANT: Dated: December 12, 2011 IGNACIA S. MORENO Assistant Attorney General Environment and Natura l Resources Division /s/ Michelle R. Lambert Michelle R. Lambert United States Department of Justice Environmental Defense Section Case 2:11-cv-01661-ROS Document 17-1 Filed 12/12/11 Page 7 of 81 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

8 P.O. Box 23986 Washington, D.C. 20026-3986 Tel: (202) 616-7501 Fax: (202) 514-8865 michelle.lambert@usdoj.gov Case 2:11-cv-01661-ROS Document 17-1 Filed 12/12/11 Page 8 of 8