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SETTLEMENT AGREEMENT

WHEREAS, on July 17, 2009, the Louisiana Environmental Action Network (“LEAN”) 

filed a complaint (civil action no. 1:09-0133) against Lisa Jackson, Administrator, United States 

Environmental Protection Agency (“EPA”) in the United States District Court for the District of 

Columbia (hereinafter LEAN v. Jackson), which complaint was amended on February 17, 2010;

WHEREAS, in its complaint LEAN alleges that EPA has failed to perform 

nondiscretionary duties under the Clean Air Act related to the attainment of national ambient air 

quality standards for ozone in the Baton Rouge Area;

WHEREAS, on March 5, 2010, EPA filed its answer to LEAN’s amended complaint, 

denying any liability;

WHEREAS, Clean Air Act sections 172(c)(5) and 182(d) and 185, 42 U.S.C. §§ 

7502(c)(5) and 7511a(d), and 7511d, set forth certain requirements applicable to areas classified 

as “severe” ozone nonattainment areas;

WHEREAS, EPA reclassified the Baton Rouge area as a severe 1-hour ozone 

nonattainment area effective June 23, 2003, and established a schedule for Louisiana to submit 

State Implementation Plan (SIP) revisions addressing the Clean Air Act’s pollution control 

requirements for severe ozone nonattainment areas; 

WHEREAS, in 2004 EPA promulgated a final rule (“the Phase 1 Implementation Rule”) 

to implement the 8-Hour Standard, and purported to remove the need for states to include 1-hour 

ozone new source review elements as part of their federally approved State Implementation Plan;

WHEREAS, the U.S. Court of Appeals for the District of Columbia Circuit in South 

Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006) vacated those 

portions of the Phase 1 Implementation Rule that purported to remove the need for States to 

include 1-hour ozone new source review elements as part of their federally approved State 

Implementation Plan;

WHEREAS, the Louisiana Department of Environmental Quality (“LDEQ”) has 

submitted to EPA for approval certain State Implementation Plan revisions relevant to Severe 1-

Hour Requirements for major sources in the Baton Rouge Area, which submissions include: (1) a 

June 15, 2005 submittal titled “Severe Area Rule Update,” (2) a December 20, 2005, submittal 

titled “New Source Review State Implementation Plan (SIP),” and (3) a November 9, 2007, 

submittal titled “General Rule Update.”

WHEREAS, EPA has not made any determination whether the June 15, 2005, December 

20, 2005, and November 9, 2007, state implementation revisions submitted by LDEQ meet 

applicable requirements of the Clean Air Act; 

WHEREAS, the EPA’s Office of Air and Radiation issued a memorandum dated October 

3, 2007, noting that the effect of the South Coast decision is to restore the obligation for areas 

designated nonattainment for the 8-hour ozone standard to have in their State Implementation 

Plans new source review applicability thresholds and emission offsets pursuant to the 

nonattainment classification in effect for the area for the 1-hour ozone standard at the time of 

designation for the 8-hour standard;
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WHEREAS, EPA’s Acting Regional Administrator, EPA Region 6, on April 29, 2009, 

sent a letter to the Secretary of the Louisiana Department of Environmental Quality strongly 

encouraging the State to comply with the court decision in South Coast, and advising LDEQ that 

“EPA expects States to implement 1-hour nonattainment NSR requirements using thresholds and 

emission offsets based on the classifications for areas designated nonattainment for the 1-hour 

ozone standard;” 

WHEREAS, the Baton Rouge Area is currently designated nonattainment for the 8-hour 

ozone standard;

WHEREAS, recent monitoring data suggests that the Baton Rouge area is currently 

meeting the 8-Hour Standard and may be eligible for redesignation to attainment;

WHEREAS, LDEQ has submitted a request to redesignate to attainment for the 8-hour 

NAAQS the Baton Rouge nonattainment area;

WHEREAS, certain requirements applicable to nonattainment areas terminate when an 

area is redesignated to attainment; 

WHEREAS, on March 27, 2008, EPA promulgated a revised 8-hour ozone standard of 

0.75 ppm, 73 Fed. Reg. 16,436 (Mar. 27, 2008). EPA is reconsidering whether that standard is 

sufficient to protect public health. EPA has proposed to promulgate a revised ozone standard 

within the range of 0.060 to 0.070 ppm. 75 Fed. Reg. 2938 (Jan. 19, 2010). Complete, qualityassured data for 2008 and 2009, and preliminary data through September 30, 2010, suggests that 

the Baton Rouge area is not meeting the 0.75 standard; this same data suggests that the area is 

not meeting a standard within the range of 0.060 to 0.070 ppm. 

WHEREAS, the Parties have agreed to a settlement of the claims raised in this action 

without any admission or adjudication of fact or law, which they consider to be a just, fair, and 

equitable resolution of the claims raised;

NOW, THEREFORE, the Parties agree to this settlement in the manner, terms, and 

conditions as follows:

GENERAL TERMS

1. The parties to this Settlement Agreement (“Agreement”) are LEAN and EPA. 

2. For purposes of this Agreement, the following terms shall have the meanings 

provided below:

“Agreement” refers to this document.

“Baton Rouge Area” refers to the five-parish Baton Rouge Nonattainment Area, 

which includes Ascension, East Baton Rouge, Iberville, Livingston, and West Baton 

Rouge Parishes.

“EPA” means the Administrator of the United States Environmental Protection 

Agency, or the Administrator’s duly authorized representative, and the United States 

Environmental Protection Agency. 

“1-Hour Standard” refers to the 1-hour ozone national ambient air quality 

standard of 0.12 parts per million promulgated in 1979, 44 Fed. Reg. 8202 (Feb. 8, 1979).
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“8-Hour Standard” refers to the 8-hour ozone national ambient air quality 

standard of 0.08 parts per million promulgated in 1997, 62 Fed. Reg. 38,856 (July 18, 

1997).

“Settling Parties” refers to LEAN and EPA. 

AGREED DEADLINES

3. Within five (5) days of the execution of this Agreement by both Settling Parties, 

the Settling Parties shall file a joint motion with the Court in LEAN v. Jackson, notifying it of 

this Agreement and requesting the Court enter an order holding litigation in abeyance pending 

completion of the process under section 113(g) of the Clean Air Act and during the period 

required to effectuate the terms of this Agreement, if EPA gives final approval and consents to 

this Agreement after the Clean Air Act section 113(g) process addressed in paragraphs 16 and 17 

below. 

4. If, by February 28, 2012, EPA has not taken final action redesignating the Baton 

Rouge Area to attainment for the 1997 8-hour ozone NAAQS, EPA will, by that date, sign a 

notice, to be published in the Federal Register, proposing action on (1) LDEQ’s June 15, 2005 

submittal titled “Severe Area Rule Update,” (2) LDEQ’s December 20, 2005, submittal titled 

“New Source Review State Implementation Plan (SIP),” and (3) LDEQ’s November 9, 2007, 

submittal titled “General Rule Update.” 

5. If, by September 30, 2012, EPA has not taken final action redesignating the Baton 

Rouge Area to attainment for the 1997 8-hour ozone NAAQS, EPA will, by that date, sign a 

notice, to be published in the Federal Register, taking final action on the three proposed actions 

referenced in Paragraph 4.

6. Within 30 days after EPA’s completion of the obligations in paragraphs 4 and 5, 

or within 30 days after EPA has taken final action redesignating the Baton Rouge Area to 

attainment for the 1997 8-hour ozone NAAQS, LEAN and EPA shall jointly file with the Court 

in LEAN v. Jackson (civil action no. 1:09-01333) a motion pursuant to Fed. R. Civ. P. 41(a) to 

dismiss without prejudice its First Amended Complaint except that such dismissal shall be with 

prejudice as to any claim against EPA to require EPA to take final agency action on (1) LDEQ’s 

June 15, 2005 submittal titled “Severe Area Rule Update,” (2) LDEQ’s December 20, 2005, 

submittal titled “New Source Review State Implementation Plan (SIP),” and (3) LDEQ’s 

November 9, 2007, submittal titled “General Rule Update.” If LEAN fails to do so, EPA may

file such a motion and LEAN shall not oppose it. Dismissal of this Action pursuant to this 

Agreement shall not serve as a waiver or relinquishment of any other rights that LEAN may have 

under the Clean Air Act. By way of example and not limitation, dismissal will not waive any of 

LEAN’s right with respect to its position that Severe 1-Hour Requirements apply until the Baton 

Rouge Area achieves attainment with the applicable ozone standard that is current as of the time 

of any redesignation decision by EPA. 

REMEDY FOR NON-COMPLIANCE

7. If EPA fails to timely fulfill any duty under this Agreement, LEAN’s sole judicial 

remedy shall be to the right to ask the Court to lift the stay described in paragraph 3, and to 

pursue the claims raised in its Complaint. EPA does not waive or limit any defense relating to 
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the claims raised in LEAN’s Complaint, nor does EPA concede that it has any legal duty to take 

the actions called for in this Settlement Agreement. 

8. The Settling Parties agree that contempt of court is not an available remedy under 

this Agreement.

AGENCY DISCRETION

9. Nothing in the terms of this Agreement shall be construed to limit or modify the 

discretion accorded EPA by the Clean Air Act or by general principles of administrative law. 

JURISDICTION

10. Nothing in the terms of this Agreement shall be construed to confer upon the 

district court jurisdiction to review any decision, either procedural or substantive, to be made by 

EPA pursuant to this Agreement. 

EFFECT OF SETTLEMENT AGREEMENT

11. The Settlement Agreement shall not constitute an admission or evidence of any

fact, wrongdoing, misconduct, or liability on the part of any Settling Party. 

12. Except as set forth in this Agreement, the Settling Parties retain all rights, claims, 

defenses, and discretion they may otherwise have.

13. Nothing herein shall constitute an EPA finding or determination with respect to 

the three State Implementation Plan submissions referenced in Paragraph 4.

COSTS

14. The Settling Parties shall each bear their own costs and fees, including but not 

limited to attorney’s and expert witness fees

MODIFICATION

15. This Agreement, including the deadlines set forth in paragraphs 4 and 5, may be 

modified or amended by written agreement by counsel for the Settling Parties.

CLEAN AIR ACT SECTION 113(g)

16. The Settling Parties agree and acknowledge that final approval and entry of this 

Agreement is subject to the requirements of Clean Air Act § 113(g), 42 U.S.C. § 7413(g). That 

subsection provides that notice of this proposed Agreement be given to the public, that the public 

shall have a reasonable opportunity to make any comments, and that the Attorney General, as 

appropriate, must consider those comments in deciding whether to agree to this Settlement.

17. EPA shall submit a public notice of this Agreement to the Federal Register for 

publication and public comment within fourteen days of execution of this Agreement by the 

Settling Parties. Within 45 days of the close of the public comment period EPA shall notify
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LEAN whether it consents to this Agreement. This Agreement shall become final and effective 

on the date EPA notifies LEAN in writing that it consents to the Agreement. 

EFFECTIVE DATE

18. This Agreement shall become effective upon signature by all Settling Parties, 

completion of the public process under section 113(g) of the Clean Air Act, and EPA’s 

notification to LEAN in writing of its final consent to the Agreement.

COMPLIANCE WITH OTHER LAWS

19. No provision of this Agreement shall be interpreted so as to constitute a 

commitment or requirement that EPA obligate or pay funds in contravention of the AntiDeficiency Act, 31 U.S.C. § 1341, or take actions in contravention of the APA, 5 U.S.C. §§ 551-

559, 701-706, the Clean Air Act, or any other law or regulation, either substantive or procedural.

REPRESENTATIVE AUTHORITY

20. Each undersigned representative of the parties to this Agreement certifies that he 

or she is fully authorized by the party to enter into and execute the terms and conditions of this 

Agreement. By signature below, all Settling Parties consent to this Agreement. 

FOR EPA:

Ignacia S. Moreno, Assistant Attorney General

Environment & Natural Resources Division

_________________________

Eric G. Hostetler

Environmental Defense Section

Environment & Natural Resources Division

U.S. Department of Justice

P.O. Box 23986

Washington, D.C. 20026-3986

(202) 305-2326

Date: ___________

FOR LEAN:

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Adam Babich

D.C. Bar. No. 382747

Tulane Environmental Law Clinic

6329 Freret Street

New Orleans, LA 70118-6321

(504) 862-8800

Date: ___________