T,.JNITED STATES nISTRICT CnURT FQR THE pISTRICT OF COLUMBIA

SIERRA CLLJB, Plaintiff,

v. BOB PERCIASEPE,in his official capacity as Acting Administrator ofthe United States Environmental Protection Agency,

Defendant. Civil Action No. 1:12-cu-01237 Hon. Ellen S. Huvelle

CONSENT DECREE WHEREAS,on July 26, 2012,Plaintiff Sierra Club filed a Complaint in this matter against Defendant Lisa P. Jackson, in her official capacity as Administrator ofthe United States Environmental Protection Agency (hereinafter, "EPA"), alleging that EPA failed to fulfill a nondiscretionary duty under Clean Air Act( "CAA")section 110(k)(1)(B), 42 iJ.S.G. § 7410(k)(1)(B), to make a finding that the State ofNew Jersey did not submit State Implementation Plan ( "SIP")revisions addressing the nonattainment New Source Review requirements for the 1997 fine particulate matter National Ambient Air Quality Standard (" 1997 PM2.5 NAAQS")in the State ofNew Jersey portion ofthe Philadelphia
-Wilmington nonattainment area ( "Philadelphia-Wilmington Area"), anti that such alleged failure is actionable under section 304(a)(2)ofthe CAA,42 U.S.C. § 7604(a)(2); WHERF.,AS, Sierra Club's Complaint further alleges that BPA failed to fulfill a nondiscretionary duty under CAA section 110(k)(2) and (3), 42 j1•S•C. § 7410(k)(2)and (3), to take final action on the attainment demons~ration, contingency measures,emission inventory and Reasonably Available control Measures c.r Reasonably Available Control Technology

1( "RACM/RACT")requirements in the State of I~!Iichigan's State Implementation Plan ( "SIP")

submittal for the Detroit-Ann Arbor non-attainment area for the 1997 PM2.5 NAAQS ( "DetroitAnn Arbor Area"), and that such alleged failure is actionable under CAA section 304(a)(2); WHEREAS,Sierra Club's Complaint further alleges that EPA failed to fulfill a nondiscretionary duty under Clean Air Act( "CAA")section 110(k)(2) and (3)to take final action on the attainment demonstration, contingency measures, emission inventory and RAC1kI/RACY requirements for the 1997 PM2.5 Iz1AA(~S in.New Jersey's SIP submittal for the New Jersey portion ofthe Ahiladelphia-Wilmington Area, and that such alleged failure is actionable under CAA section 304(a)(2); WHEREAS,Sierra Club's Complaint further alleges that EPA failed to fulfill a nondiscretionary duty under CAA section 179(c)(1J-(2), 42 U.S.C. § 7509(c)(1)-(2), to publish a notice ofdetermination in the Federal Register regarding whether the Detroit-Ann Arbor Area attained the 1997 PM2.5 NAAQS by the.applicable attainment date, and that such alleged failure is actionable under CAA section 304(a)(2); WHEREAS,the obligation to submit an attainment demonstration, contingency measures, and RACl~I

/RACY for the 1997 PM2.5 NAAQS is suspended upon a determination of attainment ofthe 1997 P1V~'~.5 NAAQS,pursuant to 40 CFR 51.1004(c); WHEFZEAS,EPA ~,ublished a notice in the Federal Register on November 6, 2012, determining that the Detrc~~t -Ann Ardor Area attained the 1997 PM2.5 NAAQS,thereby suspending the State ofM.~ichigan's obligation to submit an attainment demonstration, contingency measures, acid RAC1~r1/RACT for the 1997 P~VI2.5 NAAQS (APPROVAL AND PROMULGATION OF AIR (~UALITY IMPLEMENTATION PLAN: ;MICHIGAN;DETERMINATION.OF

2ATTAINMENT OF TNT: ~ 9~~ ANNUAL FINE PARTICLE STANpARD FpR THE DETROIT-AIVN ARBOR

NONATTAINMENT AREA, 77 Fed. Reg. 66,545 (Nov. 6, 2012)); WHEREAS,EPA published a notice in the Federal Register on November 6, 2012, approving the 1997 PM2.5 I~TAAQS 2005 base year emission inventory for the Detroit-Ann Arbor Area (APPROVAL AND PRQMULGATION pF IMPLEMENTATION FLANS;1~!IICHIGAN; ~ETROITANN ARBOR NONATTAINMENT AREA;FINE PARTICULATE MATTER 2005 BASE YEAR EMISSIpN INVENTpRY, 77 Fed. Reg. 66,547 (Nov. 6, 2012)); WHEREAS,EPA published a notice in the Federal Register an Ik1ay 16, 2012, determining that the Philadelphia
-Wilmington area attained the 1997 PM2.5 NAAQS,thereby suspending the State ofNew Jersey's obligation to submit an attainment demonstration, contingency measures, and RACM/RACT for the 1997 P1~I2.S NAAQS APPROVAL AND PROMULGATION OF AIR QUALITY IMPLEMENTATION FLAI~IS; DELAWARE, NEW JERSEY ANp PET~TNSYLVANIA; DETERMINATIONS OF ATTAINMENT OF THE 199 ANNUAL FINE PARTICLE STANpARD FOR THE PHiLADELPHiA
- WILMINGTON NgNATTAINM~NT AREA, 77 Fec~. Reg. 28782 (May 16, 2012)); WHEREAS,the Parties wish to effectuate a complete and final settlement ofSierra Club
v. Jackson, Case No. 1:12-cv-01237 (I?.Ia.C.), without expensive and protracted litigation and without the admission ofany issue offact or law; WHEREAS,on August 21,X012,the United States Court pfappeals for the District of Columbia Circuit issued an opinion in EME Homer City Generation v. EPA,No. 11 -13Q2 (D.C. Cir. 2012),vacating a final rule issued by EPA concerning states and EPA obligations with respect to 42 U.S.C. § 741!J(a)(2)(D)(i)(I);

3WHEREAS,on October 5, 2012,EPA filed Petitipner For Rehearing En Banc of the

court's decision in EME Homer City Generation v. EPA,No. 11 -1302 (D.C.Cir. 2012), seeking rehearing on issues related to 42 I1.S.C. § 7410(a)(2)(D)(i)(I); WHEREAS,the Parties, vy entering into this Consent Decree,do riot 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 ofall ofthe claims in the above
-captioned case; WHLREAS,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 oftestimony, without trial or determination of any issue of law or fact, and upon the consent ofthe Parties, it is hereby ORDERED, ADJUDGED and DECFtEEI~ that: 1. This Court has subject matter jurisdiction over the claims set forth in the Complaint and to order the reliefcontained in this Consent Decree. Venue is proper in the United States District Court for the District of Columbia. 2. 'the appropriate EPA official shall no later than September 30, 2013, sign for publication in the Federal Register a notice addressing whether the State ofNew Jersey has failed to submit SIP revisions addressing the nonattainment New Source Review ( "NSR") requirements in CAA sections 17l -193, 42 U.S.C. §~ 7501 -7515, and 40 C.F.R. § 51.165,for the 1997 PM2.5 NAAQS in the New Jersey portion ofthe Philadelphia
-Wilmington Area.

a. IfNew Jersey makes a SIP submittal that addresses those NSR requirements, in whole Qr in part, ;fore September 30, 2013,and EPA determines that the SIP submittal is complete under CAA section 110(k)(1)(B), 42 U.S.C. § 7410(k)(1), then EFA'sobligation under this Paragraph 2 shall be voided, in whole or in part, consistent with the

requirements addressed in the State's submission.

b. If EPA signs a notice redesignating the New Jersey portion ofthe Philadelphia
-Wilmington Area to attainment for the 1997 PIkI2.5 NAAQS under CAA section 107(d)(3)(E), 42 t1.S.C. § 7407(d)(3)(E), before September ~0, 2013,then the Nevv Jersey portion ofthe Philadelphia
-Wilmington area shall na longer be subject to nonattainment NSR requirements pursuant to CAA sections 171 -193,42 U.S.C. § §7501 -7515, and 4p C.F.R. § 51.165,the State ofNew Jersey shall no longer be required to submit SIF revisions addressing nonattainment,NSR requirements for the State ofNew Jersey portion ofthe PhiladelphiaWilmington area, and EPA's obligation under this Paragraph 2 shall be voided. 3. Pursuant to CAA section 110(k)(2)and (3), the appropriate EPA official shall no later than November 30, 2013, sign for publication in the Federal Register a notice approving, or approving in part and disapproving in part, the attainment demonstration, contingency measures, emission inventory and RACM/RACY requirements in the'State ofNew Jersey's SIP submittal for the New Jersey portion ofthe Philadelphia
-Wilmington Area,provided that nothing in this Consent Decree shall require EPA to act on any submission or portion thereofthat is withdrawn prior to the applicable deadline. 4. Fursuant to CAA section 1 lQ(k)(2)and (3), 42 U.S.C. § 7410(k)(2)and (3), the appropriate EPA official shall no later than November 30, 2013, sign for publication in the Federal Register a notice approving, or approving in part and disapproving in part, the attainment demonstration,contingency measures, and RACI~I/RACY requirements in the State of Michigan's SIP submittal for the Detroit -Ann Arbor Area,provided that nothing in this Consent

5Decree shall require EPA to act on any submission or portion thereofthat is withdrawn prior to

the applicable deadline. 5. After signing each ofthe notices described in Paragraphs 2 thrpugh 4 ofthis Consent Decree, EPA shall promptly forward notice Qfeach such actipn to the Office of Federal Register for review and publication. 6. The deadlines in Paragraphs 2 through 4 may be extended by: (a)written stipulation executed by counsel for Sierra Glub and EPA with notice to the Court; or (b)by the Court on a motion ofEPA for good cause shown pursuant to the Federal Rules of Civil Procedure, and upon consideration ofany response by Sierra Club and any reply by EPA. Any other provision ofthis Consent Decree may be modified by the Court following motion of Sierra Club or EPA for good cause shown pursuant to the Federal Rules of Civil Procedure and upon consideration ofany opposition by the non-moving party and any reply. 7. Sierra Club anti EPA shall not challenge the terms ofthis Consent Decree or this Court's jurisdiction to enter and enforce this Consent Decree. 8. Sierra Club and EPA agree that this Consent Decree shall constitute a complete and final settlement ofall claims that Sierra Club has asserted against the United States, including EPA,under any provision oflaw in connection with Sierra Club v. Jackson, Case No. 1:12-cv-01237 (D.D.C.). Sierra Club tha;refore discharges and covenants not to sue the United States, including EPA,for any such claims. 9. Nothing in this Consent decree shall be construed to limit or modify any discretion accorded EPA by the CAA ~r by general principles ofadministrative law in taking the actions which are the subject ofthis Consent Decree, including the discretion to alter, amend,or revise any responses or final actions e:ontemplated by this Consent Decree. EPA's obligation to

6

### perform the actions specified in this Consent Decree vy the times specified herein does not

constitute a limitation or modification ofEPA's discretion within the meaning ofthis paragraph. 1 Q. Nothing in this Consent Decree shall be construed as an admission ofany 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. 11. Nothing in this Consent Decree shall be construed to: (a)confer upon this Court jurisdiction to review any issues that are within the exclusive jurisdiction ofthe United States Courts ofAppeals pursuant to CAA sections 307(b)(1), 42 tJ.S.C. §§ 7607(b)(1); ~r (b)waive any claims, remedies, or defenses the Parties may have under CAA section 3p7(b)(1), 42 tJ.S.C. § 7607(b)(1). 12. The deadline for filing a motion for costs of litigation, including reasonable attorney's fees, incurred prior to entry ofthis Consent Decree is hereby extended until sixty (60) days after the entry ofthis Consent Decree by this Court. During this time,the Parties shall seek to resolve inrormally any claim for costs of litigation, including reasonable attorney's fees, and if they cannot, will submit that issue 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. 13. The Parties recognize ar~d acknowledge that the obligations imposed upon EPA under this Consent Decree can only be ~.indertaken using appropriated funds legally available for such purpose. No provision ofthis ConS~nt Decree shall be interpreted as or constitute a commitment or requirement that the Unified States oblig~~te or pay funds in contravention ofthe Anti
-Deficiency Act, 31 U.S.C. § 1341, or any other ap~iicable provision of law.

714. Any notices required or provided for by this Consent Decree shall be made in

writing, via facsimile or other means, and sent to the following: For Plaintiff Sierra Club: JAMIE SAUL McGillivray Westerberg &Bender,LLC 211 S. Paterson Street, Suite 320 Madison, WI 53703 Phone: (608)310-3560 Fax: (608) 310-3561 Bender@m~~vbattorneys.com For Defendant EPA: Section Chief U.S. Department ofJustice Environment &Natural Resources Division Environmental Defense Section P.O. Box 7611 Washington, Ia.C. 20044 Phone: (202)514-4206 Fax: (202)514-8865 WINIFRED OKOYE gffice ofthe General counsel U.S. Environmental Protection Agency Ariel Rios Bldg., MC 2344A 1200 Pennsylvania Ave.,N.W. Washington, D.C: 20460 Phone: (202)564-5446 Okoye. Winifred @epa. gov 15. In the event ofa dispute between the Parties concerning the interpretation or implementation ofany aspect ofthis Consent Decree,the disputing party shall provide the other party ~~ith a written notice outlining the nature ofthe dispute and requesting informal negotiations. Ifthe Parties cannot reach an agreed-upon resolution within fifteen (15)business days after receipt ofthe notice, either party may move the Court to resolve the dispute.16. No motion or other proceeding seeking to enforce this Consent Iaecree or for

contempt of Court shall be properly filed unless Sierra Club has followed the procedure set forth in Paragraph 15, and provided EPA with written notice received at least fifteen (15)business days before the filing ofsuch motion or proceeding. 17. The Court shall retain jurisdiction to determine and effectuate compliance with this Consent Decree. When EPA's obligations under. Paragraphs 2 through 4 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 12,the above
-captioned matter shall be dismissed with prejudice. EFA shall file an appropriate notice uvith the Court so that the Clerk may close the file. 18. 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 CAA section 113(g), 42 U.S.C. ~ 7413(g). EPA will deliver a public notice ofthis Consent Decree to the Federal Register for review,publication, and public comment promptly after lodging this Consent Decree with the Court. After this Consent laecree 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 withdraw or withhold consent to this Consent Decree, in accordance with section 113(8)ofthe CAA,42 U.S.(~. § 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. 19. The undersigned representatives ofeach party certify that they are fully authorized by the party they represent to bind that party to the terms pfthis Consent Decree.

S:Respectfully submitted,

Da#ed: ,~ _[,, 2013 By: ~~'~ 3l~.MIE DAV BENDER McCrillivray Westerberg &Bender,LLC 2I1 S. Paterson Street,Suite 32Q Madison,WT 53703 Phone: {608} 310

-3560 Fax: (608)310-3561 Saul@mwbattorneys.com Counsel for Plaintiff
Robert G.Dreher Acting Assistant Attorney General United States Department ofJustice Environment and Natural Resources Division
Dated: JUA~~ 2fl13 By: HEATHER E.GANGS Environmental Defense Section D.C.Bar No.452619 U.S. Depa~ent ofJustice P.O.Box 7b11 Washington,D.C.20044 Phone:{2d2)514

-42Q6 Fax:(202)514

-8$65 Email:Heather.Gange@usdoj.gov

SO URDERED: ,20i3 Counsel for Defendant



## ~a Han.Eisen S.Huvelle United States District Judge