T,.JNITED STATES nISTRICT CnURT FQR THE

pISTRICT OF COLUMBIA

SIERRA CLLJB,

Plaintiff,

v.

BOB PERCIASEPE, in his official capacity

as Acting Administrator of the 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 of the 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 of New 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 of New Jersey portion of the Philadelphia-Wilmington

nonattainment area ("Philadelphia-Wilmington Area"), anti that such alleged failure is actionable

under section 304(a)(2) of the 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

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("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 of the 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 of determination 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 of the 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 of M.~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

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ATTAINMENT 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 of New 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 of Sierra Club

v. Jackson, Case No. 1:12-cv-01237 (I?.Ia.C.), without expensive and protracted litigation and

without the admission of any issue of fact or law;

WHEREAS, on August 21, X012, the United States Court pf appeals 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);

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WHEREAS, 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 of all of the 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;

NO W THEREFORE, before the taking of testimony, without trial or determination of

any issue of law or fact, and upon the consent of the 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 relief contained 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 of New 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 of the Philadelphia-Wilmington Area.

a. If New 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's
obligation 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 of the

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 of the 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 of New Jersey shall no longer be required to submit SIF revisions addressing

nonattainment,NSR requirements for the State of New Jersey portion of the 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 of the Philadelphia-Wilmington Area, provided that nothing in this

Consent Decree shall require EPA to act on any submission or portion thereof that 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

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Decree shall require EPA to act on any submission or portion thereof that is withdrawn prior to

the applicable deadline.

5. After signing each of the notices described in Paragraphs 2 thrpugh 4 of this

Consent Decree, EPA shall promptly forward notice Qf each 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 of EPA for good cause shown pursuant to the 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 motion of Sierra

Club or EPA for 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.

7. Sierra Club anti EPA shall not challenge the terms of this 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 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. 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 of administrative law in taking the

actions which are the subject of this 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

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

constitute a limitation or modification of EPA's discretion within the meaning of this paragraph.

1 Q. 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.

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 of the United States

Courts of Appeals 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 of this Consent Decree is hereby extended until sixty (60)

days after the entry of this 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 of this ConS~nt Decree shall be interpreted as or constitute a

commitment or requirement that the Unified States oblig~~te or pay funds in contravention of the

Anti-Deficiency Act, 31 U.S.C. § 1341, or any other ap~iicable provision of law.

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14. 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 of Justice

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 of the 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 of a dispute between the Parties concerning the interpretation or

implementation of any aspect of this Consent Decree, the disputing party shall provide the other

party ~~ith a written notice outlining the nature of the dispute and requesting informal

negotiations. If the Parties cannot reach an agreed-upon resolution within fifteen (15) business

days after receipt of the 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 of such 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 of this 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) of the 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 of each party certify that they are fully

authorized by the party they represent to bind that party to the terms pf this Consent Decree.

S:
Respectfully submitted,

Da#ed: ,~ _[,, 2013 By: ~~'~

3l~.MIE

DAV BENDER

McCrillivray Westerberg &Bender, LLC

2I 1 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 of Justice

Environment and Natural Resources Division

Dated: JUA~~ 2fl13 By:

HEATHER E. GANGS

Environmental Defense Section

D.C. Bar No. 452619

U.S. Depa~ent of Justice

P.O. Box 7b11

Washington, D.C. 20044

Phone: {2d2) 514-42Q6

Fax: (202)514-8$65

Email: Heather.Gange@usdoj.gov

SO URDERED: , 20 i 3

Counsel for Defendant

~a

Han. Eisen S. Huvelle

United States District Judge