1 NOTICE OF LODGING CORRECTED PROPOSED CONSENT DECREE 4:11-cv-02205-SI 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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DIST RICT OF CALIFORNIA SAN FRANCISCO DIVISION

WILDEARTH GUARDIANS AND ELIZABETH CROWE, Plaintiffs,

v. LISA P. JACKSON, in her official capacity as Administrator of the United States Environmental Protection Agency,

Defendant. Case No. 4:11-cv-02205-SI

NOTICE OF LODGING OF CORRECTED PROPOSED CONSENT DECREE

Defendant Lisa P. Jackson, in her official capacity as Administrator of the United States Environmental Protection Agency (“EPA”), he reby lodges with the C ourt a proposed consent decree that contains the terms of a pr oposed settlement of this action. See Attachment 1, Consent Decree. The proposed consent decree should not be si gned or entered by the Court at this time. Pursuant to section 113(g) of the Cl ean Air Act, 42 U.S.C. § 7413(g), the EPA Administrator must provide “a reasonable opportunity by notice in the Federal Register to persons who are not named as parties or interv enors to the action or matter to comment in writing” upon the proposed consent decree. Accordingly, EPA will publish in the Federal Register a notice of the proposed consent decr ee and request comments. After a reasonable comment period, the EPA Administrator will promp tly consider any written comments received Case3:11-cv-02205-SI Document12 Filed06/07/11 Page1 of 32 NOTICE OF LODGING CORRECTED PROPOSED CONSENT DECREE 4:11-cv-02205-SI 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 and, if none of the comments disclose facts or considerations which indi cate that the proposed consent decree is inappropriate, improper, inadequate, or inconsistent with the requirements of the Clean Air Act, Defendant will move for entry of the decree. Respectfully submitted,

IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division Dated: June 7, 2011 /s/ Michelle R. Lambert Michelle R. Lambert Trial Attorney U.S. 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 Counsel for Defendant Case3:11-cv-02205-SI Document12 Filed06/07/11 Page2 of 33 NOTICE OF LODGING CORRECTED PROPOSED CONSENT DECREE 4:11-cv-02205-SI 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 CERTIFICATE OF SERVICE On June 7, 2011, a true and correct copy of the foregoing Notice of Lodging of Corrected Proposed Consent Decree was served electronically via the Court’s e-filing system to Counsel of Record.

/s/ Michelle R. Lambert MICHELLE R. LAMBERT Case3:11-cv-02205-SI Document12 Filed06/07/11 Page3 of 31 CONSENT DECREE 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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DIST RICT OF CALIFORNIA SAN FRANCISCO DIVISION

WILDEARTH GUARDIANS AND ELIZABETH CROWE, Plaintiffs,

v. LISA P. JACKSON, in her official capacity as Administrator of the United States Environmental Protection Agency,

Defendant. Case No. 4:11-cv-02205-SI

CONSENT DECREE

WHEREAS, on May 5, 2011, Plaintiffs WildEa rth Guardians and E lizabeth Crowe filed the complaint in the above-captione d matter against Lisa P. Jacks on, in her official capacity as

Administrator of the United States Environmenta l Protection Agency (“EPA”), alleging that EPA

has failed to undertake a certain nondiscretionary duty under the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401-7671q, and that such alleged failure is actionabl e under section 304( a)(2) of the CAA, 42 U.S.C. § 7604(a)(2); WHEREAS, section 172(c) of the CAA, 42 U.S.C. § 7502(c), requires States to adopt and submit to EPA for review state implementa tion plans (“SIPs”), which establish specific control measures and other requirements that appl y to particular sources of air pollution within a State and are designed to attain the Nationa l Ambient Air Quality Standards (“NAAQS”) Case3:11-cv-02205-SI Document12-1 Filed06/07/11 Page1 of 82 CONSENT DECREE 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 established by EPA that specify the maximum perm issible concentrations for those pollutants in the ambient air, see 42 U.S.C. §§ 7408, 7409; WHEREAS, section 110(k) of the CAA, 42 U.S.C. § 7410(k), sets the process by which EPA is to review SIP submissions, including SIP revisions; WHEREAS, Plaintiffs’ complaint alleges th at EPA has a nondiscretionary duty to act on

SIP submissions and revisions submitted to EPA within the time lines set forth in section 110(k)(2) of the CAA, 42 U.S.C. § 7410(k)(2); WHEREAS, Plaintiffs’ complaint alleges that EPA has failed to take timely final action to approve, disapprove, or part ially approve/disappr ove Arizona’s SIP for the 1997 8-hour ozone nonattainment area of Phoenix-Mesa, Arizona, wh ich was submitted to EPA on or about June 13, 2007 (hereinafter, “Phoe nix-Mesa SIP”); WHEREAS, Plaintiffs’ complaint seeks an or der from this Court directing EPA to take final action on the Phoenix-Mesa SIP pursu ant to section 110(k) of the CAA; WHEREAS, the parties have ag reed to settle this action without admission of any issue of fact or law; WHEREAS, the parties, by entering into this Consent Decree, do not waive or limit any claim or defense, on any grounds, re lated to any final EPA action; WHEREAS, the parties consider this Consen t Decree to be an adequate and equitable resolution of all of the claims in this matter; WHEREAS, it is in the interest of the public, the parties, and judicial economy to resolve this matter without prot racted litigation; Case3:11-cv-02205-SI Document12-1 Filed06/07/11 Page2 of 83 CONSENT DECREE 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 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 and that venue lies in the Northern District of California; WHEREAS, the Court, by entering this Consen t Decree, finds that the Consent Decree is fair, reasonable, in the public intere st, 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 consent of the parties, it is hereby ordered, adjudged and

decreed that: 1. Pursuant to section 110(k) of the CAA, and except as provided in Paragraphs 5 and 6 below, EPA shall sign for publication in the Federal Register no later than May 31, 2012 a notice of the Agency’s final action on the portions of the Phoenix-Mesa SIP that do not pertain to New Source Review (“NSR”) and within 15 business days of signature deliv er the notice to the Office of the Federal Register for review and publication. 2. Pursuant to section 110(k) of the CAA, and except as provided in Paragraphs 5 and 6 below, EPA shall sign for publication in the Federal Register no later than October 31, 2012 a notice of the Agency’s fina l action on the portions of the P hoenix-Mesa SIP that pertain to NSR and within 15 business days of signature deliver the notice to the Office of the Federal Register for review and publication. 3. When EPA’s obligations under Paragr aphs 1 and 2 have been completed, the parties will file a joint request to the Cour t to dismiss this matter with prejudice. 4. The parties may extend the deadlines established in Paragraphs 1, 2, and 12 by written stipulation executed by c ounsel and filed with the Court. In addition, the deadlines Case3:11-cv-02205-SI Document12-1 Filed06/07/11 Page3 of 84 CONSENT DECREE 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 established in Paragraphs 1, 2, and 12 may be extended by the Court upon motion by any party to

this Consent Decree. 5. If EPA takes final action on its propo sed rule to classify the Phoenix-Mesa,

Arizona nonattainment area under Ti tle I, part D, subpart 2 of the Act, 42 U.S.C. §§ 7511-7511f, before May 31, 2012, 74 Fed. Reg. 2396 (Jan. 16 , 2009), then EPA’s obligations under Paragraphs 1 and 2 shall be voided. If EPA takes this final acti on, the parties will file a joint request to the Court to dismiss this matter with prejudice. If EPA takes final action on its proposed rule to classify the Phoenix-Mesa, Ar izona nonattainment area under Title I, part D, subpart 2 of the Act, 42 U.S.C. §§ 7511-7511f , before October 31, 2012, 74 Fed. Reg. 2396 (Jan. 16, 2009), then EPA’s obligation under Paragraph 2 sh all be voided. If EPA takes this final action, the parties will file a joint request to the Court to dismiss this matter with prejudice. 6. If EPA takes final action redesignat ing the Phoenix-Mesa, Arizona nonattainment

area to attainment or unclassi fiable before May 31, 2012, then EP A’s obligation under Paragraph 1 shall be voided. If EPA takes this final action, the parties will file a jo int request to the Court to dismiss this matter with prejudice. If EPA takes final action redesign ating the Phoenix-Mesa,

Arizona nonattainment area to attainment or unclassifiable before October 31, 2012, then EPA’s obligation under Paragraph 2 shall be voided. If EP A takes this final action, the parties will file a joint request to the Court to dism iss this matter with prejudice. 7. Nothing in this Consent Decree shal l be construed to limit or modify the discretion accorded EPA by the CAA and by genera l principles of admini strative law, including the discretion to alter, amend or revise any re sponse and/or final action contemplated by this Consent Decree. EPA’s obligation to take the ac tion set forth in Paragraphs 1 and 2 by the time Case3:11-cv-02205-SI Document12-1 Filed06/07/11 Page4 of 85 CONSENT DECREE 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 specified therein does not constitute a limitation or modification of EPA’ s discretion within the meaning of this paragraph. 8. Nothing in this Consent Decree shall be construed to confer upon the district court jurisdiction to review any decisi on made in the final action identif ied in Paragraphs 1 or 2. 9. The Court shall retain jurisdiction to en force the terms of this Consent Decree and to consider any requests for costs of litigation, including at torneys’ fees.

10. In the event of a di spute between the parties conc erning the interpretation or implementation of any aspect of this Consent D ecree, the disputing party shall provide the other party with a written notice via e-mail or othe rwise outlining the nature of the dispute and requesting informal negotiations. If the partie s cannot reach an agreed -upon resolution within ten (10) business days after receipt of notice, any party may move th e Court to resolve the dispute. 11. No motion or other proceeding seeking to enforce this Consent Decree shall be considered properly filed, unless Plaintiffs have followed the procedure set forth in Paragraph 10 and provided EPA with written notic e received at least ten (10) bus iness days before the filing of such motion or proceeding. 12. EPA agrees that, pursuant to sectio n 304(d) of the CAA, 42 U.S.C. § 7604(d), Plaintiffs are both eligible and entitled to recover its costs of litigation in this action, including reasonable attorneys’ fees, incurred prior to entr y of this Consent Decree . The deadline for filing a bill of costs pursuant to Local Rule 54-1 and a motion for costs of litigation, including reasonable attorneys’ fees, pursuant to Local Rule 54-6 for activities performed in this case prior to entry of this Consent Decree, is hereby exte nded until 90 days afte r the date on which the Case3:11-cv-02205-SI Document12-1 Filed06/07/11 Page5 of 86 CONSENT DECREE 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 Court enters this Consent Decree. During this tim e the parties shall seek to resolve informally any claim for costs of li tigation, including reasonab le attorneys’ fees. 13. The obligations imposed by EPA un der this Consent Decree may only be undertaken using appropriated funds . No provisions of this Cons ent Decree shall be interpreted as or constitute a commitment or requirement th at EPA obligate or pay funds in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable federal law. 14. Plaintiffs and EPA shall not challenge the terms of this Consent Decree or this Court’s jurisdiction to enter this Consent Decree. 15. The parties agree and acknowledge that before this Consent Decree is entered by the Court, EPA must provide notice of this C onsent Decree in the Federal Register and an opportunity for public comment pursuant to secti on 113(g) of the CAA, 42 U.S.C. § 7413(g).

After this Consent Decree has undergone notice and comment, th e Administrator and/or the Attorney General, as appropria te, shall promptly consider any such written comments in determining whether to withdraw or withhold their cons ent 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 or withhold their consen t, EPA shall promptly file a mo tion that requests the Court to

enter this Consent Decree. 16. Any notices required or provided for by this Consent Decree shall be made in writing, via facsimile, e-mail or other m eans, and sent to the following:

For Plaintiffs : Robert Ukeiley Law Office of Robert Ukeiley 435R Chestnut Street, Suite 1 Berea, Kentucky 40403 Tel: (859) 986-5402 Fax: (866) 618-1017 Case3:11-cv-02205-SI Document12-1 Filed06/07/11 Page6 of 87 CONSENT DECREE 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 Email: rukeiley@igc.org

For Defendant:

Michelle R. Lambert Trial Attorney U.S. Department of Justice Environment and Natural Resources Division Environmental Defense Section P.O. Box 23986 Washington, D.C. 20026-3986 Tel: (202) 616-7501 Fax: (202) 514-8865 Email: michelle.lambert@usdoj.gov Jan Tierney Office of the General Counsel 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 Email: tierney.jan@epa.gov

17. The undersigned representatives of e ach party certify that they are fully authorized by the party that they represent to bind that party to the terms of th is Consent Decree. IT IS SO ORDERED. Dated: ________________ _____________________________________ UNITED STATES DISTRICT JUDGE

COUNSEL FOR PLAINTIFFS: Dated: 6/7/2011 /s James J. Tutchton (with permission)

__________________________ James J. Tutchton (CA Bar No. 150908) WildEarth Guardians 6439 E Maplewood Ave Centennial, CO 80110 Phone: (303) 993-6744 Case3:11-cv-02205-SI Document12-1 Filed06/07/11 Page7 of 88 CONSENT DECREE 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 Email: jtutchton@wildearthguardians.org Attorney for Plaintiffs Wi ldEarth Guardians and Elizabeth Crowe

COUNSEL FOR DEFENDANT:

IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division

Dated: 6/7/2011 /s/ Michelle R. Lambert Michelle R. Lambert Trial Attorney U.S. 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 Attorneys for Defendant Case3:11-cv-02205-SI Document12-1 Filed06/07/11 Page8 of 8