IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) SIERRA CLUB, ) ) ) Plaintiff, ) Civil Action No. ) 14

- cv
- 02149 ( CRC )
v. ) ) RE GINA MCCARTHY, in her official ) capacity as Administrator, United States ) Environmental Protection Agency, ) ) Defendant. ) ____________________________________)
CONSENT DECREE
WHEREAS, Plaintiff Sierra Club (“Plaintiff”) filed this action pursuant to section 304(a)(2) of the Clean Air Act (“CAA”), 42 U.S.C. § 7604(a)(2), alleging that Defendant Reg ina McCarthy , in her official capacity as Administrator, United States Environmental Protection Agency (“EPA”), failed to perform a non

- discretionary duty under CAA § 505(b)(2), 42 U.S.C. § 7661d(b)(2), to grant or deny within 60 days a petition (“Title V Petition”) submitted by

Plaintiff on July 28, 2014, requesting that EPA object to a proposed Title V CAA renewal permit (“Permit”) issued by the New Hampshire Department of Environmental Services for Public Service Company of New Hampshire’s (“PSNH”) Schiller Station power plant located in in Portsmouth, New Hampshire (“Schiller Station ”) ; WHEREAS, Plaintiff and EPA (“the Parties”) wish to effect a settlement of the above

captioned matter without expensive and protracted litigation; Case 1:14-cv-02149-CRC Document 19-1 Filed 05/01/15 Page 1 of 8WHEREAS, the Parties consider this Consent Decree to be an adequate and equitable

res olution of the claims in the above

- captioned matter; WHEREAS, 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 et seq. ; NOW THEREFORE, be fore the taking of testimony, without trial or determination of any issue of fact or law, and upon the consent of the Parties, it is hereby ORDERED,

A DJUDGED, and DECREED that:

1. This Court has jurisdiction over the claims set forth in the Complaint and may
order the relief contained in th is Consent Decree. Venue is proper in the United States District

Court for the District of Columbia.

2

. On or before July 31, 2015 , EPA shall sign a response to Plaintiff’s Title V

P etition pursuant to 42 U.S.C. § 766 1d(b)(2)

. 3

. Following signatur e of such response to Plaintiff’s Title V P etition, EPA shall

e xpeditiously deliver notice of EPA’s response to the Office of the Federal Register for review

and publication.

4

. If EPA’s response to Plaintiff’s Title V P etition includes the granting of any portion of the Title V P etition in whole or in part, EPA shall also promptly transmit the response

to the New Hampshire Department of Environmental Services

. 5

. The deadline for filing a motion for costs of litigation, including attorneys’ fees, incurred prior to entry of this Consent Decre e 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 informally any claim for costs of litigation, including attorneys’ fees, and if they cannot, will

submit that issue to this Court for resoluti on. The United States does not waive or limit any
2 Case 1:14-cv-02149-CRC Document 19-1 Filed 05/01/15 Page 2 of 8defenses it may have to such claim. This Court shall retain jurisdiction to resolve any requests for costs of litigation, including attorneys’ fees.

6

. Any provision of this Consent Decree may be modifi ed by (a) written stipulation

of the Parties with notice to the Court, or (b) by the Court following motion of any party to this

Consent Decree, pursuant to the Federal Rules of Civil Procedure, and upon consideration of any response by the non

- moving part y.
7

. The parties recognize that the possibility exists that a lapse in the appropriations

that fund EPA could delay compliance with the timetables contained in this Consent

Decree. Should a delay occur due to a lapse in appropriations , any deadlines occurring within ninety ( 90 ) days of the termination of the delay shall be extended one day for each day of the delay. EPA will provide Plaintiff with notice as soon as is reasonably practicable under the

circumstances in the event that EP A invokes this term of the Consent Decree. EPA and Plaintiff agree that any disputes between the parties concerning the interpretation or implementation of this Paragraph shall be handled under the dispute resolution procedures set forth in Paragraph 15

o f this Consent Decree. Nothing in this paragraph shall preclude EPA from seeking an additional extension through modification of this Consent Decree pursuant to paragraph 6.

8

. Plaintiff and EPA shall not challenge the terms of this Consent Decree or this Court’s jurisdiction to enter and enforce this Consent Decree

. 9

. Plaintiff agree s that this Consent Decree shall constitute a complete and final

settlement of all claims that Plaintiff ha s asserted against the United States, including EPA, under any provision of law in connection with Sierra Club v. Regina McCarthy , Civ. No. 14

- cv
- 02149 (CRC) (D.D.C.) , except as provided in Paragraph 5 of this Consent Decree

. Plaintiff therefore

dischar ge s and covenant s not to sue the United States, including EPA, for any such claims.
3 Case 1:14-cv-02149-CRC Document 19-1 Filed 05/01/15 Page 3 of 810

. Nothing in this Consent Decree shall be construed to limit or modify any

discretion accorded EPA by the CAA or by general principles of administrative law in taking th e
actions w hich are the subject of this Consent Decree, including discretion to alter, amend, or revise any responses or final actions contemplated by this Consent Decree. E PA’s obligation to perform the actions specified i n Paragraph s 2 , 3, and 4 of this Consent Decree by the time specified therein does not constitute a limitation or modification of EPA’s discretion within the meaning of this P aragraph.

1 1

. Nothing in this Consent Decree shall be construed as an admission of any issue of

fact or law nor to waive or limit any claim or defense, on any grounds, related to any final action EPA may take with respect to the Permit.

1 2

. Nothing in this Consent Decree shall be construed to confer upon the D istrict

C ourt jurisdiction to review any final decision made by EPA pursuant to this Consent Decree. Nothing in this Consent Decree shall be construed to confer upon the D istrict C ourt jurisdiction

to review any issues that are within the exclusive jurisdiction of the United States Court of Appeals pursuant to CAA s ection 307 (b)(1), 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 have

under CAA section 307(b)(1), 42 U.S.C. § 7607(b )(1).

1 3

. The obligations imposed upon EPA under this Consent Decree can only be

undertaken u sing appropriated funds. No provision 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

- D eficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law.

1 4

. Any notices required or provided for by this Consent Decree shall be made in writing and sent to the following:
4 Case 1:14-cv-02149-CRC Document 19-1 Filed 05/01/15 Page 4 of 8For Plaintiff : Zachary M. Fabish The Sierra Club 50 F Street N.W., Eighth Floor Washington, DC 2000 9 Tel: ( 202 ) 675

- 7917 Fax: (202) 547

- 6009 zachary.fabish@sierraclub.org Kathryn Amirpashaie Law Office of Kathryn M. Amirpashaie, PLC 7556 Blanford Court Alexandria, VA 22315 (703) 851

- 9111 kmalawoffice@gmail.com
For Defendant:
Chief, EDS Re: DJ No. 90

- 5

- 2

- 4

- 20313 United States Department of Justice Environment and Natural Resources Division Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044 Tel: (202) 514

- 2219 Fax: (202) 514

- 8865

Of Counsel:

Karen Bennett Bianco U.S. Environmental Protection Agency Office of General Counsel 1200 Pennsylvania Ave., N.W. Washington, D.C. 20460 Tel: ( 202 ) 564

- 3298 Fax: (202) 564

- 5603 bianco.karen@epa.gov

5 Case 1:14-cv-02149-CRC Document 19-1 Filed 05/01/15 Page 5 of 8Jill T. Metcalf U.S. Environmental Protection Agency Office of Regional Counsel, Region 1 5 Post Office Sq. Suite 100 Boston, MA 02109

- 3912 Tel: (617) 918

- 1088 Fax: (617) 918

- 0088 metcalf.jill@epa.gov

1 5

. 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 w ith a written notice outlining the 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 the notice, any party may move the Court to resolve the dispute.

1 6

. No motion or other proceeding seeking to enforce this Consent Decree or for contempt of Court shall be filed unless the dis puting Party has followed the pro cedure set forth in Paragraph 1 5

. 1 7

. The Court shall retain jurisdiction to determine and effect compliance with this

Consent Decree. When EPA’s obligations under Paragraphs 2 through 4 of this Consent Decree have been completed, and Plaintiff ’ s claim for costs of litigation has been resolved pursuant to Paragraph 5 , the above

- captioned matter shall be dismissed with prejudice. The Parties shall file

the a ppropriate notice with the Court so that the Clerk may close the file.

1 8

. 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 shall promptly submit a public notice of this Consent Decree to the Federal Registe r for publication and public comment after lodging this Consent Decree with the Court. After this Consent

6 Case 1:14-cv-02149-CRC Document 19-1 Filed 05/01/15 Page 6 of 8Decree has undergone an opportunity for notice and comment, the Administrator and/or the Attorney General, as appropriate, shall promptly consider an y such written comments in determining whether to withdraw or withhold consent to this Consent Decree, in accordance with section 113(g) of the CAA. If the federal government elects not to withdraw or withhold consent to this Consent Decree, the Parties p romptly shall file a motion that requests the Court to enter

this Consent Decree.

1 9

. It is hereby expressly understood and agreed that this Consent Decree was jointly drafted by Plaintiff and EPA and that any and all rules of construction to the effect t hat ambiguity is construed against the drafting party shall be inapplicable in any dispute concerning the terms, meaning, or interpretation of this Consent Decree.

20

. The undersigned representatives of each Party certify that they are fully

a uthorized by the Party they represent to bind that Party to the terms of this Consent Decree.

7 Case 1:14-cv-02149-CRC Document 19-1 Filed 05/01/15 Page 7 of 8SO ORDERED on this

___ day of

_________________ , 201 5

.

_________________________________ HON. CHRISTOPHER R. COOPER United States District Judge
SO AGREED:

FOR PLAINTIFF Zachary M. Fabish The Sierra Club 50 F Street N.W., Eighth Floor Washington, DC 20009 Tel: (202) 675

- 7917 Fax: (202) 547

- 6009 zachary.fabish@sierraclub.org Kathryn Amirpashaie Law Office of Kathryn M. Amirpashaie, PLC 7556 Blanford Court Alexandria, VA 22315 (703) 851

- 9111 kmalawoffice@gmail.com
Dated: _____________________

FOR DEFENDANT JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division

_______________ _______________ John E. Sullivan United States Department of Justice Environmental Defense Section P.O. Box 7611 Washington, D.C. 200 44 Tel: (202) 305

- 5751 Fax: (202) 514

- 8865 john.sullivan3@usdoj.gov
Dated: ______________________
8 Case 1:14-cv-02149-CRC Document 19-1 Filed 05/01/15 Page 8 of 8