IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

SIERRA CLUB, )

)

)

Plaintiff, ) Civil Action No. 

) 14-cv-02149 (CRC)

v. )

)

REGINA 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 Regina 

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 abovecaptioned matter without expensive and protracted litigation;

Case 1:14-cv-02149-CRC Document 19-1 Filed 05/01/15 Page 1 of 8
WHEREAS, the Parties consider this Consent Decree to be an adequate and equitable

resolution 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, before 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, 

ADJUDGED, and DECREED that:

1. This Court has jurisdiction over the claims set forth in the Complaint and may 

order the relief contained in this 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 

Petition pursuant to 42 U.S.C. § 7661d(b)(2).

3. Following signature of such response to Plaintiff’s Title V Petition, EPA shall

expeditiously 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 Petition includes the granting of any 

portion of the Title V Petition 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 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 

informally any claim for costs of litigation, including attorneys’ fees, and if they cannot, will 

submit that issue to this Court for resolution. 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 8
defenses 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 modified 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 party.

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 EPA 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 

of 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 agrees that this Consent Decree shall constitute a complete and final 

settlement of all claims that Plaintiff has 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 

discharges and covenants 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 8
10. 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 the

actions which are the subject of this Consent Decree, including discretion to alter, amend, or

revise any responses or final actions contemplated by this Consent Decree. EPA’s obligation to

perform the actions specified in Paragraphs 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 Paragraph.

11. 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.

12. Nothing in this Consent Decree shall be construed to confer upon the District 

Court 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 District Court jurisdiction 

to review any issues that are within the exclusive jurisdiction of the United States Court of 

Appeals pursuant to CAA section 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).

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

undertaken using 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-Deficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law.

14. 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 8
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

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 8
Jill 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

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 with 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.

16. No motion or other proceeding seeking to enforce this Consent Decree or for 

contempt of Court shall be filed unless the disputing Party has followed the procedure set forth in 

Paragraph 15.

17. 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 appropriate notice with 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 shall 

promptly submit a public notice of this Consent Decree to the Federal Register 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 8
Decree has undergone an opportunity for notice and comment, the Administrator and/or the 

Attorney General, as appropriate, shall promptly consider any 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 promptly shall file a motion that requests the Court to enter 

this Consent Decree.

19. 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 that 

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

authorized 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 8
SO ORDERED on this ___ day of _________________, 2015.

_________________________________

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. 20044

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