Case No. 3:15

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28 DANIEL G. BOGDEN United States Attorney HOLLY A. VANCE Assistant United States Attorney 100 West Liberty Street, Suite 600 Reno, Nevada 89501 Tel: (775) 784

- 5438 Fax: (775) 784

- 5181

JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division United States Department of Justice LESLIE M. HILL (D.C. Bar No. 476008) Leslie.Hill@usdoj.gov Environmental Defense Section 601 D Street N.W., Suite 8000 Washington D.C. 20004 Tel. (202) 514

- 0375 Fax (202) 514

- 8865
Attorneys for Defendant

UNI TED STATES DISTRICT COURT DISTRICT OF NEVADA

STATE OF NEVADA
, et al.,

Plaintiffs
,

v.
REGINA McCARTHY, in her official capacity as Administrator of the United States Environmental Protection Agency
,
Defendant. Case No. 3:15

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NOTICE OF LODGING OF PROPOSED CONSENT DECREE

Defendant Gina McCarthy, in her official capacity as the Administrator of the United States Environmental Protection Agency (“EPA”), hereby lodges with the Court a proposed Consent Decree that contains the terms of a p roposed settlement of this action.

See Exhibit A, Proposed Consent Decree. Case 3:15-cv-00396-HDM-WGC Document 20 Filed 02/26/16 Page 1 of 2Case No. 3:15

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28 The proposed consent decree should not be signed or entered by the Court at

this time. Pursuant to section 113(g) of the Clean Air Act, 42 U.S.C. § 7413(g), the

C onsent D ecree i s not final and cannot be entered by the Court until the EPA Administrator provides “a reasonable opportunity by notice in the Federal Register to persons who are not named as parties or intervenors to the action” to comment in writing upon the proposed D e cree. Accordingly, EPA will publish in the Federal Register a notice of the proposed Consent Decree and request comments. After the public comment period ends, the EPA Administrator and the Attorney General, as appropriate, will promptly consider any wri tten comments received and, if none of the comments disclose facts or considerations which indicate that the proposed Consent Decree is inappropriate, improper, inadequate, or inconsistent with the requirements of the Clean Air Act, EPA will move for entry of the Decree.

Respectfully submitted,

Date : February 26 , 2016 JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division

/s/ Leslie M. Hill LESLIE M. HILL (D.C. Bar No. 476008) Environmental Defense Section 601 D Street N.W., S uite 8000 Washington D.C. 20004 Tel. (202) 514

- 0375 Email: Leslie.Hill@usdoj.gov
Attorneys for Defendant

Of counsel:

Zach Pil ch e n Office of General Counsel U.S. Environmental Protection Agency Case 3:15-cv-00396-HDM-WGC Document 20 Filed 02/26/16 Page 2 of 21 Case No. 3:15

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28 DANIEL G. BOGDEN United States Attorney HOLLY A. VANCE Assistant United States Attorney 100 West Liberty Street, Suite 600 Reno, Nevada 89501 Tel: (775) 784

- 5438 Fax: (775) 784

- 5181

JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division United States Department of Justice LESLIE M. HILL (D.C. Bar No. 476008) Leslie.Hill@usdoj.gov Environmental Defense Section 601 D Street N.W., Suite 8000 Washington D.C. 20004 Tel. (202) 514

- 0375 Fax (202) 514

- 8865
Attorneys for Defendant

[ad ditional counsel listed on signature page]

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

STATE OF NEVADA
, et al.,

Plaintiffs
,

v.
REGINA McCARTHY, in her official capacity as Administrator of the United States Environmental Protection Agency,

Defend ant. Case No. 3:15

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[PROPOSED] CONSENT DECREE Case 3:15-cv-00396-HDM-WGC Document 20-1 Filed 02/26/16 Page 1 of 82 Case No. 3:15

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28 WHEREAS, on July 31, 2015
, Plaintiffs State of Nevada and the Nevada Department of Conservation and Natural Resources, Division of Environmental

Protection (“Plaintiffs”) filed the above

- ca ptioned matter against Gina McCarthy, in her official capacity as Administrator of the United States Environmental Protection Agency
(hereinafter “EPA” or “ Defendant”);
WHEREAS, Plaintiff s allege that EPA has failed to undertake c ertain non

discretionary duties under the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401

- 7671q, and that such alleged failure is actionable under section 304(a)(2) of the CAA, 42 U.S.C. §
7604(a)(2);
WHEREAS, Plaintiffs allege that EPA has failed to perform a du ty mandated by
CAA section 110(k)(2)

- (4), 42 U.S.C. § 7410(k)(2)

- (4), to take final action to approve or disapprove, in whole or in part, the State of Nevada’s April 10, 2013 State implementation plan (“SIP”) submittal (“April 2013 SIP submission”) address ing the requirements of 42 U.S.C. § 7410 (a)(2)(D)(i)(I) for the 2008 National Ambient Air Quality Standards for ozone (hereinafter, the “2008 ozone NAAQS”)
, see Compl. ¶¶ 18,

21 (Dkt. No. 1 ); WHEREAS, the relief requested in the Complaint includes, among o ther things, an order from this Court to establish a date certain by which EPA must fulfill its obligation;
WHEREAS, Plaintiff s and EPA, by entering into this Consent Decree, do not waive or limit any claim, remedy, or defense, on any grounds, related to a ny final EPA
action;
WHEREAS, Plaintiff s and EPA consider this Consent Decree to be an adequate and equitable resolution of all the claims in this matter and therefore wish to effectuate a
settlement; WHEREAS, it is in the interest of the public, Plaintiff s, EPA, and judicial economy to resolve this matter without protracted litigation; Case 3:15-cv-00396-HDM-WGC Document 20-1 Filed 02/26/16 Page 2 of 83 Case No. 3:15

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28 WHEREAS, Plaintiffs and EPA agree that this Court has jurisdiction over this matter pursuant to the citizen suit provision in CAA section 304(a)(2), 42 U.S.C. §
7604(a)(2), and that venue is proper in the District of Nevada pursuant to 28 U.S.C. §
1391(e); WHEREAS, the Court, by entering this Consent Decree, finds that the Consent Decree is fair, reasonable, in the public interest, and consistent with the Clean Air Act;

NOW T HEREFORE, before the taking of testimony, without trial or determination of any issues of fact or law, and upon the consent of Plaintiffs State of Nevada and the Nevada Department of Conservation and Natural Resources, Division of

Environmental Protection and Defendant EPA, it is hereby ordered, adjudged and

decreed that: 1. The appropriate EPA official shall sign a notice of final rulemaking to

approve , conditionally approve, disapprove, or approve in part and disapprove in part, an
infrastructure SIP p ur suant to section 110(k) (2)

- (4) of the CAA, 42 U.S.C. § 7410(k)( 2)

- (4), no later than February 13
, 2017 for Nevada addressing the requirements of section
110(a)(2)(D)(i)(I), 42 U.S.C. § 7410 (a)(2)(D)(i)(I) for the 2008 ozone NAAQS.

2. If Nevada withdraws i ts above

- listed submittal or any portion thereof, then EPA’s obligation to take the action required by Paragraph 1 is automatically terminated with respect to such withdrawn portions. Supplementation of Nevada’s April 2013 SIP

submission shall not be cons trued as withdrawal pursuant to this paragraph.

3 . EPA shall, within 15 days of signature, deliver notice of action taken pursuant to Paragraph 1 of this Consent Decree to the Office of the Federal Register for review and publication.

4 . After EPA has co mpleted the action set forth in Paragraph 1 of this Consent

Decree and after notice of such final action has been published in the Federal Register and the issue of costs of litigation ( including reasonable attorney fees ) has been resolved, EPA may move to have this Decree terminated and the action dismissed. Plaintiffs shall Case 3:15-cv-00396-HDM-WGC Document 20-1 Filed 02/26/16 Page 3 of 84 Case No. 3:15

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28 have fourteen (14) days in which to respond to such a motion, unless the parties stipulate to a longer time for Plaintiffs to respond.

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. The deadline established by this Consent Dec ree may be extended (a) by written stipulation of Plaintiff s and EPA with notice to the Court, or (b) by the Court upon motion of EPA for good cause shown pursuant to the Federal Rules of Civil

Procedure and upon consideration of any response by Plaintiff s and any reply by EPA

. 6 . If a lapse in appropriations occurs within one hundred and twenty (120) days prior to the deadline in Paragraph 1 in this Decree, that deadline shall be extended automatically one day for each day of the lapse in appropriations

. Nothing in this paragraph shall preclude EPA from seeking additiona l time pursuant to Paragraph 5

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

and final settlement of all claims that Plaintiff s have asserted against EPA in this matter

. The State of Nevada and the Nevada Department of Conservation and Natural Resources,

Division of Environmental Protection therefore discharge and covenant not to sue the United States, including EPA, for any such claims.

8 . In the ev ent of a dispute between Plaintiffs and EPA 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 inf ormal negotiations. These parties shall meet and confer in order to attempt to resolve the dispute. If these parties are unable to resolve the dispute within ten (10) business days after receipt of the notice, either party may petition the Court to resol ve the dispute.

9 . No motion seeking to enforce this Consent Decree or for contempt of Court shall be properly filed unless the procedure set forth in Paragraph 8 has been followed,

and the non

- moving party has been provided with written notice at least t en (10) business days before the filing of such motion.

10

. The deadline for filing a motion for costs of litigation (including reasonable attorney fees) for activities performed prior to entry of the Consent Decree is hereby Case 3:15-cv-00396-HDM-WGC Document 20-1 Filed 02/26/16 Page 4 of 85 Case No. 3:15

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28 extended until ninety (90) da ys after this Consent Decree is entered by the Court. During this period, the Parties shall seek to resolve informally any claim for costs of litigation (including reasonable attorney fees), and if they cannot, Plaintiffs will file a motion for

costs of l itigation (including reasonable attorney fees) or a stipulation or motion to extend the deadline to file such a motion. EPA reserves the right to oppose any such request.

11 . This Court shall retain jurisdiction over this matter to enforce the terms of this Consent Decree and to consider any requests for costs of litigation ( including reasonable attorney fees )

. 12 . Nothing in the terms of this Consent Decree shall be construed (a) to confer upon this Court jurisdiction to review any issues that are with in the exclusive jurisdiction of the United States Courts of Appeals under CAA section 307(b)(1), 42 U.S.C. §
7607(b)(1), including final action pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), approving, disapproving, or approving in part and d isapproving in part a SIP

submittal or (b) to waive any claims, remedies, or defenses that the parties may have
under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1).

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

discretion ac corded EPA by the Clean Air Act or by general principles of administrative law in taking the action that is the subject of this Consent Decree, including the discretion
to alter, amend, or revise that action . EPA’s obligation to perform each action specif ied

in this Consent Decree does not constitute a limitation or modification of EPA’s discretion within the meaning of this paragraph.

14 . Except as expressly provided herein, nothing in this Consent Decree shall be construed as an admission of any issue o f fact or law nor to waive or limit any claim, remedy, or defense, on any grounds, related to the action EPA addressed in this Consent

Decree.

15 . Plaintiff s reserve the right to seek additional costs of litigation ( including reasonable attorney fees ) inc urred subsequent to entry of this Consent Decree and arising

from Plaintiffs ’ need to enforce or defend against efforts to modify its terms or the Case 3:15-cv-00396-HDM-WGC Document 20-1 Filed 02/26/16 Page 5 of 86 Case No. 3:15

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28 underlying schedule outlined herein, or for any other unforeseen continuation of this

action. EPA reserves t he right to oppose any such request for additional costs of litigation ( including reasonable attorney fees )

. 16 . It is hereby expressly understood and agreed that this Consent Decree was jointly drafted by Plaintiffs and EPA. Accordingly, the parties her eby agree 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.

17 . The parties agree and a cknowledge that before this Consent Decree can be finalized and entered by the Court, EPA must provide notice of this Consent Decree in the Federal Register and an opportunity for public comment pursuant to CAA section 113(g), 42 U.S.C. § 7413(g). After t his Consent Decree has undergone notice and comment, the Administrator and/or the Attorney General, as appropriate, shall promptly consider any written comments in determining whether to withdraw or withhold their
consent to the Consent Decree, in accordan ce with CAA section 113(g). If the Administrator and/or the Attorney General do not elect to withdraw or withhold consent, EPA shall promptly file a motion that requests that the Court enter this Consent Decree.

18 . Any notices required or provided for b y this Consent Decree shall be in writing, via electronic mail or other means, and sent to the following (or to any new

address of counsel as filed and listed in the docket of the above

- captioned matter, at a
future date):

For Plaintiff s State of Nevada a nd the Nevada Department of Conservation and Natural Resources, Division of Environmental Protection :

Belinda A. Suwe Deputy Attorney General 100 North Carson St. Carson City, Nevada 89701 Tel. (775) 684

- 1163 Fax. (775) 684

- 1103 Email: bsuwe@ag.nv.gov Case 3:15-cv-00396-HDM-WGC Document 20-1 Filed 02/26/16 Page 6 of 87 Case No. 3:15

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28 F or Defendant EPA : Leslie M. Hill U.S. Department of Justice Environment & Natural Resources Division Environmental Defense Section 601 D Street N.W., Suite 8000 Washington
, D.C. 20004 Tel. (202) 514

- 0375 Email: Leslie.Hill@usdoj.gov

19 . EPA and Plain tiffs recognize and acknowledge that the obligations imposed upon EPA under this Consent Decree can only be undertaken using appropriated funds legally available for such purpose. No provision of this Consent Decree shall be interpreted as or constitute a commitment or requirement that the United States obligate or pay funds in contravention of the Anti

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

20 . If for any reason the Court should decline to approve this Consent Decree in the form presented, this agreement is voidable at the sole discretion of either party and the terms of the proposed Consent Decree may not be used as evidence in any litigation between the parties.

21 . The undersigned representatives of Plaintiffs Sta te of Nevada and the Nevada Department of Conservation and Natural Resources, Division of Environmental

Protection and Defendant EPA certify that they are fully authorized by the party they represent to consent to the Court’s entry of the terms and conditi ons of this Decree.

IT IS SO ORDERED:

HOWARD D. MCKIBBEN UNITED STATES DISTRICT JUDGE

DATED: ___________________ Case 3:15-cv-00396-HDM-WGC Document 20-1 Filed 02/26/16 Page 7 of 88 Case No. 3:15

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28 Date: February 19 , 2016 ADAM PAUL LAXALT Attorney General

/s/ Belinda A. Suwe email authorization ( 2 / 19 /1 6 ) Belinda A. Suw e Deputy Attorney General 100 North Carson St. Carson City, Nevada 89701 Tel. (775) 684

- 1163 Fax. (775) 684

- 1103

Attorney s for Plaintiff s

Date : February 2 6 , 201 6 J OHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division

/s/ Leslie M. Hill LESLIE M. HILL (D.C. Bar No. 476008) Environmental Defense Section 601 D Street N.W., Suite 8000 Washington D.C. 20004 Tel. (202) 514

- 0375 Email: Leslie.Hill@usdoj.gov
Attorneys for Defendant

Of counsel:

Zach Pilch e n Office of Gene ral Counsel U.S. Environmental Protection Agency Case 3:15-cv-00396-HDM-WGC Document 20-1 Filed 02/26/16 Page 8 of 8