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28 SAM HIRSCH Acting 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 Telephone (202) 514

- 0375 Facsimile (202) 514

- 8865
Attorneys for Defendant

ROBERT UKEILEY , Admitted Pro Hac Vice Law Office of Robert Ukeiley 507 Center St. Berea, KY 40403 Telephone (859) 986

- 5402 rukeiley@igc.org

[additional a ttorney fo r Plaintiff included in signature block]
Attorney s for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

CENTER FOR BIOLOGICAL DIVERSITY,

Plaint i ff,

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

Defendant. Case No. 4 :1 3

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[PROPOSED] CONSENT DECREE2

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28 WHEREAS, on November 5, 2013 , Plaintiff Center for Biological Diversity (“Plaintiff” or “CBD”) filed the above

- caption ed matter against Gina McCarthy , in her official capacity as Administrator of the United States Environmental Protection Agency (hereinafter “EPA” or “ Defendant”);
WHEREAS, Plaintiff filed its first amended complaint (Dkt. No. 20) on January
28, 2014
, and its second a mended c omplaint (Dkt. No.22) on January 30, 2014; WHEREAS, Plaintiff alleges that EPA has failed to undertake certain non

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

- 7671q, and

that such a lleged failure is actionable under section 304(a)(2) of the CAA, 42 U.S.C. §
7604(a)(2);
WHEREAS, in Claim 1, Plaintiff allege s that EPA has failed to perform a duty mandated by CAA section 110(k)( 1 ) (B) , 42 U.S.C. § 7410(k)( 1 ) (B) , to find that certain

stat es failed to submit nonattainment state implementation plans (“SIPs”) for the following areas designated nonattainment for the 2006 fine particulate matter, or PM 2.5 , National Ambient Air Quality Standard (“ NAAQS ”), see 2nd Am. Compl. ¶ 1 (Dkt. No.
22) :
AR EA STATE Imperial County California Pittsburgh

- Beaver Valley except nonattainment New

Source Review element Pennsylvania

Milwaukee

- Racine except nonattainment New Source

Review and emission inventories elements Wisconsin

Tacoma Nonattainment New Source Review element Washington

WHEREAS, EPA finalized a rule, Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM 2.5 ) National Ambient Air Quality S tandard (NAAQS) and 2006 PM 2.5 NAAQS , 79 Fed. Reg. 31,566 (June 2, 2014) , which establishes a deadline of December3

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28 31, 2014 by which states must submit SIPs complying with Subpart 4 of Part D, title I of

the CAA requirements ; WHEREAS, EPA believes issuance of the above

- mentioned final rule renders
Claim 1 therefore moot;
WHEREAS, EPA also promulgated a final rule redesignating the Milwaukee

Racine nonattainment area to attainment for the 2006 PM 2.5 NAAQS, rendering Claim 1

moot as to the Milwaukee

- Racine a rea, Redesignation of the Milwaukee

- Racine 2006 24

- Hour Fine Particle Nonattainment Area to Attainment , 79 Fed. Reg. 22,415 (Apr. 22,
2014) ; WHEREAS, in Claim 2, Plaintiff alleges that EPA has failed to perform a duty mandated by CAA sections 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, certain 2006 PM 2.5 NAAQS

nonattainment SIP submissions addressing nonattainment new source review from states
for the five areas listed below
, see 2nd Am. Co mpl. ¶ 1 (Dkt. No. 22) :
AREA/STATE ELEMENT Los Angeles

– South Coast, California Non

- Attainment

New Source Review
Charleston, West Virginia Non

- Attainment

New Source Review
Stuebenville, Ohio

- Weirton, West Virginia Non

- Attainment

New Source Revi ew San Joaquin Valley, California Non

- Attainment

New Source Review
Fairbanks, Alaska Non

- Attainment

New Source Review ;

WHEREAS, EPA took final action to redesignat e two of the five nonattainment

areas to attainment
, Approval of the Redesignation Requests and the Associated4

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28 Maintenance Plans of the Charleston Nonattainment Area for the 1997 Annual and the

2006 24

- Hour Fine Particulate Matter Standards , 79 Fed. Reg. 17,884 (Mar. 31, 2014) (Charleston, West Virginia) ; Approval of Redesignation Reque sts of the West Virginia Portion of the Steubenville

- Weirton, OH

- WV Nonattainment Area for the 1997 Annual

and 2006 24

- Hour Fine Particulate Matter Standards , 79 Fed. Reg. 15,019 (Mar. 18,

2014 ) ( Stuebenville, Ohio

- Weirton, West Virginia ) ; WHERAS, as a res ult of the redesignation of the Charleston, West Virginia area
and the Steubenville, Ohio

- Weirton, West Virginia area, West Virginia is no longer required to submit nonattainment SIPs addressing nonattainment new source review with respect to these areas; WHEREAS, EPA has not taken final action pursuant to CAA sections 110(k) (2)

- (4), 42 U.S.C. §§ 7410(k)( 2)

- (4), to approve or disapprove, in whole or in part, certain plan submission s , with respect to the remaining three nonattainment areas;
WHEREAS, the rel ief requested in the Second Amended Complaint includes, among other things, an order from this Court to establish a date certain by which EPA must fulfill its obligations for both Claims 1 and 2 ; WHEREAS, Plaintiff and EPA have agreed to a settlement of th is action without admission of any issue of fact or law, except as expressly provided herein; WHEREAS, Plaintiff and EPA, by entering into this Consent Decree, do not waive or limit any claim, remedy, or defense, on any grounds, related to any final EPA

ac tion; WHEREAS, Plaintiff 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 Center for Biol ogical Diversity , Defendant EPA, and judicial economy to resolve this matter without protracted litigation;5

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28 WHEREAS, Plaintiff 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 Northern District of California pursuant to 28 U.S.C. § 1391(e) and N.D. Cal. Civ. Local Rule 3

- 2(c)

- (d); 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 THEREFORE, before the taking of testimony, without trial or determination of any issues of fact or law, and upon the consent of Plaintiff Center for Biological Diversity and Def endant EPA, it is hereby ordered, adjudged and decreed that:

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

approve , disapprove, or approve in part and disapprove in part, certain plans p ursuant to sections 110(k) (2)

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

- (4), no later than the date

indicated below for the following areas designated nonattainment for the 2006 PM 2.5 NAAQS :

a. Los Angeles

– South Coast, California area by April 15, 2015;

b. San Joaquin Valley, California area by September 1, 2014 ; and

c. Fairbanks, Alaska area by December 31, 2014

. 2

. If either California or Alaska withdraws its above

- listed submittal, then EPA’s obligation to take the action required by Paragraph 1 is automatically terminated.
3. EPA shall, within 15 days of signature , deliver notice of each 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 completed the action s set forth in Paragraph 1 of this Cons ent

Decree and after notice of each final action required by paragraph 1 has been published in the Federal Register and the issue of costs of litigation, including attorneys fees has been

resolved , EPA may move to have this Decree terminated and the action dismissed

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

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28 5

. The deadline s established by this Consent Decree may be extended (a) by written stipulati on of Plaintiff 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 and any reply by EPA

. 6. If a lapse in app ropriations 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.

7

. Plaintiff and EPA agree that this Con sent 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 Center for Biological
Diversity v. McCarthy , Case No. 4 :1 3

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- SBA (N.D. Cal.). The Center for Biological Diversity therefore discharges and covenants not to sue the United States, including EPA, for any such claims.

8

. In the event of a dispute between Plaintiff and EPA concerning the interpretation or implementa tion 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. 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 resolve 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 ten (10) business days before the filing of such motion

. 10

. The deadline for filing a motion for costs of litigation (including attorney fees) for activities performed prior to entry of the Consent Decree is hereby extended until ninety (90) days after this Consent Decree is entered by the Court. During this period, the Parties shall seek to resolve informally any claim for costs of litigation7

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28 (including attorney fees), and if they cannot, the Center for Biological Diversity will file a motion for costs of litigation (including attorney fees) or a stipulation or motion to

extend the deadlin e to file such a motion. EPA reserves the right to oppose any such
request.

1 1 . 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 attorney fe es.
1 2 . Nothing in the terms of this Consent Decree shall be construed ( a ) to confer upon this Court jurisdiction to review any issues that are within 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 take pursuant to section 110(k) of the CAA, 42 U.S.C.
§ 7410(k), approving, disapproving, or approving in part and disapproving in part a SIP

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

1 3 . Nothing in this Consent Decree shall be construed to limit or modify any discretion accorded EPA by the Clean Air Act or 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 final actions promulgated pursuant to this Consent Decree. EPA’s obligation to perform each action specified in this Consent

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

1 4 . Except as expressly provided herein, 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,

r emedy, or defense, on any grounds, related to any final action EPA takes with respect to

the actions addressed in this Consent Decree.

1 5 . Plaintiff reserves the right to seek additional costs of litigation, including reasonable attorney fees, incurred subsequent to entry of this Consent Decree and arising from Plaintiff’s need to enforce or defend against efforts to modify its terms or the8

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28 underlying schedule outlined herein, or for any other unforeseen continuation of this action. EPA reserves the rig ht to oppose any such request for additional costs of litigation, including reasonable attorney fees.

1 6 . It is hereby expressly understood and agreed that this Consent Decree was jointly drafted by Plaintiff and EPA. Accordingly, the parties hereby ag ree 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.

1 7 . The parties agree and acknowl edge 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 this Co nsent 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 accordance wit h 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.

1 8 . Any notices required or provided for by 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):

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28 For Plaintiff Cent er for Biological Diversity :
Robert Ukeiley Law Office of Robert Ukeiley 255 Mountain Meadow Road Boulder, CO 80302 Tel. 720

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- 7247 Email: rukeiley@igc.org

Jonathan Evans (Cal. Bar #247376) Center for Biological Diversity 351 California St., Suite 600 San Francisco, CA 94104 Tel. 415

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- 9682 x318 Email: jevans@biologicaldiversity.org

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

- 0375 Email: Leslie.Hill@usdoj.gov

1 9 . EPA and Plaintiff recognize and acknowledge that the obligations imposed upon EPA under this Consent Decree can only be undertaken using appropriated funds legally available for suc h 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.10

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28 2 1 . The undersigned representatives of Plaintiff Center for Biological Diversity 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.

SO ORDERED on this _____ day of _____________________, 201 4

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________________________________ SAUNDRA BROWN ARMSTRONG UNITED STATES DISTRICT JUDGE

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28 COUNSEL FOR PLAINTIFF:

Robert Ukeiley, Admitted Pro Hac Vice Law Office of Robert Ukeiley 507 Center Street Berea, KY 40403 Tel: (859) 986

- 5402 Email: rukeiley@igc.org

Jonathan Evans (Cal. Bar #247376) Center for Biological Diversity 351 California St., Suite 600 San Francisco, CA 94104 Phone: 415

- 436

- 9682 x318 Fax: 415

- 436

- 9683 email: jevans@biologicaldiversity.org

Attorneys for Plaintiff Center for Biological Diversity

C OUNSEL FOR DEFEN DANT: SAM HIRSCH Acting Assistant Attorney General Environment & Natural Resources Division

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@u sdoj.gov
Attorneys for Defendant EPA

Of counsel:
Stephanie Hogan Karen Bennett Bianco Office of General Counsel U.S. Environmental Protection Agency