1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) CENTER FOR BIOLOGICAL DIVERSITY ) et al. , ) Civ. No. 05-1814 (LFO) ) Plaintiffs, ) ) v. ) ) S TEPHEN L. J OHNSON ) Administrator ) United States Environmental Protection Agency ) ) Defendant. ) __________________________________________)

CONSENT DECREE WHEREAS, on February 3, 2006, Plaintiffs Ce nter for Biological Diversity, Valley Watch, Inc., Preston Forsythe, Tina Johnson and Jeremy Nichols filed their first amended complaint in this action pursuant to section 304(a)(2) of the Clean Air Act ( A CAA @ ), 42 U.S.C. ' 7604(a)(2), alleging that Defendant, Stephen L. Johnson, Administrator of the United States Environmental Protection Agency (hereinafter A EPA @ ) failed to perform mandatory duties pursuant to CAA ' 109(d)(1) to complete another cycle of review, revision, and promulgation actions for nitrogen dioxide ( A NO 2 @ ) and oxides of nitrogen ( A NO x @ ). Specifically, Plaintiffs alleged Defendant has failed to complete a thorough review of the air quality criteria for NOx and the primary and secondary National Ambient Air Quality Standards ( A NAAQS @ ) for NO 2 . Plaintiffs further alleged that the deadline under CAA ' 109(d)(1) for Defendant to complete another cycle of review, revision, and promulgation actions with respect to sulfur oxides (SOx) expired several years ago. Case 1:05-cv-01814-LFO Document 40-2 Filed 11/19/2007 Page 1 of 82 WHEREAS, Plaintiffs and EPA (collectively A the Parties @ ) wish to effectuate a settlement of the above-captioned matter without expensive and protracted litigation; WHEREAS, starting sixty days after entry of this Decree by the Court, and then every sixty days thereafter until EPA has completed all the tasks in paragraph 2, EPA shall provide to Plaintiffs a report on the progress of EPA = s review and revision, as appropriate, of the NO x and

SO x criteria and the NO 2 and SO 2 NAAQS. EPA = s reports shall provide: (a) where a document listed in the schedule attached as exhibit A to this Consent Decree has been completed, the date of its completion and if posted on the internet by EPA, its web address; (b) the date on which each CASAC/public review meeting was held; (c) for the final ISA, the notice of proposed rulemaking, and the notice of final rulemaking, the dates on which EPA forwarded notice of the availability of such document or notice of such action to the Office of the Federal Register; and (d) whether EPA anticipates any difficulties in meeting the date(s) provided in the schedule attached as exhibit A for completing any future task(s). WHEREAS, the Parties consider this Decree to be an adequate and equitable resolution of the claims in the above-captioned matter; WHEREAS, the Court, by entering this Decree, finds that the 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 subject matter jurisdiction over the claims set forth in the First Amended Complaint and to order the relief contained in this Decree. Venue is proper in the

United States District Court for the District of Columbia. Case 1:05-cv-01814-LFO Document 40-2 Filed 11/19/2007 Page 2 of 83 2. EPA shall take the following actions by the following dates: a) No later than July 11, 2008, EPA shall issue a final Integrated Science Assessment, a document containing air quality criteria, addressing human health affects of NO x pursuant to 42 U.S.C. '' 7408 and 7409(d)(1). b) No later than May 28, 2009, EPA shall sign a notice of proposed rulemaking setting forth its proposed decision pursuant to 42 U.S.C. ' 7409(d)(1) concerning its review of the primary NO 2 NAAQS promulgated under 42 U.S.C. ' 7409, and proposing such new primary NAAQS and/or revisions of standards for NO x as may be appropriate pursuant to

42 U.S.C. ' 7408 and 7409(b)(1). c) No later than December 18, 2009, EPA shall sign a notice of final rulemaking setting forth its decision pursuant to 42 U.S.C. ' 7409(d)(1) concerning its review of the primary NAAQS for NO 2 and making such revisions in the primary NO 2 NAAQS and/or promulgating such new primary NAAQS for NO x as may be appropriate pursuant to 42 U.S.C. ' 7408 and 7409(b)(1). d) No later than September 12, 2008, EPA shall issue a final Integrated Science Assessment, a document containing air quality criteria, addressing human health affects

of SO x pursuant to 42 U.S.C. '' 7408 and 7409(d)(1). e) No later than July 30, 2009, EPA shall sign a notice of proposed rulemaking setting forth its proposed decision pursuant to 42 U.S.C. ' 7409(d)(1) concerning its review of the primary SO 2 NAAQS promulgated under 42 U.S.C. ' 7409, and proposing such new primary NAAQS and/or revisions of standards for SO x as may be appropriate pursuant to 42

U.S.C. ' 7408 and 7409(b)(1). f) No later than March 2, 2010, EPA shall sign a notice of final rulemaking setting forth its decision pursuant to 42 U.S.C. ' 7409(d)(1) concerning its review of the primary Case 1:05-cv-01814-LFO Document 40-2 Filed 11/19/2007 Page 3 of 84 NAAQS for SO 2 and making such revisions in the primary SO 2 NAAQS and/or promulgating such new primary NAAQS for SO x as may be appropriate pursuant to 42 U.S.C. ' 7408 and 7409(b)(1). g) No later than December 12, 2008, EPA shall issue a final Integrated Science Assessment, a document containing air quality criteria, addressing the public welfare

effects of NO x and SO x pursuant to 42 U.S.C. '' 7408 and 7409(d)(1). h) No later than February 12, 2010, EPA shall sign a notice of proposed rulemaking setting forth its proposed decision pursuant to 42 U.S.C. ' 7409(d)(1) concerning its review of the secondary NO 2 and SO 2 NAAQS promulgated under 42 U.S.C. ' 7409 and proposing such new secondary NAAQS and/or revisions of standards for NO x and/or SO x as may be appropriate pursuant to 42 U.S.C. ' 7408 and 7409(b)(2). i) No later than October 19, 2010, EPA shall sign a notice of final rulemaking setting forth its decision pursuant to 42 U.S.C. ' 7409(d)(1) concerning its review of the secondary NAAQS for NO 2 and SO 2 and making such revisions in the secondary NO 2 and

SO x NAAQS and/or promulgating such new secondary standards for NO x and SO x as may be appropriate pursuant to 42 U.S.C. ' 7408 and 7409(b)(2). 3. Within 10 business days following issuance or signature of such actions as set out in paragraph 2 above, EPA shall deliver notice of such action to the Office of the Federal Register for prompt publication. Following such delivery to the Office of the Federal Register, EPA shall not take any step (other than as necessary to correct within 10 business days after submittal any typographical or other errors in form) to delay or otherwise interfere with publication of such notice in the Federal Register. 4. Any provision of this Decree may be modified by (a) written stipulation of the Parties with notice to the Court, or (b) by the C ourt following motion of any party to this Decree, Case 1:05-cv-01814-LFO Document 40-2 Filed 11/19/2007 Page 4 of 85 pursuant to the Federal Rules of Civil Procedure, and upon consideration of any response by the non-moving party. 5. Plaintiffs and EPA shall not challenge the terms of this Decree or this Court = s jurisdiction to enter and enforce this Decree. Upon entry, no party shall challenge the terms of

this Decree. 6. The deadline for filing a motion for costs of litigation (including attorneys = fees) for activities performed prior to execution of this Decree is hereby extended until 60 days after this Decree is entered by the Court. During this 60-day period, 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 the Court for resolution. Nothing in this paragraph shall be construed as an admission or concession by EPA that Plaintiffs are entitled to or eligible for recovery of any costs or attorneys' fees. 7. Nothing in this 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 Decree, including the discretion to alter, amend or revise any responses or final actions contemplated by this Decree. EPA's obligation to perform the actions specified in Paragraph 2 and 3 by the time specified therein does not constitute a limitation or modification of EPA's discretion within the meaning of this paragraph. 8. Nothing in this 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 EPA action may take pursuant to Paragraph 2 above. 9. Nothing in this Decree shall be construed to confer upon the district court jurisdiction to review any final decision made by EPA pursuant to this Decree. Nothing in this Decree shall be construed to confer upon the district court jurisdiction to review any issues that Case 1:05-cv-01814-LFO Document 40-2 Filed 11/19/2007 Page 5 of 86 are within the exclusive jurisdiction of the United States Courts of Appeals pursuant to CAA section 307(b)(1), 42 U.S.C. ' 7607(b)(1). Nothing in the terms of this 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). 10. The obligations imposed upon EPA under this Decree can only be undertaken using appropriated funds. No provision of this 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 federal statute. 11 Any notices required or provided for by this Decree shall be made in writing, via facsimile or other means, and sent to the following:

For Plaintiffs :

ROBERT UKEILEY Law Office of Robert Ukeiley 435R Chestnut Street, Suite 1 Berea, KY 40403 Fax: (866) 618-1017

For Defendant :

EILEEN T. MCDONOUGH United States Department of Justice Environmental Defense Section P.O. Box 23986 Washington, D.C. 20026-3986 Fax (202) 514-8865

M. LEA ANDERSON U.S. Environmental Protection Agency Office of General Counsel ARN: MC-2344A 1200 Pennsylvania Ave., N.W. Washington, DC 20460 Fax (202) 564-5571 Case 1:05-cv-01814-LFO Document 40-2 Filed 11/19/2007 Page 6 of 8Case 1:05-cv-01814-LFO Document 40-2 Filed 11/19/2007 Page 7 of 88 FOR DEFENDANT RONALD J. TENPAS Acting Assistant Attorney General Environment & Natural Resources Division /s/ E ILEEN T. M C D ONOUGH United States Department of Justice Environmental Defense Section P.O. Box 23986 Washington, D.C. 20026-3986 Phone (202) 514-3126 Fax (202) 514-8865 eileen.mcdonough@usdoj.gov DATED: November 13, 2007 Of Counsel for Defendant:

M. LEA ANDERSON U.S. Environmental Protection Agency Office of General Counsel ARN: MC-2344A 1200 Pennsylvania Ave., N.W.

Washington, DC 20460 Case 1:05-cv-01814-LFO Document 40-2 Filed 11/19/2007 Page 8 of 8