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SETTLEMENT AGREEMENT

WHEREAS, on April 29, 2010, the Center for Biological Diversity filed a Complaint in 

Center for Biological Diversity v. Jackson, No. cv-10-1846-MMC (N.D. Cal.), against Lisa 

Jackson, in her official capacity as Administrator of the U.S. Environmental Protection Agency

(“EPA”).

WHEREAS, the Center for Biological Diversity therein alleged that EPA failed to 

perform mandatory duties regarding a number of areas designated as nonattainment for the 

National Ambient Air Quality Standards (“NAAQS”) for particulate matter less than 10 microns 

in diameter (“PM-10”) within the States of Alaska, Arizona, Idaho, Montana, and Nevada as 

required by the Clean Air Act (“CAA” or the “Act”), 42 U.S.C. §§ 7401-7671q. Specifically, the 

Center for Biological Diversity alleged that the Act required that EPA (1) make determinations

whether certain PM-10 nonattainment areas attained the PM-10 NAAQS by the applicable 

attainment date; (2) impose sanctions on two areas in Arizona for which EPA has made findings 

of failure by the State of Arizona to submit complete PM-10 state implementation plan (“SIP”) 

revisions, and promulgate Federal Implementation Plans (“FIPs”) for these same two Arizona 

areas; and (3) issue a determination that Montana has failed to submit complete SIPs for certain 

PM-10 areas within the State.

WHEREAS, EPA has applied its “Clean Data Policy” interpretation of the CAA in a 

number of attainment determination rulemakings for PM-10 nonattainment areas, thereby 

suspending for each area certain attainment-related requirements set forth in the Act, including 

EPA’s obligation to promulgate a FIP for such areas. The rationale for EPA’s interpretation is 

set forth in the proposed and final determinations of attainment for the San Joaquin Valley PM10 nonattainment area, 71 Fed. Reg. 40952 (July 19, 2006), 71 Fed. Reg. 63642 (Oct. 30, 2006), 
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and 73 Fed. Reg. 14687 (Mar. 19, 2008), and in the proposed and final determinations of 

attainment for the Coso Junction PM-10 nonattainment area. 75 Fed. Reg. 13710 (Mar. 23, 2010) 

and 75 Fed. Reg. 27944 (May 19, 2010). The Ninth Circuit and the Northern District of 

California have recently addressed these issues. See Latino Issues Forum, et al. v. EPA, Case 

No. 06-75831 (9th Cir.) at Docket No. 63-1 (order denying petition for review); Medical 

Advocates for Healthy Air, et al. v. Johnson, No. C 06-00093 (N.D. Cal.) at Docket No. 77 (order 

on summary judgment).

WHEREAS, on October 17, 2006, EPA published in the Federal Register a final rule 

retaining the 24-hour-average PM-10 NAAQS but revoking the annual PM-10 NAAQS, 71 Fed. 

Reg. 61144.

WHEREAS, on June 22, 2010, EPA published in the Federal Register a direct final rule 

stating its determination that the Sandpoint area in Idaho attained the PM-10 NAAQS, 75 Fed. 

Reg. 35302. EPA received no comments on this rule, which became effective August 23, 2010.

WHEREAS, on July 16, 2010, EPA published in the Federal Register a direct final rule 

stating its determination that Mendenhall Valley, Alaska attained the PM-10 NAAQS, 75 Fed. 

Reg. 41379. EPA received no comments on this action, which became effective without further 

notice on September 14, 2010.

WHEREAS, on July 28, 2010, EPA published in the Federal Register its final 

determination that the Fort Hall PM-10 area in Idaho, attained the PM-10 NAAQS, 75 Fed. Reg. 

44142. [fill in after 113(g) period]

WHEREAS, on August 3, 2010, EPA published in the Federal Register a direct final rule 

stating its final determination that the Las Vegas planning area (Nevada) attained the PM-10 

NAAQS, 75 Fed. Reg. 45485. [fill in after 113(g) period]
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WHEREAS, EPA asserts that the Lame Deer area and Ronan and Polson area in Montana 

are located on tribal lands and, therefore, the State is not required to submit a SIP for these areas.

WHEREAS, the Center for Biological Diversity and EPA have agreed to a settlement of 

all claims raised in the Center for Biological Diversity’s Complaint without admission of any

issue of fact or law in order to avoid protracted and costly litigation and to preserve judicial 

resources. 

NOW, THEREFORE, the Parties, intending to be bound by this Agreement, hereby

stipulate and agree as follows: 

1. EPA shall sign for publication in the Federal Register no later than November 30, 

2010, a notice of the Agency’s final determination under 42 U.S.C §§ 7509(c)(1) and 7513(b)(2)

as to whether Eagle River, Alaska attained the 24-hour PM-10 NAAQS by the applicable 

attainment date, December 31, 1994, based on the area’s air quality as of that attainment date. 

2. EPA shall sign for publication in the Federal Register no later than July 29, 2011, 

a notice of the Agency’s final determination under 42 U.S.C §§ 7509(c)(1) and 7513(b)(2) as to 

whether the Paul Spur/Douglas planning area in Arizona attained the 24-hour PM-10 NAAQS by 

the applicable attainment date, December 31, 1994, based on the area’s air quality as of that

attainment date. 

3. EPA shall sign for publication in the Federal Register no later than January 29, 

2011, a notice of the Agency’s final determination under 42 U.S.C §§ 7509(c)(1) and 7513(b)(2) 

as to whether the Nogales planning area in Arizona attained the 24-hour PM-10 NAAQS by the 

applicable attainment date, December 31, 1994, based on the area’s air quality as of that

attainment date. 
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4. EPA shall sign for publication in the Federal Register no later than November 29, 

2010, a notice of the Agency’s final determination under 42 U.S.C §§ 7509(c)(1) and 7513(b)(2) 

as to whether the Hayden planning area in Arizona attained the 24-hour PM-10 NAAQS by the 

applicable attainment date, December 31, 1994, based on the area’s air quality as of that

attainment date. 

5. EPA shall sign for publication in the Federal Register no later than January 17, 

2011, a notice of the Agency’s final determination under 42 U.S.C §§ 7509(c)(1) and 7513(b)(2) 

as to whether the Columbia Falls area in Flathead County, Montana attained the 24-hour PM-10 

NAAQS by the applicable attainment date, December 31, 1994, based on the area’s air quality as 

of that attainment date. 

6. EPA shall sign for publication in the Federal Register no later than January 17, 

2011, a notice of the Agency’s final determination under 42 U.S.C §§ 7509(c)(1) and 7513(b)(2) 

as to whether the Libby and vicinity areas of Lincoln County, Montana attained the 24-hour PM10 NAAQS by the applicable attainment date, December 31, 1994, based on the area’s air quality

as of that attainment date. 

7. Except as otherwise provided in Paragraph 11, EPA shall no later than March 29, 

2011, sign for publication in the Federal Register a notice of the Agency’s final determination 

under 42 U.S.C §§ 7509(c)(1) and 7513(b)(2) as to whether the Reno (Nevada) planning area,

which is classified as a “serious” PM-10 nonattainment area, attained the 24-hour PM-10 

NAAQS by the applicable attainment date, December 31, 2001, based on the area’s air quality as 

of that attainment date.

 8. Except as otherwise provided in Paragraph 12, and subject to the qualifications in 

Paragraph 20, EPA shall no later than July 27, 2012, sign for publication in the Federal Register
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a notice of the Agency’s final rule promulgating a FIP under 42 U.S.C. § 7410(c)(1) addressing 

the requirements under §§ 7513a(a)(1)(B) [attainment demonstration] and (a)(1)(C) [reasonably

available control measures] or 7509a(a) [demonstration of attainment but for emissions 

emanating from outside the United States] as they relate to the 24-hour PM-10 NAAQS for the 

Douglas portion of the Paul Spur/Douglas planning area.

9. Except as otherwise provided in Paragraph 13, EPA shall no later than July 27, 

2012, sign for publication in the Federal Register a notice of the Agency’s final rule 

promulgating a FIP under 42 U.S.C. § 7410(c)(1) addressing the requirements under §§ 

7513a(a)(1)(B) [attainment demonstration] and (a)(1)(C) [reasonably available control measures] 

or 7509a(a) [demonstration of attainment but for emissions emanating from outside the United 

States] as they relate to the 24-hour PM-10 NAAQS for the Nogales planning area.

10. The Parties may agree to extend any deadlines contained in this Settlement 

Agreement by mutual written consent. 

11. If EPA signs a notice taking final action to approve the State of Nevada’s 

submitted Redesignation Request and Maintenance Plan for the Reno Planning Area under 42 

U.S.C. § 7407(d)(3)(D) and (d)(3)(E) before the deadline in Paragraph 7 of this Settlement 

Agreement, then EPA’s obligation under Paragraph 7 shall be voided. 

12. If, before the deadline in Paragraph 8 of this Settlement Agreement, EPA signs a 

notice taking final action to (1) reclassify the Paul Spur/Douglas planning area (or the Douglas 

planning area if EPA acts to split the Paul Spur/Douglas nonattainment area into two areas) as a 

“serious” nonattainment area; (2) approve a submittal from the State of Arizona of a SIP revision 

addressing the requirements under §§ 7513a(a)(1)(B) [attainment demonstration] and (a)(1)(C) 

[reasonably available control measures] or 7509a(a) [demonstration of attainment but for 
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emissions emanating from outside the United States]; or (3) approve a redesignation request and 

maintenance plan under 42 U.S.C. § 7407(d)(3)(D) and (d)(3)(E); then EPA’s obligation under 

Paragraph 8 shall be voided.

13. If EPA signs a notice taking final action to reclassify the Nogales planning area as 

a “serious” nonattainment area or to approve a submittal from the State of Arizona of a SIP 

revision addressing the requirements under §§ 7513a(a)(1)(B) [attainment demonstration] and 

(a)(1)(C) [reasonably available control measures] or 7509a(a) [demonstration of attainment but 

for emissions emanating from outside the United States] before the deadline in Paragraph 9 of 

this Settlement Agreement, then EPA’s obligation under Paragraph 9 shall be voided.

14. Within 15 business days following signature of such action required by

Paragraphs 1-13, EPA shall send notice of such action to the Office of the Federal Register for 

review and publication.

15. Nothing in this Settlement Agreement shall be construed to limit or modify any 

discretion accorded EPA by the CAA or by general principles of administrative law. 

16. The Parties agree and acknowledge that EPA’s final approval of this Settlement 

Agreement is subject to the requirements of CAA § 113(g), 42 U.S.C. § 7413(g). That 

subsection provides that notice of this Settlement Agreement be given to the public, that the 

public shall have a reasonable opportunity to make any comments, and that the Administrator or 

the Attorney General, as appropriate, must consider those comments in deciding whether to 

consent to this Settlement Agreement. 

17. Except as set forth in this Agreement, the Parties retain all rights, claims, 

defenses, and discretion they may otherwise have.
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18. EPA’s obligations under this Settlement Agreement are subject to the availability

of funds appropriated and legally available for such purpose. No provision of this Settlement 

Agreement 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 

provision of law.

19. Within 10 days of signing this Settlement Agreement, the parties agree to file a 

joint motion in the district court to administratively close this case. The Center for Biological 

Diversity shall file a motion for voluntary dismissal, with prejudice, in accordance with Rule 

41(a)(1) of the Federal Rules of Civil Procedure of Center for Biological Diversity v. Jackson, 

No. cv-10-1846-MMC (N.D. Cal.), with respect to all claims in the Complaint within 30 days 

after notice appears in the Federal Register of EPA taking the last rulemaking action required 

under Paragraphs 1-9 of this Settlement Agreement. The Center for Biological Diversity agrees 

and acknowledges that, if EPA fails to meet its obligations under this Settlement Agreement, its

sole remedy is to reinstate this action.

20. The Parties agree that if EPA signs a final attainment determination in lieu of 

promulgating a FIP prior to the deadline for promulgation of a FIP in Paragraph 8, then such 

action will not constitute a breach of the Settlement Agreement. Nevertheless, should EPA 

invoke its Clean Data Policy and sign a final attainment determination in lieu of promulgating a 

FIP, the Center for Biological Diversity reserves its right to reinstate this action for the limited 

purpose of litigating the question whether EPA is in violation of an alleged mandatory duty to 

promulgate a FIP as required by CAA section 110(c)(1)(A), 42 U.S.C. § 7410(c)(1)(A), for the 

Douglas area of Cochise County. EPA in turn reserves each of its defenses including, but not 
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limited to, arguing that the Center for Biological Diversity’s challenge is time-barred and that 

such claim is reviewable exclusively in the court of appeals.

21. The undersigned representative of each Party certifies that he or she is fully

authorized by the Party he represents to bind that Party to the terms of this Settlement 

Agreement. 

22. Any written notices or other written communications between the Parties 

contemplated under this Settlement Agreement shall be sent to the undersigned counsel at the 

addresses listed in the signature blocks below unless written notice of a change in counsel and/or 

address is provided.

IGNACIA S. MORENO

Assistant Attorney General

__________________________ 

ADAM J. KATZ

United States Department of Justice

Environment & Natural Resources Division

Environment Defense Section

P.O. Box 23986

Washington, D.C. 20026

(202) 514-2689

adam.katz@usdoj.gov

COUNSEL FOR EPA 

Dated: 

 

__________________________ 

Robert Ukeiley

Law Office of Robert Ukeiley

435R Chestnut Street, Suite 1

Berea, Kentucky 40403

(859) 986-5402

rukeiley@igc.org
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Kevin Bundy

Center for Biological Diversity

351 California St., Suite 600

San Francisco, CA 94104

(415) 436-9682

kbundy@biologicaldiversity.org

COUNSEL FOR CENTER FOR 

BIOLOGICAL DIVERSITY

Dated: