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VERA P. PARDEE (State Bar No. 106146) Center for Biological Diversity 351 California Street, Suite 600 San Francisco, CA 94104 Telephone: 415.436.9682 ext. 317 Facsimile: 415.436.9683 Email: vpardee@biologicaldiversity.org
Attorneys for Plaintiff CENTER FOR BIOLOGICAL DIVERSITY

HELEN H. KANG (State Bar No. 124730) Environmental Law and Justice Clinic Golden Gate University School of Law 536 Mission Street San Francisco, CA 94105 Telephone: 415.442.6647 Facsimile: 415.896.2450 Email: hkang@ggu.edu
Attorn eys for Plaintiffs GREENPEACE, INC. and PORT TOWNSEND AIRWATCHERS

[Counsel for Defendants listed on page 2]

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

CENTER FOR BIOLOGICAL DIVERSITY, GREENPEACE, INC., and PORT TOWNSEND AIRWATCHERS,

Plaintiffs,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and LISA P. JACKSON, Administrator, United States Environmental Protection Agency,

Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: C

- 11

- 06059 YGR

[PROPOSED] CONSENT DECREE

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IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division NORMAN L. RAVE, JR. (D.C. 431602) Environmental Defense Section Environment & Natural Resources Division United States Department of Justice P.O. Box 76 11 Washington, D.C. 20044 Telephone: 202.616.7568 Facsimile: 202.514.8865 Email: norman.rave@usdoj.gov
Attorneys for Defendants

CONSENT DECREE

W HEREAS, Plaintiffs Center for Biological Diversity, Greenpea ce, Inc., and Port
Townsend Airwatchers (collectively, “Plaintiffs”) filed their C omplaint on December 6,

2011
, against Defendants the U nited S tates Environmental Protection Agency and EPA

Administrator Lisa Jackson (collectively “ EPA ”)
, pursuant to sect ion 304(a)(2) of the Clean Air

Act ("CAA"), 42 U.S.C. § 7604(a)(2)
, to compel EPA to review the existing New Source
Performance Standards governing kraft pulp mills (“kraft pulp NSPS”) under Clean Air Act
(“the Act”) Section 111, 42 U.S.C. § 7411;

WHEREAS , EPA last issued kraft pulp NSPS, set forth in 40 C.F.R. Part 60, Subpart

BB (“NSPS”)
, in 1978 ;

W HEREAS, plaintiffs allege that EPA has failed to perform a non

- discretionary
duty to review
, and if appropriate revise
, the NSPS for kraft pulp mills at lea st every 8

years pursuant to 42 U.S.C. § 7411 (b)(1)(B) ;- 3

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WHEREAS, EPA will be provid ing Plaintiffs with status reports every 90 days to inform
Plaintiffs whether the Agency continues to make reasonable progress towards meeting the
deadlines provided in th is consent decree, or if it anticipates any difficulties in meeting those

dates
, in which case the EPA will provide an explanation of the difficulty or difficulties;

WHEREAS, Plaintiff s and EPA (collectively "the Parties") wish to effectuate a

settlement o f the above

- captioned matter without expensive and protracted litigation ;
WHEREAS, the Parties consider this Decree to be an adequate and equitable resolution

of the claims in the above

- captioned matter ; and
WHEREAS, the Court, by entering this Decree, fi nds that the Decree represents a fair,
equitable, and adequate resolution of the claims resolved herein; NOW THEREFORE, it is
hereby ORDERED, ADJUDGED AND DECREED as follows:

1. This Court has jurisdiction over the claims set forth in the Complaint
, and to order

the relief contained in this Decree , pursuant to section 304 of the Act, 42 U.S.C. § 7604

. Venue
is proper in the United States District Court for the Northern District of California pursuant to

section 304 of the Act, 42 § U.S.C. 7604, and 28 U .S.C. § 1391 (e)

.
2. For the kraft pulp mills source category:

a. No later than May 15, 2013
, EPA shall: (i) review the kraft pulp NSPS and sign
for publication one or a combination of the following: (A) a proposed rule
containing revisions to the kra ft pulp NSPS, 40 C.F.R. Part 60, Subpart BB
(“NSPS Subpart BB”), under section 111(b)(1)(B) of the Act, 42 U.S.C. §
7411(b)(1)(B); or (B) a proposed determination under section 111(b)(1 )(B) not to
revise NSPS Subpart BB; or (ii) sign for publication a dete rmination that “review- 4

- is not appropriate in light of readily available information on the efficacy of [the]

standard,” i .e., NSPS Subpart BB.

b. If EPA signs a proposed rule or a proposed determi nation pursuant to paragraph

2. a(i) above, then no later t ha n March 14, 2014, EPA shall sign one or a
combination of the following: (i) a final rule containing revisions to NSPS
Subpart BB under section 111(b)(1)(B) of the Act, 42 U.S.C. § 7411(b)(1)(B); or

(ii) a final determination under section 111(b)(1)(B) not to revise Subpart BB.

c. The Parties do not agree on the legal question of whether notice and comment is
required in the event that EPA takes action only pursuant to paragraph 2.a(ii). In
view of this, the Parties agree that nothing in this Consent Decre e precludes
Plaintiffs from challenging any such action on the basis that notice and comment
was not provided, or on any other grounds, or as stated generally in Paragraph 9 ;
and nothing prevents EPA from raising any defenses in response to such a
challeng e.

3. W ithin 10 business days of signing any of the documents described in Paragraph

2
, the appropriate EPA official shall forward it or them to the Office of the Federal Register for
publication

. EPA shall request in writing that the Office of Federal R egister take all necessary
steps to publish the notice expeditiously.

4

. Within five (5) business days after forwarding the m aterials described in
Paragraph 2 to the Federal Register , EPA shall send copies of such materials to Plaintiffs

.
5

. The deadl ines set forth in Paragraphs 2 and 3 hereof may be modified only by :
(a) written stipulation of the Parties with notice to the Court; or (b) the Court following motion
of any party to this Decree, pursuant to the Federal Rules of Civil Procedure , and upon- 5

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consideration of any response by the non

- moving party.

6

. Pursuant to section 304(d) of the Clean Air Act, 42 U.S.C. § 7604(d), Plaintiffs
are eligible and entitled to recover their costs of litigation in this action, including reasonable
attorney’s fee s. The deadline for filing a bill of costs pursuant to Local Rule 54

- 1 and a motion
for costs of litigation, including reasonable attorney’s fees pursuant to Local Rule 54

- 5, is
extended until 90 days after the date on which the Court enters this Consent Decree. EPA
reserves the right to object to the reasonableness of any such fees and costs.

7

. The Parties 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.

8

. Except as provided herein, nothing in this Decree shall be construed to limit or
modify any discretion accorded to EPA by the CAA or by general principles of administrative
law in taking the actions that are the subject of t his Decree.

9

. N othing in this Decree shall be construed to confer upon this Court jurisdiction to

review any issues that are within the exclusive jurisdiction of the United States Courts of
Appeals pursuant to CAA Section 307(b)(1 ), 42 U.S.C. § 760 7(b)(1) . Nothing in the te r ms of

this D ecree shall be construed to waive , limit or modify any remedies , rights to seek judicial

review, or defenses the Parties may have under CAA Section 307(b)(1), 42 U.S.C. § 7607(b)(1).

1 0

. The obligations imposed on 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. § 1 341, or any other applicable federal statute.

1 1

. Any notices required or provided for by this Decree shall be made in writing, via

email or other means, and sent to the following:- 6

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For Plaintiff Center for Biological Diversity:

Vera P. Pardee Center f or Biological Diversity 351 California Street, Suite 600 San Francisco, CA 94104 Telephone: 415.436.9682 ext. 317 Facsimile: 415.436.9683 Email: vpardee@biologicaldiversity.org
For Plantiffs Greenpeace, Inc, and Port Townsend Airwatchers:
Helen H. Kang Environmental Law and Justice Clinic Golden Gate University School of Law 536 Mission Street San Francisco, CA 94105 Telephone: 415.442.6647 Facsimile: 415.896.2450 Email: hkang@ggu.edu Attorneys for Plaintiffs GREENPEACE, INC. and PORT TOWNSEND AIRWATCHE RS

For EPA :

Norman L. Rave, Jr. Environmental Defense Section Environment & Natural Resources Division United States Department of Justice P.O. Box 7611 Washington, D.C. 20044 Telephone: 202.616.7568 Facsimile: 202.514.8865 Email: norman.rave@usdoj.gov- 7

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S cott Jordan U.S. Environmental Protection Agency Office of General Counsel ARN: MC

- 2344A 1200 Pennsylvania Ave., N.W. Washington, DC 20460 Telephone: 202

- 564

- 7508 Fax: (202) 564

- 5603 Email: jordan.sco tt@epa.gov

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. In the event of a dispute between the Parties concerning the interpretation or
implementation of any aspect of this Decree, the disputing party shall provide the other p arty
with a written notice outlining the nature of the dispute and re questing informal negotiations.
The parties shall meet and confer to attempt to resolve the dispute. 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.

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. No motion or other proceeding seeking to enforce this Consent Decree or for
contempt of court shall be filed unless the procedure set forth in Paragra p h 1 2 has been followed.

1 4

. The Parties agree and acknowledge that, before this Decree can be finalized and
entered by the Court, EPA must provide notice of this Decree in the Federal Register and an
opportunity for public comment pursuant to the Clean Air Act, 42 U.S.C. § 7413(g). EPA will
prepare such notice and forward it to the Office of Federal Register no later than ten (10)
business days after the parties have signed this Consent Decree a n d request in writing that the
Office of Federal Register take all necessary steps to publish the notice expeditiously. After this

Decree has under gone notice and comment, EPA and/or the Attorney General, as appropriate,
shall promptly consider any such written comments in determining whether to withdraw or

withhold their consent to the Decree . I n accordance with 42 U.S.C. § 7413(g)
, EPA may

withdr aw or withhold its consent to the decree if the comments disclose facts or considerations- 8

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which indicate such consent is inappropriate, improper, inadequate, or inconsistent with the
requirements of the Clean Air Act

. Once EPA and/or the Attorney General elect whether or not

to withdraw or withhold their consent to this Decree, EPA shall provide written notice of that
election to Plaintiffs as expeditiously as possible. If EPA and/or the Attorney General do not

elect to withdraw or withhold their consent, EPA shall promptly file a motion that requests that

the Court enter this Decree.

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. The Court shall retain jurisdiction to determine and effectua te compliance with

this Decree. When EPA’s obligations under Paragraph 2 and 3 have been completed, and the

Plaintiffs ’ claims for costs of litigation have been resolved pursuant to the process described in
Paragraph 6 , the above

- captioned matter shall be dismissed with prejudice. EPA shall file the
appropriate notice with the Court so that the Clerk may cl ose the file.

16

. The Parties treat this Consent Decree as jointly drafted, and any rules of
construction that construe any ambiguities in this document against the drafting party shall be
inapplicable in any dispute concerning the interpretation of this Consent Decree.

1 7

. The undersigned representatives of each party certify that they are fully
authorized by the party or parties they represent to bind that Party to the terms of this Decree

.

IT IS SO ORDERED this ____ day of _____, 2012.

____________ __________________ Yvonne Gonzalez Rogers United States District Judge- 9

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FOR PLAINTIFFS:

Dated: August 24 , 2012 CENTER FOR BIOLOGICAL DIVERSITY

/s/ Vera P ardee Vera Pardee Attorneys for Plaintiffs Center for Biological Diversit y

Dated: August 24 , 2012 ENVIRONMENTAL LAW AND JUSTICE CLINIC

/s/ Helen H. Kang Helen H. Kang Attorneys for Plaintiffs Greenpeace, Inc. and Port Townsend Airwatchers

FOR DEFENDANTS:

Dated: August 24 , 2012 IGN ACIA S. MORENO Assistant Attorney General Environmental & Natural Resources Division

/s/ Norman L. Rave, Jr. Norman L. Rave, Jr. Environmental Defense Section Environment & Natural Resources Division United States Department of Justice P.O. Box 7611 Washington, D.C. 20044 TEL: (202) 616

- 7568 FAX: (202) 514

- 8865
Attorneys for Defendants United States Environmental Protection Agency and Lisa P. Jackson, Administrator, United States Environmental Protection Agency