Consent Decree Case No. 2:13

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28 ROBERT G. DREHER Acting Assistant Attorney General Environment & Natural Resources Division

PAUL CIRINO United States Department of Justice Environment & Natural Resources Division P.O. Box 7 6 11 Washington, D.C. 20044

- 7 6 1 1 Telephone: (202) 514

- 1542 Facsimile: (202) 514

- 8865 paul.cirino@usdoj.gov

Attorneys for Defendant s

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

SANDRA L. BAHR and DAVID MATUSOW,
Plaintiffs,

vs.

GINA McCARTHY , in h er official capacity

a s Acting Administrator of the U.S. Environmental Protect i on Agency, and the UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, 1

Defendants. Case No. 2:13

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- 00872 SMM

CONSENT DECREE

1 Gina McCarthy is the current EPA Administrator. Pursuant to Federal Rule of Civil Procedure 25 (d)

, she is automatically substituted for Bob Perciasepe, who w as sued in his official capacit y.Consent Decree 2 Case No. 2:13

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28 WHEREAS, on April 30, 2013, Plaintiffs Sandra L. Bahr and David Matusow

filed the C omplaint in the above

- captioned matter against Defendants Bob Perciasepe, in
his official capacity as Acting Administrator of the United States Environmental
Protection Agency, and the United States Environmental Protection Agency (jointly,
“EPA”), alleging that EPA has failed to undertake certain nondiscretionary duties under
the Clean Air Act, 42 U.S.C. §§ 7401

- 7671q;
WHEREAS, o n the date of enactment of th e 1990 Clean Air Act Amendments,
many areas, including the Maricopa County area, meeting the qualifications of section
107(d)(4)(B) of the amended Act were designated nonattainment for the National

Ambi ent Air Quality Standard (“NAAQS”) for particulate matter ten microns in diameter
or less (“PM

- 10”) by operation of law

, 56 FR 11101 (March 15, 1991) ;
WHEREAS, t he Maricopa County PM

- 10 Nonattainment A rea is located in the
eastern portion of Maricopa Count y and encompasses the cities of Phoenix, Mesa,
Scottsdale, Tempe, Chandler, Glendale, as well as 17 other jurisdictions and
unincorporated County lands , and the town of Apache Junction in Pinal County ; WHEREAS, in 1996, EPA reclassified the Maricopa Count y PM

- 10
Nonattainment Area as a serious nonattainment area and, in 2002, approved the serious

PM

- 10 plan for the Maricopa County PM

- 10 Nonattainment Area that set an attainment
date of December 31, 2006;
WHEREAS, because attainment was not achieved by Dec ember 31, 2006, Arizona
was required to submit revisions to its State Implementation Plan under Clean Air Act
Section 189(d), 42 U.S.C. § 7513a(d), “which provide for attainment of the PM

- 10 air
quality standard and, from the date of such submission until attainment, for an annual

reduction in PM

- 10 or PM

- 10 precursor emissions within the area of not less than 5
percent of the amount of any such emissions as reported in the most recent inventory
prepared for such area”;
WHEREAS, in a determination publishe d on February 14, 2011, EPA found that
Arizona failed to make the submittal required under Section 189(d), by the requiredConsent Decree 3 Case No. 2:13

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28 deadline;
WHEREAS, Plaintiffs’ Complaint alleges that EPA is in violation of its
mandatory duty to promulgate a Federal Implementatio n Plan (“FIP”) pursuant to Section
110(c)(1) of the CAA, 42 U.S.C. § 7410(c)(1)

, that arose as a result of the Febru a ry 14,
2011, finding of failure to submit;
WHEREAS, the parties have agreed to a settlement of this action without
admission of any issue of fact or law;
WHEREAS, the parties, by entering into this Consent Decree, do not waive or
limit any claim or defense, on any grounds, related to any final EPA action;
WHEREAS, the parties consider this Consent Decree to be an adequate and
equitable resol ution of all of the claims in this matter;
WHEREAS, it is in the interest of the public, the parties, and judicial economy to
resolve this matter without protracted litigation;
WHEREAS, the parties agree that this Court has jurisdiction over this matter
pursuant to the citizen suit provision in Section 304(a)(2) of the Clean Air Act and that
venue lies in the District of Arizona;
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 issue of fact or law, and upon the consent of the parties, it is hereby
ordered, adjudged and decreed that:

1. EPA shall sign for pub lication in the Federal Register, no later than January
14, 2014, a notice or notices of the Agency's proposed action or actions to either approve
a SIP, promulgate a FIP, or approve a SIP in part with the promulgation of a partial FIP
to address the requi rements of Section 189(d). No later than 15 business days following
signature, EPA shall send the notice or notices to the Office of the Federal Register for
review and publication in the Federal Register.Consent Decree 4 Case No. 2:13

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28 2. EPA shall sign for publication in the Federal R egister, no later than June 2,
2014, a notice or notices of the Agency's final action or actions to either approve a SIP,
promulgate a FIP, or approve a SIP in part with the promulgation of a partial FIP to
address the requirements of Section 189(d). No l ater than 15 business days following
signature, EPA shall send the notice or notices to the Office of the Federal Register for
review and publication in the Federal Register.

3. When EPA’s obligations under Paragraphs 1 and 2 have been completed,
the parties shall file a joint request to the Court to dismiss this matter with prejudice.

4. The parties may extend the deadlines established in Paragraphs 1, 2, and 10
by written stipulation executed by counsel for the parties and filed with the Court. In
addition, subject to the terms in Paragraphs 8 and 9, the deadlines established in
Paragrap hs 1, 2, and 10 may be extended by the Court upon motion by any party to this
Consent Decree for good cause shown and demonstrating that such modification is in the
public interest, after consideration of any response by the non

- moving party.

5. Nothing in this Consent Decree shall be construed to limit or modify the
discretion accorded EPA by the Clean Air Act and by general principles of administrative
law, including the discretion to alter, amend or revise any response and/or final action
contemplated by this Consent Decree. EPA’s obligation to take the actions set forth in
Paragraphs 1 and 2 by the time specified therein does not constitute a limitation or
modification of EPA’s discretion within the meaning of this paragraph.

6. Nothing in this Consent Decr ee shall be construed to confer upon the
district court jurisdiction to review any decision made in the final action or actions
identified in Paragraph 2. Nothing in this Consent Decree shall be construed to confer
upon the district court jurisdiction to review any issues that are within the exclusive
jurisdiction of the United States Courts of Appeals pursuant to Clean Air Act Sections
307(b)(1) and 505, 42 U.S.C. §§ 7607(b)(1), 7661d.

7. This Court shall retain jurisdiction to enforce the terms of this Cons ent Decree and to consider any requests for costs of litigation, including attorneys’ fees.Consent Decree 5 Case No. 2:13

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28 8. In the event of a dispute between the parties 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
informal negotiations. 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.

9. No motion or other proceeding seeking to enforce this Consent Decree shall
be considered properly filed, unless Plaintiffs have followed the procedure set forth in
Paragraph 8 and provided EPA with written notice received at least ten (10) business
days before the filing of such motion or proceeding.

10. EPA agrees that, pursuant to Section 304(d) of the Clean Air Act, 42 U.S.C.
§ 7604(d), Plaintiffs are both eligible and entitled to recover its costs of litigation in this
action, including reasonable attorneys’ fees, incurred prior to entry of this Consent
Decree. The deadline for filing a bill of costs pursuant to Local Rule 54.1 and a motion
for costs of litigation, including reasonable attorneys’ fees, pursuant to Local Rule 5 4.2
for activities performed in this case prior to entry of this Consent Decree, is hereby
extended until 90 days after the date on which the Court enters this Consent Decree.
During this time the parties shall seek to resolve informally any claim for cos ts of
litigation, including reasonable attorneys’ fees.

11. Plaintiff reserves the right to seek recovery of costs of litigation, including
reasonable attorneys’ fees, consistent with Section 304(d) of the CAA, for activities to

enforce this Consent Decree. EPA reserves the right to oppose any such request for costs
of litigation. The Court shall retain jurisdiction to resolve any such request
notwithstanding any dismissal pursuant to Paragraph 3.

12. The obligations imposed upon EPA under this Consent Decree ma y only be
undertaken using appropriated funds. No provisions of this Consent Decree shall be
interpreted as or constitute a commitment or requirement that EPA obligate or pay fundsConsent Decree 6 Case No. 2:13

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28 in contravention of the Anti

- Deficiency Act, 31 U.S.C. § 1341, or any othe r applicable

federal law.

13. Plaintiffs and EPA shall not challenge the terms of this Consent Decree or
this Court’s jurisdiction to enter this Consent Decree.

14. The parties agree and acknowledge that before this Consent Decree is
entered by the Court, EPA mu st provide notice of this Consent Decree in the Federal
Register and an opportunity for public comment pursuant to Section 113(g) of the CAA,
42 U.S.C. § 7413(g). After this Consent Decree has undergone notice and comment, the

Administrator and/or the Att orney General, as appropriate, shall promptly consider any
such written comments in determining whether to withdraw or withhold their consent to
the Consent Decree, in accordance with Clean Air Act Section 113(g), 42 U.S.C. §
7413(g). If the Administrator and/or the Attorney General do not elect to withdraw or
withhold their consent, EPA shall promptly file a motion that requests the Court to enter

this Consent Decree.

15. Any notices required or provided for by this Consent Decree shall be made
in writing, vi a facsimile, e

- mail or other means, and sent to the following:

For Plaintiff:

Joy Herr

- Cardillo Timothy M. Hogan Arizona Center for Law in the Public Interest 2205 E. Speedway Boulevard Tucson, Arizona 85719 Telephone: (520 ) 529

- 1798 Email: jherrcardillo@aclpi.org

For Defendants:

Paul Cirino U.S. Department of Justice Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044

- 7611 Telephone: (202) 514

- 1542Consent Decree 7 Case No. 2:13

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28 Fax: (202) 514

- 8865 Email: paul.cirino@usdoj.gov Reference DJ# 90

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Geoffrey L. Wilcox Office of General Counsel U.S. Environmental Protection Agency William J. Clinton Federal Building, MC 2344A 1200 Pennsylvania Ave., N.W. Washington, DC 20460 Telephon e: (202) 564

- 5601 Fax: (202) 564

- 5603 Email: wilcox.geoffrey@epa.gov

Kara Christenson Office of Regional Counsel U.S. Environmental Protection Agency, Region 9 75 Hawthorne Street, 16 th Floor San Francisco, CA 94105 Phone: (415) 972

- 3881 Fax: (415) 947

- 4570 Email: christenson.kara@epa.govConsent Decree 8 Case No. 2:13

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28 16. The undersigned representatives of each party certify that they are fully
authorized by the party that they represent to bind that party to the terms of this Consent

Decree.

IT IS SO O RDERED.

Dated: _________________

__________________________________ STEPHEN M. McNAMEE UNITED STATES DISTRICT JUDGE

COUNSEL FOR PLAINTIFFS:

Dated: A u g u s t 1 9

, 201 3 /s/ J o y E

. H e r r

- C a r d i l l o ( w i t h p e r m i s s i o n ) JOY E. HERR

- CARDILLO ( 009718 ) TIMOTHY M. HOGAN ( 004567 ) Arizona Center for Law i n the Public Interest 2205 E. Speedway Boulevard Tucson, Arizona 85719 Telephone: ( 520 ) 529

- 1798 Email: jherrcardillo @ aclpi .org

Counsel for Plaintiff s

COUNSEL FOR DEFENDANTS:

Dated: August 19 , 2013 ROBERT G. DREHER A cting A ssistant Attorney General Environment and Natural Resources Division

/s/ Paul Cirino PAUL CIRINO Trial Attorney U.S. Department of Justice Environmental Defense Section P.O. Box 7 6 11 Washington, D.C. 200 44

- 7 6 11 Phone: (202) 514

- 1542 Email: paul.cirino@usdoj.gov

Counsel for Defendants