Consent Decree Case No. 2:13-cv-872 SMM

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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 7611

Washington, D.C. 20044-7611

Telephone: (202) 514-1542

Facsimile: (202) 514-8865

paul.cirino@usdoj.gov

Attorneys for Defendants

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

SANDRA L. BAHR and DAVID 

MATUSOW, 

 Plaintiffs,

vs.

GINA McCARTHY, in her official capacity

as Acting Administrator of the U.S. 

Environmental Protection Agency, and the 

UNITED STATES ENVIRONMENTAL 

PROTECTION AGENCY,1

 Defendants.

Case No. 2:13-cv-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 was sued in his 

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

filed the Complaint 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, on the date of enactment of the 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 

Ambient 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, the Maricopa County PM-10 Nonattainment Area is located in the 

eastern portion of Maricopa County 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 County 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 December 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 published on February 14, 2011, EPA found that 

Arizona failed to make the submittal required under Section 189(d), by the required 
Consent Decree 3 Case No. 2:13-cv-872 SMM

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deadline;

WHEREAS, Plaintiffs’ Complaint alleges that EPA is in violation of its 

mandatory duty to promulgate a Federal Implementation 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 February 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 resolution 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 publication 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 requirements 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. 
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2. EPA shall sign for publication in the Federal Register, 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 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. 

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 

Paragraphs 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 Decree 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 Consent 

Decree and to consider any requests for costs of litigation, including attorneys’ fees. 
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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 54.2 

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 costs 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 may 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 funds 
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in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other 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 must 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 Attorney 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, via 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) 514-1542
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Fax: (202) 514-8865

Email: paul.cirino@usdoj.gov

Reference DJ# 90-5-2-4-19841

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

Telephone: (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, 16th Floor

San Francisco, CA 94105

Phone: (415) 972-3881

Fax: (415) 947-4570

Email: christenson.kara@epa.gov
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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 ORDERED.

Dated: _________________ __________________________________

STEPHEN M. McNAMEE

UNITED STATES DISTRICT JUDGE

COUNSEL FOR PLAINTIFFS:

Dated: August 19, 2013 /s/ Joy E. Herr-Cardillo (with permission)

JOY E. HERR-CARDILLO (009718)

TIMOTHY M. HOGAN (004567)

Arizona Center for Law in the Public Interest 

2205 E. Speedway Boulevard

Tucson, Arizona 85719

Telephone: (520) 529-1798

Email: jherrcardillo@aclpi.org

Counsel for Plaintiffs

COUNSEL FOR DEFENDANTS:

Dated: August 19, 2013 ROBERT G. DREHER

Acting Assistant 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 7611

Washington, D.C. 20044-7611

Phone: (202) 514-1542

Email:paul.cirino@usdoj.gov

Counsel for Defendants