UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

SIERRA CLUB,

Plaintiff,

v.

BOB PERCIASEPE, in his official capacity

as Acting Administrator of the United States

Environmental Protection Agency,

Defendant.

Civil Action No. 1:12-cv-01917

Hon. Rosemary M. Collyer

CONSENT DECREE

WHEREAS, on November 28, 2012, Plaintiff Sierra Club filed a Complaint in this matter

against Defendant Lisa P. Jackson, in her official capacity as Administrator of the United States

Environmental Protection Agency (hereinafter, "EPA"), alleging that EPA failed to fulfill a

nondiscretionary duty under Clean Air Act ("CAA") sections 110(k)(2) and (k)(3), 42 U.S.C. §§

7410(k)(2), (k)(3), to take final action on a State Implementation Plan ("SIP") submittal for the

State of Wyoming regarding the infrastructure SIP requirements of CAA sections 110(a)(2)(A)-

(C), (E)-(H) and (~-(M), 42 U.S.0 §§ 7410(a)(2)(A)-(C), (E)-(H) and (J)-(M), with respect to the

1997 fine particulate matter National Ambient Air Quality Standard ("Wyoming SIP

Submittal"), and that such alleged failure is actionable under section 304(a)(2) of the CAA, 42

U.S.C. § 7604(a)(2);

WHEREAS, Sierra Club's Complaint further alleges that EPA failed to fulfill a

nondiscretionary duty under CAA sections 110(k)(2) and (k)(3), 42 U.S.C. §§ 7410(k)(2), (k)(3),

to take final action on a SIP submittal for the State of Connecticut regarding the attainment

demonstration requirements of the nonattainment SIP for the Greater Connecticut 1997 ozone
National Ambient Air Quality Standard nonattainment area ("Connecticut SIP Submittal"), and

that such alleged failure is actionable under section 304(a)(2) of the CAA, 42 U.S.C. §

7604(a)(2);

WHEREAS, the Parties wish to effectuate a complete and final settlement of Sierra Club

v. Jackson, Case No. 1:12-cv-01917 (D.D.C.), without expensive and protracted litigation and

without the admission of any issue of fact or law;

WHEREAS, on August 21, 2012, the United States Court of appeals for the District of

Columbia Circuit issued an opinion in EME Homer City Generation v. EPA, No. 11-1302 (D.C.

Cir. 2012), vacating a final rule issued by EPA, and that opinion concerns state and EPA

obligations with respect to 42 U.S.C. § 7410(a)(2)(D)(i)(I);

WHEREAS, the Parties, by entering into this Consent Decree, do not waive or limit any

claim, remedy, 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 the above-captioned case;

WHEREAS, the Court, by entering this Consent Decree, finds that the Consent Decree is

fair, reasonable, in the public interest, and consistent with the CAA, 42 U.S.C. §§ 7401-7671q;

NOW THEREFORE, before the taking of testimony, without trial or determination of

any issue of law or fact, and upon the consent of the Parties, it is hereby ORDERED,

ADJUDGED and DECREED that:

This Court has subject matter jurisdiction over the claims set forth in the

complaint and to order the relief contained in this Consent Decree. Venue is proper in the

United States District Court for the District of Columbia.

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2. The appropriate EPA official shall, no later than October 1 ~, 2013, sign for

publication in the Federal Register a notice of final rulemaking taking action on the Wyoming

SIP Submittal.

The appropriate EPA official shall no later than December 16, 2013, sign for

publication in the Federal Register a notice of final rulemaking taking action on the Connecticut

SIP Submittal.

4. After signing each of the notices described in Paragraphs 2 and 3 of this Consent

Decree, EPA shall deliver, within fifteen (15) business days, notice of such actions to the Office

of Federal Register for review and publication.

The deadlines in Paragraphs 2, 3 and 11 may be extended by (a) written

stipulation executed by counsel for Sierra Club and EPA with notice to the Court, or (b) by the

Court on a motion of EPA for good cause shown pursuant to the Federal Rules of Civil

Procedure, and upon consideration of any response by Sierra Club and any reply by EPA. Any

other provision of this Consent Decree may be modified by the Court following motion of Sierra

Club or EPA for good cause shown pursuant to the Federal Rules of Civil Procedure and upon

consideration of any opposition by the non-moving party and any reply.

6. Sierra Club and EPA shall not challenge the terms of this Consent Decree or this

Court's jurisdiction to enter and enforce this Consent Decree.

7. Sierra Club and EPA agree that this Consent Decree shall constitute a complete

and final settlement of all claims that Sierra Club has asserted against the United States,

including EPA, under any provision of law in connection with Sierra Club v. Jackson, Case No.

1:12-cv-01917 (D.D.C.). Sierra Club therefore discharges and covenants not to sue the United

States, including EPA, for any such claims.
Nothing in this Consent Decree shall be construed to limit or modify any

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

actions which are the subject of this Consent Decree, including the discretion to alter, amend, or

revise any responses or final actions contemplated by this Consent Decree. EPA's obligation to

perform the actions specified in this Consent Decree by the times specified herein does not

constitute a limitation or modification of EPA's discretion within the meaning of this paragraph.

9. Nothing in this Consent Decree shall be construed as an admission of any issue of

fact or law to waive or limit any claim, remedy, or defense, on any grounds, related to any final

action EPA may take with respect to the actions addressed in this Consent Decree.

10. Nothing in this Consent Decree shall be construed to: (a) 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 sections 307(b)(1), 42 U.S.C. §§ 7607(b)(1); ar (b) waive

any claims, remedies, or defenses the Parties may have under CAA section 307(b)(1), 42 U.S.C.

§ 7607(b)(1).

11. The deadline for filing a motion for costs of litigation, including reasonable

attorney's fees, incurred prior to entry of this Consent Decree is hereby extended until sixty (60}

days after the entry of this Consent Decree by this Court. During this time, the Parties shall seek

to resolve informally any claim for costs of litigation, including reasonable attorney's fees, and if

they cannot, will submit that issue to the Court for resolution. The United States does not waive

or limit any defenses it may have to such claim. The Court shall retain jurisdiction to resolve

any requests for costs of litigation, including reasonable attorney's fees.

12. The Parties recognize and acknowledge that the obligations imposed upon EPA

under this Consent Decree can only be undertaken using appropriated funds legally available for
such purpose. No provision of this Consent Decree shall be interpreted as or constitute a

commitment or requirement that the United States obligate or pay funds in contravention of the

Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law.

13. Any notices required or provided for by this Consent Decree shall be made in

writing, via facsimile or other means, and sent to the following:

For Plaintiff Sierra Club:

KIMBERLY (KASEY) A. STURM

260 Peachtree Street, NW

Suite 1200

Atlanta, Georgia 30312

Office: 404.525.9205

Fax: 404.522.0275

ksturm@stack-enviro law. com

For Defendant EPA:

SECTION CHIEF

U.S. Department of Justice

Environment &Natural Resources Division

Environmental Defense Section

P.O. Box 7611

Washington, D.C. 20044

Fax: (202) 514-8865

MATTHEW MARKS

Office of the General Counsel

U.S. Environmental Protection Agency

Ariel Rios Bldg., MC 2344A

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

Phone: (202) 564-3276

Fax: (202) 564-5603

Marks. Matthew@epa. gov

14. 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

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negotiations. If the Parties cannot reach an agreed-upon resolution within fifteen (15) business

days after receipt of the notice, either party may move the Court to resolve the dispute.

15. No motion or other proceeding seeking to enforce this Consent Decree or for

contempt of Court sha11 be properly filed unless Sierra Club has followed the procedure set forth

in Paragraph 14, and provided EPA with written notice received at least fifteen (15) business

days before the filing of such motion or proceeding.

16. The Court shall retain jurisdiction to determine and effectuate compliance with

this Consent Decree. When EPA's obligations under Paragraphs 2 and 3 have been completed,

any relevant notices have been published in the Federal Register, and any claim for costs of

litigation, including reasonable attorney's fees, has been resolved pursuant to the process

described in Paragraph 11, the above-captioned matter shall be dismissed with prejudice. EPA

shall file an appropriate notice with the Court that the Clerk may close the file.

17. The Parties agree and acknowledge that before this Consent Decree can be

finalized and entered by the Court, EPA must provide notice in the Federal Register and an

opportunity for comment pursuant to CAA section 113(g), 42 U.S.C. § 7413(g). EPA will

deliver a public notice of this Consent Decree to the Federal Register for review, publication, and

public comment promptly after lodging this Consent Decree with the Court. After this Consent

Decree has undergone an opportunity for notice and comment, the Administrator and the

Attorney General, as appropriate, will promptly consider any such written comments in

determining whether to withdraw or withhold consent to this Consent Decree, in accordance with

section 113(g) of the CAA, 42 U.S.C. § 7413(g). If the Administrator and the Attorney General

elect not to withdraw or withhold consent to this Consent Decree, the Parties will promptly file a

motion that requests the Court to enter this Consent Decree.

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18. The undersigned representatives of each party certify that they are fully

authorized by the party they represent to bind that party to the terms of this Consent Decree.

Respectfully submitted,

Robert G. Dreher

Acting Assistant Attorney General

United States Department of Justice

Environment and Natural Resources Division

Dated: U~.a-b, 2013 By:

Heather E. Gange

Environmental Defense Section

D.C. Bar No. 452619

U.S. Department of Justice

P.O. Box 7611

Washington, D.C. 20044

Phone: (202) 514-4206

Fax: (202) 514-8865

Email: Heather.Gange@usdoj.gov

Counsel for EPA

Dated: April 18, 2013 By: .s,%" Kase~~ Sturm

KIMBERLY [KASEY] A. STURM

260 Peachtree Street, NW

Suite 1200

Atlanta, Georgia 30312

Office: 404.525.9205

Fax: 404.522.0275

ksturm@stack-enviro law. com

SO ORDERED: , 2013

Counsel for Plaintiff

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Hon. Rosemary M. Collyer

United States District Judge