UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________ SIERRA CLUB, )

)

Plaintiff, )

) Case: 1:10

- cv

- 02112

- JEB

v. )

)

LISA JACKSON, in her official )

capacity as Administrator, United States )

Environmental Protection Agency, )

)

Defendant. )

____________________________________)

CONSENT DECREE

WHEREAS, Plaintiff Sierra Club filed this action pursuant to section 304(a)(2) of the

Clean Air Act ( “ CAA ” ), 42 U.S.C. § 7604(a)(2), alleging that Defendant Lisa Jackson,

Administrator of the United States Environmental Protection Agency ( “ EPA ” ), failed to timely

perform a duty mandated by CAA section 110(k)(2) and (3), id

. §§ 7410(k)(2) and (3), to

approve or disapprove (or approve in part and disapprove in part) the state implementation plan

( “ SIP ” ) revision dated July 29, 2008, submitted by Arkansas to EPA (referred to as “ Arkansas

Regional Haze SIP ” ).

WHEREAS, Plaintiff and EPA (collectively the “ Parties ” ) wish to effectuate a settlement

of the above

- captioned case 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 case.

WHEREAS, the Court, by entering this Decree, finds that this Decree is fair, reasonable,

in the public interest, and consistent with the CAA, 42 U.S.C. §§ 74 01 et seq

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

Complaint related to the Arkansas Regional Haze SIP and to order the relief contained in this

Decree. Venue is proper in the United States District Court for the District of Columbia.

2. By December 15, 2011, EPA shall sign a notice of final rulemaking in which it

shall approve or disapprove, in accordance with CAA section 110(k), 42 U.S.C. § 7410(k), the

Arkansas Regional Haze SIP. EPA shall expeditiously deliver the notice of final rulemaking to

the Office of the Federal Register for publication and shall provide a copy of the notice of final

rulemaking to Plainti ff within ten (10) days after signature.

3. The Parties agree that Plaintiff is entitled to recover costs of litigation (including

attorneys ’ fees) incurred in this matter pursuant to CAA section 304(d), 42 U.S.C. § 7604(d).

The deadline for filing a m otion for costs of litigation (including attorney ’ s fees) for activities

performed prior to entry of this Consent Decree in this case is hereby extended until ninety (90)

days after entry of this Consent Decree by the Court. During this time the Parties s hall seek to

resolve informally any claim for costs of litigation (including attorney ’ s fees), and if they cannot,

will submit that issue to the Court for resolution.

4. The deadline in paragraph 2 of this Decree may be extended for a period of ninety

( 90) days or less by written stipulation executed by counsel for Plaintiff and EPA which shall be

filed with the Court. Any other extension of the deadline in paragraph 2 of this Decree may be

approved by the Court upon a motion of EPA, made pursuant to th e Federal Rules of Civil

Procedure, and upon consideration of any response by Plaintiff. Any other provision of this

Consent Decree may be modified by the Court following motion of Plaintiff or EPA pursuant to3

the Federal Rules of Civil Procedure and upon consideration of any opposition by the

non

- moving party.

5. Plaintiff and EPA shall not challenge the terms of this Decree or this Court ’ s

jurisdiction to enter and enforce this Decree.

6. Nothing in this 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 action

which is the subject of this Decree, including the discretion to alter, amend or revise any final

action contemplated by this Decree. EPA ’ s obligat ion to perform the actions specified in

paragraph 2 by the time specified therein does not constitute a limitation or modification of

EPA ’ s discretion within the meaning of this paragraph.

7. Nothing in this Decree shall be construed as an admission of an y issue of fact or

law nor to waive or limit any claim or defense, on any grounds, related to any final action EPA

may take with respect to the Arkansas Regional Haze SIP.

8. Nothing in this Decree shall be construed to confer upon the district court

ju risdiction to review any final decision made by EPA pursuant to this Decree. Nothing in this

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 Cour ts of Appeals pursuant to CAA

sections 307(b)(1), 42 U.S.C. § 7607(b)(1). Nothing in this Decree shall be construed to waive

any remedies or defenses the Parties may have under CAA section 307(b)(1).

9. The Parties recognize and acknowledge that the obl igations imposed upon EPA

under this Decree can only be undertaken using appropriated funds legally available for such

purpose. No provision of this Decree shall be interpreted as or constitute a commitment or4

requirement that the United States obligate o r pay funds in contravention of the Anti

- Deficiency

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

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

facsimile, email, or other means, and sent to the f ollowing:

For Plaintiff :

WILLIAM J. MOORE, III

1648 Osceola Street

Jacksonville, Florida 32204

Tel: (904) 685

- 2172

Fax: (904) 685

- 2175

wmoore@wjmlaw.net

For Defendant :

EILEEN T. MCDONOUGH

Environmental Defense Section

Environment & Natural Resources Division

P.O. Box 23986

Washington, D.C. 20026

- 3986

Tel: (202) 514

- 3126

Fax: (202) 514

- 8865

eileen.mcdonough@usdoj.gov

LEA ANDERSON

U.S. E nvironmental Protection Agency

Office of General Counsel (2344A)

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

Tel: (202) 564

- 5571

Fax: (202) 566

- 0070

anderson.lea@epa.gov

AGUSTIN F. CARBO

- LUGO

Office of Regional Counsel

U.S. Environmental Protection Agency, Region 6

1445 Ross Ave. (6

- RC

- M)

Dallas, TX 75202

Tel: (214) 665

- 8037

Fax: (214) 665

- 21825

carbo

- lugo.agustin@epa.gov

BARBARA NANN

Office of Regional Counsel

U.S. Environmental Protection Agency, Region 6

1445 Ross Ave. (6

- RC

- M)

Dallas, TX 75202

Tel: (214) 665

- 2157

Fax: (214) 665

- 2182

nann.barbara@epa.gov

11. In the event of a dispute be tween the Parties concerning the interpretation or

implementation of any aspect of this 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 Partie s 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.

12. No motion or other proceeding seeking to enforce this Decree or for contempt of

Court shall be prop erly filed unless Plaintiff has followed the procedure set forth in paragraph 11,

and provided EPA with written notice received at least ten (10) business days before the filing of

such motion or proceeding.

13. The Court shall retain jurisdiction to deter mine and effectuate compliance with

this Decree. After EPA has completed the relevant actions set forth in paragraph 2 of this

Consent Decree, any relevant notices have been published in the Federal Register, and any claim

for costs of litigation, includi ng attorneys ’ fees, has been resolved, EPA may move to have this

Decree terminated. Plaintiff shall have fourteen (14) days in which to respond to such motion.

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

finalized and ent ered 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 will6

submit a public notice of this Consent Decree to the Federal Register for publication and publi c

comment within ten (10) days 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 wri tten comments in

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

section 113(g) of the CAA. If the Administrator or the Attorney General elects 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.

15. 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 Decree.

SO ORDERED on this day of 2011.

___________________________________ JUDGE JAMES E. BOASBERG

UNITED STATES DISTRICT JUDGE

SO AGREED:

FOR PLAINTIFF /s/ William J. Moore, III

WILLIAM J. MOORE, III

1648 Osceola Street

Jacksonville, Florida 32204

(904) 685

- 2172

FOR DEFENDANT IGNACIA S. MORENO

Assistant Attorney General

Env. & Natural Resources Division

/s/ Eileen T. McDonough

EILEEN T. MCDONOUGH

Environmental Defense Section

United States Department of Justice7 P.O. Box 23986

Washington, D.C. 20026

- 3986

(202) 514

- 3126

Of Counsel for Defendant:

LEA ANDERSON

U.S. Environmental Protection Agency

Offi ce of General Counsel

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

AGUSTIN F. CARBO

- LUGO

U.S. Environmental Protection Agency

Office of Regional Counsel, Region 6

1445 Ross Avenue

Suite 1200

Mail Code: 6RC

- M

Dallas, TX 75202

- 2733

BARBARA NANN

Office of Regional Counsel

U.S. Environmental Protection Agency, Region 6

1445 Ross Ave. (6

- RC

- M)

Dallas, TX 75202