UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SIERRA CLUB, ) ) Plaintiff, ) Case No. 14-CV-00833-ESH ) v. ) ) GINA MCCARTHY, in her Official Capacity ) as Administrator, U.S. Environmental ) Protection Agency, ) ) Defendant. ) __________________________________________) CONSENT DECREE This Consent Decree is entered into by Plaintiff Sierra Club, and by Defendant Gina McCarthy, in her official capac ity as Administrator of the United States Environmental Protection Agency (“EPA” or “the Administrator”). WHEREAS, Sierra Club filed this action pursu ant to section 304(a )(2) of the Clean Air Act (“CAA”), 42 U.S.C. § 7604(a)(2), which auth orizes suits against EPA alleging that the Agency has failed to perform a nondiscr etionary duty required by the CAA; WHEREAS, Sierra Club allege s that EPA has failed to perform a nondiscretionary duty to take action on the state implementation plan (“SIP”) submissions by Texas identified in Attachment A by the statutory deadline esta blished by CAA section 110(k)(2), 42 U.S.C. § 7410(k)(2); WHEREAS, Sierra Club further alleges that EPA has failed to pe rform nondiscretionary duties under CAA sections 179( c)(1)-(2) and 181(b)(2)(A)-(B), 42 U.S.C. §§ 7509(c)(1)- (2) and 7511(b)(2)(A)-(B), with respect to the Dallas/Ft. Worth ozone nonattainment area, 40 C.F.R. § 81.39 (“Dallas/Ft. Worth”). Specifically, Sierra Club alleges that: (1) EPA failed to make a Case 1:14-cv-00833-ESH Document 12-1 Filed 10/17/14 Page 1 of 92 timely determination as to whether the area ha d attained the 1997 National Ambient Air Quality Standard for ozone (“1997 NAA QS”), 62 Fed. Reg. 38856 (July 18, 19 97); and (2) EPA failed to timely publish a Federal Register notice identifying whether Dallas/Ft . Worth had failed to attain the 1997 NAAQS and identifying the reclassification, if any; WHEREAS, Sierra Club and EPA (collectivel y, the “Parties”) wish to effectuate a settlement of the above-captioned case without e xpensive and protracted litigation, and without a litigated resolution of an y issue of law or fact; WHEREAS, the Parties consider this Consen t Decree to be an adequate and equitable resolution of the claims in the above-captioned case and consent to entry of this Consent Decree; and WHEREAS, the Court, by entering this Consen t Decree, finds that th is Consent Decree is fair, reasonable, in the public interest, a nd consistent with the CAA, 42 U.S.C. §§ 7401 et seq

. NOW THEREFORE, before the taking of te stimony, without trial or determination of any issue of fact or law, and upon the consen t of the Parties, it is hereby ORDERED and ADJUDGED that: 1. This Court has subject matter jurisdiction over the claims set forth in the Third Amended Complaint and to order th e relief contained in this D ecree. Venue is proper in the United States District Court fo r the District of Columbia. 2. EPA shall sign one or more notices of final rulemaking to approve or disapprove, in whole or in part, pursuant to CAA section 110( k) (3) and (4), 42 U.S.C. § 7410(k)(3) and (4), each SIP submission (or portion thereof on which EP A has not yet taken fina l action) identified in Attachment A by the applicable deadline; provid ed that nothing in this decree shall require EPA to act on any submission or portion thereo f that is withdrawn pr ior to the applicable Case 1:14-cv-00833-ESH Document 12-1 Filed 10/17/14 Page 2 of 93 deadline. If Dallas/Ft. Worth is reclassified pursuant to Paragra ph 3(a) of this Consent Decree, EPA will have no obligation under th is Consent Decree to take any action with respect to the SIP submission “Ozone Attainment Demonstra tion – Serious” (Attachment A, No. 2). 3. Not later than fifteen days after this Consent Decree is entered, the Administrator shall complete one of the following actions: a. Sign a notice for publication in the Federal Register containing the Administrator’s proposed determination pursua nt to 42 U.S.C. § 7511(b)(2) that Dallas/Ft. Worth attained the 1997 NAAQS for ozone by the applicable attainment date; or b. Sign a notice for publication in the Federal Register containing the Administrator’s proposed determination pursuan t to 42 U.S.C. § 7511(b)(2) that Dallas/Ft. Worth did not attain the 1997 NAAQS for ozon e by the applicable a ttainment date, and identifying the proposed appropria te reclassification pursuant to 42 U.S.C. § 7511(b)(2)(A). 4. Not later than 180 days after publicati on in the Federal Register of the notice signed pursuant to Paragraph 3 above, the Admini strator shall complete one of the following final actions: a. Sign a notice for publication in the Federal Register containing the Administrator’s final determinati on pursuant to 42 U.S.C. § 7 511(b)(2) that Da llas/Ft. Worth attained the 1997 NAAQS for ozone by th e applicable atta inment date; or b. Sign a notice for publication in the Federal Register containing the Administrator’s final determinati on pursuant to 42 U.S.C. § 7511( b)(2) that Dallas /Ft. Worth did not attain the 1997 NAAQS for oz one by the applicable attainme nt date, and identifying the appropriate reclassification of such area pursuant to 42 U.S.C. § 7511(b)(2)(A). Case 1:14-cv-00833-ESH Document 12-1 Filed 10/17/14 Page 3 of 94 5. EPA shall have no further obligation under paragraph 4 if the following becomes effective before EPA completes its obligation under that Paragraph: a. a final rulemaking redesignating Da llas/Ft. Worth to attainment in accordance with 42 U.S.C. § 7407(d)(3)(E); or b. a final rulemaking revoking the 1 997 ozone NAAQS for all purposes if that rulemaking also explicitly establishes that follow ing the effective date of such revocation EPA is no longer obligated to reclassify an area to a higher classification for the 1997 ozone NAAQS based upon a determination that the area failed to attain the 1997 ozone NAAQS by the area’s attainment date for the 1997 ozone NAAQS. 6. Within 3 business days following issuance or signature of such notices as set out in Paragraphs 2, 3, and 4 above, EPA shall send noti ce of such action to the Office of the Federal Register for review and publication. 7. Any provision of this Decree may be modi fied by (a) written stipulation of the Parties with notice to the Court, or (b) by the Co urt following motion of any party to this Decree, pursuant to the Federal Rules of Civil Procedur e, and upon consideration of any response by the non-moving party. 8. If a lapse in appropriations occurs within one hundred and twenty (120) days prior to the deadlines to issue or sign such notices as set out in Paragr aphs 2, 3, and 4 of this Decree, those deadlines shall be extended automatical ly one day for each day of the lapse in appropriations. 9. Sierra Club and EPA shall not challenge th e terms of this Decree or this Court’s jurisdiction to enter and enforce this Decree. Upon entry, no part y shall challeng e the terms of this Decree. Case 1:14-cv-00833-ESH Document 12-1 Filed 10/17/14 Page 4 of 95 10. EPA agrees that Sierra Club is entitled to recover its costs of litigation (including attorneys’ fees) (“litigation costs”) incurred in this matter pursuant to 42 U.S.C. § 7604(d). The deadline for the filing of any motion for litigati on costs for activities performed prior to the lodging of this decree with the Court is hereby extended for a period of 120 days. During this time the Parties shall seek to reso lve informally any claim for litig ation costs, and if they cannot reach a resolution, Sierra Club may seek such litig ation costs from the Court. The Court shall retain jurisdiction to resolve any request for litigati on costs. Sierra Club reserves its right to seek litigation costs for any work pe rformed after the lodging of this Consent Decree. EPA does not concede that Plaintiff will be entitled to fees for any work performed after the lodging of the Consent Decree, and the parties reserve all claims and defenses with respect to any future costs of litigation claim. 11. Nothing in this Decree shall be c onstrued to limit or modify any discretion accorded EPA by the Clean Air Act or by general pr inciples of administrative law in taking the actions which are the subject of this Decree, incl uding the discretion to alte r, amend or revise any responses or final actions contemplated by this Decree. EPA’s obligation to perform the actions specified in Paragraphs 2, 3, and 4 by the time specified therein does not constitute a limitation or modification of EPA’s discretion with in the meaning of this paragraph. 12. Nothing in this Decree shall be constr ued as an admission of any 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 pursuant to Paragraphs 2, 3 and 4 above. 13. Nothing in this Decree shall be c onstrued 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), including final Case 1:14-cv-00833-ESH Document 12-1 Filed 10/17/14 Page 5 of 96 action taken pursuant to s ection 110(k) of the CAA, 42 U.S.C. § 7410(k), approving, disapproving, or approving in part and disapprov ing in part a SIP submittal; or (b) waive any claims, remedies, or defenses the Parties may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1). 14. The obligations imposed upon EPA under this Decree can only be undertaken using appropriated funds. No provision of this D ecree shall be interpreted as or constitute a commitment or requirement that EPA obligat e or pay funds in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable federal statute. 15. Any notices required or provided for by this Decree shall be made in writing, via email or other means, and sent to the following: For Plaintiff: ROBERT UKEILEY Law Office of Robert Ukeiley 255 Mountain Meadows Road Boulder, CO 80302 rukeiley@igc.org For Defendant: EILEEN T. MCDONOUGH United States Department of Justice Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044 eileen.mcdonough@usdoj.gov
SONJA RODMAN U.S. Environmental Protection Agency Office of General Counsel ARN: MC-2344A 1200 Pennsylvania Ave., N.W. Washington, DC 20460 rodman.sonja@epa.gov
CARRIE K. THOMAS Office of Regional Counsel Case 1:14-cv-00833-ESH Document 12-1 Filed 10/17/14 Page 6 of 97 U.S. Environmental Protection Agency, Region 6 1445 Ross Ave. (6-RC-M) Dallas, TX 75202 thomas.carrie@epa.gov 16. In the event of a dis pute between the Parties conc erning the interpretation or implementation of any aspect of this Decree, th e disputing Party shall provide the other Party with a written notice outlining the nature of the dispute and requesting info rmal negotiations. If the Parties cannot reach an agreed -upon resolution within ten (10) business days after receipt of the notice, any party may move th e Court to resolve the dispute. 17. No motion or other proceeding seeking to enforce this Consent Decree or for contempt of Court shall be prope rly filed unless Sierra Club has followed the procedure set forth in Paragraph 16, and provided EPA with written no tice received at least ten (10) business days before the filing of such motion or proceeding. 18. The Court shall retain jurisdiction to determine and effectuate compliance with this Decree. When EPA’s oblig ations under Paragraphs 2, 3, and 4 have been completed, and the Plaintiff’s claims for costs of lit igation have been resolved pursua nt to the process described in Paragraph 10, the above-captioned matter shall be dismissed with prejudice. The Parties shall file the appropriate notice with the Cour t so that the Clerk may close the file. 19. The undersigned representatives of e ach Party certify that they are fully authorized by the Party they represent to bi nd that Party to the terms of this Decree. 20. 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 shall promptly submit a public notice of this Consent Decree to the Federal Re gister for publication Case 1:14-cv-00833-ESH Document 12-1 Filed 10/17/14 Page 7 of 98 and public comment after lodging this Consent D ecree with the Court. After this Consent Decree has undergone an opportunity for notice a nd comment, the Administrator and/or the Attorney General, as appropria te, shall promptly consider any such written comments in determining whether to withdraw or withhold cons ent to this Consent D ecree, in accordance with section 113(g) of the CAA. If the federal governm ent elects not to withdraw or withhold consent to this Consent Decree, the Parties promptly sha ll file a motion that requests the Court to enter this Consent Decree. SO ORDERED on this day of , 2014.

_____________________________ HON. ELLEN S. HUVELLE UNITED STATES DISTRICT JUDGE
SO AGREED:
FOR PLAINTIFF /s/ Robert Ukeiley ROBERT UKEILEY Law Office of Robert Ukeiley 255 Mountain Meadows Road Boulder, CO 80302 (303) 442-4033 rukeiley@igc.org

FOR DEFENDANT SAM HIRSCH Acting Assistant Attorney General Environment and Natural Resources Division
/s/ EILEEN T. MCDONOUGH United States Department of Justice Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044 eileen.mcdonough@usdoj.gov (202) 514-3126 Case 1:14-cv-00833-ESH Document 12-1 Filed 10/17/14 Page 8 of 99 ATTACHMENT A SIP SUBMISSION SIGNATURE OF PROPOSED RULE SIGNATURE OF FINAL RULE

1 Contingency Provisions for RFP Milestones 182(c)(9) December 15, 2014
2 Ozone Attainment Demonstration — Serious August 31, 2015 3 Clean Fuels for Fleets 182(c)(4) December 15, 2014 4 RACT NOx for Major Sources February 13, 2015 July 31, 2015 5 Enhanced Monitoring (PAMS) December 15, 2014
6 RACT VOC CTG Auto and Light-Duty Truck Assembly Coatings February 13, 2015 July 31, 2015

7 RACT VOC CTG Fiberglass Boat Manufacturing Materials February 13, 2015 July 31, 2015

8 RACT VOC CTG Large Appliance Coatings February 13, 2015 July 31, 2015
9 RACT VOC CTG Metal Furniture Coatings February 13, 2015 July 31, 2015
10 RACT VOC CTG Miscellaneous Industrial Adhesives February 13, 2015 July 31, 2015

11 RACT VOC CTG Miscellaneous Metal Products Coatings February 13, 2015 July 31, 2015

12 RACT VOC CTG Plastic Parts Coatings February 13, 2015 July 31, 2015 13 RFP VOC and NOx – Serious December 15, 2014 Case 1:14-cv-00833-ESH Document 12-1 Filed 10/17/14 Page 9 of 9