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 capacity as Administrator of the United States Environmental 

Protection Agency (“EPA” or “the Administrator”). 

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

Act (“CAA”), 42 U.S.C. § 7604(a)(2), which authorizes suits against EPA alleging that the 

Agency has failed to perform a nondiscretionary duty required by the CAA; 

 WHEREAS, Sierra Club alleges 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 established by CAA section 110(k)(2), 42 U.S.C. § 

7410(k)(2); 

 WHEREAS, Sierra Club further alleges that EPA has failed to perform 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 

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timely determination as to whether the area had attained the 1997 National Ambient Air Quality 

Standard for ozone (“1997 NAAQS”), 62 Fed. Reg. 38856 (July 18, 1997); 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 (collectively, the “Parties”) wish to effectuate a 

settlement of the above-captioned case without expensive and protracted litigation, and without a 

litigated resolution of any issue of law or fact; 

 WHEREAS, the Parties consider this Consent 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 Consent Decree, finds that this Consent Decree is 

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

ADJUDGED that: 

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

Amended Complaint and to order the relief contained in this Decree. Venue is proper in the 

United States District Court for 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 EPA has not yet taken final action) identified 

in Attachment A by the applicable deadline; provided that nothing in this decree shall require 

EPA to act on any submission or portion thereof that is withdrawn prior to the applicable 

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deadline. If Dallas/Ft. Worth is reclassified pursuant to Paragraph 3(a) of this Consent Decree, 

EPA will have no obligation under this Consent Decree to take any action with respect to the SIP 

submission “Ozone Attainment Demonstration – 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 pursuant 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 pursuant to 42 U.S.C. § 7511(b)(2) that Dallas/Ft. 

Worth did not attain the 1997 NAAQS for ozone by the applicable attainment date, and 

identifying the proposed appropriate reclassification pursuant to 42 U.S.C. § 7511(b)(2)(A). 

 4. Not later than 180 days after publication in the Federal Register of the notice 

signed pursuant to Paragraph 3 above, the Administrator shall complete one of the following 

final actions: 

 a. Sign a notice for publication in the Federal Register containing the 

Administrator’s final determination pursuant 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 final determination pursuant to 42 U.S.C. § 7511(b)(2) that Dallas/Ft. Worth did 

not attain the 1997 NAAQS for ozone by the applicable attainment date, and identifying the 

appropriate reclassification of such area pursuant to 42 U.S.C. § 7511(b)(2)(A). 

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 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 Dallas/Ft. Worth to attainment in accordance 

with 42 U.S.C. § 7407(d)(3)(E); or 

 b. a final rulemaking revoking the 1997 ozone NAAQS for all purposes if that 

rulemaking also explicitly establishes that following 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 notice of such action to the Office of the Federal 

Register for review and publication. 

 7. Any provision of this Decree may be modified by (a) written stipulation of the 

Parties with notice to the Court, or (b) by the Court following motion of any party to this Decree, 

pursuant to the Federal Rules of Civil Procedure, 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 Paragraphs 2, 3, and 4 of this Decree, 

those deadlines shall be extended automatically one day for each day of the lapse in 

appropriations. 

 9. Sierra Club and EPA shall not challenge the terms of this Decree or this Court’s 

jurisdiction to enter and enforce this Decree. Upon entry, no party shall challenge the terms of 

this Decree. 

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 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 litigation 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 resolve informally any claim for litigation costs, and if they cannot 

reach a resolution, Sierra Club may seek such litigation costs from the Court. The Court shall 

retain jurisdiction to resolve any request for litigation costs. Sierra Club reserves its right to seek 

litigation costs for any work performed 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 construed to limit or modify any discretion 

accorded EPA by the Clean Air Act or by general principles of administrative law in taking the 

actions which are the subject of this Decree, including the discretion to alter, 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 within the meaning of this paragraph. 

 12. Nothing in this Decree shall be construed 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 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), including final 

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action taken pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), approving, 

disapproving, or approving in part and disapproving 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 Decree shall be interpreted as or constitute a 

commitment or requirement that EPA obligate 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 

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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 dispute between 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 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. 

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

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

in Paragraph 16, and provided EPA with written notice 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 obligations under Paragraphs 2, 3, and 4 have been completed, and the 

Plaintiff’s claims for costs of litigation have been resolved pursuant 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 Court so that the Clerk may close the file. 

 19. 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. 

 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 Register for publication 

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

Decree has undergone an opportunity for 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 consent to this Consent Decree, in accordance with 

section 113(g) of the CAA. If the federal government elects not to withdraw or withhold consent 

to this Consent Decree, the Parties promptly shall 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 

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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 

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