Case4:14-cv JSW Document38-1 Filed01/21/15 Page1 of 13

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1 Case:-cv-0-JSW Document- Filed0// Page of 0 JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division United States Department of Justice LESLIE M. HILL (D.C. Bar No. 00) Leslie.Hill@usdoj.gov Environmental Defense Section 0 D Street N.W., Suite 000 Washington D.C. 000 Telephone (0) -0 Facsimile (0) - Attorneys for Defendant ROBERT UKEILEY, Admitted Pro Hac Vice rukeiley@igc.org Law Office of Robert Ukeiley Mountain Meadows Road Boulder, CO 00 Telephone (0) -0 [additional attorneys for Plaintiff included in signature block] Attorneys for Plaintiff SIERRA CLUB, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA v. Plaintiff, GINA McCARTHY, in her official capacity as the Administrator of the United States Environmental Protection Agency, Defendant. SAN FRANCISCO DIVISION Case No. :-cv--jsw [PROPOSED] PARTIAL CONSENT DECREE CASE NO. :-cv--jsw

2 Case:-cv-0-JSW Document- Filed0// Page of 0 WHEREAS, on July, 0, Plaintiff Sierra Club ( Plaintiff ) filed the abovecaptioned matter against Gina McCarthy, in her official capacity as Administrator of the United States Environmental Protection Agency (hereinafter EPA or Defendant ); WHEREAS, on December, 0, pursuant to Fed. R. Civ. P. (a)(), Plaintiff filed a first amended complaint (Dkt. No. ) (the Complaint ); WHEREAS, Plaintiff alleges that EPA has failed to undertake certain nondiscretionary duties under the Clean Air Act ( CAA ), U.S.C. 0-q, and that such alleged failure is actionable under section 0(a)() of the CAA, 0(a)(); WHEREAS, on March, 00, pursuant to CAA section (a)(), U.S.C. 0(d)(), EPA promulgated a final rule revising the ozone National Ambient Air Quality Standard ( NAAQS ), Final Rule, Fed. Reg., (Mar., 00) (the 00 ozone NAAQS ); WHEREAS, pursuant to CAA section 0(d)(), U.S.C. (d)(), [e]ach State shall,... submit to the Administrator, within years... after the promulgation of a [NAAQS] (or revision thereof) under section 0 of this title for any air pollutant, a plan which provides for implementation, maintenance, and enforcement of such primary standard in each air quality control region (or portion thereof) with each State, a state implementation plan ( SIP ), often referred to as an infrastructure SIP; WHEREAS, such SIP submittals must meet the requirements set forth in CAA section 0(a)()(A)-(M), U.S.C. (a)()(a)-(m); WHEREAS, EPA must then determine whether a State s submittal is complete within six months after EPA receives the submission. U.S.C. (k)()(b). If EPA does not determine completeness of the plan or revision within six months, then the submittal is deemed complete by operation of law after six months. Id.; WHEREAS, pursuant to CAA section 0(k)()-(), U.S.C. (k)()-(), EPA was required to approve in whole or in part, disapprove, or conditionally approve in whole or in part, each plan or revision, within months of a determination of completeness by EPA or a determination deemed by operation of law to be complete; CASE NO. :-cv--jsw

3 Case:-cv-0-JSW Document- Filed0// Page of 0 WHEREAS, pursuant to CAA section 0(d)(), U.S.C. (d)(), states were required to submit infrastructure SIPs within years of promulgation of the 00 ozone NAAQS, i.e., by March, 0; WHEREAS, in Claim, Plaintiff alleges that EPA has failed to perform a duty mandated by CAA sections 0(k)()-(), U.S.C. (k)()-(), to take final action to approve or disapprove, in whole or in part, certain 00 ozone NAAQS infrastructure SIP submissions addressing the following element or elements under U.S.C. (a)() from the states listed below, see First Am. Compl. - (Dkt. No. ): AREA/STATE Alabama Arizona Colorado Connecticut Georgia ELEMENT(S) (under CAA section 0) 0(a)()(A)-(C), (D)(i)(II)-(H), 0(a)()(A)-(H), 0(a)()(A)-(H), 0(a)()(A)-(C), (D)(i)(II)-(H), 0(a)()(A)-(C), (D)(i)(II)-(H), Idaho 0(a)()(D)(i)(I)(prongs and ) Illinois Indiana Iowa Kansas 0(a)()(A), (E)(ii) and (J) (visibility portion) 0(a)()(A)-(H), 0(a)()(A)-(C), (D)(i)(II)-(H), 0(a)()(J) (visibility portion) Maryland 0(a)()(D)(i)(I)(prongs and ) Mississippi Montana Nebraska New Hampshire North Carolina 0(a)()(A)-(C), (D)(i)(II)-(H), 0(a)()(A)-(C), (D)(i)(II)-(H), 0(a)()(A)-(H), 0(a)()(A)-(C), (D)(i)(II)-(H), 0(a)()(A)-(C), (D)(i)(II)-(H), CASE NO. :-cv--jsw

4 Case:-cv-0-JSW Document- Filed0// Page of AREA/STATE North Dakota Ohio Oregon Rhode Island South Carolina Texas Utah West Virginia ELEMENT(S) (under CAA section 0) 0(a)()(A)-(H), 0(a)()(C) (Prevention of Significant Deterioration ( PSD ) portion), (D)(i), and (J) (PSD and visibility portions) 0(a)()(D)(i)(I) 0(a)()(A)-(C), (D)(i)(II)-(H), 0(a)()(A)-(C), (D)(i)(II)-(H), 0(a)()(A)-(H), 0(a)()(A)-(H), 0(a)()(E)(ii) 0 WHEREAS, the relief requested in the Complaint includes, among other things, an order from this Court to establish a date certain by which EPA must fulfill its obligations; WHEREAS, Plaintiff and EPA have agreed to a partial settlement of this action without admission of any issue of fact or law, except as expressly provided herein; WHEREAS, Plaintiff and EPA agree to hold a conference call approximately every 0 days, at a mutually agreeable time, during which EPA will advise Plaintiff of the current status of, and foreseeable difficulties with, EPA s compliance with the deadlines in this Consent Decree; WHEREAS, Plaintiff and EPA, 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, Plaintiff and EPA consider this Consent Decree to be an adequate and equitable resolution of some of the claims in this matter and therefore wish to effectuate a partial settlement; CASE NO. :-cv--jsw

5 Case:-cv-0-JSW Document- Filed0// Page of 0 WHEREAS, it is in the interest of the public, Plaintiff Sierra Club, Defendant EPA, and judicial economy to resolve this matter without protracted litigation; WHEREAS, Plaintiff and EPA agree that this Court has jurisdiction over this matter pursuant to the citizen suit provision in CAA section 0(a)(), U.S.C. 0(a)(), and that venue is proper in the Northern District of California pursuant to U.S.C. (e) and N.D. Cal. Civ. Local Rule -(c)-(d); and 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 issues of fact or law, and upon the consent of Plaintiff Sierra Club and Defendant EPA, it is hereby ordered, adjudged and decreed that:. The appropriate EPA official shall sign a notice of final rulemaking to approve, disapprove, conditionally approve, or approve in part and conditionally approve or disapprove in part, certain plans pursuant to sections 0(k)()-() of the CAA, U.S.C. (k)()-(), no later than the date indicated below for the following states and elements of section 0(a)(), U.S.C. (a)() for the 00 ozone NAAQS: STATE SIP ELEMENT(S) DATE a. Alabama 0(a)()(A)-(C), (D)(i)(II)-(H), October, 0 (J) (M) (excluding prong ) b. Alabama 0(a)()(D)(i)(II) (prong ) May, 0 c. Arizona 0(a)()(A)-(C), (D)(i)(II)-(H), (excluding prong ) June 0, 0 d. Arizona 0(a)()(D)(i)(I) (prongs and June, 0 ) and (II) (prong ) e. Colorado 0(a)()(A)-(C), (D)(i)(II)-(H), October, 0 f. Colorado 0(a)()(D)(i)(I) (prongs and January, 0 ) g. Connecticut 0(a)()(A)-(C), (D)(i)(II)-(H), December, 0 h. Georgia 0(a)()(A)-(C), (D)(i)(II)-(H), October, 0 CASE NO. :-cv--jsw

6 Case:-cv-0-JSW Document- Filed0// Page of 0 STATE SIP ELEMENT(S) DATE (excluding prong ) i. Georgia 0(a)()(D)(i)(II) (prong ) May, 0 j. Idaho 0(a)()(D)(i)(I) (prongs and January, 0 ) k. Illinois 0(a)()(A) May 0, 0 l. Illinois 0(a)()(E)(ii) and (J) August, 0 (visibility portion) m. Indiana 0(a)()(A)-(C), (D)(i)(II)-(H), May, 0 (excluding prong and (J) (visibility portion)) n. Indiana 0(a)()(J) (visibility portion) August, 0 o. Indiana 0(a)()(D)(i)(I) (prongs and June, 0 ) and (D)(i)(II) (prong ) p. Iowa 0(a)()(A)-(C), (D)(i)(II)-(H), September 0, 0 q. Kansas 0(a)()(J) (visibility portion) November 0, 0 r. Maryland 0(a)()(D)(i)(I) (prongs and January, 0 ) s. Mississippi 0(a)()(A)-(C), (D)(i)(II)-(H), October, 0 (excluding prong ) t. Mississippi 0(a)()(D)(i)(II) (prong ) May, 0 u. Montana 0(a)()(A)-(C), (D)(i)(II)-(H), v. Nebraska 0(a)()(A)-(C), (D)(i)(II)-(H), w. Nebraska 0(a)()(D)(i)(I) (prongs and ) x. New Hampshire 0(a)()(A)-(C), (D)(i)(II)-(H), y. North Carolina 0(a)()(A)-(C), (D)(ii)-(H), (excluding 0(a)()(C) (PSD portion), E(ii), and (J) (PSD portion)) z. North Carolina 0(a)()(C) (PSD portion), (D)(i)(II) (prongs and ), (E)(ii), and (J) (PSD portion) aa. North Dakota 0(a)()(A)-(C), (D)(i)(II)-(H), (excluding prong ) bb. North Dakota 0(a)()(D)(i)(I) (prongs and ) and (II) (prong ) March, 0 September 0, 0 January, 0 December, 0 October, 0 May, 0 December, 0 January, 0 CASE NO. :-cv--jsw

7 Case:-cv-0-JSW Document- Filed0// Page of 0 STATE SIP ELEMENT(S) DATE cc. Ohio 0(a)()(C) (PSD portion), March, 0 (D)(i)(II) (prong ), and (J) (PSD portion) dd. Ohio 0(a)()(J) (visibility portion) August, 0 ee. Ohio 0(a)()(D)(i)(I)(prongs and June, 0 ) and (II) (prong ) ff. Oregon 0(a)()(D)(i)(I) (prongs and January, 0 ) gg. Rhode Island 0(a)()(A)-(C), (D)(i)(II)-(H), December, 0 hh. South Carolina 0(a)()(A)-(C), (D)(i)(II)-(H), October, 0 (excluding prong ) ii. South Carolina 0(a)()(D)(i)(II) (prong ) May, 0 jj. Texas 0(a)()(A)-(C), (D)(i)(II)-(H), August, 0 (excluding prong ) kk. Texas 0(a)()(D)(i)(II) (prong ) September, 0 ll. Texas 0(a)()(D)(i)(I) (prongs and June, 0 ) mm West Virginia 0(a)()(E)(ii) May, 0 nn. Utah oo. Utah 0(a)()(A)-(C), (D)(i)(II)-(H), (excluding prong ) 0(a)()(D)(i)(I)(prongs and ) and (II) (prong ) June 0, 0 June, 0. If any State withdraws an above-listed submittal, then EPA s obligation to take the action required by Paragraph with respect to that submittal is automatically terminated.. EPA shall, within days of signature, send the rulemaking package for each action taken pursuant to paragraph of this Consent Decree to the Office of the Federal Register for review and publication.. After EPA has completed the actions set forth in Paragraph of this Consent Decree and after notice of each final action required by paragraph has been published in the Federal Register, and the issue of costs of litigation, including attorney fees has been resolved, EPA may move to have this Decree terminated and the action dismissed. CASE NO. :-cv--jsw

8 Case:-cv-0-JSW Document- Filed0// Page of 0 Plaintiff shall have fourteen () days in which to respond to such motion, unless the parties stipulate to a longer time for Plaintiff to respond.. The deadlines established by this Consent Decree may be extended (a) by written stipulation of Plaintiff and EPA with notice to the Court, or (b) by the Court upon motion of EPA for good cause shown pursuant to the Federal Rules of Civil Procedure and upon consideration of any response by Plaintiff and any reply by EPA. Any other provision of this Consent Decree also may be modified by the Court following motion of an undersigned party for good cause shown pursuant to the Federal Rules of Civil Procedure and upon consideration of any response by a non-moving party and any reply.. If a lapse in EPA appropriations occurs within one hundred and twenty (0) days prior to a deadline in Paragraph in this Decree, that deadline shall be extended automatically one day for each day of the lapse in appropriations.. Plaintiff and EPA agree that this Consent Decree constitutes a complete settlement of Claim as described in Paragraph.. In the event of a dispute between Plaintiff and EPA 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. These parties shall meet and confer in order to attempt to resolve the dispute. If these parties are unable to resolve the dispute within ten () business days after receipt of the notice, either party may petition the Court to resolve the dispute.. No motion or other proceeding seeking to enforce this Consent Decree or for contempt of Court shall be properly filed unless the procedure set forth in Paragraph has been followed, and the moving party has provided the other party with written notice received at least ten () business days before the filing of such motion or proceeding.. The deadline for filing a motion for costs of litigation (including attorney fees) for activities performed prior to entry of the Consent Decree is hereby extended until ninety (0) days after this Consent Decree is entered by the Court. During this CASE NO. :-cv--jsw

9 Case:-cv-0-JSW Document- Filed0// Page of 0 period, the Parties shall seek to resolve informally any claim for costs of litigation (including attorney fees), and if they cannot, the Sierra Club will file a motion for costs of litigation (including attorney fees) or a stipulation or motion to extend the deadline to file such a motion. EPA reserves the right to oppose any such request. The Court shall retain jurisdiction to resolve any requests for costs of litigation, including attorney fees.. This Court shall retain jurisdiction over this matter to enforce the terms of this Consent Decree and to consider any requests for costs of litigation, including attorney fees.. Nothing in the terms of this Consent Decree shall be construed (a) to confer upon this Court jurisdiction to review any issues that are within the exclusive jurisdiction of the United States Courts of Appeals under CAA section 0(b)(), U.S.C. 0(b)(), including final action take pursuant to section 0(k) of the CAA, U.S.C. (k), approving, disapproving, or approving in part and disapproving in part a SIP submittal, or (b) to waive any claims, remedies, or defenses that the parties may have under CAA section 0(b)(), U.S.C. 0(b)().. Nothing in this Consent 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 Consent Decree, including the discretion to alter, amend, or revise any final actions promulgated pursuant to this Consent Decree. EPA s obligation to perform each action specified in this Consent Decree does not constitute a limitation or modification of EPA s discretion within the meaning of this paragraph.. Except as expressly provided herein, nothing in this Consent Decree shall be construed as an admission of any issue of fact or law nor to waive or limit any claim, remedy, or defense, on any grounds, related to any final action EPA takes with respect to the actions addressed in this Consent Decree.. Plaintiff reserves the right to seek additional costs of litigation, including reasonable attorney fees, incurred subsequent to entry of this Consent Decree and arising CASE NO. :-cv--jsw

10 Case:-cv-0-JSW Document- Filed0// Page of 0 from Plaintiff s need to enforce or defend against efforts to modify its terms or the underlying schedule outlined herein, or for any other unforeseen continuation of this action. EPA reserves the right to oppose any such request for additional costs of litigation, including attorney fees.. It is hereby expressly understood and agreed that this Consent Decree was jointly drafted by Plaintiff and EPA. Accordingly, the parties hereby agree that any and all rules of construction to the effect that ambiguity is construed against the drafting party shall be inapplicable in any dispute concerning the terms, meaning, or interpretation of this Consent Decree.. The parties agree and acknowledge that before this Consent Decree can be finalized and entered by the Court, EPA must provide notice of this Consent Decree in the Federal Register and an opportunity for public comment pursuant to CAA section (g), U.S.C. (g). After this Consent Decree has undergone notice and comment, the Administrator and/or the Attorney General, as appropriate, shall promptly consider any written comments in determining whether to withdraw or withhold their consent to the Consent Decree, in accordance with CAA section (g). If the Administrator and/or the Attorney General do not elect to withdraw or withhold consent, EPA shall promptly file a motion that requests that the Court enter this Consent Decree.. Any notices required or provided for by this Consent Decree shall be in writing, via electronic mail or other means, and sent to the following (or to any new address of counsel as filed and listed in the docket of the above-captioned matter, at a future date): For Plaintiff Sierra Club: Robert Ukeiley Mountain Meadows Road Boulder, CO 00 Tel: rukeiley@igc.org CASE NO. :-cv--jsw

11 Case:-cv-0-JSW Document- Filed0// Page of 0 For Defendant EPA: Kristin Henry (Cal. Bar. No. 00) Sierra Club Second Street, nd Floor San Francisco, CA Tel. () - kristin.henry@sierraclub.org Leslie M. Hill U.S. Department of Justice Environment & Natural Resources Division Environmental Defense Section 0 D Street N.W., Suite 000 Washington D.C. 000 Tel. (0) -0 leslie.hill@usdoj.gov. EPA and Plaintiff 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, U.S.C., or any other applicable provision of law. 0. If for any reason the Court should decline to approve this Consent Decree in the form presented, this agreement is voidable at the sole discretion of either party and the terms of the proposed Consent Decree may not be used as evidence in any litigation between the parties.. The undersigned representatives of Plaintiff Sierra Club and Defendant EPA certify that they are fully authorized by the party they represent to consent to the Court s entry of the terms and conditions of this Decree. // // // // CASE NO. :-cv--jsw

12 Case:-cv-0-JSW Document- Filed0// Page of SO ORDERED on this day of, 0. JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE 0 CASE NO. :-cv--jsw

13 Case:-cv-0-JSW Document- Filed0// Page of COUNSEL FOR PLAINTIFF: 0 COUNSEL FOR DEFENDANT: /s/ Robert Ukeiley ( authorization //) Robert Ukeiley, Admitted Pro Hac Vice Law Office of Robert Ukeiley Mountain Meadows Road Boulder, CO 00 Tel. (0) -0 rukeiley@igc.org KRISTIN HENRY (Cal. Bar. No. 00) Sierra Club Second Street, nd Floor San Francisco, CA Tel. () - kristin.henry@sierraclub.org Attorneys for Plaintiff Sierra Club JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division /s/ Leslie M. Hill LESLIE M. HILL (D.C. Bar No. 00) Environmental Defense Section 0 D Street N.W., Suite 000 Washington D.C. 000 Tel. (0) -0 Leslie.Hill@usdoj.gov Attorneys for Defendant EPA Of counsel: Karen Bianco Abirami Vijayan Office of General Counsel U.S. Environmental Protection Agency CASE NO. :-cv--jsw