1
UNITED
STATES
DISTRICT
COURT
FOR
THE
DISTRICT
OF
COLUMBIA
__________________________________________
)
)
KENTUCKIANS
FOR
THE
COMMONWEALTH,
)
)
Civ.
No.
06CV00184
(
RMU)
FRIENDS
OF
THE
CHATTAHOOCHEE,
)
)
and
)
)
SIERRA
CLUB
)
)
Plaintiffs,
)
)
vs.
)
)
STEPHEN
L.
JOHNSON
)
Administrator
)
United
States
Environmental
Protection
Agency
)
)
Defendant.
)
__________________________________________)

[
PROPOSED]
CONSENT
DECREE
WHEREAS,
Plaintiffs,
Kentuckians
for
the
Commonwealth,
Friends
of
the
Chattahoochee
and
Sierra
Club
filed
their
Complaint
(
Civil
Case
No.
1:
06cv00184
(
RMU))
on
February
2,
2006
and
their
First
Amended
Complaint
on
April
14,
2006
pursuant
to
Section
304(
a)(
2)
of
the
Clean
Air
Act
("
CAA"
or
"
the
Act"),
42
U.
S.
C.
§

7604(
a)(
2).

WHEREAS,
Plaintiffs'
First
Amended
Complaint
alleged
that
Defendant
Stephen
L.
Johnson
in
his
official
capacity
as
Administrator
of
the
United
States
Environmental
Protection
Agency
(
hereinafter
"
the
Administrator"),
has
failed
to
perform
nondiscretionary
duties
to
review,
and
if
appropriate,
revise
the
New
Source
Performance
2
Standards
("
NSPS")
for
nonmetallic
mineral
processing
plants
("
Subpart
OOO")
and
for
coal
preparation
plants
("
Subpart
Y")
as
required
by
CAA
Section
111(
b),
42
U.
S.
C.
§

7411(
b)(
1)(
B),
and
to
publish
notice
of
such
action
in
the
Federal
Register
as
required
by
CAA
Section
307(
d),
42
U.
S.
C.
§
7607(
d).

WHEREAS,
pursuant
to
Section
111(
b)(
1)(
B)
of
the
Act,
42
U.
S.
C.
§

7411(
b)(
1)(
B),
every
eight
years
the
Administrator
is
required
to
review
and,
if
appropriate,
revise,
each
NSPS
standard
of
performance.

WHEREAS,
pursuant
to
Section
111(
a)(
1)
of
the
Act,
42
U.
S.
C.
§
7411(
a)(
1),
the
term
"
standard
of
performance"
means
"
a
standard
for
emissions
of
air
pollutants
which
reflects
the
degree
of
emission
limitation
achievable
through
the
application
of
the
best
system
of
emission
reduction
which
(
taking
into
account
the
cost
of
achieving
such
reduction
and
any
nonair
quality
health
and
environmental
impact
and
energy
requirements)
the
Administrator
determines
has
been
adequately
demonstrated."

WHEREAS,
Plaintiffs
and
the
Administrator
(
collectively
"
the
Parties")
wish
to
effectuate
a
settlement
of
the
above­
captioned
matter,
including
Plaintiffs'
claims
for
costs
of
litigation
and
reasonable
attorneys'
fees,
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
matter.

WHEREAS,
the
Court,
by
entering
this
Decree,
finds
that
the
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
3
ORDERED,
ADJUDGED
and
DECREED
that:

1.
This
Court
has
subject
matter
jurisdiction
over
the
claims
set
forth
in
the
First
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.
Within
eighteen
(
18)
months
of
entry
of
this
Decree,
the
appropriate
EPA
official
shall
sign,
and
within
10
business
days
of
signing,
forward
to
the
Federal
Register
for
publication
one
or
a
combination
of
the
following:
(
a)
a
proposed
or
final
determination
under
CAA
section
111(
b)(
1)(
B),
42
U.
S.
C.
§
7411(
b)(
1)(
B),
that
review
of
NSPS
Subpart
OOO
is
"
not
appropriate
in
light
of
readily
available
information
on
the
efficacy
of
such
standard;"
(
b)
a
proposed
determination
under
CAA
Section
111(
b)(
1)(
B),
42
U.
S.
C.
§
7411(
b)(
1)(
B),
that
based
on
a
complete
review
of
NSPS
Subpart
OOO,
revision
is
not
appropriate;
or
(
c)
a
proposed
rule
containing
revisions
to
NSPS
Subpart
OOO
based
on
the
procedure
required
by
CAA
Section
111(
b),
42
U.
S.
C.

§
7411(
b).

3.
Within
eighteen
(
18)
months
of
entry
of
this
Decree,
the
appropriate
EPA
official
shall
sign,
and
within
10
business
days
of
signing,
forward
to
the
Federal
Register
for
publication
one
or
a
combination
of
the
following:
(
a)
a
proposed
or
final
determination
under
CAA
section
111(
b)(
1)(
B),
42
U.
S.
C.
§
7411(
b)(
1)(
B),
that
review
of
NSPS
Subpart
Y
is
"
not
appropriate
in
light
of
readily
available
information
on
the
efficacy
of
such
standard;"
(
b)
a
proposed
determination
under
CAA
Section
111(
b)(
1)(
B),
42
U.
S.
C.
§
7411(
b)(
1)(
B),
that
based
on
a
complete
review
of
NSPS
Subpart
Y,
revision
is
not
appropriate;
or
(
c)
a
proposed
rule
containing
revisions
to
4
NSPS
Subpart
Y
based
on
the
procedure
required
by
CAA
Section
111(
b),
42
U.
S.
C.
§

7411(
b).

4.
Within
thirty
(
30)
months
from
the
date
of
entry
of
this
Decree,
the
appropriate
EPA
official
shall
sign,
and
within
10
business
days
of
signing,
forward
to
the
Federal
Register
for
publication,
one
or
a
combination
of
the
following:
(
a)
a
final
determination
under
CAA
section
111(
b)(
1)(
B),
42
U.
S.
C.
§
7411(
b)(
1)(
B),
that
review
of
NSPS
Subpart
OOO
is
"
not
appropriate
in
light
of
readily
available
information
on
the
efficacy
of
such
standard;"
(
b)
a
final
determination
under
CAA
Section
111(
b)(
1)(
B),
42
U.
S.
C.
§
7411(
b)(
1)(
B),
that
based
on
a
complete
review
of
NSPS
Subpart
OOO,
revision
is
not
appropriate;
or
(
c)
a
final
rule
containing
revisions
to
NSPS
Subpart
OOO
based
on
the
procedure
required
by
CAA
Section
111(
b),
42
U.
S.
C.
§
7411(
b).

5.
Within
thirty
(
30)
months
from
the
date
of
entry
of
this
Decree,
the
appropriate
EPA
official
shall
sign,
and
within
10
business
days
of
signing,
forward
to
the
Federal
Register
for
publication,
one
or
a
combination
of
the
following:
(
a)
a
final
determination
under
CAA
section
111(
b)(
1)(
B),
42
U.
S.
C.
§
7411(
b)(
1)(
B),
that
review
of
NSPS
Subpart
Y
is
"
not
appropriate
in
light
of
readily
available
information
on
the
efficacy
of
such
standard;"
(
b)
a
final
determination
under
CAA
Section
111(
b)(
1)(
B),
42
U.
S.
C.
§
7411(
b)(
1)(
B),
that
based
on
a
complete
review
of
NSPS
Subpart
Y,
revision
is
not
appropriate;
or
(
c)
a
final
rule
containing
revisions
to
NSPS
Subpart
Y
based
on
the
procedure
required
by
CAA
Section
111(
b),
42
U.
S.
C.
§
7411(
b).

6.
The
Parties
agree
and
acknowledge
that
before
this
Decree
is
entered
by
the
Court,
the
Administrator
must
provide
notice
of
this
Decree
in
the
Federal
Register
and
an
opportunity
for
public
comment
pursuant
to
CAA
section
113(
g),
42
U.
S.
C.
§
5
7413(
g).
After
this
Decree
has
undergone
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
their
consent
to
the
Decree,
in
accordance
with
CAA
section
113(
g),
42
U.
S.
C.
§
7413(
g).
Once
the
Administrator
and/
or
the
Attorney
General
elect
whether
or
not
to
withdraw
or
withhold
their
consent
to
this
Decree,
the
Administrator
shall
provide
written
notice
of
that
election
to
Plaintiffs
as
expeditiously
as
possible.
If
the
Administrator
and/
or
the
Attorney
General
do
not
elect
to
withdraw
or
withhold
their
consent,
the
Parties
shall
promptly
file
a
motion
that
requests
that
the
Court
enter
this
Decree.

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.
Plaintiffs
and
the
Administrator
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.

9.
The
deadline
for
filing
a
motion
for
costs
of
litigation
(
including
attorneys'
fees)
for
activities
performed
prior
to
execution
of
this
Decree
is
hereby
extended
until
60
days
after
this
Decree
is
entered
by
the
Court.
During
this
60­
day
period,
the
Parties
shall
seek
to
resolve
informally
any
claim
for
costs
of
litigation
(
including
attorneys'
fees),
and
if
they
cannot,
will
submit
that
issue
to
the
Court
for
resolution.
Nothing
in
this
paragraph
shall
be
construed
as
an
admission
or
concession
6
by
the
Administrator
that
Plaintiffs
are
entitled
to
or
eligible
for
recovery
of
any
costs
or
attorneys'
fees.

10.
Except
as
provided
herein,
nothing
in
this
Decree
shall
be
construed
to
limit
or
modify
any
discretion
accorded
the
Administrator
by
the
CAA
or
by
general
principles
of
administrative
law
in
taking
the
actions
which
are
the
subject
of
this
Decree.

11.
Nothing
in
this
decree
shall
be
construed
as
an
admission
of
any
issue
of
fact
or
law.

12.
Nothing
in
this
Decree
shall
be
construed
to
confer
upon
the
district
court
jurisdiction
to
review
any
final
decision
made
by
the
Administrator
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
Courts
of
Appeals
pursuant
to
CAA
section
307
(
b)(
1),
42
U.
S.
C.
§
7607(
b)(
1).

Nothing
in
the
terms
of
this
Decree
shall
be
construed
to
waive
any
remedies
or
defenses
the
Parties
may
have
under
Section
307(
b)(
1)
of
the
Clean
Air
Act,
42
U.
S.
C.
§

7607(
b)(
1).

13.
The
obligations
imposed
upon
the
Administrator
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
the
Administrator
obligate
or
pay
funds
in
contravention
of
the
Anti­
Deficiency
Act,
31
U.
S.
C.
§
1341,
or
any
other
applicable
federal
statute.
7
14.
Any
notices
required
or
provided
for
by
this
Decree
shall
be
made
in
writing,
via
facsimile
or
other
means,
and
sent
to
the
following:

For
Plaintiffs:

ROBERT
UKEILEY
Law
Office
of
Robert
Ukeiley
433
Chestnut
Street
Berea,
KY
40403
Fax:
(
859)
986­
1299
For
Defendant:

AMMIE
ROSEMAN­
ORR
TODD
GLEASON
United
States
Department
of
Justice
Environmental
Defense
Section
P.
O.
Box
23986
Washington,
D.
C.
20026­
3986
Fax
(
202)
514­
8865
SUSAN
STAHLE
U.
S.
Environmental
Protection
Agency
Office
of
General
Counsel
ARN:
MC­
2344A
1200
Pennsylvania
Ave.,
N.
W.
Washington,
DC
20460
Fax:
(
202)
564­
5603
15.
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
Parties
with
a
written
notice
outlining
the
nature
of
the
dispute
and
requesting
informal
negotiations.
If
the
Parties
cannot
reach
an
agreed­
upon
resolution
within
five
(
5)

business
days
after
receipt
of
the
notice,
any
party
may
move
the
Court
to
resolve
the
dispute.
8
16.
The
Court
shall
retain
jurisdiction
to
determine
and
effectuate
compliance
with
this
Decree.
When
the
Administrator's
obligations
under
Paragraphs
2
through
5
have
been
completed,
and
the
Plaintiffs'
claims
for
costs
of
litigation
have
been
resolved
pursuant
to
the
process
described
in
Paragraph
9,
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.

17.
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.

COUNSEL
FOR
PLAINTIFF:

Dated:
_______________
__,
2006
Respectfully
submitted,

_____________________________
Robert
Ukeiley
(
MD14062)
Law
Office
of
Robert
Ukeiley
433
Chestnut
Street
Berea,
KY
40403
Tel:
(
859)
986­
5402
Fax:
(
859)
986­
1299
E­
mail:
rukeiley@
igc.
org
9
COUNSEL
FOR
DEFENDANT:

Dated:
______________
__,
2006
Respectfully
submitted,

Sue
Ellen
Wooldridge
Assistant
Attorney
General
Env.
&
Natural
Resources
Division
_____________________________
AMMIE
ROSEMAN­
ORR
TODD
GLEASON
United
States
Department
of
Justice
Environmental
Defense
Section
P.
O.
Box
23986
Washington,
D.
C.
20026­
3986
Phone
(
202)
616­
7501
Fax
(
202)
514­
8865
ammie.
roseman­
orr@
usdoj.
gov
Of
Counsel
for
Defendant:
SUSAN
STAHLE
Office
of
General
Counsel
U.
S.
Environmental
Protection
Agency
Office
of
General
Counsel
ARN:
MC­
2344A
1200
Pennsylvania
Ave.,
N.
W.
Washington,
DC
20460
SO
ORDERED.

Dated:
_________________,
2006
_____________________________
RICARDO
M.
URBINA
United
States
District
Judge
