SETTLEMENT AGREEMENT

WHEREAS, on April 29, 2010, the Center for Biological Diversity filed a
Complaint in Center for Biological Diversity v. Jackson, No.
cv-10-1846-MMC (N.D. Cal.), against Lisa Jackson, in her official
capacity as Administrator of the U.S. Environmental Protection Agency
(“EPA”).

WHEREAS, the Center for Biological Diversity therein alleged that EPA
failed to perform mandatory duties regarding a number of areas
designated as nonattainment for the National Ambient Air Quality
Standards (“NAAQS”) for particulate matter less than 10 microns in
diameter (“PM-10”) within the States of Alaska, Arizona, Idaho,
Montana, and Nevada as required by the Clean Air Act (“CAA” or the
“Act”), 42 U.S.C. §§ 7401-7671q.  Specifically, the Center for
Biological Diversity alleged that the Act required that EPA (1) make
determinations whether certain PM-10 nonattainment areas attained the
PM-10 NAAQS by the applicable attainment date; (2) impose sanctions on
two areas in Arizona for which EPA has made findings of failure by the
State of Arizona to submit complete PM-10 state implementation plan
(“SIP”) revisions, and promulgate Federal Implementation Plans
(“FIPs”) for these same two Arizona areas; and (3) issue a
determination that Montana has failed to submit complete SIPs for
certain PM-10 areas within the State.

WHEREAS, EPA has applied its “Clean Data Policy” interpretation of
the CAA in a number of attainment determination rulemakings for PM-10
nonattainment areas, thereby suspending for each area certain
attainment-related requirements set forth in the Act, including EPA’s
obligation to promulgate a FIP for such areas.  The rationale for
EPA’s interpretation is set forth in the proposed and final
determinations of attainment for the San Joaquin Valley PM-10
nonattainment area, 71 Fed. Reg. 40952 (July 19, 2006), 71 Fed. Reg.
63642 (Oct. 30, 2006), and 73 Fed. Reg. 14687 (Mar. 19, 2008), and in
the proposed and final determinations of attainment for the Coso
Junction PM-10 nonattainment area. 75 Fed. Reg. 13710 (Mar. 23, 2010)
and 75 Fed. Reg. 27944 (May 19, 2010).  The Ninth Circuit and the
Northern District of California have recently addressed these issues. 
See Latino Issues Forum, et al. v. EPA, Case No. 06-75831 (9th Cir.) at
Docket No. 63-1 (order denying petition for review); Medical Advocates
for Healthy Air, et al. v. Johnson, No. C 06-00093 (N.D. Cal.) at Docket
No. 77 (order on summary judgment).

WHEREAS, on October 17, 2006, EPA published in the Federal Register a
final rule retaining the 24-hour-average PM-10 NAAQS but revoking the
annual PM-10 NAAQS, 71 Fed. Reg. 61144.

WHEREAS, on June 22, 2010, EPA published in the Federal Register a
direct final rule stating its determination that the Sandpoint area in
Idaho attained the PM-10 NAAQS, 75 Fed. Reg. 35302.  EPA received no
comments on this rule, which became effective August 23, 2010.

WHEREAS, on July 16, 2010, EPA published in the Federal Register a
direct final rule stating its determination that Mendenhall Valley,
Alaska attained the PM-10 NAAQS, 75 Fed. Reg. 41379.  EPA received no
comments on this action, which became effective without further notice
on September 14, 2010.

WHEREAS, on July 28, 2010, EPA published in the Federal Register its
final determination that the Fort Hall PM-10 area in Idaho, attained the
PM-10 NAAQS, 75 Fed. Reg. 44142.  [fill in after 113(g) period]

WHEREAS, on August 3, 2010, EPA published in the Federal Register a
direct final rule stating its final determination that the Las Vegas
planning area (Nevada) attained the PM-10 NAAQS, 75 Fed. Reg. 45485.
[fill in after 113(g) period]

WHEREAS, EPA asserts that the Lame Deer area and Ronan and Polson area
in Montana are located on tribal lands and, therefore, the State is not
required to submit a SIP for these areas.

WHEREAS, the Center for Biological Diversity and EPA have agreed to a
settlement of all claims raised in the Center for Biological
Diversity’s Complaint without admission of any issue of fact or law in
order to avoid protracted and costly litigation and to preserve judicial
resources. 

NOW, THEREFORE, the Parties, intending to be bound by this Agreement,
hereby stipulate and agree as follows:  

1.	EPA shall sign for publication in the Federal Register no later than
November 30, 2010, a notice of the Agency’s final determination under
42 U.S.C §§ 7509(c)(1) and 7513(b)(2) as to whether Eagle River,
Alaska attained the 24-hour PM-10 NAAQS by the applicable attainment
date, December 31, 1994, based on the area’s air quality as of that
attainment date.  

2.	EPA shall sign for publication in the Federal Register no later than
July 29, 2011,   a notice of the Agency’s final determination under 42
U.S.C §§ 7509(c)(1) and 7513(b)(2) as to whether the Paul Spur/Douglas
planning area in Arizona attained the 24-hour PM-10 NAAQS by the
applicable attainment date, December 31, 1994, based on the area’s air
quality as of that attainment date.  

3.	EPA shall sign for publication in the Federal Register no later than
January 29, 2011, a notice of the Agency’s final determination under
42 U.S.C §§ 7509(c)(1) and 7513(b)(2) as to whether the Nogales
planning area in Arizona attained the 24-hour PM-10 NAAQS by the
applicable attainment date, December 31, 1994, based on the area’s air
quality as of that attainment date.  

4.	EPA shall sign for publication in the Federal Register no later than
November 29, 2010, a notice of the Agency’s final determination under
42 U.S.C §§ 7509(c)(1) and 7513(b)(2) as to whether the Hayden
planning area in Arizona attained the 24-hour PM-10 NAAQS by the
applicable attainment date, December 31, 1994, based on the area’s air
quality as of that attainment date.  

5.	EPA shall sign for publication in the Federal Register no later than
January 17, 2011, a notice of the Agency’s final determination under
42 U.S.C §§ 7509(c)(1) and 7513(b)(2) as to whether the Columbia Falls
area in Flathead County, Montana attained the 24-hour PM-10 NAAQS by the
applicable attainment date, December 31, 1994, based on the area’s air
quality as of that attainment date.  

6.	EPA shall sign for publication in the Federal Register no later than
January 17, 2011, a notice of the Agency’s final determination under
42 U.S.C §§ 7509(c)(1) and 7513(b)(2) as to whether the Libby and
vicinity areas of Lincoln County, Montana attained the 24-hour PM-10
NAAQS by the applicable attainment date, December 31, 1994, based on the
area’s air quality as of that attainment date.  

	7.	Except as otherwise provided in Paragraph 11, EPA shall no later
than March 29, 2011, sign for publication in the Federal Register a
notice of the Agency’s final determination under 42 U.S.C §§
7509(c)(1) and 7513(b)(2) as to whether the Reno (Nevada) planning area,
which is classified as a “serious” PM-10 nonattainment area,
attained the 24-hour PM-10 NAAQS by the applicable attainment date,
December 31, 2001, based on the area’s air quality as of that
attainment date.

  	8.	Except as otherwise provided in Paragraph 12, and subject to the
qualifications in Paragraph 20, EPA shall no later than July 27, 2012,
sign for publication in the Federal Register a notice of the Agency’s
final rule promulgating a FIP under 42 U.S.C. § 7410(c)(1) addressing
the requirements under §§ 7513a(a)(1)(B) [attainment demonstration]
and (a)(1)(C) [reasonably available control measures] or 7509a(a)
[demonstration of attainment but for emissions emanating from outside
the United States] as they relate to the 24-hour PM-10 NAAQS for the
Douglas portion of the Paul Spur/Douglas planning area.

	9.	Except as otherwise provided in Paragraph 13, EPA shall no later
than July 27, 2012, sign for publication in the Federal Register a
notice of the Agency’s final rule promulgating a FIP under 42 U.S.C.
§ 7410(c)(1) addressing the requirements under §§ 7513a(a)(1)(B)
[attainment demonstration] and (a)(1)(C) [reasonably available control
measures] or 7509a(a) [demonstration of attainment but for emissions
emanating from outside the United States] as they relate to the 24-hour
PM-10 NAAQS for the Nogales planning area.

10.	The Parties may agree to extend any deadlines contained in this
Settlement Agreement by mutual written consent.  

11.	If EPA signs a notice taking final action to approve the State of
Nevada’s submitted Redesignation Request and Maintenance Plan for the
Reno Planning Area under 42 U.S.C. § 7407(d)(3)(D) and (d)(3)(E) before
the deadline in Paragraph 7 of this Settlement Agreement, then EPA’s
obligation under Paragraph 7 shall be voided.   

12.	If, before the deadline in Paragraph 8 of this Settlement Agreement,
EPA signs a notice taking final action to (1) reclassify the Paul
Spur/Douglas planning area (or the Douglas planning area if EPA acts to
split the Paul Spur/Douglas nonattainment area into two areas) as a
“serious” nonattainment area; (2) approve a submittal from the State
of Arizona of a SIP revision addressing the requirements under §§
7513a(a)(1)(B) [attainment demonstration] and (a)(1)(C) [reasonably
available control measures] or 7509a(a) [demonstration of attainment but
for emissions emanating from outside the United States]; or (3) approve
a redesignation request and maintenance plan under 42 U.S.C. §
7407(d)(3)(D) and (d)(3)(E); then EPA’s obligation under Paragraph 8
shall be voided.  

13.	If EPA signs a notice taking final action to reclassify the Nogales
planning area as a “serious” nonattainment area or to approve a
submittal from the State of Arizona of a SIP revision addressing the
requirements under §§ 7513a(a)(1)(B) [attainment demonstration] and
(a)(1)(C) [reasonably available control measures] or 7509a(a)
[demonstration of attainment but for emissions emanating from outside
the United States] before the deadline in Paragraph 9 of this Settlement
Agreement, then EPA’s obligation under Paragraph 9 shall be voided.

14.	Within 15 business days following signature of such action required
by Paragraphs 1-13, EPA shall send notice of such action to the Office
of the Federal Register for review and publication.

15.	Nothing in this Settlement Agreement shall be construed to limit or
modify any discretion accorded EPA by the CAA or by general principles
of administrative law. 

16.	The Parties agree and acknowledge that EPA’s final approval of
this Settlement Agreement is subject to the requirements of CAA §
113(g), 42 U.S.C. § 7413(g).  That subsection provides that notice of
this Settlement Agreement be given to the public, that the public shall
have a reasonable opportunity to make any comments, and that the
Administrator or the Attorney General, as appropriate, must consider
those comments in deciding whether to consent to this Settlement
Agreement. 

17.	Except as set forth in this Agreement, the Parties retain all
rights, claims, defenses, and discretion they may otherwise have.

18.	EPA’s obligations under this Settlement Agreement are subject to
the availability of funds appropriated and legally available for such
purpose.  No provision of this Settlement Agreement 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 provision of law.

19.	Within 10 days of signing this Settlement Agreement, the parties
agree to file a joint motion in the district court to administratively
close this case.  The Center for Biological Diversity shall file a
motion for voluntary dismissal, with prejudice, in accordance with Rule
41(a)(1) of the Federal Rules of Civil Procedure of Center for
Biological Diversity v. Jackson, No. cv-10-1846-MMC (N.D. Cal.), with
respect to all claims in the Complaint within 30 days after notice
appears in the Federal Register of EPA taking the last rulemaking action
required under Paragraphs 1-9 of this Settlement Agreement.  The Center
for Biological Diversity agrees and acknowledges that, if EPA fails to
meet its obligations under this Settlement Agreement, its sole remedy is
to reinstate this action. 

20.	The Parties agree that if EPA signs a final attainment determination
in lieu of promulgating a FIP prior to the deadline for promulgation of
a FIP in Paragraph 8, then such action will not constitute a breach of
the Settlement Agreement.  Nevertheless, should EPA invoke its Clean
Data Policy and sign a final attainment determination in lieu of
promulgating a FIP, the Center for Biological Diversity reserves its
right to reinstate this action for the limited purpose of litigating the
question whether EPA is in violation of an alleged mandatory duty to
promulgate a FIP as required by CAA section 110(c)(1)(A), 42 U.S.C. §
7410(c)(1)(A), for the Douglas area of Cochise County.  EPA in turn
reserves each of its defenses including, but not limited to, arguing
that the Center for Biological Diversity’s challenge is time-barred
and that such claim is reviewable exclusively in the court of appeals.

21.	The undersigned representative of each Party certifies that he or
she is fully authorized by the Party he represents to bind that Party to
the terms of this Settlement Agreement.  

22.	Any written notices or other written communications between the
Parties contemplated under this Settlement Agreement shall be sent to
the undersigned counsel at the addresses listed in the signature blocks
below unless written notice of a change in counsel and/or address is
provided.

IGNACIA S. MORENO

Assistant Attorney General

							__________________________                    

ADAM J. KATZ

United States Department of Justice

Environment & Natural Resources Division

Environment Defense Section

P.O. Box 23986

Washington, D.C. 20026

(202) 514-2689

adam.katz@usdoj.gov

COUNSEL FOR EPA 

Dated:  	

				                                                       

__________________________                                              
             

Robert Ukeiley

Law Office of Robert Ukeiley

435R Chestnut Street, Suite 1

Berea, Kentucky 40403

(859) 986-5402

  HYPERLINK "mailto:rukeiley@igc.org"  rukeiley@igc.org 

							

Kevin Bundy

Center for Biological Diversity

351 California St., Suite 600

San Francisco, CA 94104

(415) 436-9682

  HYPERLINK "mailto:kbundy@biologicaldiversity.org" 
kbundy@biologicaldiversity.org 

COUNSEL FOR CENTER FOR BIOLOGICAL DIVERSITY 

Dated:  	

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