IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

	

NATIONAL PARKS CONSERVATION 			)

ASSOCIATION, Montana Environmental 	)

Information Center, Grand Canyon 		)

Trust, San Juan Citizens Alliance, 		)

OUR Children's Earth Foundation, 		)

Plains Justice, Powder River Basin 		)	Civil Action No.

Resource Council, Sierra Club, 			) 	1: 11-cv-01548 (ABJ)

and Environmental Defense Fund		)

								)

		Plaintiffs,					)

								)

	v.							)

								)

LISA JACKSON, in her official capacity as			)

Administrator, United States Environmental 			)

Protection Agency,						)

							)	

		Defendant.					)

________________________________________________)

CONSENT DECREE

	This Consent Decree is entered into by Plaintiffs National Parks
Conservation Association, Montana Environmental Information Center,
Grand Canyon Trust, San Juan Citizens Alliance, Our Children's Earth
Foundation, Plains Justice, Powder River Basin Resource Council, Sierra
Club, and Environmental Defense Fund (“Plaintiffs”), and by
Defendant Lisa Jackson, in her official capacity as Administrator of the
United States Environmental Protection Agency (“EPA” or “the
Administrator”).

	WHEREAS, Section 110(c) of the Clean Air Act, 42 U.S.C. § 7410(c),
requires the Administrator of EPA to promulgate a federal implementation
plan (“FIP”) within two years of a finding that a state has failed
to make a required a state implementation plan (“SIP”) submittal. 
The pertinent provision of Section 110(c) states:

	(1) The Administrator shall promulgate a Federal implementation plan at
any time within 2 years after the Administrator—

(A) finds that a State has failed to make a required submission or finds
that the plan or plan revision submitted by the State does not satisfy
the minimum criteria established under section 110(k)(1)(A).

	WHEREAS, on January 15, 2009, EPA found that the following 34 States
had failed to submit Clean Air Act SIPs addressing any of the required
regional haze SIP elements of 40 C.F.R. § 51.308:  Alaska, California,
Connecticut, District of Columbia, Florida, Georgia, Hawaii, Idaho,
Illinois, Indiana, Kansas, Maine, Maryland, Massachusetts, Minnesota,
Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North
Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South
Dakota, Texas, Vermont, U.S. Virgin Islands, Virginia, Washington, and
Wisconsin.  74 Fed. Reg. 2392, 2393 (Jan. 15, 2009);

	WHEREAS, on January 15, 2009 EPA also found that the following five
states had submitted some, but not all, of the required regional haze
SIP elements set forth at 40 C.F.R. §§ 51.308 and 51.309: 
Arizona—40 C.F.R. § 51.309(g) and 40 C.F.R. § 51.309(d)(4);
Colorado—40 C.F.R. § 51.308(d) and 40 C.F.R. § 51.308(e) for two
sources; Michigan—40 C.F.R. § 51.308(d) and 40 C.F.R. § 51.308(e)
for six sources; New Mexico—40 C.F.R. § 51.309(g) and 40 C.F.R. §
51.309(d)(4); Wyoming—40 C.F.R. § 51.309(g). 74 Fed. Reg. at 2393;
WHEREAS, on January 15, 2009, EPA stated that its finding “starts the
two-year clock for the promulgation by EPA of a FIP.  EPA is not
required to promulgate a FIP if the state makes the required SIP
submittal and EPA takes final action to approve the submittal within two
years of EPA’s finding.”  74 Fed. Reg. at 2393;  

	WHEREAS, EPA did not, by January 15, 2011, promulgate regional haze
FIPs or approve regional haze SIPs for any of the 34 states for which it
found on January 15, 2009 a failure to submit SIPs addressing any of the
required regional haze SIP elements, and  EPA also did not, by January
15, 2011, promulgate regional haze FIPs or approve regional haze SIPs
correcting the non-submittal deficiencies that EPA found on January 15,
2009  with respect to the regional haze SIP requirements for Arizona,
Colorado, Michigan, New Mexico and Wyoming;	

	WHEREAS to meet the regional haze implementation plan requirements that
were due by December 17, 2007 under EPA’s regional haze regulations
the following states (and one region) submitted regional haze SIPs to
EPA prior to January 15, 2009 (hereinafter, “regional haze SIP
submittals”), and whereas EPA has yet to take final action on such
submittals pursuant to 42 U.S.C. 7410(k): Alabama; Albuquerque, NM;
Iowa; Louisiana; Mississippi; Missouri; North Carolina; South Carolina;
Tennessee; and West Virginia;   

	WHEREAS, Plaintiffs served prior notice on the Administrator alleging
that her failure to promulgate regional haze FIPs and take final action
on regional haze SIPs as described above constituted failure to perform
duties that are not discretionary under the Act, and of Plaintiffs’
intent to initiate the present action.  This notice was provided via
certified letters, posted January 19, 2011, and addressed to the
Administrator;

	WHEREAS, Plaintiffs filed a complaint pursuant to CAA section
304(a)(2), 42 U.S.C. § 7604(a)(2), alleging failure by the
Administrator to perform nondiscretionary duties as referenced above; 

	WHEREAS, Plaintiffs and EPA (collectively, the “Parties”) wish to
effectuate a settlement of the above-captioned cases 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, ADJUDGED, and DECREED that:

This Court has subject matter jurisdiction over the claims set forth in
the Complaint and to order the relief contained in this Consent Decree. 


Venue is proper in the United States District Court for the District of
Columbia.

Resolution of Claims

 By the “Proposed Promulgation Deadlines” set forth in Table A below
EPA shall sign a notice(s) of proposed rulemaking in which it proposes
approval of a SIP, promulgation of a FIP, partial approval of a SIP and
promulgation of a partial FIP, or approval of a SIP or promulgation of a
FIP in the alternative, for each State therein, that collectively meet
the regional haze implementation plan requirements that were due by
December 17, 2007 under EPA’s regional haze regulations. 

By the “Final Promulgation Deadlines” set forth in Table A below,
EPA shall sign a notice(s) of final rulemaking promulgating a FIP for
each State therein to meet the regional haze implementation plan
requirements that were due by December 17, 2007 under EPA’s regional
haze regulations, except where, by such deadline EPA has for a State 
therein signed a notice of final rulemaking unconditionally approving a
SIP, or promulgating a partial FIP and unconditional approval of a
portion of a SIP, that collectively meet the regional haze
implementation plan requirements that were due by December 17, 2007
under EPA’s regional haze regulations.   

TABLE A

Deadlines for EPA to Sign Notice of Promulgation for Proposed and 

Final Regional Haze FIPs and/or Approval of SIPs  (“RH” = Regional
Haze)

Proposed Promulgation Deadlines	Final Promulgation Deadlines	State 

	 December 13, 2011	Nevada

Oklahoma (all BART elements)

	December 15, 2011	Kansas

New Jersey

November 15, 2011	March 15, 2012	District of Columbia 

Maine

November 29, 2011	March 29, 2012	South Dakota

January 17, 2012	May 15, 2012	Minnesota

Illinois

Indiana

New York

Ohio

Pennsylvania

Virginia

February 15, 2012	June 15, 2012	Alaska (all BART elements) 

Georgia 

Maryland 

Nebraska

New Hampshire

New Mexico(all remaining RH SIP elements)

Rhode Island

Vermont

Wisconsin

March 15, 2012	July 13, 2012	Connecticut

Massachusetts

May 14, 2012	September 14, 2012	Hawaii

Virgin Islands

May 15, 2012	November 15, 2012	Alaska (all remaining RH SIP elements)

Arizona

Idaho (all remaining RH SIP elements)

Florida

Michigan

Oklahoma (all remaining RH SIP elements)

Oregon (all remaining RH SIP elements)

Texas

Washington



By the “Proposed Promulgation Deadlines” set forth in Table B below
EPA shall sign a notice of proposed rulemaking in which it proposes to
approve or disapprove, in accordance with 42 U.S.C. § 7410(k), the
regional haze SIP submittals for each state or area  indicated.  

By the “Final Promulgation Deadlines” set forth in Table B below,
EPA shall sign a notice of final rulemaking in which it approves or
disapproves, in accordance with 42 U.S.C. § 7410(k), the regional haze
SIP submittals for each state or area indicated.  

TABLE B

Deadlines for EPA to Sign Notices of Promulgation for Proposed and Final
Approval or Disapproval of Regional Haze SIP Submissions

Proposed Promulgation Deadlines	Final Promulgation Deadlines	State or
Area

	March 15, 2012	Tennessee 

West Virginia

February 15, 2012	June 15, 2012	Alabama 

Albuquerque, NM

Iowa 

Louisiana 

Mississippi 

Missouri 

North Carolina 

South Carolina 



General Provisions

The deadlines in Table A or B may be extended for a period of 60 days or
less by written stipulation executed by counsel for EPA and Plaintiffs
and filed with the Court.  Any other extension of a deadline in Table A
or B may be approved by the Court upon motion made pursuant to the
Federal Rules of Civil Procedure by EPA and upon consideration of any
response by Plaintiffs and reply by EPA. 

EPA agrees that Plaintiffs are entitled to recover their 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, Plaintiffs may seek such litigation costs
from the Court.  The Court shall retain jurisdiction to resolve any
request for litigation costs.  Plaintiffs reserve their right to seek
litigation costs for any work performed after the lodging of this
Consent Decree.  EPA does not concede that Plaintiffs 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.    

No later than ten business days following signature by the Administrator
or her delegatee of the notice of any proposed or final
rulemaking referenced above, EPA shall deliver the notice to the Office
of the Federal Register for review and prompt publication.  Following
such delivery to the Office of the Federal Register, EPA shall not take
any action (other than is necessary to correct any typographical errors
or other errors in form) to delay or otherwise interfere with
publication of such notice in the Federal Register.  EPA shall make
available to Plaintiffs copies of the notices referenced herein within
five business days following signature by the Administrator or her
delegatee.  

Plaintiffs and EPA shall not challenge the terms of this Consent Decree
or this Court’s jurisdiction to enter and enforce this Consent Decree.

Nothing in this Consent Decree shall be construed to limit or modify any
discretion accorded EPA by the CAA 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
responses or final actions contemplated by this Consent Decree.  EPA’s
obligation to perform the actions specified by Paragraphs 3 through 6
does not constitute a limitation or modification of EPA’s discretion
within the meaning of this paragraph.

Nothing in this Consent Decree shall be construed as an admission of any
issue of fact or law or to waive or limit any claim or defense, on any
grounds, related to any final action EPA may take with respect to the
SIPs or FIPs identified in paragraphs 3 through 6 of this Consent
Decree.  

Nothing in this Consent Decree shall be construed to confer upon the
district court jurisdiction to review any final decision made by EPA
pursuant to this Consent Decree.  Nothing in this Consent 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 Court of Appeals pursuant to 42 U.S.C. §§ 7607(b)(1) and 7661d.
 Nothing in this Consent Decree shall be construed to waive any remedies
or defenses the Parties may have under 42 U.S.C. § 7607(b)(1).

The Parties 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 EPA obligate or pay funds in contravention of the Anti-Deficiency
Act, 31 U.S.C. § 1341, or any other applicable provision of law.

Any notices required or provided for by this Consent Decree shall be
made in writing and sent via e-mail to the following:

For Plaintiffs:

David Baron

dbaron@earthjustice.org

Reed Zars

  HYPERLINK "mailto:rzars@lariat.org"  rzars@lariat.org 

ForDefendant:

Eileen T. McDonough

  HYPERLINK "mailto:eileen.mcdonough@usdoj.gov" 
eileen.mcdonough@usdoj.gov 

Lea Anderson

  HYPERLINK "mailto:anderson.lea@epa.gov"  anderson.lea@epa.gov 

In the event of a dispute among the Parties 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.  If the Parties cannot reach an agreed-upon resolution,
any Party may move 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 Party seeking
to enforce this Consent Decree has followed the procedure set forth in
Paragraph 16. 

The Court shall retain jurisdiction to determine and effectuate
compliance with this Consent Decree, to resolve any disputes thereunder,
and to consider any requests for costs of litigation (including
reasonable attorneys’ fees).  After EPA’s obligations under
Paragraphs 3 through 6 have been completed, EPA may move to have this
consent decree terminated.  Plaintiffs shall have 14 days in which to
respond to such motion.

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 42 U.S.C. §
7413(g).  EPA will deliver a public notice of this Consent Decree to the
Federal Register for publication and public comment within 10 business
days after lodging this Consent Decree with the Court.  After this
Consent Decree has undergone an opportunity for notice and comment,
EPA’s Administrator and the Attorney General, as appropriate, will
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 Clean Air Act.  If the Administrator or the
Attorney General elects not to withdraw or withhold consent to this
Consent Decree, the Parties will promptly file a motion that requests
the Court to enter this Consent Decree. If a motion to enter the Consent
Decree is not filed within 60 days after the notice is published in the
Federal Register, any party may file dispositive motions in this matter.

It is hereby expressly understood and agreed that this Consent Decree
was jointly drafted by the Parties and 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
undersigned certify that they are fully authorized by the Party or
Parties they represent to bind that Party or those Parties to the terms
of this Consent Decree.

	SO ORDERED this      day of                          2011.

						                                                                  
            

												

							HON. AMY BERMAN JACKSON

		United States District Judge

						SO AGREED:

	FOR PLAINTIFFS:

	/s/ REED ZARS					/s/ DAVID BARON

	Attorney at Law					Earthjustice

	910 Kearney Street					1625 Massachusetts Ave., NW, #702

	Laramie, WY  82070					Washington, DC 20036

	307-745-7979						202-667-4500 ext.203

	  HYPERLINK "mailto:rzars@lariat.org"  rzars@lariat.org 				
dbaron@earthjustice.org

	FOR DEFENDANT

IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

/s/ EILEEN T. MCDONOUGH

Environmental Defense Section

U.S. Department of Justice

P.O. Box 23986

Washington, D.C. 20026-3986		

(202) 514-3126				

Of Counsel:

M. LEA ANDERSON						

Office of General Counsel

U.S. Environmental  Protection Agency					

1200 Pennsylvania Avenue, N. W. 

Washington, DC 20460 

(202) 564-5571

  HYPERLINK "mailto:anderson.lea@epa.gov"  anderson.lea@epa.gov 

 Throughout this Consent Decree, the term “state” or “State” has
the meaning provided in 42 U.S.C. § 7602(d).

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