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.					)

________________________________________________)

SECOND PARTIAL CONSENT DECREE

	This Second Partial Consent Decree (hereinafter “Consent Decree” or
“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 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 a number of States,
including Florida, had failed to submit Clean Air Act SIPs addressing
any of the required regional haze SIP elements of 40 C.F.R. § 51.308,
74 Fed. Reg. 2392, 2393 (Jan. 15, 2009);

	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 States, including
Florida, for which it found on January 15, 2009 a failure to submit SIPs
addressing any of the required regional haze SIP elements; 

	WHEREAS, Plaintiffs served prior notice on the Administrator alleging
that her failure to promulgate regional haze FIPs 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, on March 30, 2012, the Court entered a Partial Consent Decree
resolving all claims asserted by Plaintiffs in this matter except for
claims with respect to Florida;  

WHEREAS, on May 25, 2012, EPA published a notice of proposed rulemaking
at 77 Fed. Reg. 31240 entitled, Approval and Promulgation of Air Quality
Implementation Plans; State of Florida; Regional Haze State
Implementation Plan.  

	WHEREAS, Plaintiffs and EPA (collectively, the “Parties”) wish to
effectuate a settlement of Plaintiffs’ claims in this matter with
respect to Florida 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 with respect to Florida asserted in
this 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.

By November 15, 2012, EPA shall sign a notice(s) of final rulemaking
taking action on the matters addressed in the May 25, 2012, notice of
proposed rulemaking, published at 77 Fed. Reg. 31240, entitled Approval
and Promulgation of Air Quality Implementation Plans; State of Florida;
Regional Haze State Implementation Plan.  Such notice of final
rulemaking shall include, but not be limited to, unconditional approval
of SIP, promulgation of a FIP, or promulgation of a partial FIP and
unconditional approval of a portion of a SIP, that collectively meet the
requirements of 40 C.F.R. §51.308(e) with respect to each of the
following sources (or Units, where specified):  a) Tampa Electric
Company – Big Bend Station (Units 1, 2, 3); b) City of Tallahassee –
Purdom Generation Station (Unit 7); c) Florida Power & Light – Port
Everglades Power Plant (Units 3,4); d) CEMEX; and e) White Springs
Agricultural Chemical – SR/SC Complex.

By December 3, 2012, 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 Florida that
collectively meet all remaining regional haze implementation plan
requirements that were due by December 17, 2007 under EPA’s regional
haze regulations. 

By July 15, 2013, EPA shall sign a notice(s) of final rulemaking
promulgating a FIP for Florida to meet all remaining regional haze
implementation plan requirements that were due by December 17, 2007
under EPA’s regional haze regulations, unless, by such deadline EPA
has for Florida 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 all remaining
regional haze implementation plan requirements that were due by December
17, 2007 under EPA’s regional haze regulations.  

The deadlines in Paragraphs 3 through 5 above may be extended by written
stipulation executed by counsel for EPA and Plaintiffs and filed with
the Court, or 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 connection with Plaintiffs’ claims with respect to Florida
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 5,
and 8, 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 5 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

  HYPERLINK "mailto:dbaron@earthjustice.org"  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 15. 

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 5 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 Clean Air
Act §113(g), 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. 

 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                          2012.

						                                                                  
            

												

							HON. AMY BERMAN JACKSON

		United States District Judge

							SO AGREED:

	FOR PLAINTIFFS

	/s/							/s/  			

	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/  			

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 

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