IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

							)	

 SIERRA CLUB,					)	Civil Action No.

							)	1:12-cv-00705-CKK

Plaintiff,						)   		

							)		

v.							)		

							)		

LISA P. JACKSON, Administrator,			)		

U.S. Environmental Protection Agency.  		)		

							)

Defendant.						)	

__________________________________________)	

CONSENT DECREE

WHEREAS, on May 2, 2012, Plaintiff Sierra Club filed a Complaint in this
matter against Defendant Lisa P. Jackson, in her official capacity as
Administrator of the United States Environmental Protection Agency
(hereinafter, “EPA” or “the Agency”), alleging that EPA has
failed to undertake certain nondiscretionary duties under the Clean Air
Act (“CAA”), 42 U.S.C. §§ 7401-7671q, and that such alleged
failure is actionable under section 304(a)(2) of the CAA, 42 U.S.C. §
7604(a)(2);

WHEREAS, Sierra Club’s Complaint alleges that EPA has failed to
perform a duty mandated by CAA sections 110(k)(2) and (3), 42 U.S.C.
§§ 7410(k)(2) and (3), to take timely final action to approve,
disapprove, or partially approve/disapprove the state implementation
plan (“SIP”) submission made by Oklahoma on July 16, 2010, that is
captioned “Excess Emissions Reporting Requirements” (referred to
herein as “OK SIP”);  

WHEREAS, the Parties wish to effectuate a complete and final settlement
of Sierra Club v. Jackson, Case No. 1:12-cv-00705-CKK (D.D.C.), without
expensive and protracted litigation and without the admission of any
issue of fact or law;  

WHEREAS, the Parties, 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, the Parties consider this Consent Decree to be an adequate and
equitable resolution of all of the claims in the above-captioned case;

WHEREAS, the Court, by entering this Consent Decree, finds that the
Consent Decree is fair, reasonable, in the public interest, and
consistent with the CAA, 42 U.S.C. §§ 7401-7671q;

NOW THEREFORE, before the taking of testimony, without trial or
determination of any issue of law or fact, 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.   

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), the
appropriate EPA official shall no later than May 31, 2013, sign for
publication in the Federal Register a notice of proposed rulemaking to
approve, disapprove, or approve in part and disapprove in part the OK
SIP.  

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), the
appropriate EPA official shall no later than January 31, 2014, sign for
publication in the Federal Register a notice of final rulemaking to
approve, disapprove, or approve in part and disapprove in part the OK
SIP. 

If Oklahoma withdraws the OK SIP submittal, then EPA’s obligation to
take the actions required by Paragraphs 2 and 3 is automatically
terminated. 

Within 15 business days following issuance or signature of such
notice(s) as set out in paragraphs 2 and 3 above, EPA shall send notice
of such action to the Office of the Federal Register for review and
publication.    

The deadlines in Paragraphs 2 and 3 may be extended by (a) written
stipulation executed by counsel for Sierra Club and EPA with notice to
the Court, or (b) by the Court on a motion of EPA for good cause shown
pursuant to the Federal Rules of Civil Procedure, and upon consideration
of any response by Sierra Club and any reply by EPA.  Any other
provision of this Consent Decree may be modified by the Court following
motion of Sierra Club or EPA for good cause shown pursuant to the
Federal Rules of Civil Procedure and upon consideration of any
opposition by the non-moving party and any reply.  

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

Sierra Club and EPA agree that this Consent Decree shall constitute a
complete and final settlement of all claims that Sierra Club has
asserted against the United States, including EPA, under any provision
of law in connection with Sierra Club v. Jackson, Case No.
1:12-cv-00705-CKK (D.D.C.).  Sierra Club therefore discharges and
covenants not to sue the United States, including EPA, for any such
claims.  

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 in this Consent Decree by
the times specified herein 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 to waive or limit any claim, remedy, or defense, on
any grounds, related to any final action EPA may take with respect to
the actions addressed in this Consent Decree.

Nothing in this Consent Decree shall be construed to:  (a) confer upon
this Court jurisdiction to review any issues that are within the
exclusive jurisdiction of the United States Courts of Appeals pursuant
to CAA sections 307(b)(1), 42 U.S.C. §§ 7607(b)(1), including final
action taken pursuant to section 110(k) of the CAA, 42 U.S.C. §
7410(k), approving, disapproving, or approving in part and disapproving
in part a SIP submittal; or (b) waive any claims, remedies, or defenses
the Parties may have under CAA section 307(b)(1), 42 U.S.C.       §
7607(b)(1).

The deadline for filing a motion for costs of litigation, including
reasonable attorney’s fees, incurred prior to entry of this Consent
Decree is hereby extended until sixty (60) days after the entry of this
Consent Decree by this Court.  During this time, the Parties shall seek
to resolve informally any claim for costs of litigation, including
reasonable attorney’s fees, and if they cannot, will submit that issue
to the Court for resolution.  The United States does not waive or limit
any defenses it may have to such claim.  The Court shall retain
jurisdiction to resolve any requests for costs of litigation, including
reasonable attorney’s fees.

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 the United States 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, via facsimile or other means, and sent to the
following:

For Plaintiff Sierra Club:

ROBERT UKEILEY

Law Office of Robert Ukeiley

435R Chestnut Street, Suite 1

Berea, KY 40403

Phone:  (859) 986-5402

Fax:  (866) 618-1017

rukeiley@igc.org

For Defendant EPA:

EILEEN T. MCDONOUGH

Trial Attorney

U.S. Department of Justice

Environment & Natural Resources Division

Environmental Defense Section

P.O. Box 7611

Washington, D.C. 20044

Phone:  (202) 514-3376

Fax:  (202) 514-8865

eileen.mcdonough@usdoj.gov

KAYTRUE TING

Office of the General Counsel 

U.S. Environmental Protection Agency

Ariel Rios Bldg., MC 2344A

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

Phone:  (202) 564-6380

Fax:  (202) 564-5603

  HYPERLINK "mailto:ting.kaytrue@epa.gov"  ting.kaytrue@epa.gov 

RICHARD H. BARTLEY 

Office of Regional Counsel, Region 6

U.S. Environmental Protection Agency

1445 Ross Avenue, Suite 1200 

Mail Code: 6RC 

Dallas, TX 75202-2733

Phone:  (214) 665-8046

Fax:  (214) 665-2172

bartley.richard@epa.gov 

In the event of a dispute between 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,
which includes email, outlining the nature of the dispute and requesting
informal negotiations.  If the Parties cannot reach an agreed-upon
resolution within ten (10) business days after receipt of the notice,
either 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 Sierra Club has
followed the procedure set forth in Paragraph 15, and provided EPA with
written notice received at least ten (10) business days before the
filing of such motion or proceeding.

The Court shall retain jurisdiction to determine and effectuate
compliance with this Consent Decree.  When EPA’s obligations under
Paragraphs 2 and 3 have been completed, any relevant notices have been
published in the Federal Register, and any claim for costs of
litigation, including reasonable attorney’s fees, has been resolved
pursuant to the process described in Paragraph 12, the above-captioned
matter shall be dismissed with prejudice.  EPA shall file an appropriate
notice with the Court so that the Clerk may close the file.

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 CAA section
113(g), 42 U.S.C. § 7413(g).  EPA will promptly deliver a public
notice of this Consent Decree to the Federal Register for review,
publication, and public comment after lodging this Consent Decree with
the Court.  After this Consent Decree has undergone an opportunity for
notice and comment, the 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 CAA, 42 U.S.C. §
7413(g).  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.

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 Consent Decree.

SO ORDERED on this         day of                              2012.

					__________________________________

HON. COLLEEN KOLLAR KOTELLEY

UNITED STATES DISTRICT JUDGE

	SO AGREED:

FOR PLAINTIFF SIERRA CLUB		

ROBERT UKEILEY

Law Office of Robert Ukeiley

435R Chestnut Street, Suite 1

Berea, KY 40403

Phone:  (859) 986-5402

Fax:  (866) 618-1017

rukeiley@igc.org

DATED:

FOR DEFENDANT EPA		IGNACIA S. MORENO

           	Assistant Attorney General

           	Environment & Natural Resources Division

EILEEN T. MCDONOUGH

Trial Attorney

United States Department of Justice 

Environment & Natural Resources Division

Environmental Defense Section

P.O. Box 7611

Washington, D.C. 20044

Phone:  (202) 514-3126

Fax:  (202) 514-8865

eileen.mcdonough@usdoj.gov

DATED:                                             

Of Counsel for Defendant:

KAYTRUE TING

Office of the General Counsel 

U.S. Environmental Protection Agency

Ariel Rios Bldg., MC 2344A

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

Phone:  (202) 564-6380

Fax:  (202) 564-5603

  HYPERLINK "mailto:ting.kaytrue@epa.gov"  ting.kaytrue@epa.gov 

RICHARD H. BARTLEY 

Office of Regional Counsel, Region 6

U.S. Environmental Protection Agency

1445 Ross Avenue 

Suite 1200 

Mail Code: 6RC 

Dallas, TX 75202-2733

Phone:  (214) 665-8046

Fax:  (214) 665-2172

bartley.richard@epa.gov 

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