



                      IN THE UNITED STATES DISTRICT COURT
                        NORTHERN DISTRICT OF CALIFORNIA
                            SAN FRANCISCO DIVISION
                                       

CENTER FOR BIOLOGICAL DIVERSITY, et al.,						 	
		Plaintiffs,				
	v.						   	
LISA P. JACKSON, in her official capacity as Administrator, United States Environmental Protection Agency,      						     
                                  Defendant.

   No. C-12-04968 JWT


   CONSENT DECREE

	
      WHEREAS, on September 24, 2012, Plaintiffs Center for Biological Diversity and Center for Environmental Health filed a complaint ("Complaint") in this matter against Defendant Lisa P. Jackson, in her official capacity as Administrator of the United States Environmental Protection Agency ("EPA"), alleging that EPA 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, Plaintiffs alleged that EPA has failed to perform a duty mandated by CAA section 110(k)(1)(B), 42 U.S.C. 7410(k)(1)(B), to make a finding of failure to submit infrastructure state implementation plans (SIPs) for Colorado, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Oklahoma, Oregon, Pennsylvania, South Dakota, Vermont, and Washington with regard to the 2008 lead National Ambient Air Quality Standard (2008 lead NAAQS);
	WHEREAS, on February 15, 2013, EPA signed a notice making certain findings that Hawaii, Illinois, Massachusetts, New Jersey, Oregon, Vermont and Washington had failed to submit complete infrastructure SIPs for the 2008 lead NAAQS, and noted that as of February 14, 2013, Colorado, Maryland, Oklahoma, Pennsylvania, and South Dakota had submitted complete infrastructure SIPs for the 2008 lead NAAQS, see 78 Fed. Reg. 12961;
 	WHEREAS, Plaintiffs alleged that EPA failed to perform a duty mandated by CAA section 110(k)(2) and (3), 42 U.S.C. 7410(k)(2) and (3), to take final action on the infrastructure state implementation plan submitted by Tennessee with regard to the 2008 Lead NAAQs;
	WHEREAS, Plaintiffs alleged that EPA failed to perform a duty mandated by CAA section 179(c)(1) and (2), 42 U.S.C. 7509(c)(1) and (2), to determine whether the Herculaneum nonattainment area, in Jefferson County, Missouri attained the 1978 lead National Ambient Air Quality Standard (1978 lead NAAQS) by its attainment date;
	WHEREAS, the parties have agreed to settle this action without admission of any issue of fact or law; 
	WHEREAS, the parties, by entering into this Consent Decree, do not waive or limit any claim 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 claims in this matter; 
	WHEREAS, it is in the interest of the public, the parties, and judicial economy to resolve this matter without protracted litigation; 
	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:  
	1. 	This Court has jurisdiction over this matter pursuant to the citizen suit provision in section 304(a)(2) of the CAA, 42 U.S.C. § 7604(a)(2), and venue lies in the Northern District of California. 
	2.	The Court, by entering this Consent Decree, finds that the Consent Decree is fair, reasonable, in the public interest, and consistent with the CAA.
	3.	Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall no later than  August 15, 2013, sign for publication in the Federal Register a notice of EPA's action approving, disapproving, or approving in part and disapproving in part the infrastructure SIP for the 2008 lead NAAQS submitted to EPA by Tennessee.        
	4.	Pursuant to section 179(c) of the CAA, 42 U.S.C. § 7509(c), EPA shall no later than August 15, 2013, sign for publication in the Federal Register a notice of EPA's determination whether the Herculaneum nonattainment area, in Jefferson County, Missouri attained the 1978 lead NAAQS by its applicable attainment date.  Notwithstanding the foregoing, EPA shall be relieved of the obligation to sign for publication in the Federal Register a determination whether the Herculaneum nonattainment area attained the 1978 lead NAAQS if either of the following events occurs on or before August 15, 2013: (1)  EPA issues a determination that it has received from Missouri a nonattainment area SIP for the 2008 lead NAAQS for the Herculaneum nonattainment area that is in compliance with 40 C.F.R. § 51.103(a); or (2) EPA signs for publication in the Federal Register a notice finding that Missouri has failed to submit a complete nonattainment area SIP for the 2008 Pb NAAQS for the Herculaneum nonattainment area.
      5.	After taking an action required in Paragraphs 3-4, EPA shall promptly deliver notice of such action to the Office of the Federal Register for review and publication.  
      6.	The parties may extend the deadlines set forth in Paragraphs 3-4 by written stipulation executed by counsel and filed with the Court.  If the parties do not agree to an extension, either party may move the Court for an extension.
      7.	Plaintiffs may seek to recover its costs of litigation (including attorneys' fees) ("litigation costs") from the Court 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 60 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.    
      8.	The parties will file a joint request to the Court to dismiss this matter with prejudice within 15 business days after notice appears in the Federal Register of EPA taking the last rulemaking action required under Paragraphs 3-4 of this Consent Decree and the final resolution of Plaintiffs' claim for litigation costs.  
	9.	Nothing in this Consent Decree shall be construed to limit or modify the discretion accorded EPA by the CAA and by general principles of administrative law, including the discretion to alter, amend or revise any responses and/or actions contemplated by this Consent Decree.  EPA's obligation to take the actions set forth in Paragraphs 3-4 by the time specified therein does not constitute a limitation or modification of EPA's discretion within the meaning of this paragraph. 
	10.	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 Courts of Appeals pursuant to sections 307(b)(1) of the CAA, 42 U.S.C. §§ 7607(b)(1). 
	11. 	The Court shall retain jurisdiction to enforce the terms of this Consent Decree.  
	12.  	In the event of a dispute between the parties concerning the interpretation or implementation of any aspect of this Consent Decree, the party that raised the dispute shall provide the other party with a written notice, including written notice sent via 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 notice, the party that raised the dispute may move the Court to resolve the dispute.  
	13. 	No motion or other proceeding seeking to enforce this Consent Decree shall be considered properly filed unless the moving party has followed the procedure set forth in Paragraph 12 and has provided the non-moving party with written notice received at least ten (10) business days before the filing of such motion or proceeding.  
	14.	The obligations imposed on EPA under this Consent Decree may only be undertaken using appropriated funds.  No provisions 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 federal law.  
	15. 	Plaintiffs and EPA shall not challenge the terms of this Consent Decree or this Court's jurisdiction to enter this Consent Decree.
	16. 	The parties agree and acknowledge that before this Consent Decree is entered by the Court, EPA must provide notice of this Consent Decree in the Federal Register and an opportunity for public comment pursuant to section 113(g) of the CAA, 42 U.S.C. § 7413(g).  After this Consent 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 Consent Decree, in accordance with section 113(g) of the CAA.  If the Administrator and the Attorney General do not elect to withdraw or withhold their consent, EPA shall promptly file a motion that requests the Court to enter this Consent Decree.  
	17.	 Any notices required or provided for by this Consent Decree shall be made in writing, via facsimile, e-mail or other means, and sent to the following: 	
      For Plaintiffs: 
			Robert Ukeiley
			Law Office of Robert Ukeiley
			507 Center Street 
			Berea, KY 40403
			Tel: 859-986-5402
			Fax: 866-618-1017
			rukeiley@igc.org
		 

	For Defendant:
                  C. Scott Spear
                  Trial Attorney
                  U.S. Department of Justice
                   Environment and Natural Resources Division
                  Environmental Defense Section	
                  P.O. Box 7611
                  Washington, D.C. 20044-7611
                  Tel:  	(202) 305-1593
                  Fax: 	(202) 514-8865
                  Email: scott.spear@usdoj.gov
                  
                  David Orlin
                  Office of the General Counsel
                  U.S. Environmental Protection Agency
                  Ariel Rios Bldg. MC 2344A
                  1200 Pennsylvania Ave., NW
                  Washington, D.C. 20460
                  Phone: (202) 564-1222
                  Fax: 	(202) 564-5603
                  Email: orlin.david@epa.gov
                  	
	18.	The undersigned representatives of each party certify that they are fully authorized by the party that they represent to bind that party to the terms of this Consent Decree.
IT IS SO ORDERED. 

Dated:  ________________		_____________________________________	
					UNITED STATES DISTRICT JUDGE





                              
__________________________                                                            
Robert Ukeiley (Admitted Pro Hac Vice)
Law Office of Robert Ukeiley
507 Center Street
Berea, KY 40403
Tel: 859-986-5402
Fax: 866-618-1017
rukeiley@igc.org

Counsel for Plaintiffs



Dated:  	


IGNACIA S. MORENO
Assistant Attorney General
Environment & Natural Resources Division


_____________________________________
C. Scott Spear
Trial Attorney
U.S. Department of Justice
Environmental Defense Section
P.O. Box 7611
Washington, D.C. 20044-7611
Tel:  	(202) 305-1593
Fax: 	(202) 514-8865
scott.spear@usdoj.gov

Counsel for Defendant

Dated: _______




      					


		
					


