                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA
                                       
__________________________________________
      )
SIERRA CLUB		)
      )
                  Plaintiff,		)
                  		)   Civil Case No. 1:13-cv-00385 (BAH)
            v.		)
      )			
GINA McCARTHY		)
in her Official Capacity as		)   CONSENT DECREE
Administrator,		)
United States Environmental Protection Agency	)
                                    )
                  Defendant.		)
__________________________________________)
                                       

      WHEREAS, on March 25, 2013, Plaintiff, Sierra Club, filed its Complaint, and on June 7, 2013, filed an amended Complaint, alleging that Defendant, Gina McCarthy, in her official capacity as Administrator of the United States Environmental Protection Agency ("EPA"), failed to undertake certain duties in violation of Clean Air Act ("CAA") Sections 110(k)(2), (3) and 505(b)(2), 42 U.S.C. §§ 7410(k)(2), (3), 7661d(b)(2).  
      WHEREAS, Sierra Club's complaint alleges that EPA failed to:  (a) take timely final action to approve, disapprove, or partially approve/disapprove a State Implementation Plan ("SIP") submission made by Georgia on July 20, 2010 addressing Georgia Rule for Air Quality 391-3-1-.02(uuu) (referred to herein as "GA SIP"), and (b) take action, within 60 days after they were filed, granting or denying several petitions submitted by Sierra Club requesting that EPA object to CAA Title V permits issued by the Georgia Environmental Protection Division for Georgia Power Company's Scherer Steam-Electric Generating Plant, Permit No. 4911-207-0008-V-03-0 ("Scherer Permit"), Hammond Steam-Electric Generating Plant, Permit No. 4911-115-0003-V-03-0 ("Hammond Permit"), Wansley Steam-Electric Generating Plant, Permit No. 4911-149-0001-V-03-0 ("Wansley Permit"), Kraft Steam-Electric Generating Plant, Permit No. 4911-051-0006-V-03-0 ("Kraft Permit"), and McIntosh Steam-Electric Generating Plant, Permit No. 4911-103-0003-V-03-0 ("McIntosh Permit").   
      WHEREAS, the relief requested in the Complaint includes, among other things, an order from this Court to establish a date certain by which EPA must fulfill each of its above-listed CAA obligations;
      WHEREAS, EPA has not taken final action on the above-listed CAA obligations; 
      WHEREAS, before filing the Complaint in this action, Sierra Club served notice on EPA as required by the CAA to inform EPA of Sierra Club's intent to initiate the present action;
      WHEREAS, Sierra Club and EPA (collectively, "the Parties") have agreed to a settlement of this action without admission of any issue of fact or law, except as expressly provided herein; 
      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 the claims in this matter and therefore wish to effectuate a settlement; 
      WHEREAS, it is in the interest of the public, Sierra Club, EPA, and judicial economy to resolve this matter without protracted litigation; 
      WHEREAS, the Parties agree that this Court has jurisdiction over this matter pursuant to the citizen suit provision in CAA section 304(a), 42 U.S.C. § 7604(a), and that venue is proper in the United States District Court for the District of Columbia pursuant to 28 U.S.C. § 1391(e); 
      WHEREAS, the Court, by entering this Consent Decree, finds that the Consent Decree is fair, reasonable, in the public interest, and consistent with the Clean Air Act;
      NOW THEREFORE, before the taking of testimony, without trial or determination of any issues of fact or law, and upon the consent of the Parties, it is hereby ordered, adjudged and decreed that:
This Court has jurisdiction over the claims set forth in the Complaint and may order the relief contained in the Consent Decree. Venue is proper in the United States District Court for the District of Columbia.
Pursuant to section 110(k)(2)-(4) of the CAA, 42 U.S.C. § 7410(k)(2)-(4), the appropriate EPA official shall no later than November 16, 2016, sign for publication in the Federal Register a notice of final rulemaking to approve, disapprove, or approve in part and disapprove in part Georgia's July 20, 2010 SIP submittal.
If Georgia withdraws its July 20, 2010 SIP submittal, then EPA's obligation to take the action required by Paragraph 2 is automatically terminated.
By April 14, 2014, EPA shall sign its response granting or denying the Sierra Club Petitions regarding the Scherer, Hammond, Wansley, Kraft, and McIntosh Permits pursuant to section 505(b)(2) of the CAA, 42 U.S.C. § 7661d(b)(2).
EPA shall, within 15 business days of signature, deliver notice of each action taken pursuant to paragraphs 2 and 4 of this Consent Decree to the Office of the Federal Register for review and publication.  
Once EPA has completed all of the actions set forth above and after notice of each final action required by paragraphs 2 and 4 has been published in the Federal Register, and the costs of litigation (including attorneys' fees) have been resolved under paragraphs 15 and 16, EPA may move to have this Consent Decree terminated, and the action dismissed.  Sierra Club shall have thirty (30) days in which to respond to such motion. 
The deadlines established by this Consent Decree may be modified (a) by written stipulation of EPA and Sierra Club with notice to the Court, or (b) by the Court on 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 also may be modified by the Court following motion of an undersigned party for good cause shown pursuant to the Federal Rules of Civil Procedure and upon consideration of any response by a non-moving party and any reply.
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 parties with a written notice outlining the nature of the dispute and requesting informal negotiations.  The Parties shall meet and confer in order to attempt to resolve the dispute.  If the Parties are unable to resolve the dispute within fourteen (14) days after receipt of the notice, a party may petition 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 8, and provided EPA with written notice received at least ten (10) business days before the filing of such motion or proceeding.
This Court shall retain jurisdiction over this matter to enforce the terms of this Consent Decree and to consider any requests from Sierra Club for costs of litigation, including attorney fees.
Nothing in the terms of this Consent Decree shall be construed: (a) to confer upon this Court jurisdiction to review any issues that are within the exclusive jurisdiction of the United States Courts of Appeals under CAA section 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) to waive any claims, remedies, or defenses that the Parties may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1).
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, in Sierra Club v. McCarthy, Case No. 1:13-cv-00385 (BAH) (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 Clean Air Act 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 final actions promulgated pursuant to this Consent Decree.  EPA's obligation to perform each action specified in this Consent Decree does not constitute a limitation or modification of EPA's discretion within the meaning of this paragraph.
Except as expressly provided herein, nothing in this Consent Decree shall be construed as an admission of any issue of fact or law.  By entering into this Consent Decree, EPA and Sierra Club do not waive or limit any claim, remedy, or defense, on any grounds, related to any final action EPA takes with respect to the actions addressed in this Consent Decree.
The deadline for filing a motion for costs of litigation (including attorney fees) for activities performed prior to entry of the Consent Decree is hereby extended until ninety (90) days after this Consent Decree is entered by the Court.  During this period, the Parties shall seek to resolve informally any claim for costs of litigation (including attorney fees), and if they cannot, Sierra Club will file a motion for costs of litigation (including attorney fees) or a stipulation or motion to extend the deadline to file such a motion.  EPA reserves the right to oppose any such request. The Court shall retain jurisdiction to resolve any requests for costs of litigation, including attorney fees.
Sierra Club reserves the right to seek additional costs of litigation, including attorney fees, incurred subsequent to entry of this Consent Decree and arising from Sierra Club's need to enforce or defend against efforts to modify its terms or the underlying schedule outlined herein, or for any other unforeseen continuation of this action.  EPA reserves the right to oppose any such request. 
It is hereby expressly understood and agreed that this Consent Decree was jointly drafted by Sierra Club and EPA.  Accordingly, the Parties hereby agree 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 Parties agree and acknowledge that before this Consent Decree can be finalized and entered by the Court, EPA must provide notice of this Consent Decree in the Federal Register and an opportunity for public comment pursuant to CAA section 113(g), 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 written comments received in determining whether to withdraw or withhold their consent to the Consent Decree, in accordance with CAA section 113(g).  If the Administrator and the Attorney General do not elect to withdraw or withhold consent, EPA shall promptly file a motion that requests that the Court enter this Consent Decree.
Any notices required or provided for by this Consent Decree shall be in writing, via electronic mail or certified mail, and sent to each of the following counsel (or to any new address of the Parties' counsel as filed and listed in the docket of the above-captioned matter, at a future date):
 For Plaintiff Sierra Club:
              
      Ashten Bailey
      GreenLaw
      104 Marietta Street, Suite 430
      Atlanta, Georgia 30303
      E-mail: abailey@greenlaw.org
      
 For Defendant EPA:
      Michele L. Walter
      United States Department of Justice
      Environment & Natural Resources Division
      P.O. Box 7611
      Washington, D.C. 20044
      E-mail: michele.walter@usdoj.gov
      
      Karen Bennett
      Office of General Counsel
      U.S. Environmental Protection Agency
      William Jefferson Clinton Bldg., MC 2344A
      1200 Pennsylvania Ave., N.W.
      Washington, D.C. 20460
      E-mail: bennett.karen@epa.gov
      
EPA and Sierra Club 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.
If for any reason the Court should decline to approve this Consent Decree in the form presented, this agreement is voidable at the sole discretion of either party and the terms of the proposed Consent Decree may not be used as evidence in any litigation between the Parties.
The undersigned representatives of Defendant EPA and Plaintiff Sierra Club certify that they are fully authorized by the party they represent to consent to the Court's entry of the terms and conditions of this Consent Decree.
 
 COUNSEL FOR PLAINTIFF:
 Dated:  __________________	/s/______________________
                                      
                                      
                                      ASHTEN BAILEY
                                      GreenLaw
                                      104 Marietta Street, Suite 430
                                      Atlanta, Georgia 30303
                                      Tel: 404-659-3122
                                      E-mail: abailey@greenlaw.org

COUNSEL FOR DEFENDANT:

Dated:	__________________		/s/______________________

						ROBERT G. DREHER
                                    Acting Assistant Attorney General
                                    Environment & Natural Resources Division
                                    
                                    MICHELE L. WALTER, D.C. Bar No. 487329
                                    United States Department of Justice
                                    Environment & Natural Resources Division
                                    P.O. Box 7611
                                    Washington, D.C. 20044
                                    Tel: (202) 514-2795
                                    E-mail: michele.walter@usdoj.gov
                                    
                                    
                                    Counsel for Defendant EPA





SO ORDERED on this _____ day of _____________________, 2014.



                                    ___________________________________
                                    BERYL A. HOWELL 
                                    United States District Judge
      
