                      IN THE UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA

ENVIRONMENTAL INTEGRITY PROJECT 	)
 and BENJAMIN FELDMAN, 			)
							)
	Plaintiffs, 					)	Civil Action No. 
							)	13-cv-01783 (KBJ)
		v. 					)
							)
GINA MCCARTHY, in her official 			)
capacity as Administrator, United States 		)
Environmental Protection Agency, 			)
							)
	Defendant. 					)
__________________________________________)

                                CONSENT DECREE

	WHEREAS, Plaintiffs Environmental Integrity Project and Benjamin Feldman ("Plaintiffs") filed this action pursuant to section 304(a)(2) of the Clean Air Act ("CAA"), 42 U.S.C. § 7604(a)(2), alleging that Defendant Gina McCarthy, in her official capacity as Administrator, United States Environmental Protection Agency ("EPA"), failed to perform a non-discretionary duty under CAA § 505(b)(2), 42 U.S.C. § 7661d(b)(2), to grant or deny within 60 days a petition ("Title V Petition") submitted by Plaintiffs on February 5, 2013 requesting that EPA object to a CAA permit ("Permit") issued by the Maryland Department of the Environment to Mettiki Coal, LLC to operate a coal preparation/processing plant located in Oakland, Maryland ("Mettiki Plant");
	WHEREAS, Plaintiffs and EPA ("the Parties") wish to effect a settlement of the above-captioned matter without expensive and protracted litigation;
	WHEREAS, the Parties consider this Consent Decree to be an adequate and equitable resolution of the claims in the above-captioned matter;
	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 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:
	1.	 On or before September 26, 2014, EPA shall sign a response to Plaintiffs' CAA Title V Petition pursuant to 42 U.S.C. § 7661d(b)(2).
	2.	Following signature of such response to Plaintiffs' Title V Petition, EPA shall expeditiously deliver notice of EPA's response to the Office of the Federal Register for review and publication.  Following such transmission, EPA shall not take any step (other than as necessary to correct any typographical error or other errors in form) to delay or otherwise interfere with publication of such notice in the Federal Register.
	3.	If EPA's response to Plaintiffs' petition includes the granting of any portion of the petition in whole or in part, EPA shall also promptly transmit the response to the Maryland Department of the Environment.
      4.	The deadline for filing a motion for costs of litigation, including attorneys' 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 attorneys' fees, and if they cannot, will submit that issue to this Court for resolution.  The United States does not waive or limit any defenses it may have to such claim.  This Court shall retain jurisdiction to resolve any requests for costs of litigation, including attorneys' fees. 
	5.	Any provision of this Consent Decree may be modified by (a) written stipulation of the Parties with notice to the Court, or (b) by the Court following motion of any party to this Consent Decree, pursuant to the Federal Rules of Civil Procedure, and upon consideration of any response by the non-moving party. 
	6.	The parties recognize that the possibility exists that circumstances outside the reasonable control of EPA could delay compliance with the timetables contained in this Consent Decree.  Such situations include, but are not limited to, a government shut-down such as occurred in 1995, 1996, and 2013, or catastrophic environmental events requiring immediate and/or time-consuming response by EPA.  Should a delay occur due to such circum - stances, any resulting failure to meet the timetables set forth herein shall not constitute a failure to comply with the terms of this Consent Decree, and any deadlines occurring within one hundred twenty (120) days of the termination of the delay shall be extended one day for each day of the delay.  EPA will provide Plaintiffs with notice as soon as is reasonably possible under the circumstances in the event that EPA invokes this term of the Consent Decree and will provide Plaintiffs with an explanation of EPA's basis for invoking this term.  Plaintiffs may challenge the invocation of this term of the Consent Decree under the dispute resolution terms of this Consent Decree, and EPA shall bear the burden of justifying its invocation of this term.
	7.	Plaintiffs and EPA shall not challenge the terms of this Consent Decree or this Court's jurisdiction to enter and enforce this Consent Decree. 
      8.	Plaintiffs and EPA agree that this Consent Decree shall constitute a complete and final settlement of all claims that Plaintiffs have asserted against the United States, including EPA, under any provision of law in connection with Environmental Integrity Project, et al. v. Jackson, Case No. 13-cv-01783 (KBJ) (D.D.C.), except as provided in Paragraphs 4 and 10 of this Consent Decree.  Plaintiffs therefore discharge and covenant not to sue the United States, including EPA, for any such claims.  
	9. 	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 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 Paragraph 1 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 as an admission of any issue of fact or law nor to waive or limit any claim or defense, on any grounds, related to any final action EPA may take with respect to the Permit.
	11.	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 CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1).  Nothing in the terms of this Consent Decree shall be construed to waive any remedies or defenses the Parties may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1).
	12.	The obligations imposed upon EPA under this Consent Decree can only be undertaken using appropriated funds.  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.
	13.	Any notices required or provided for by this Consent Decree shall be made in writing and sent to the following:
For Plaintiffs:
Leah Kelly
Abel Russ
Environmental Integrity Project
1000 Vermont Avenue NW, Suite 1100
Washington, DC  20005
Tel: 202-263-4448
Fax: 202-296-8822
lkelly@environmentalintegrity.org
aruss@environmentalintegrity.org

For Defendants:
Eileen McDonough
United States Department of Justice
Environmental Defense Section
P.O. Box 7611
Washington, D.C. 20044
Tel: (202) 514-3126
Fax: (202) 514-8865
eileen.mcdonough@usdoj.gov

Karen Bennett Bianco
U.S. Environmental Protection Agency
Office of General Counsel 
1200 Pennsylvania Ave., N.W.
Washington, D.C. 20460
Tel: (202) 564-3298
Fax: (202) 564-5603
bennett.karen@usepa.gov


James VanOrden
U.S. Environmental Protection Agency
Office of Regional Counsel, Region 3 
1650 Arch Street 
Mail Code: 3RC42 
Philadelphia, PA 19103-2029
Tel: (215) 814-2693
vanorden.james@epa.gov 

	14.	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 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, any party may move the Court to resolve the dispute.
	15.	No motion or other proceeding seeking to enforce this Consent Decree or for contempt of Court shall be filed unless the Plaintiff has followed the procedure set forth in Paragraph 14.
	16.	The Court shall retain jurisdiction to determine and effect compliance with this Consent Decree.  When EPA's obligations under Paragraphs 1 through 3 of this Consent Decree have been completed, and Plaintiffs' claim for costs of litigation has been resolved pursuant to Paragraph 4, the above-captioned matter shall be dismissed with prejudice.  The Parties shall file the appropriate notice with the Court so that the Clerk may close the file.
	17.	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 shall promptly submit a public notice of this Consent Decree to the Federal Register for 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/or the Attorney General, as appropriate, shall 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.  If the federal government elects not to withdraw or withhold consent to this Consent Decree, the Parties promptly shall file a motion that requests the Court to enter this Consent Decree.
	18.	It is hereby expressly understood and agreed that this Consent Decree was jointly drafted by Plaintiffs and EPA 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.
	19.	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 _________________, 2014.

							_________________________________	
							HON. KETANJI BROWN JACKSON 
							United States District Judge
SO AGREED:  			

FOR PLAINTIFFS				/s/ LEAH KELLY
                                    Leah Kelly
                                    Abel Russ
                                    Environmental Integrity Project
                                    1000 Vermont Avenue NW, Suite 1100
                                    Washington, DC  20005
                                    Tel: 202-263-4448
                                    Fax: 202-296-8822
                                    lkelly@environmentalintegrity.org
                                    aruss@environmentalintegrity.org


FOR DEFENDANTS				ROBERT G. DREHER
                                    Acting Assistant Attorney General
                                    Environment & Natural Resources Division
                                    
                                    /s/ EILEEN T. MCDONOUGH
                                    Eileen T. McDonough
                                    United States Department of Justice
                                    Environmental Defense Section
                                    P.O. Box 7611
                                    Washington, D.C. 20044
                                    Tel: (202) 514-3126
                                    Fax: (202) 514-8865
                                    eileen.mcdonough@usdoj.gov
