Brent J. Newell 
LAW OFFICES OF BRENT J. NEWELL
245 Kentucky Street, Suite A-4
Petaluma, CA 94952
Telephone: (616) 586-3724
E-mail: brentjnewell@outlook.com

Counsel for Plaintiff
JEAN E. WILLIAMS
Acting Assistant Attorney General

DAVID D. MITCHELL (IL Bar No. 6302250)
United States Department of Justice
Environment & Natural Resources Division
Environmental Defense Section
P.O. Box 7611
Washington, DC  20044
Telephone: (202) 514-0165
Fax: (202) 514-8865

Counsel for Federal Defendants


         UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
                               OAKLAND DIVISION
                                       

ASSOCIATION OF IRRITATED RESIDENTS,

                  Plaintiff,

               v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

                  Defendants.




Case No. 4:21-cv-426-JST
 
[Proposed] CONSENT DECREE

      
      WHEREAS, on January 17, 2021, the Association of Initiated Residents ("Plaintiff") filed Case No. 4:21-cv-426-JST against the United States Environmental Protection Agency and its Administrator and Region 9 Administrator ("EPA"); 
      WHEREAS, Plaintiff alleges that EPA has failed to undertake several non-discretionary duties under the Clean Air Act ("CAA"), 42 U.S.C. §§ 7401-7671q, and that the alleged failures are actionable under CAA section 304(a)(2), 42 U.S.C. § 7604(a)(2);
      WHEREAS, CAA section 110(a), 42 U.S.C. § 7410(a), requires states to adopt and submit to EPA a state implementation plan ("SIP") designed to attain, maintain and enforce National Ambient Air Quality Standards ("NAAQS"), maximum permissible concentrations for air pollutants promulgated under CAA sections 108 and 109, 42 U.S.C. §§ 7408-09.  CAA section 172(b) requires states to submit a SIP or SIP revision for areas designated as nonattainment for any NAAQS.  42 U.S.C. § 7502(b).  CAA section 189 imposes specific SIP or SIP revision submittal deadlines for states containing areas designated as nonattainment for the fine particulate matter ("PM2.5") NAAQS depending on whether the areas are classified as moderate nonattainment or serious nonattainment, 42 U.S.C. §§ 7513a(a), (b), (d);
      WHEREAS, CAA section 110(k) sets forth the process by which EPA reviews SIP submissions and revisions.  42 U.S.C. § 7410(k).  Pursuant to CAA section 110(k)(1)(B), EPA must determine within 60 days of submission whether a SIP or SIP revision submission is complete.  42 U.S.C. § 7410(k)(1)(B).  If EPA has not made a completeness determination within six months of submission, the submission becomes complete by operation of law.  Id.  CAA section 110(k)(2)-(4) requires EPA to approve, disapprove, or conditionally approve, in whole or in part, each plan or revision with 12 months of the plan becoming complete, 42 U.S.C. § 7410(k)(2)-(4);
      WHEREAS, as relevant here, EPA has promulgated annual and 24-hour NAAQS for PM2.5 in the following years:
 1997, 62 Fed. Reg. 38,652 (July 18, 1997),
 2006, 71 Fed. Reg. 61,144 (Oct. 17, 2006),
 2012, 78 Fed. Reg. 3,086 (Jan. 15, 2013);
      WHEREAS, the San Joaquin Valley, California air quality planning area ("SJV Area"), see 40 C.F.R. § 81.305, is classified as a Serious nonattainment area for the following PM2.5 NAAQS: 
 1997 annual and 24-hour NAAQS, 80 Fed. Reg. 18,528 (April 7, 2015), 
 2006 24-hour NAAQS, 81 Fed. Reg. 2,993 (January 20, 2016);
      WHEREAS, the SJV Area is classified as a Moderate nonattainment area for the 2012 annual PM2.5 NAAQS, 80 Fed. Reg. 2,206, 2,217 (January 15, 2015);
      WHEREAS, EPA determined that the SJV Area failed to attain the 1997 annual and 24- hour PM2.5 NAAQS by the Serious area attainment date, 81 Fed. Reg. 84,481 (November 23, 2016), thereby triggering a requirement for submittal of a SIP revision meeting the requirements of CAA sections 179(d) and 189(d), 42 U.S.C. §§ 7509(d) and 7513a(d);
      WHEREAS, on May 10, 2019, California submitted a SIP revision in two major components titled "2018 Plan for the 1997, 2006, and 2012 PM2.5 Standards" and "San Joaquin Valley Supplement to the 2016 State Strategy for the State Implementation Plan" (together, the "SJV PM2.5 Plan") to address CAA requirements for attainment of the PM2.5 NAAQS in the SJV Area;
      WHEREAS, the "2018 Plan for the 1997, 2006, and 2012 PM2.5 Standards" contains the San Joaquin Valley Unified Air Pollution Control District's control strategy for attainment of the PM2.5 NAAQS for emission sources under its jurisdiction.  The "San Joaquin Valley Supplement to the 2016 State Strategy for the State Implementation Plan" contains the California Air Resources Board's control strategy for emission sources under its jurisdiction in the SJV Area;  
      WHEREAS, the SJV PM2.5 Plan contains the following PM2.5 NAAQS nonattainment area plans:
 1997 annual PM2.5 NAAQS Serious area and CAA section 189(d) plan,
 1997 24-hour PM2.5 NAAQS Serious area and CAA section 189(d) plan,
 2006 24-hour PM2.5 NAAQS Serious area plan,
 2012 annual PM2.5 NAAQS Serious area plan;
      WHEREAS, on May 10, 2019, California also submitted the "2016 Moderate Area Plan for the 2012 PM2.5 Standard" ("2016 Moderate Plan") containing California's demonstration that attainment of the 2012 annual PM2.5 NAAQS by the Moderate area attainment date is impracticable;
      WHEREAS, on November 10, 2019, the SJV PM2.5 Plan became complete by operation of law;
      WHEREAS, on July 22, 2020, EPA approved the portions of the SJV PM2.5 Plan addressing the 2006 24-hour PM2.5 NAAQS except the contingency measures element, 85 Fed. Reg. 44,192;
      WHEREAS, to date, EPA has not taken final action on the following portions of the  SJV PM2.5 Plan: 
 1997 annual PM2.5 NAAQS Serious area and CAA section 189(d) plan,
 1997 24-hour PM2.5 NAAQS Serious area and CAA section 189(d) plan, 
 2006 24-hour PM2.5 NAAQS Serious area plan contingency measures element, and
 2012 annual PM2.5 NAAQS Serious area plan;
      WHEREAS, Plaintiff claims that EPA has failed to take timely final action under CAA section 110(k), 42 U.S.C. § 7410(k)(2), on the SJV PM2.5 Plan, except for the elements of the 2006 24-hour PM2.5  NAAQS on which EPA published final action in 85 Fed. Reg. 44,192, and Plaintiff seeks relief from this Court, among other things, directing EPA to take final action on the SJV PM2.5 Plan; 
      WHEREAS, EPA will take final action on the 2016 Moderate Plan prior to taking final action on the 2012 annual PM2.5 NAAQS Serious area plan portion of the of the SJV PM2.5 Plan; 
      WHEREAS, Plaintiff and EPA have agreed to a settlement of this action without admission of any issue of fact or law, except as expressly provided herein;
      WHEREAS, Plaintiff and EPA, 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, Plaintiff and EPA consider this Consent Decree to be an adequate and equitable resolution of all claims in Case No. 4:21-cv-426-JST and therefore wish to effectuate a settlement;
      WHEREAS, it is in the interest of the public, Plaintiff, EPA, and judicial economy to resolve Case No. 4:21-cv-426-JST without protracted litigation;
      WHEREAS, Plaintiff and EPA agree that this Court has jurisdiction over the matters resolved in this Consent Decree pursuant to CAA section 304(a)(2), 42 U.S.C. § 7604(a)(2), and that venue is proper in the Northern District of California pursuant to 28 U.S.C. § 1391(e) and Civil L.R. 3-2(c), (d); and
      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;
      NOW, THEREFORE, before the taking of testimony, without trial or determination of any issues of fact or law, and upon the consent of Plaintiff and EPA, it is hereby ordered, adjudged and decreed that:
      1.  	No later than November 30, 2021, pursuant to CAA sections 110(k)(2)-(4), 42 U.S.C. §§ 7410(k)(2)-(4), the appropriate EPA official shall sign one or more final rules that approve, disapprove, conditionally approve, or approve in part and disapprove in part  the SJV PM2.5 Plan's 2006 24-hour PM2.5 NAAQS Serious area plan contingency measures element.  
      2.	No later than November 30, 2021, pursuant to CAA sections 110(k)(2)-(4), 42 U.S.C. §§ 7410(k)(2)-(4), the appropriate EPA official shall sign one or more final rules that approve, disapprove, conditionally approve, or approve in part and disapprove in part  the SJV PM2.5 Plan's 1997 annual PM2.5 NAAQS Serious area and CAA section 189(d) plan.  
      3.	No later than February 28, 2022, pursuant to CAA sections 110(k)(2)-(4), 42 U.S.C. §§ 7410(k)(2)-(4), the appropriate EPA official shall sign one or more final rules that approve, disapprove, conditionally approve, or approve in part and disapprove in part, the SJV PM2.5 Plan's 1997 24-hour PM2.5 NAAQS Serious area and CAA section 189(d) plan.  
      4.	No later than April 29, 2022, pursuant to CAA sections 110(k)(2)-(4), 42 U.S.C. §§ 7410(k)(2)-(4), the appropriate EPA official shall sign one or more final rules that approve, disapprove, conditionally approve, or approve in part and disapprove in part, the SJV PM2.5 Plan's 2012 annual PM2.5 NAAQS Serious area plan.
      5.	No later than 15 days, after signature of any final rulemaking made pursuant to Paragraphs 1-4 of this Consent Decree, EPA shall send the rulemaking package for each such action taken to the Office of the Federal Register for review and publication in the Federal Register.
      6.	After EPA has completed all actions set forth in Paragraphs 1-4 of this Consent Decree, after notices of each final action required by Paragraph 5 have been published in the Federal Register, and the parties have resolved the issue of costs of litigation (including reasonable attorney fees), EPA may move to have this Consent Decree terminated.  Plaintiff shall have 14 days to respond to such motion, unless the parties stipulate to a longer time.
      7.	If EPA extends for the public interest the notice and comment period for any rule proposing action on the portions of the SJV PM2.5 Plan described in Paragraphs 1-4, the deadlines in Paragraphs 1-4 shall extend automatically to the shorter of 30 days or a number of days equal to the extension of the notice and comment period.
      8.	The deadlines established by this Consent Decree may be extended (a) by written stipulation of Plaintiff and EPA and filed with the Court, or (b) by the Court upon motion by any party for good cause shown pursuant to the Federal Rules of Civil Procedure and upon consideration of any response by the non-moving party and any reply.  Any other provision of this Consent Decree also may be modified by the Court following the motion of an undersigned party for good cause shown pursuant to the Federal Rules of Civil Procedure and upon consideration of any response by the non-moving party and any reply.
      9.  	If a lapse in EPA appropriations occurs within 120 days prior to any deadline in Paragraphs 1-4 of this Consent Decree, all such deadlines shall be extended automatically one day for each day of the lapse in appropriations. Nothing in this Paragraph shall preclude EPA from seeking an additional extension of time through modification of this Consent Decree pursuant to Paragraph 8. 
      10.  	If California withdraws all or part of the SJV PM2.5 Plan, then EPA's obligations under Paragraphs 1-4 is automatically terminated with respect to the withdrawn portion.
      11.  	Plaintiff and EPA agree that this Consent Decree constitutes a complete settlement of all claims in Case No. 4:21-cv-426-JST.
      12.  	In the event of a dispute between Plaintiff and EPA concerning the interpretation or implementation of any aspect of this Consent Decree, the disputing party shall provide the other party with a written notice, via electronic mail or other means, outlining the nature of the dispute and requesting informal negotiations.  These parties shall meet and confer in order to attempt to resolve the dispute.  If these parties are unable to resolve the dispute within 10 business days after receipt of the notice, either party may petition the Court to resolve the dispute.
      13.  	No motion or other proceeding seeking to enforce this Consent Decree or for contempt of Court shall be properly filed unless the procedures set forth in Paragraph 12 have been followed, and the moving party has provided the other party with written notice received at least 10 business days before the filing of such motion or proceeding.
      14. 	Plaintiff reserves the right to seek additional costs of litigation (including reasonable attorney fees) incurred subsequent to entry of this Consent Decree.  EPA reserves the right to oppose any such request for additional costs of litigation (including attorney fees). 
      15.  	The deadline for filing a bill of costs pursuant to Local Rule 54-1 and motion for  attorney fees pursuant to Local Rule 54-5 for activities performed prior to entry of the Consent Decree is hereby extended until 90 days after this Consent Decree is entered by the Court.  During this period, the Parties shall seek to resolve any claim for costs of litigation (including attorney fees), and if they cannot, Plaintiff 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 and shall have 60 days to respond to any motion for costs of litigation (including attorney fees).  Plaintiff shall have 30 days to file a reply in support of its motion.
      16.  	This Court shall retain jurisdiction over this matter to enforce the terms of this Consent Decree and to resolve any requests for costs of litigation (including attorney fees).
      17.  	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, conditionally approving, or approving in part and disapproving in part a SIP submission, 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).
      18.  	Nothing in this Consent Decree shall be construed to limit or modify any discretion accorded EPA by the CAA or otherwise provided by 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.
      19.  	Except as expressly provided herein, 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, remedy, or defense, on any grounds, related to any final action EPA takes with respect to the actions addressed in this Consent Decree.
      20.  	It is hereby expressly understood and agreed that this Consent Decree was jointly drafted by Plaintiff and EPA.  Accordingly, the parties hereby agree that any and all rules of construction providing that ambiguity is construed against the drafting party shall be inapplicable in any dispute concerning the terms, meaning, or interpretation of this Consent Decree.	
      21.  	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, pursuant to CAA section 113(g), the Administrator and/or the Attorney General, as appropriate, shall promptly consider any written comments in determining whether to withdraw or withhold their consent to the Consent Decree.  If the Administrator and/or the Attorney General do not elect to withdraw or withhold consent, the parties shall promptly file a motion that requests that the Court enter this Consent Decree.
      22.  	Any notices required or provided for by this Consent Decree shall be in writing, via electronic mail or other means, and sent to the following (or to any new address of counsel as filed and listed in the docket of the above-captioned matter, at a future date):
      For Plaintiff:		Brent Newell
                        Law Offices of Brent J. Newell
                        245 Kentucky Street, Suite A-4
                        Petaluma, CA 94952
                        (661) 586-3724
                        brentjnewell@outlook.com
	
      For EPA:		David D. Mitchell
                        U.S. Department of Justice
                        Environment & Natural Resources Division
                        Environmental Defense Section
                        4 Constitution Square
                        150 M Street N.E.
                        Washington, D.C. 20002
                        Tel. (202) 514-0165
                        Email: david.mitchell@usdoj,gov
                  
      23.  	EPA and Plaintiff 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.
      24.  	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.
      25.  	The undersigned representatives of Plaintiff and EPA 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.
      
IT IS SO ORDERED on this _____ day of _____________________, 2021.



________________________________

JON S. TIGAR
United States District Judge


COUNSEL FOR PLAINTIFF:

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Brent Newell 
Law Offices of Brent J. Newell
245 Kentucky Street, Suite A-4
Petaluma, CA 94952
(661) 586-3724
brentjnewell@outlook.com




COUNSEL FOR DEFENDANT:
JEAN A. WILLIAMS
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Acting Assistant Attorney General
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DAVID D. MITCHELL (IL Bar No. 6302250)
United States Department of Justice
Environment & Natural Resources Division
Environmental Defense Section
P.O. Box 7611
Washington, D.C. 20044
Tel. (202) 514-0165
Email: david.mitchell@usdoj.gov

                              
Of counsel:
Jeanhee Hong
Office of Regional Counsel, Region 9
U.S. Environmental Protection Agency

Jeff Wehling
Office of Regional Counsel, Region 9
U.S. Environmental Protection Agency

Geoffrey Wilcox
Office of the General Counsel
U.S. Environmental Protection Agency
