Case3:13-cv-03953-SI Document163 Filed03/02/15 Page1 of 10

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SAM HIRSCH
Acting Assistant Attorney General
Environment and Natural Resources Division
MARTHA C. MANN
U.S. Department of Justice
Environmental Defense Section
P.O. Box 7611
Washington, D.C. 20044
Tel: (202) 514-2664
Fax: (202) 514-8865
Email: [email protected]
Attorneys for Defendant Gina McCarthy,
Administrator, United States
Environmental Protection Agency

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[Additional counsel listed on signature page]

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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SIERRA CLUB and NATURAL

RESOURCES DEFENSE COUNCIL,

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Plaintiffs,

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[PROPOSED] CONSENT DECREE

v.

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GINA MCCARTHY, in her official

capacity as Administrator of the United
States Environmental Protection Agency,

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Defendant.

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Case No.: 3:13-cv-3953-SI

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[PROPOSED] CONSENT DECREE

CASE NO.: 3:13-cv-3953-SI

Case3:13-cv-03953-SI Document163 Filed03/02/15 Page2 of 10

WHEREAS, on August 26, 2013, Plaintiffs Sierra Club and Natural Resources Defense

Council (Plaintiffs) filed the complaint (Complaint) in the above-captioned matter against

Defendant Regina McCarthy in her official capacity as Administrator of the United States

Environmental Protection Agency (EPA) alleging that EPA has failed to undertake a certain

nondiscretionary duty 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, within one year after promulgation of a revised national ambient air

quality standard (NAAQS), section 107(d)(1)(A) of the CAA directs states to submit lists of

initial designations of all areas, or portions thereof, as attainment, nonattainment, or

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unclassifiable for the revised NAAQS, 42 U.S.C. 7407(d)(1)(A);

WHEREAS, EPA is required to promulgate designations for all areas of the country

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(including tribal areas and certain U.S. territories) within two years of promulgation of the

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revised NAAQS, or within three years if EPA has insufficient information to promulgate the

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designations within two years, pursuant to section 107(d)(1)(B) of the CAA, 42 U.S.C.

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7407(d)(1)(B);

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WHEREAS, EPA is required to publish a notice in the Federal Register promulgating

designations, pursuant to section 107(d)(2)(A) of the CAA, 42 U.S.C. 7407(d)(2)(A);
WHEREAS, EPA revised the primary NAAQS for sulfur dioxide (SO2) on June 2,
2010, see 75 Fed. Reg. 35,520 (June 22, 2010);
WHEREAS, states were directed to submit their area designations for the 2010 revised
primary SO2 NAAQS by June 2, 2011, see 75 Fed. Reg. at 35,385/col. 2;
WHEREAS, on August 3, 2012, EPA invoked the additional year to issue designations,
see 77 Fed. Reg. 46,295 (Aug. 3, 2012);

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WHEREAS, on August 5, 2013, EPA published designations under the 2010 revised

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primary SO2 NAAQS for twenty-nine areas in sixteen states, thus removing such areas from

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the potential scope of the above-captioned matter, see 78 Fed. Reg. 47,191 (Aug. 5, 2013);

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WHEREAS, the Complaint alleges that EPA has a nondiscretionary duty to promulgate
and publish the remaining area designations for the 2010 revised primary SO2 NAAQS within
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[PROPOSED] CONSENT DECREE
CASE NO.: 3:13-cv-3953-SI

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the time lines set forth in section 107(d)(1)(B) of the CAA, 42 U.S.C. 7407(d)(1)(B),

(d)(2)(A);

WHEREAS, on October 29, 2013, Plaintiffs filed a Motion for Summary Judgment on

the issue of liability in the above-captioned matter, reserving for future briefing the issue of

remedy;

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WHEREAS, on November 12, 2013, EPA filed its response to Plaintiffs Motion for
Summary Judgment and did not dispute the claim of liability;
WHEREAS, on December 6, 2013, the Court granted Plaintiffs Motion for Summary
Judgment, and directed the parties to meet and confer on the remedy;

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WHEREAS, the Plaintiffs and EPA have agreed to a settlement of this action;

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WHEREAS, the Plaintiffs and EPA, by entering into this Consent Decree, do not waive

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or limit any claim or defense, on any grounds, related to any EPA final action;
WHEREAS, the Plaintiffs and EPA consider this Consent Decree to be an adequate and
equitable resolution of all the claims in this matter;
WHEREAS, it is in the interest of the public, the Plaintiffs and EPA, and judicial
economy to resolve this matter without unnecessary protracted litigation;
WHEREAS, the Administrator has proposed and anticipates promulgating a

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rulemaking that would direct states to conduct additional information collection and analyses

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regarding certain stationary sources of SO2, for purposes of informing future area designations

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under the 2010 revised primary SO2 NAAQS, see 79 Fed. Reg. 27,449 (May 13, 2014);

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WHEREAS, the Plaintiffs and EPA agree that this Court has jurisdiction over this

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matter pursuant to the citizen suit provision of section 304(a)(2) of the CAA, 42 U.S.C.

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7604(a)(2);

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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;

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NOW THEREFORE, before the taking of testimony, without trial or determination of

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any additional issue of fact or law that the Court has not already addressed in this matter, and

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upon consent of the Plaintiffs and EPA, it is hereby ordered, adjudged and decreed, that:
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[PROPOSED] CONSENT DECREE
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1.

EPA shall sign for publication in the Federal Register no later than sixteen (16)

months from the date of this Courts entry of this Order a notice of EPAs promulgation of

designations for the 2010 revised primary SO2 NAAQS pursuant to section 107(d) of the CAA,

and within ten (10) business days following such signature deliver the notice to the Office of

the Federal Register for review and prompt publication, for remaining undesignated areas

which:

(a) based on air quality monitoring in the three (3) full calendar years preceding

such deadline have monitored violations of the 2010 revised primary SO2

NAAQS; or

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(b) contain any stationary source that has not been announced for retirement

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pursuant to subparagraph (c) by the date of this Consent Decree, and that,

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according to the data in EPAs Air Markets Database, either (1) emitted more

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than 16,000 tons of SO2 in 2012, or (2) emitted more than 2,600 tons of SO2 and

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had an annual average emission rate of 0.45 lbs SO2/Mmbtu or higher in 2012;

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where

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(c) announced for retirement means any stationary source in the United States

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with a coal-fired unit that as of January 1, 2010, had a capacity of over five (5)

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megawatts (MW) and that has announced that it will cease burning coal at that

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unit through a company public announcement, public utilities commission

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filing, consent decree, public legal settlement, final state or federal permit filing,

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or other similar means of communication.

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2.

EPA shall sign for publication in the Federal Register no later than December

31, 2017, a notice of EPAs promulgation of designations for the 2010 revised primary SO2
NAAQS pursuant to section 107(d) of the CAA, and within ten (10) business days following
such signature deliver the notice to the Office of the Federal Register for review and prompt
publication, for remaining undesignated areas in which, by January 1, 2017, states have not
installed and begun operating a new SO2 monitoring network meeting EPA specifications

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[PROPOSED] CONSENT DECREE
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referenced in EPAs anticipated rulemaking directing states to collect and analyze additional

information regarding SO2 emissions concentrations.

3.

EPA shall sign for publication in the Federal Register no later than December

31, 2020, a notice of EPAs promulgation of designations for the 2010 revised primary SO2

NAAQS pursuant to section 107(d) of the CAA, and within ten (10) business days following

such signature deliver the notice to the Office of the Federal Register for review and

publication, for all remaining undesignated areas.

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4.

After EPAs obligations under Paragraphs 1 through 3 have been completed,

and after the notices required by Paragraphs 1 through 3 have been published in the Federal

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Register, EPA may move to terminate the Consent Decree. The Plaintiffs shall have fourteen

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(14) days in which to respond to such motion.

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5.

Following delivery of the notices of promulgation of designations described in

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Paragraphs 1 through 3 to the Office of the Federal Register, EPA shall not take any action

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(other than is necessary to correct any typographical errors or other errors in form) to delay or

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otherwise interfere with publication of such notices in the Federal Register. EPA shall make

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available to the Plaintiffs copies of the notices within five (5) business days following

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signature by the Administrator.

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6.

The Plaintiffs and EPA may extend the deadlines established in Paragraphs 1

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through 3 for a period of sixty (60) days or less by written stipulation executed by counsel for

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the Plaintiffs and EPA and filed with the Court. In addition, the deadlines established in

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Paragraphs 1 through 3 may be extended by the Court upon motion by any party to this

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Consent Decree for good cause shown, after consideration of any response by the non-moving

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party to this Consent Decree. Any party to this Consent Decree seeking to extend deadlines by

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motion and without stipulation must provide written notice to all other parties to this Consent

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Decree of the deadlines the party is seeking to extend at least ten (10) business days prior to

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filing with the Court such motion. No motion to extend a deadline shall be considered properly

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filed unless notice pursuant to this Paragraph is provided, or the moving party demonstrates

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why it could not have provided the advance written notice.

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[PROPOSED] CONSENT DECREE
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7.

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 response and/or final action contemplated

by this Consent Decree. EPAs obligations to take the actions set forth in Paragraphs 1 through

3 by the dates specified do not constitute limitations or modifications of EPAs discretion

within the meaning of this paragraph.

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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

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to review any issues that are within the exclusive jurisdiction of the United States Court of

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Appeals pursuant to section 307(b)(1) of the CAA, 42 U.S.C. 7607(b)(1). Nothing in the

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terms of this Consent Decree shall be construed to waive any remedies or defenses the parties

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may have under CAA section 307(b)(1), 42 U.S.C. 7607(b)(1).

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9.

This Court shall retain jurisdiction to enforce the terms of this Consent Decree

and to consider any requests for costs of litigation, including attorneys fees.
10.

In the event of a dispute between the parties to this Consent Decree

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concerning the interpretation or implementation of any aspect of this Consent Decree, the

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disputing party shall provide the other party with a written notice outlining the nature of the

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dispute and requesting informal negotiations. If the parties cannot reach an agreed-upon

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resolution within ten (10) business days after receipt of notice, any party may move the Court

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to resolve the dispute.

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11.

No motion or other proceeding seeking to enforce this Consent Decree shall

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be considered properly filed, unless the Plaintiffs have followed the procedure set forth in

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Paragraph 10.

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12.

The United States, on behalf of EPA, agrees that the Plaintiffs are entitled to

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recover their costs of litigation (including reasonable attorneys fees) (litigation costs)

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incurred in this matter pursuant to 42 U.S.C. 7604(d). The deadline for filing a motion for

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litigation costs is hereby extended until 120 days after entry of this Consent Decree by the
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[PROPOSED] CONSENT DECREE
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Court. During this time, the Plaintiffs and EPA shall seek to resolve informally any claim for

litigation costs, and if they cannot reach a resolution, the Plaintiffs may seek such litigation

costs from the Court. The Court shall retain jurisdiction to resolve any request for litigation

costs.

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The obligations imposed upon EPA by 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.

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14.

The parties recognize that the possibility exists that a lapse in the

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appropriations that fund EPA could delay compliance with the timetables contained in this

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Consent Decree. Should a delay occur due to a lapse in appropriations, any deadlines

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occurring within ninety (90) days of the termination of the delay shall be extended one day for

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each day of the delay. EPA will provide Plaintiffs with notice as soon as is reasonably possible

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under the circumstances in the event that EPA invokes this Paragraph of the Consent Decree

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and will provide Plaintiffs with an explanation of EPA's basis for invoking this Paragraph.

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Plaintiffs may challenge the invocation of this Paragraph of the Consent Decree under the

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dispute resolution terms of this Consent Decree, and EPA shall bear the burden of justifying its

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invocation of this Paragraph.

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The Plaintiffs and EPA shall not challenge the terms of this Consent Decree or

this Courts jurisdiction to enter this Consent Decree.

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The Plaintiffs and EPA agree and acknowledge that before this Consent

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Decree is entered by the Court, EPA must provide notice of this Consent Decree in the Federal

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Register and provide an opportunity for public comment pursuant to section 113(g) of the

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CAA, 42 U.S.C. 7413(g). After this Consent Decree has undergone notice and comment, the

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Administrator and/or the Attorney General, as appropriate, shall promptly consider any such

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written comments in determining whether to withdraw or withhold their consent to the Consent

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Decree, in accordance with section 113(g) of the CAA. If the Administrator and/or the
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[PROPOSED] CONSENT DECREE
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Attorney General do not elect to withdraw and withhold their consent, EPA shall promptly file

a motion that requests the Court to enter this Consent Decree.

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Any notices required or provided by this Consent Decree shall be made in

writing, via facsimile, e-mail, or other means, and sent to the following:
For Plaintiffs:
Nicholas Morales
David S. Baron
Earthjustice
1625 Massachusetts Ave., STE 702
Washington, DC 20036
[email protected]
[email protected]
Fax: 202-667-2356

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Zachary M. Fabish
The Sierra Club
50 F Street, NW 8th Floor
Washington, DC 20001
[email protected]
Fax: 202-547-6009
Emily K. Davis
Natural Resources Defense Council
1152 15th Street, NW, Suite 300
Washington, DC 20005
[email protected]
Fax: 202-289-1060
For Defendant:

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Martha C. Mann
United States Department of Justice
Environmental Defense Section
P.O. Box 7611
Washington, DC 20044
[email protected]
Fax: 202-514-8865

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[PROPOSED] CONSENT DECREE
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COUNSEL FOR DEFENDANT:

Dated: ~) us~- ~ ~'LQ~~
~~~

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SAM HIRSCH
Acting Assistant Attorney General
Environment &Natural Resources Division
MARTHA C. MANN
United States Department of Justice
Environment &Natural Resources Division
P.O. Box 7611
Washington, D.C. 20044
Tel: (202) 514-2664
E-mail: martha.mann(a~usdoj~ov_

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Counselfor Defendant EPA

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SO ORDERED on this 2nd day of

March

2014

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SUSAN ILLSTON
United States District Judge

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[PROPOSED] CONSENT DECREE
CASE No.: 3:13-cv-3953-SI