WildEarth Guardians et al v. Jackson

Filing 48

CONSENT DECREE by Hon. William Alsup granting 46 Motion to Approve Consent Judgment.(whalc2, COURT STAFF) (Filed on 10/20/2011)

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

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WILDEARTH GUARDIANS and SIERRA
CLUB,
Plaintiffs,

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Case No. 3:11-cv-00190-WHA

CONSENT DECREE

v.
LISA P. JACKSON, in her official capacity
as Administrator, United States
Environmental Protection Agency,
Defendant.

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WHEREAS, on July 6, 2011, Plaintiffs Sierra Club and WildEarth Guardians filed an
amended complaint (“Complaint”) in this matter against Defendant Lisa P. Jackson, in her

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official capacity as Administrator of the United States Environmental Protection Agency

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(“EPA”), alleging that EPA has failed to undertake certain nondiscretionary duties under the

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Clean Air Act (“CAA”), 42 U.S.C. §§ 7401-7671q, and that such alleged failure is actionable

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under section 304(a)(2) of the CAA, 42 U.S.C. § 7604(a)(2);

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WHEREAS, Plaintiffs alleged that EPA has failed to perform a duty mandated by CAA

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section 110(k)(2) and (3), 42 U.S.C. § 7410(k)(2) and (3), to take final action on the SIP

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submittals or portions of submittals meeting applicable requirements of CAA section 110(a)(2),

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42 U.S.C. § 7410(a)(2), for Alabama, Connecticut, Florida, Mississippi, North Carolina,

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Tennessee, Indiana, Maine, Ohio, New Mexico, Delaware, Kentucky, Nevada, Arkansas, New

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Consent Decree
No. 3:11-cv-00190-WHA

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Hampshire, South Carolina, Massachusetts, Arizona, Georgia and West Virginia with regard to
the 2006 PM2.5 NAAQS;
WHEREAS, the term "2006 PM2.5 NAAQS infrastructure SIP" means for the purposes
of this Consent Decree only a submission or multiple submissions addressing the applicable

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requirements of section 110(a)(2), 42 U.S.C. § 7410(a)(2), not including the portions of CAA

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section 110(a)(2)(C) pertaining to nonattainment area requirements or section 110(a)(2)(I), 42

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U.S.C. §§ 7410(a)(2)(C), (a)(2)(I);

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WHEREAS, for the purposes of this Consent Decree only, the term "2006 PM2.5
NAAQS infrastructure SIP" does not include the portions of CAA section 110(a)(2)(D)(i)(II), 42

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U.S.C. § 7410(a)(2)(D)(i)(II), pertaining to visibility requirements;

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WHEREAS, the parties agree for the purposes of this Consent Decree only that the

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obligations set out below do not include EPA taking any actions regarding the portions of section

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110(a)(2)(C) pertaining to nonattainment area requirements sections, the portions of section

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110(a)(2)(D)(i)(II) pertaining to visibility requirements, or section 110(a)(2)(I);

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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;

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WHEREAS, the parties consider this Consent Decree to be an adequate and equitable
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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;

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

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any issue of fact or law, and upon the consent of the parties, it is hereby ordered, adjudged and

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decreed that:

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1.

This Court has jurisdiction over this matter pursuant to the citizen suit provision

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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

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than September 30, 2012, sign for publication in the Federal Register a notice or notices of the

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Agency’s final action either approving, disapproving, or approving in part and disapproving in

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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for Alabama addressing the applicable

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requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for the nonattainment area

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requirements under section 110(a)(2)(C) and the visibility requirements under section

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110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS Infrastructure SIP submission(s) for Alabama is
specifically identified in Chart “A” attached hereto.
4.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall no later

than September 30, 2012, sign for publication in the Federal Register a notice or notices of the

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Agency’s final action either approving, disapproving, or approving in part and disapproving in
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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for Connecticut addressing the

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applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for section

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110(a)(2)(D)(i)(I), the nonattainment area requirements under section 110(a)(2)(C), and the

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visibility requirements under section 110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS

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Infrastructure SIP submission(s) for Connecticut is specifically identified in Chart “A” attached
hereto.
5.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall no later

than September 30, 2012, sign for publication in the Federal Register a notice or notices of the

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Agency’s final action either approving, disapproving, or approving in part and disapproving in

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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for Florida addressing the applicable

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requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for the nonattainment area

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requirements under section 110(a)(2)(C) and the visibility requirements under section

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110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS Infrastructure SIP submission(s) for Florida is

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specifically identified in Chart “A” attached hereto.
6.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall no later

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than September 30, 2012, sign for publication in the Federal Register a notice or notices of the

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Agency’s final action either approving, disapproving, or approving in part and disapproving in

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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for Mississippi addressing the

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applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for the nonattainment area

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requirements under section 110(a)(2)(C) and the visibility requirements under section

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110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS Infrastructure SIP submission(s) for Mississippi is

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specifically identified in Chart “A” attached hereto.

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7.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall no later

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than September 30, 2012, sign for publication in the Federal Register a notice or notices of the

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Agency’s final action either approving, disapproving, or approving in part and disapproving in

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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for North Carolina addressing the

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applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for the nonattainment area

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Consent Decree
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requirements under section 110(a)(2)(C) and the visibility requirements under section

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110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS Infrastructure SIP submission(s) for North

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Carolina is specifically identified in Chart “A” attached hereto.

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8.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall no later

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than September 30, 2012, sign for publication in the Federal Register a notice or notices of the

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Agency’s final action either approving, disapproving, or approving in part and disapproving in

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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for Tennessee addressing the

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applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for section

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110(a)(2)(D)(i)(I), the nonattainment area requirements under section 110(a)(2)(C), and the

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visibility requirements under section 110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS

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Infrastructure SIP submission(s) for Tennessee is specifically identified in Chart “A” attached

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hereto.

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9.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall no later

than September 30, 2012, sign for publication in the Federal Register a notice or notices of the

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Agency’s final action either approving, disapproving, or approving in part and disapproving in

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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for Indiana addressing the applicable

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requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for the nonattainment area

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requirements under section 110(a)(2)(C) and the visibility requirements under section

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110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS Infrastructure SIP submission(s) for Indiana is
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specifically identified in Chart “A” attached hereto.
10.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall no later

than September 30, 2012, sign for publication in the Federal Register a notice or notices of the
Agency’s final action either approving, disapproving, or approving in part and disapproving in

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Consent Decree
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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for Maine addressing the applicable

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requirements of sections 110(a)(2)(A)-(C), (D)(i)(I), (E)-(H), (J)-(M), except for the

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nonattainment area requirements under section 110(a)(2)(C). The 2006 PM2.5 NAAQS

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Infrastructure SIP submission(s) for Maine is specifically identified in Chart “A” attached hereto.

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11.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall no later

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than September 30, 2012, sign for publication in the Federal Register a notice or notices of the

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Agency’s final action either approving, disapproving, or approving in part and disapproving in

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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for Ohio addressing the applicable

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requirements of sections 110(a)(2)(A)-(C), (D)(i)(I), (E)-(H), (J)-(M), except for the

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nonattainment area requirements under section 110(a)(2)(C). The 2006 PM2.5 NAAQS
Infrastructure SIP submission(s) for Ohio is specifically identified in Chart “A” attached hereto.
12.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall sign for

publication in the Federal Register:
a.

no later than September 30, 2012, a notice or notices of the Agency’s proposed

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action either approving, disapproving, or approving in part and disapproving in

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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for New Mexico

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addressing the applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M),

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except for the nonattainment area requirements under section 110(a)(2)(C), the

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requirements under section 110(a)(2)(D)(i)(I), and the visibility requirements
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under section 110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS Infrastructure SIP

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submission(s) for New Mexico is specifically identified in Chart “A” attached

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hereto; and

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b.

no later than January 14, 2013, a notice or notices of the Agency’s final action

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either approving, disapproving, or approving in part and disapproving in part the

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2006 PM2.5 NAAQS Infrastructure SIP submittal for New Mexico addressing the

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applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for the

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nonattainment area requirements under section 110(a)(2)(C), the requirements

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under section 110(a)(2)(D)(i)(I), and the visibility requirements under section

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110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS Infrastructure SIP submission(s)

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for New Mexico is specifically identified in Chart “A” attached hereto.

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13.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall sign for

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publication in the Federal Register:
a.

no later than February 28, 2013, a notice or notices of the Agency’s proposed

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action either approving, disapproving, or approving in part and disapproving in

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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for New Mexico

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addressing the applicable significant contribution to nonattainment and

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interference with maintenance requirements of section 110(a)(2)(D)(i)(I). The

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2006 PM2.5 NAAQS Infrastructure SIP submission(s) for New Mexico is

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specifically identified in Chart “A” attached hereto; and

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b.

no later than August 30, 2013, a notice or notices of the Agency’s final action

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either approving, disapproving, or approving in part and disapproving in part the
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2006 PM2.5 NAAQS Infrastructure SIP submittal for New Mexico addressing the

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applicable significant contribution to nonattainment and interference with

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maintenance requirements of section 110(a)(2)(D)(i)(I). The 2006 PM2.5

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NAAQS Infrastructure SIP submission(s) for New Mexico is specifically

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identified in Chart “A” attached hereto.

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Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall no later

than September 30, 2012, sign for publication in the Federal Register a notice or notices of the

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Agency’s final action either approving, disapproving, or approving in part and disapproving in

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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for Delaware addressing the PSD

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requirements under 110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS Infrastructure SIP

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submission(s) for Delaware is specifically identified in Chart “A” attached hereto.

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15.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall no later

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than September 30, 2012, sign for publication in the Federal Register a notice or notices of the

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Agency’s final action either approving, disapproving, or approving in part and disapproving in

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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for Kentucky addressing the

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applicable requirements of sections 110(a)(2)(A)-(C), D(i)(II), (E)-(H), (J)-(M), except for the

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nonattainment area requirements under section 110(a)(2)(C) and the visibility requirements

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under section 110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS Infrastructure SIP submission(s) for
Kentucky is specifically identified in Chart “A” attached hereto.
16.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall no later

than September 30, 2012, sign for publication in the Federal Register a notice or notices of the

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Agency’s final action either approving, disapproving, or approving in part and disapproving in
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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for Nevada addressing the applicable

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requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for the nonattainment area

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requirements under section 110(a)(2)(C) and the visibility requirements under section

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Consent Decree
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110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS Infrastructure SIP submission(s) for Nevada is
specifically identified in Chart “A” attached hereto.
17.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall sign for

publication in the Federal Register:

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a.

no later than January 31, 2012, a notice or notices of the Agency’s proposed

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action either approving, disapproving, or approving in part and disapproving in

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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for Arkansas

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addressing the applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M),

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except for the nonattainment area requirements under section 110(a)(2)(C),

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section 110(a)(2)(D)(i)(I), and the visibility requirements under section

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110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS Infrastructure SIP submission(s)

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for Arkansas is specifically identified in Chart “A” attached hereto; and

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b.

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no later than July 31, 2012, a notice or notices of the Agency’s final action either
approving, disapproving, or approving in part and disapproving in part the 2006

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PM2.5 NAAQS Infrastructure SIP submittal for Arkansas addressing the

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applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for the

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nonattainment area requirements under section 110(a)(2)(C), section

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110(a)(2)(D)(i)(I), and the visibility requirements under section

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110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS Infrastructure SIP submission(s)
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for Arkansas is specifically identified in Chart “A” attached hereto.

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18.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall sign for

publication in the Federal Register:

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a.

no later than April 30, 2013, a notice or notices of the Agency’s proposed action

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either approving, disapproving, or approving in part and disapproving in part the

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2006 PM2.5 NAAQS Infrastructure SIP submittal for Arkansas addressing the

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applicable significant contribution to nonattainment and interference with

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maintenance requirements of section 110(a)(2)(D)(i)(I). The 2006 PM2.5

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NAAQS Infrastructure SIP submission(s) for Arkansas is specifically identified in

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Chart “A” attached hereto; and

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b.

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no later than October 31, 2013, a notice or notices of the Agency’s final action
either approving, disapproving, or approving in part and disapproving in part the

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2006 PM2.5 NAAQS Infrastructure SIP submittal for Arkansas addressing the

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applicable significant contribution to nonattainment and interference with

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maintenance requirements of section 110(a)(2)(D)(i)(I). The 2006 PM2.5

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NAAQS Infrastructure SIP submission(s) for Arkansas is specifically identified in

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Chart “A” attached hereto.

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19.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall no later

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than September 30, 2012, sign for publication in the Federal Register a notice or notices of the

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Agency’s final action either approving, disapproving, or approving in part and disapproving in

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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for New Hampshire addressing the

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applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for the nonattainment area
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requirements under section 110(a)(2)(C) and the visibility requirements under section

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110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS Infrastructure SIP submission(s) for New

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Hampshire is specifically identified in Chart “A” attached hereto.

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20.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall no later

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than September 30, 2012, sign for publication in the Federal Register of the Agency’s final

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action a notice or notices either approving, disapproving, or approving in part and disapproving

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in part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for South Carolina addressing the

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applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for the nonattainment area

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requirements under section 110(a)(2)(C) and the visibility requirements under section

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110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS Infrastructure SIP submission(s) for South

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Carolina is specifically identified in Chart “A” attached hereto.

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21.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall no later

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than September 30, 2012, sign for publication in the Federal Register a notice or notices of the

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Agency’s final action either approving, disapproving, or approving in part and disapproving in

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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for Massachusetts addressing the

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applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for section

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110(a)(2)(D)(i)(I), the nonattainment area requirements under section 110(a)(2)(C), and the

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visibility requirements under section 110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS

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Infrastructure SIP submission(s) for Massachusetts is specifically identified in Chart “A”

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attached hereto.

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22.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall no later

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than September 30, 2012, sign for publication in the Federal Register a notice or notices of the
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Agency’s final action either approving, disapproving, or approving in part and disapproving in

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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for Arizona addressing the applicable

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requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for section 110(a)(2)(G), the

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nonattainment area requirements under section 110(a)(2)(C), and the visibility requirements

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Consent Decree
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under section 110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS Infrastructure SIP submission(s) for
Arizona is specifically identified in Chart “A” attached hereto.
23.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall no later

than September 30, 2012, sign for publication in the Federal Register a notice or notices of the

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Agency’s final action either approving, disapproving, or approving in part and disapproving in

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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for Georgia addressing the applicable

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requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for the nonattainment area

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requirements under section 110(a)(2)(C) and the visibility requirements under section

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110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS Infrastructure SIP submission(s) for Georgia is

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specifically identified in Chart “A” attached hereto.
24.

Pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), EPA shall no later

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than September 30, 2012, sign for publication in the Federal Register a notice or notices of the

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Agency’s final action either approving, disapproving, or approving in part and disapproving in

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part the 2006 PM2.5 NAAQS Infrastructure SIP submittal for West Virginia addressing the

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applicable PSD requirements of section 110(a)(2)(D)(i)(II). The 2006 PM2.5 NAAQS

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Infrastructure SIP submission(s) for West Virginia is specifically identified in Chart “A”

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attached hereto.

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25.

Within 15 business days after taking each action required in Paragraphs 3-24,

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EPA shall send notice of such action to the Office of the Federal Register for review and
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publication.
26.

The parties may extend the deadlines set forth in Paragraphs 3-25 and 33 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.

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27.

The parties will file a joint request to the Court to dismiss this matter with

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prejudice within 15 business days after notice appears in the Federal Register of EPA taking the

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last rulemaking action required under Paragraphs 3-24 of this Consent Decree.

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28.

Nothing in this Consent Decree shall be construed to limit or modify the

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discretion accorded EPA by the CAA and by general principles of administrative law, including

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the discretion to alter, amend or revise any responses and/or actions contemplated by this

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Consent Decree. EPA’s obligation to take the actions set forth in Paragraphs 3-25 by the time

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specified therein does not constitute a limitation or modification of EPA’s discretion within the

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meaning of this paragraph.

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29.

Nothing in this Consent Decree shall be construed to confer upon the district court

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

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Courts of Appeals pursuant to sections 307(b)(1) of the CAA, 42 U.S.C. § 7607(b)(1).

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30.

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

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

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31.

In the event of a dispute between the parties concerning the interpretation or

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implementation of any aspect of this Consent Decree, the party that raised the dispute shall

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provide the other party with a written notice outlining the nature of the dispute and requesting

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informal negotiations. If the parties cannot reach an agreed-upon resolution within ten (10)

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business days after receipt of notice, the party that raised the dispute may move the Court to
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resolve the dispute.

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32.

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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

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Paragraph 31 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.
33.

EPA agrees that, pursuant to section 304(d) of the CAA, 42 U.S.C. § 7604(d),

Plaintiffs are both eligible and entitled to recover their costs of litigation in this action, including

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reasonable attorneys’ fees, incurred prior to entry of this Consent Decree. The deadline for filing

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a bill of costs pursuant to Local Rule 54-1 and a motion for costs of litigation, including

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reasonable attorneys’ fees, pursuant to Local Rule 54-6 for activities performed in this case prior

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to entry of this Consent Decree is hereby extended until 90 days after the date on which the

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Court enters this Consent Decree. During this time the parties shall seek to resolve informally

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any claim for costs of litigation, including reasonable attorneys’ fees.
34.

The obligations imposed by EPA under this Consent Decree may only be

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undertaken using appropriated funds. No provisions of this Consent Decree shall be interpreted

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as or constitute a commitment or requirement that EPA obligate or pay funds in contravention of

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the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable federal law.

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35.

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

Court’s jurisdiction to enter this Consent Decree.
36.

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

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opportunity for public comment pursuant to section 113(g) of the CAA, 42 U.S.C. § 7413(g).
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After this Consent Decree has undergone notice and comment, the Administrator and/or the

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Attorney General, as appropriate, shall promptly consider any such written comments in

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determining whether to withdraw or withhold their consent to the Consent Decree, in accordance

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with section 113(g) of the CAA. If the Administrator and/or the Attorney General do not elect to

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No. 3:11-cv-00190-WHA

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withdraw or withhold their consent, EPA shall promptly file a motion that requests the Court to
enter this Consent Decree.
37.

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:

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For Plaintiffs:
Robert Ukeiley
Law Office of Robert Ukeiley
435R Chestnut Street, Suite 1
Berea, KY 40403
Tel: [phone]
Fax: [phone]
[e-mail]

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For Defendant:
Michelle R. Lambert
Trial Attorney
U.S. Department of Justice
Environment and Natural Resources Division
Environmental Defense Section
P.O. Box 23986
Washington, D.C. 20026-3986
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Geoffrey L. Wilcox
Office of the General Counsel
U.S. Environmental Protection Agency
Ariel Rios Bldg. MC 2344A
1200 Pennsylvania Ave., NW
Washington, D.C. 20460
Phone: [phone]
Fax: [phone]
Email: [e-mail]

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38.

This Consent Decree shall not preclude any right of action by a non-party to bring

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a citizen suit pursuant to section 304 of the CAA, 42 U.S.C. § 7604, to enforce the non-

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discretionary duties alleged in the complaint. In any such matter, EPA preserves all its defenses.

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39.

The undersigned representatives of each party certify that they are fully

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authorized by the party that they represent to bind that party to the terms of this Consent Decree.

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The Court shall retain consent decree to
The
amends the
IT IS SO ORDERED.juridiction forjurisdiction for three years only. IT IS SO ORDERED.
The Court modifiesCourt will retain threeclarify that it will retain jurisdiction for only three

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IT IS IT ORDERED.
years. SO IS SO ORDERED.

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October 19, 2011.
Dated: ________________
Dated: October 19, 2011.

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_____________________________________
UNITED Alsup
William STATES DISTRICT JUDGE
William Alsup
UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT JUDGE

COUNSEL FOR PLAINTIFFS:
Dated: August 25, 2011
/s/ Darin Schroeder (with permission)
Darin Schroeder (Admitted Pro Hac Vice)
Law Office of Robert Ukeiley
435R Chestnut Street, Suite 1
Berea, KY 40403
Tel: [phone]
Fax: [phone]
[e-mail]

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Counsel for Plaintiffs

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COUNSEL FOR DEFENDANT:

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Dated: August 25, 2011

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IGNACIA S. MORENO
Assistant Attorney General
Environment & Natural Resources Division
/s/ Michelle R. Lambert
Michelle R. Lambert
Trial Attorney
U.S. Department of Justice
Environmental Defense Section

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P.O. Box 23986
Washington, D.C. 20026-3986
Tel: [phone]
Fax: [phone]
[e-mail]
Counsel for Defendant

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