Sierra Club et al v. Jackson et al

Filing 27

CONSENT DECREE. Signed by Judge Jeffrey S. White on 3/26/12. (jjoS, COURT STAFF) (Filed on 3/26/2012)

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IGNACIA S. MORENO
Assistant Attorney General
Environment and Natural Resources Division
MARTIN F. McDERMOTT,Trial Attorney
United States Department of Justice
Environment and Natural Resources Division
Environmental Defense Section
601 D Street, N.W.
Washington, D.C.
Tel:[phone]
Email: martin.mcdermott(a,usdoi.gov
Counselfor Defendants
PAUL R. CORT
WENDY S. PARK
Earthjustice
426 17th St., 5th Floor
Oakland, CA 94612
Tel: [phone]
Email: [e-mail]
Counselfor Plaints

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIF4RNTA
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SAN FRANCISCO DIVISION

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SIERRA CLUB,ET AL.,

No. C 11-03106-JSW

Plaintiffs,
CONSENT DECREE
v.
JACKSON,ET AL.,

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Defendants.
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WHEREAS,on June 23, 2011, Plaintiffs Sierra Club and Medical Advocates for Healthy

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Air "Plaintiffs filed the Complaint in the above-captioned matter against Defendants Lisa

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Jackson, in her official capacity as Administrator ofthe United States Environmental Protection

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agency, and Jared Blumenfeld,in his official capacity as Regional Administrator for Region 9 of

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the United States Environmental Protection Agency (collectively,"EPA"), alleging that EPA has

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failed to undertake certain nondiscretionary duties under the Clean Air Act "CAA"), 42 U.S.C.
§§ 7401-7b71q, and that such alleged failures are actionable under CAA section 304(a}(2},42

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U.S.C. § 7604(a}(2);

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WHEREAS,CAA. section 110(a)(1), 42 U.S.C. § 7410(a)(1), requires States to adopt any
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submit to EPA for review state implementation plans "SIPs }, which establish specific control

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measures and other requirements that apply to particular sources of air pollution within a State
and are designed to attain, maintain, and enforce National Ambient Air Quality Standards

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established by EPA that specify the maximum permissible concentrations fox those pollutants in

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9 'the ambient air, see CAA sections 108 and 109,42 U.S.C. §§ 7408, 7409;
WHEREAS,EPA is responsible for ensuring that SIPs comply with the CAA's
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requirements, and must approve or disapprove a SIP accordingly;
WHEREAS,CAA section 110(k),42 U.S.C. § 7410(k), sets forth the process by which

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EPA is to review SIP submissions, including SIP revisions;
WHEREAS,Plaintiffs' Complaint alleges that CAA sections 172(c)(1) and 182(b)(2)&

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(f), 42 U.S.C. §§ 7502(c)(1) and 7511a(b)(2)&(~,require each state with an ozone
nonattainment area to submit a "demonstration" that existing industrial sources of the pollutants
that react to form ozone — volatile organic compounds and oxides of nitrogen —are subject to
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regulations requiring reasonably available control technology "R.ACT to reduce emissions;
WHEREAS,Plaintiffs' Complaint alleges that EPA has a nondiscretionary duty to act on
SIP submissions and revisions submitted to EPA within the time lines set forth in CAA section

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WHEREAS,Plaintiffs' Complaint alleges tha# EPA failed to take timely action under
~ CAA. section 110(k)(2) on the RACT demonstration that was submitted to EPA on June 18, 2009

"2009 RACT STP")by the California Air Resources Board and the San Joaquin Valley Unified
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on December 11,
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2009;
WHEREAS,Plaintiffs' Complaint further alleges that since EPA did not approve the
2009 RACT SIP within two years ofEPA's January 21,2009 finding that the District had failed

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to
to submit a RACT demonstration for the District's 2004 1-hour ozone plan, EPA was required
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promulgate a substitute federal implementation plan "FIP")by January 21, 2011, providin

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the implementation of RACT on existing sources of volatile organic compounds and

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nitrogen in the San Joaquin Valley;

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WHEREAS,Plaintiffs' Complaint seeks an order from this Court directing EPA to(1)
take action on the Valley's 2009 RACT SIP on a specific timetable, and (2)promulgate a
substitute FIP providing for the implementation of RACT on existing sources of volatile
compounds and oxides of nitrogen in the Valley on a specific timetable;

any issue offact or law;
WHEREAS,the parties, by entering into this Consent Decree, do not waive or limit any

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WHEREAS,the parties have agreed to a settlement of this action without admission of

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claim or defense, on any grounds, related to any final EPA action;
WHEREAS,the parties consider this Consent Decree to be an adequate and equitable

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14' resolution of alI of the claims in this matter;
WHEREAS,it is in the interest of the public, the parties, and judicial economy to resolve

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this matter without protracted litigation;

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WHEREAS,the parties agree that this Court has jurisdiction over this matter pursuant to
citizen suit provision in CAA section 304(a)(2}, 42 U.S.C. § 7604(a)(2), and that venue lies

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the

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in the Northern District of California;

WHEREAS,the Court, by entering this Consent Decree, finds that the Consent Decree is

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fair, reasonable, in the public interest, and consistent with the CAA;

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NOW THEREFORE, before the taking oftestimony, without trial or determination of
issue offact or law, and upon the consent ofthe parties, it is hereby ordered, adjudged and

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any

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decreed that:

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1.

EPA shall sign for publication in the Federal Register:
(a)

No later than September 15, 2012,for each source category for which
EPA's final action on the 2004 RACT SIP identifies a RACT deficiency,
notice or notices approving a SIP rule in full, promulgating a SIP rule, ox

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approving a SIP rule in part and promulgating a FTP as necessary to fully

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satisfy the RACT requirement in CAA section 182(b)(2) and(~,42

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U.S.C. § 7511a{b)(2} &(f~, except as provided in subparagraph 1(b)

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below.
(b)

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No later than April 15, 2013,for each source category described in

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subparagraph 1(a), above,for which EPA has not approved a SIP rule but

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has signed for publication in the Federal Register a proposed FIP rule by

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September 15, 2012, a notice ar notices approving a SIP rule in full,

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promulgating a FIP rule, or approving a SIP rule in part and promulgating

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a FIP as necessary to fully satisfy the R.ACT requirement in CAA section
182(b)(2) and (fj, 42 U.S.C. § 7511a(b)(2)&(fl.

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deliver such notices) to the Office of the Federal Register for publication.

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3.

When EPA's obligations under Paragraphs 1 and 2 have been completed, the
parties will file with the Court ajoint motion to dismiss this matter with prejudice.

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Following signature on each notice described in Paragraph 1, above, EPA shall

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The deadlines in Paragraphs 1 and 10 may be extended by(a) written stipulation

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ofPlaintiffs and EPA with notice to the Court, ox (h)the Court upon motion of

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EPA or Plaintiffs and upon consideration of any response by the other party.

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5.

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

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law, including the discretion to alter, amend or revise any response and/or final

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action contemplated by this Consent Decree: EPA's obligation to take the actions

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set forth in Paragraph 1 by the times specified therein does not constitute a

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limitation or modification of El'A's discretion within the meaning of this

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paragraph.

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b.

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

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any issues that are within the exclusive jurisdiction of the United States Courts of Appeals

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{b)(1)and 505 of the CAA,42 U.S.C. §§ 7607(b}(1), 7661d.
pursuant to sections 307
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This Court shall retain jurisdiction to enforce the terms ofthis Consent Decree

and to consider any requests for costs of litigation, including attorneys' fees.
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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 disputing party shall provide the other

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party with a written notice outlining the nature ofthe dispute and requesting informal

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negotiations.. Ifthe parties cannot reach an agreed-upon resolution within ten(14)business days

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after receipt ofthe notice, any party may move the Court to resolve the dispute.
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No motion or other proceeding seeking to enforce this Consent Decree shall be

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considered properly filed, unless Plaintiffs have followed the procedure set forth in Paragraph 8

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and provided EPA with written notice of the dispute received at least ten(10) business days

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before the filing ofsuch motion or proceeding.
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EPA agrees that pursuant to CAA section 304(d),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 motion for costs of litigation, including reasonable attorneys' fees, is hereby extended until 90

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days after the date on which the Court enters this Consent Decree. During this time the parties

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shall seek to resolve informally any claim for costs of litigation, including reasonable attorneys'

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fees.
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The obligations imposed upon EPA under this Consent Decree znay 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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12.

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

Court's jurisdiction to enter this Consent Decree.
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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 CAA section 113(8), 42 U.S.C. § 7413(8). After

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this Consent Decree has undergone notice and comment,the Administrator and/or the Attorney

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

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

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section 113(8). If the Administrator andJor the Attorney General do not elect to withdraw or

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withhold their consent, EPA shall promptly file amotion —which Plaintiffs agxee to join —that

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requests the Court to enter this Consent Decree.

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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:

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Paul Cort
Wendy S. Park
Earthjustice
426 17th St., 5th Floor
Oakland, CA 94612
Tel: [phone]
pcort@earth]ustice.org
wp~,earth~ustice.org

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Far Defendants:

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Martin F. McDermott, Trial Attorney
United States Department of Justice
Environment and Natural Resources Division
Environmental Defense Section
601 D Street, N.W.
Washington, D.C. 20004
Tel: [phone]
Email: martin.mcdermottnusdoj. ov

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Jan Tierney
Office of General Counsel
U.S. Environmental Protection Agency
Ariel Rios Bidg., MC 2344A
1200 Pennsylvania Ave., N.W.
Washington, DC 20460
Phone:(202} 564-5598
Fax:[phone]
Email: tierne~jannu,epa.gov
Jeanhee Hong, Assistant Regional Counsel
Office of Regional Counsel
U.S. Environmental Protection Agency Region 9(ORC-2)

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75 Hawthorne Street, ORC-2
San Francisco, CA 94105
Phone:[phone]
Fax:(415} 947-3570
Email: hon~jeanheena,epa.gov

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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.

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COUNSEL FOR PLAINTIFFS:

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I(Dated: December 19, 2012

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~ Dated: January 4, 2012
IS
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lsl Wendv S. Park
WENDY S. PARK
Earthjustice
426 17th St., 5th Floor
Oakland, CA 94612
415-217-2000
wpark@earth]ustice.org
IGNACIA S. MORENO
Assistant Attorney General
Environment and Natural Resources Division
ls/ Martin F. McDermott
MARTIN F. McDERMOTT
Trial Attorney
United States Department of Justice
Environment and Natural Resources Division
Environmental Defense Section
6Q 1 D Street, N.W.
Washington, D.C. 20004
Phone: [phone]
Email: [e-mail]

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IT IS SO ORDERED.

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I Dated: March 26, 2012

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UNITED STATES DISTRICT JUDGE