Case 3:20-cv-05436-EMC Document 44 Filed 06/25/21 Page 1 of 16
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`JEAN E. WILLIAMS
`Acting Assistant Attorney General
`LUCY E. BROWN (HI Bar No. 10946)
`Attorney
`lucy.e.brown@usdoj.gov
`United States Department of Justice
`Environment & Natural Resources Division
`Environmental Defense Section
`4 Constitution Square
`150 M Street N.E., Suite 4.400
`Washington D.C. 20002
`Telephone (202) 598-1868
`Facsimile (202) 514-8865
`
`Attorneys for Defendant
`
`ASHLEY BRUNER, Admitted Pro Hac Vice
`Center for Biological Diversity
`P.O. Box. 1178
`Flagstaff, AZ 86002
`Tel: (928) 666-0731
`Email: abruner@biologicaldiversity.org
`
`[additional attorneys for Plaintiffs included in signature block]
`
`Attorneys for Plaintiffs
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`
`Case No. 3:20-cv-05436-EMC
`[PROPOSED] CONSENT DECREE
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`Plaintiffs,
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`CENTER FOR BIOLOGICAL DIVERSITY
`et al.,
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`
`
`
`
`
`v.
`
`
`MICHAEL S. REGAN, in his official
`capacity as the Administrator of the United
`States Environmental Protection Agency,
`
`
`Defendant.
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`[PROPOSED] CONSENT DECREE
`CASE NO. 3:20-cv-05436-EMC
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`Case 3:20-cv-05436-EMC Document 44 Filed 06/25/21 Page 2 of 16
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`WHEREAS, on August 6, 2020, the Center for Biological Diversity, the Center for
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`Environmental Health, and the Sierra Club (collectively, “Plaintiffs”) filed the above-captioned
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`matter against then Administrator Andrew R. Wheeler in his official capacity as the
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`Administrator of the United States Environmental Protection Agency (hereafter “EPA”) (Dkt.
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`No. 1);
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`
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`WHEREAS, on October 29, 2020, Plaintiffs filed a First Amended Complaint (“First
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`Am. Compl.”) (Dkt. No. 25);
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`
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`WHEREAS, in accordance with Federal Rule of Civil Procedure 25(d), Michael S.
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`Regan, in his official capacity as the Administrator of the EPA, is substituted for Andrew R.
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`Wheeler;
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`
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`WHEREAS, Plaintiffs allege that EPA has failed to undertake certain non-discretionary
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`duties under the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401-7671q, and that such alleged failure
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`is actionable under CAA section 304(a)(2), 42 U.S.C. § 7604(a)(2);
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`
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`WHEREAS, on April 28, 1971, pursuant to CAA section 109(a)(1), 42 U.S.C.
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`§ 7409(a)(1), the EPA Administrator signed a notice promulgating a rule establishing the
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`primary and secondary National Ambient Air Quality Standards for sulfur dioxide (“1971 SO2
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`NAAQS”), Final Rule, 36 Fed. Reg. 8186 (Apr. 30, 1971);
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`
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`WHEREAS, on June 2, 2010, pursuant to CAA section 109(d)(1), 42 U.S.C. §
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`7409(d)(1), the EPA Administrator signed a notice promulgating a final rule revising the primary
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`National Ambient Air Quality Standards for sulfur dioxide (“2010 SO2 NAAQS”), Final Rule,
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`75 Fed. Reg. 35,520 (June 22, 2010);
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`
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`WHEREAS, on July 25, 2013, pursuant to CAA section 107(d), 42 U.S.C. § 7407(d), the
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`EPA Administrator signed a notice promulgating a final rule to establish initial air quality
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`[PROPOSED] CONSENT DECREE
`CASE NO. 3:20-cv-05436-EMC
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`Case 3:20-cv-05436-EMC Document 44 Filed 06/25/21 Page 3 of 16
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`
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`designations for the 2010 SO2 NAAQS (“Initial 2010 SO2 NAAQS Designations”), Final Rule,
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`78 Fed. Reg. 47,191 (Aug. 5, 2013);
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`
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`WHEREAS, the Initial 2010 SO2 NAAQS Designations became effective on October 4,
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`2013, id. at 47,197;
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`WHEREAS, on July 25, 2013, pursuant to CAA section 107(d), 42 U.S.C. § 7407(d), the
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`EPA Administrator signed a notice designating Hayden, Gila County (Part) and Pinal County
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`(Part), in Arizona as nonattainment for the 2010 SO2 NAAQS, effective October 4, 2013, id. at
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`47,197- 98;
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`
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`WHEREAS, on July 25, 2013, pursuant to section 107(d), 42 U.S.C. § 7407(d), the EPA
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`Administrator signed a notice designating Miami, Gila County (Part), in Arizona as
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`nonattainment for the 2010 SO2 NAAQS, effective October 4, 2013, id. at 47,198;
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`WHEREAS, on July 25, 2013, pursuant to section 107(d), 42 U.S.C. § 7407(d), the EPA
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`Administrator signed a notice designating Southwest Indiana, Daviess County (Part) and Pike
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`County (Part), in Indiana as nonattainment for the 2010 SO2 NAAQS, effective October 4, 2013,
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`id. at 47,199;
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`WHEREAS, on July 25, 2013, pursuant to section 107(d), 42 U.S.C. § 7407(d), the EPA
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`Administrator signed a notice designating Muscatine, Muscatine County (Part), in Iowa as
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`nonattainment for the 2010 SO2 NAAQS, effective October 4, 2013, id. at 47,199;
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`
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`WHEREAS, on July 25, 2013, pursuant to section 107(d), 42 U.S.C. § 7407(d), the EPA
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`Administrator signed a notice designating St. Bernard Parish, St. Bernard Parish, in Louisiana as
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`nonattainment for the 2010 SO2 NAAQS, effective October 4, 2013, id. at 47,200;
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`[PROPOSED] CONSENT DECREE
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`Case 3:20-cv-05436-EMC Document 44 Filed 06/25/21 Page 4 of 16
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`
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`WHEREAS, on July 25, 2013, pursuant to section 107(d), 42 U.S.C. § 7407(d), the EPA
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`Administrator signed a notice designating Detroit, Wayne County (Part), in Michigan as
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`nonattainment for the 2010 SO2 NAAQS, effective October 4, 2013, id. at 47,201;
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`
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`WHEREAS, on July 25, 2013, pursuant to section 107(d), 42 U.S.C. § 7407(d), the EPA
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`Administrator signed a notice designating Jackson County, Jackson County (Part), in Missouri as
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`nonattainment for the 2010 SO2 NAAQS, effective October 4, 2013, id.;
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`
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`WHEREAS, on July 25, 2013, pursuant to section 107(d), 42 U.S.C. § 7407(d), the EPA
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`Administrator signed a notice designating Sullivan County, Sullivan County (Part), in Tennessee
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`as nonattainment for the 2010 SO2 NAAQS, effective October 4, 2013, id. at 47,204;
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`
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`WHEREAS, on July 25, 2013, pursuant to section 107(d), 42 U.S.C. § 7407(d), the EPA
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`Administrator signed a notice designating Rhinelander, Oneida County (Part), in Wisconsin as
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`nonattainment for the 2010 SO2 NAAQS, effective October 4, 2013, id. at 47,205;
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`WHEREAS, on June 30, 2016, pursuant to CAA section 107(d), 42 U.S.C. § 7407(d), the
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`EPA Administrator signed a notice promulgating a final rule to establish additional air quality
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`designations for the 2010 SO2 NAAQS (“Round 2 2010 SO2 Designations”), Final Rule, 81 Fed.
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`Reg. 45,039 (July 12, 2016);
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`
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`WHEREAS, the Round 2 2010 SO2 Designations became effective on September 12,
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`2016, id. at 45,039;
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`
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`WHERAS, on June 30, 2016, pursuant to CAA section 107(d), 42 U.S.C. § 7407(d), the
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`EPA Administrator signed a notice designating Alton Township, Madison County (Part), in
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`Illinois as nonattainment for the 2010 SO2 NAAQS, effective September 12, 2016, id. at 45,047;
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`
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`WHEREAS, pursuant to CAA section 192(a), attainment of the relevant standard should
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`be achieved “as expeditiously as practicable but no later than 5 years from the date of the
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`[PROPOSED] CONSENT DECREE
`CASE NO. 3:20-cv-05436-EMC
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`Case 3:20-cv-05436-EMC Document 44 Filed 06/25/21 Page 5 of 16
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`nonattainment designation,” i.e., October 4, 2018 for the Initial 2010 SO2 NAAQS Designations,
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`and September 12, 2021 for the Round 2 2010 SO2 NAAQS Designations, 42 U.S.C. § 7514a(a);
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`WHEREAS, pursuant to CAA section 179(c)(1) “[a]s expeditiously as practicable after
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`the applicable attainment date for any nonattainment area, but not later than 6 months after such
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`date, the Administrator shall determine, based on the area’s air quality as of the attainment date,
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`whether the area attained the standard by that date,” i.e., April 4, 2019 for the Initial 2010 SO2
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`NAAQS Designations, 42 U.S.C. § 7509(c)(1). Upon making such determination, EPA must
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`“publish a notice in the Federal Register containing such determination and identifying each area
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`that the Administrator has determined to have failed to attain,” id. § 7509(c)(2);
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`WHEREAS, pursuant to CAA section 191(a), 42 U.S.C. § 7514(a), states that contain
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`areas that are designated nonattainment after November 15, 1990 are required to provide State
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`Implementation Plan (“SIP”) submissions to EPA within 18 months of the effective date of
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`designations, i.e. by April 4, 2015 for the Initial 2010 SO2 Designations, and by March 12, 2018
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`for the Round 2 2010 SO2 Designations;
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`WHEREAS, pursuant to CAA section 191(a), 42 U.S.C. § 7514(a), Alton Township,
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`Illinois was required to submit a SIP to EPA within 18 months of September 12, 2016, for the
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`Alton Township portion of the Metropolitan St. Louis Interstate Air Quality Control Region
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`nonattainment area for the 2010 SO2 NAAQS;
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`WHEREAS, on December 3, 2018, Illinois submitted a SIP to EPA for the Alton
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`Township nonattainment area with the following elements: (1) attainment demonstration
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`pursuant to 42 U.S.C. § 7502(c) (“Attainment Demonstration”); (2) contingency measure
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`requirements pursuant to 42 U.S.C. § 7502(c)(9) (“Contingency Measures”); (3) base year
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`emissions inventory requirements pursuant to 42 U.S.C. § 7502(c)(3) (“Emissions Inventory”);
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`[PROPOSED] CONSENT DECREE
`CASE NO. 3:20-cv-05436-EMC
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`Case 3:20-cv-05436-EMC Document 44 Filed 06/25/21 Page 6 of 16
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`(4) reasonably available control technology and reasonably available control measures pursuant
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`to 42 U.S.C. § 7502(c)(1) (“RACT/RACM”); and (5) reasonable further progress requirements
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`pursuant to 42 U.S.C. § 7502(c)(2) (“RFP”), Status of SIP Required Elements for Illinois
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`Designated Areas, EPA,
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`https://www3.epa.gov/airquality/urbanair/sipstatus/reports/il_elembypoll.html#so2__2010__173
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`0 (last visited February 23, 2021);
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`WHEREAS, pursuant to CAA section 110(k)(1)(B), 42 U.S.C. § 7410(k)(1)(B), within
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`six months after EPA receives a SIP submission, EPA must determine whether a State’s
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`submittal is complete, and if EPA does not determine completeness of the plan or revision within
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`six months, then the submittal is deemed complete by operation of law after six months, id.;
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`WHEREAS, on June 3, 2019, Alton Township’s SIP was deemed complete by operation
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`of law pursuant to CAA section 110(k)(1)(B), 42 U.S.C. § 7410(k)(1)(B);
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`
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`WHEREAS, pursuant to CAA section 110(k)(2)-(4), 42 U.S.C. § 7410(k)(2)-(4), within
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`12 months of a determination of completeness by EPA or a submittal deemed by operation of
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`law to be complete, EPA is required to approve in whole or in part, disapprove, or conditionally
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`approve in whole or in part, each plan or revision;
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`
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`WHEREAS, in Claim 1, Plaintiffs allege that EPA has failed to perform a duty mandated
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`by CAA section 110(k)(1)(B), 42 U.S.C. § 7410(k)(1)(B), to make a finding of failure to submit
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`a nonattainment SIP for various states and nonattainment areas for the 2010 SO2 NAAQS
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`addressing the following element or elements under 42 U.S.C. §§ 7502 or 7514a, from the areas
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`and states listed below, see First Am. Compl. ¶¶ 38-44 & Table 1 (Dkt. No. 25) (“Claim 1”):
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`//
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`//
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`[PROPOSED] CONSENT DECREE
`CASE NO. 3:20-cv-05436-EMC
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`Case 3:20-cv-05436-EMC Document 44 Filed 06/25/21 Page 7 of 16
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`Table 1
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`State
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`Guam
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`Nonattainment Area
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`Piti-Cabras, GU
`
`Indiana
`
`Huntington, IN
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`Louisiana
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`Evangeline Parish (Partial), LA
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`Puerto Rico
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`Guayama-Salinas, PR
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`Puerto Rico
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`San Juan, PR
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`Element(s) Addressed in State
`Implementation Plan
`(1) Attainment Demonstration;
`(2) Contingency Measures;
`(3) Emissions Inventory
`(4) Nonattainment New Source Review
`Plan, 42 U.S.C. § 7502(c)(5), (“NNSR”);
`(5) RACM/RACT;
`(6) RFP
`(1) Attainment Demonstration;
`(2) Contingency Measures;
`(3) Emissions Inventory
`(4) NNSR;
`(5) RACM/RACT;
`(6) RFP
`(1) Attainment Demonstration;
`(2) Contingency Measures;
`(3) Emissions Inventory;
`(4) NNSR;
`(5) RACM/RACT;
`(6) RFP
`(1) Attainment Demonstration;
`(2) Contingency Measures;
`(3) Emissions Inventory;
`(4) NNSR;
`(5) RACM/RACT;
`(6) RFP
`(1) Attainment Demonstration;
`(2) Contingency Measures;
`(3) Emissions Inventory;
`(4) NNSR;
`(5) RACM/RACT;
`(6) RFP
`
`
`
`WHEREAS, on October 8, 2020, EPA Principal Deputy Assistant Administrator for the
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`Office of Air and Radiation signed findings of failure to submit SIPs required for attainment of
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`the 2010 SO2 NAAQS for the areas listed in Table 1, and the findings were published in the
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`[PROPOSED] CONSENT DECREE
`CASE NO. 3:20-cv-05436-EMC
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`Case 3:20-cv-05436-EMC Document 44 Filed 06/25/21 Page 8 of 16
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`Federal Register on November 3, 2020, Final Rule, 85 Fed. Reg. 69,504, 69,506-08 (Nov. 3,
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`2020). Claim 1 is therefore moot as to all areas and elements listed in Table 1.
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`
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`WHEREAS, in Claim 2, Plaintiffs allege that EPA has failed to perform a duty mandated
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`by CAA section 110(k)(2)-(4), 42 U.S.C. § 7410(k)(2)-(4), to take final action to approve or
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`disapprove, in whole or in part, the 2010 SO2 NAAQS nonattainment SIP submitted by Alton
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`Township, Illinois, see First Am. Compl. ¶¶ 45-51 (Dkt. No. 25) (“Claim 2”);
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`
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`WHEREAS, in Claim 3, Plaintiffs allege that EPA has failed to perform a duty mandated
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`by CAA section 179(c), 42 U.S.C. § 7509(c), to determine whether the areas and states listed
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`below attained the 2010 SO2 NAAQS by the attainment date and publish the findings in the
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`Federal Register, see First Am. Compl. ¶¶ 52-57 & Table 2 (Dkt. No. 25) (“Claim 3”):
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`Table 2
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`DESIGNATED AREA
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`Hayden (parts of Gila County and Pinal County)
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`Miami (part of Gila County)
`Southwest Indiana (parts of Daviess County and Pike County)
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`Muscatine (part of Muscatine County)
`St. Bernard Parish
`Detroit (part of Wayne County)
`Jackson County (part)
`Sullivan County (part)
`Rhinelander (part of Oneida County)
`
`STATE
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`Arizona
`
`Arizona
`Indiana
`
`Iowa
`Louisiana
`Michigan
`Missouri
`Tennessee
`Wisconsin
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`WHEREAS, on February 22, 2021, EPA signed a final rule redesignating the Southwest
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`Indiana nonattainment area, which includes a portion of Daviess County and a portion of Pike
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`[PROPOSED] CONSENT DECREE
`CASE NO. 3:20-cv-05436-EMC
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`Case 3:20-cv-05436-EMC Document 44 Filed 06/25/21 Page 9 of 16
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`County, to attainment for the 2010 SO2 NAAQS. Final Rule, 86 Fed. Reg. 12,107-08 (Mar. 2,
`2021). Claim 3 as to Southwest Indiana is therefore moot;
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`WHEREAS, the relief requested in the First Amended Complaint includes, among other
`things, an order from this Court to establish a date certain by which EPA must fulfill its
`obligations, see First Am. Compl. at 15-16 (Dkt. No. 25);
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`WHEREAS, Plaintiffs and EPA have agreed to a settlement of this action without
`admission of any issue of fact or law, except as expressly provided herein;
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`WHEREAS, Plaintiffs and EPA, by entering into this Consent Decree (the “Consent
`Decree”), do not waive or limit any claim, remedy, or defense, on any grounds, related to any
`final EPA action;
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`WHEREAS, Plaintiffs and EPA consider this Consent Decree to be an adequate and
`equitable resolution of Claims 2 and 3 in this matter and therefore wish to effectuate a
`settlement;
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`WHEREAS, it is in the interest of the public, Plaintiffs, EPA, and judicial economy to
`resolve this matter without protracted litigation;
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`WHEREAS, Plaintiffs and EPA agree that this Court has jurisdiction over the matters
`resolved in this Consent Decree pursuant to the citizen suit provision in 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
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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
`any issues of fact or law, and upon the consent of Plaintiffs and Defendant EPA, it is hereby
`ordered, adjudged and decreed that:
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`1. The appropriate EPA official shall:
`
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`a. sign a notice of final rulemaking pursuant to CAA section 110(k)(2)-(4), 42
`U.S.C. § 7410(k)(2)-(4), no later than March 1, 2022 to approve, disapprove, or conditionally
`approve, in full or in part, the nonattainment SIP that Alton Township, Illinois submitted to EPA
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`[PROPOSED] CONSENT DECREE
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`Case 3:20-cv-05436-EMC Document 44 Filed 06/25/21 Page 10 of 16
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`on December 3, 2018 containing the following elements: (1) Attainment Demonstration; (2)
`Contingency Measures; (3) Emissions Inventory; (4) RACT/RACM; and (5) RFP, for the 2010
`SO2 NAAQS for the elements of CAA sections 172(c) and 192, 42 U.S.C. §§ 7502(c) and 7514a;
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`b. sign a notice of final rulemaking pursuant to CAA section 179(c), 42 U.S.C.
`§ 7509(c), determining whether the following areas attained the 2010 SO2 NAAQS by the
`attainment date, i.e. April 4, 2019, no later than the dates indicated below:
`STATE
`DESIGNATED AREA
`
`DEADLINE
`
`Arizona
`
`Hayden (parts of Gila County and Pinal County)
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`January 31, 2022
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`Miami (part of Gila County)
`Arizona
`Muscatine (part of Muscatine County)
`Iowa
`St. Bernard Parish
`Louisiana
`Michigan Detroit (part of Wayne County)
`Missouri
`Jackson County (part)
`Tennessee Sullivan County (part)
`Wisconsin Rhinelander (part of Oneida County)
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`January 31, 2022
`March 31, 2022
`March 31, 2022
`January 31, 2022
`March 31, 2022
`March 31, 2022
`January 31, 2022
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`2. If EPA redesignates an area from nonattainment to attainment for any nonattainment
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`area listed above in Paragraph 1.b., then EPA’s obligation to take final action determining
`whether the nonattainment area attained the standard by the attainment date is automatically
`terminated and Plaintiffs’ claim as to that designated area is moot.
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`3. EPA shall, within fifteen (15) business days of signature, send the rulemaking package
`for each action taken pursuant to Paragraph 1 of this Consent Decree to the Office of the Federal
`Register for review and publication in the Federal Register.
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`4. After EPA has completed the actions set forth in Paragraph 1 of this Consent Decree,
`after notice of each final action required by Paragraph 3 have been published in the Federal
`Register, and the issue of costs of litigation (including reasonable attorney fees) has been
`resolved, EPA may move to have this Consent Decree terminated. Plaintiffs shall have fourteen
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`[PROPOSED] CONSENT DECREE
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`(14) days in which to respond to such motion, unless the parties stipulate to a longer time for
`Plaintiffs to respond.
`
`5. The deadlines established by this Consent Decree may be extended (a) by written
`stipulation of Plaintiffs and EPA with notice to the Court, or (b) by the Court upon motion of
`EPA for good cause shown pursuant to the Federal Rules of Civil Procedure and upon
`consideration of any response by Plaintiffs and any reply by EPA. Any other provision of this
`Consent Decree may also be modified by the Court following motion of an undersigned party for
`good cause shown pursuant to the Federal Rules of Civil Procedure and upon consideration of
`any response by a non-moving party and any reply.
`
`6. If a lapse in EPA appropriations occurs within one hundred and twenty (120) days
`prior to a deadline in Paragraph 1 or Paragraph 3 in this Consent Decree, that deadline 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 5.
`
`7. Plaintiffs and EPA agree that Claim 1 is moot.
`
`8. Plaintiffs and EPA agree that this Consent Decree constitutes a complete settlement of
`Claims 2 and 3 as described in Paragraph 1.
`
`9. In the event of a dispute between Plaintiffs 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 ten (10) business
`days after receipt of the notice, either party may petition the Court to resolve the dispute.
`
`10. No motion or other proceeding seeking to enforce this Consent Decree or for
`contempt of Court shall be properly filed unless the procedure set forth in Paragraph 9 has been
`followed, and the moving party has provided the other party with written notice received at least
`ten (10) business days before the filing of such motion or proceeding.
`
`[PROPOSED] CONSENT DECREE
`CASE NO. 3:20-cv-05436-EMC
`Page 11
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`Case 3:20-cv-05436-EMC Document 44 Filed 06/25/21 Page 12 of 16
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`11. The deadline for filing a motion for costs of litigation (including attorney fees) for
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`activities performed prior to entry of the Consent Decree is hereby extended until ninety (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) or a stipulation or motion to
`extend the deadline to file such a motion. EPA reserves the right to oppose any such request.
`The Court shall retain jurisdiction to resolve any requests for costs of litigation, including
`attorney fees.
`
`12. This Court shall retain jurisdiction over this matter to enforce the terms of this
`Consent Decree and to consider any requests for costs of litigation (including attorney fees).
`
`13. 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 Court 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, section 42 U.S.C. § 7410(k), approving,
`disapproving, or approving in part and disapproving in part a SIP submittal, 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).
`14. Nothing in this Consent Decree shall be construed to limit or modify any discretion
`accorded EPA by the CAA or by general principles of administrative law in taking the actions
`which are the subject of this Consent Decree, including 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.
`15. 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.
`
`[PROPOSED] CONSENT DECREE
`CASE NO. 3:20-cv-05436-EMC
`Page 12
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`Case 3:20-cv-05436-EMC Document 44 Filed 06/25/21 Page 13 of 16
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`16. Plaintiffs reserve 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).
`17. It is hereby expressly understood and agreed that this Consent Decree was jointly
`drafted by Plaintiffs and EPA. Accordingly, the parties hereby agree that any and all rules of
`construction to the effect that ambiguity is construed against the drafting party shall be
`inapplicable in any dispute concerning the terms, meaning, or interpretation of this Consent
`Decree.
`18. 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, 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, in accordance
`with CAA section 113(g). If the Administrator and/or the Attorney General do not elect to
`withdraw or withhold consent, EPA shall promptly file a motion that requests that the Court
`enter this Consent Decree.
`19. 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 Plaintiffs:
`
`
`Ashley Bruner
`Center for Biological Diversity
`P.O. Box 1178
`Flagstaff, AZ 86002
`Tel.: (928) 666-0731
`Email: abruner@biologicaldiversity.org
`
`Robert Ukeiley
`Center for Biological Diversity
`1536 Wynkoop St., Ste. 421
`Denver, CO 80202
`
`[PROPOSED] CONSENT DECREE
`CASE NO. 3:20-cv-05436-EMC
`Page 13
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`Case 3:20-cv-05436-EMC Document 44 Filed 06/25/21 Page 14 of 16
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`For EPA:
`
`Tel: (720) 496-8568
`Email: rukeiley@biologicaldiversity.org
`
`Lucy E. Brown
`U.S. Department of Justice
`Environment & Natural Resources Division
`Environmental Defense Section
`4 Constitution Square
`150 M Street N.E., Suite 4.400
`Washington D.C. 20002
`Tel.: (202) 598-1868
`Email: lucy.e.brown@usdoj.gov
`
`20. EPA and Plaintiffs 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.
`
`21. 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.
`22. The undersigned representatives of Plaintiffs 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 Decree.
`
`IT IS SO ORDERED on this 25th day of June, 2021.
`
`________________________________
`EDWARD CHEN
`UNITED STATES DISTRICT JUDGE
`
`[PROPOSED] CONSENT DECREE
`CASE NO. 3:20-cv-05436-EMC
`Page 14
`
`

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`Case 3:20-cv-05436-EMC Document 44 Filed 06/25/21 Page 15 of 16
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`COUNSEL FOR PLAINTIFFS:
`
`
`
`
`
`
`
`
`/s/ Ashley Bruner (email auth. 6/21/21)
`ASHLEY BRUNER, Admitted Pro Hac Vice
`CENTER FOR BIOLOGICAL DIVERSITY
`P.O. Box 1178
`Flagstaff, AZ 86002
`Tel.: (928) 666-0731
`Email: abruner@biologicaldiversity.org
`
`Robert Ukeiley, Admitted Pro Hac Vice
`CENTER FOR BIOLOGICAL DIVERSITY
`1536 Wynkoop St., Ste. 421
`Denver, CO 80202
`Tel: (720) 496-8568
`Email: rukeiley@biologicaldiversity.org
`
`Jonathan Evans (Cal. Bar #247376)
`CENTER FOR BIOLOGICAL DIVERSITY
`1212 Broadway, Suite 800
`Oakland, CA 94612
`Tel.: (510) 844-7100
`Fax: 510-844-7150
`Email: jevans@biologicaldiversity.org
`
`Attorneys for Plaintiffs
`
`
`[PROPOSED] CONSENT DECREE
`CASE NO. 3:20-cv-05436-EMC
`Page 15
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`

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`Case 3:20-cv-05436-EMC Document 44 Filed 06/25/21 Page 16 of 16
`
`
`
`COUNSEL FOR EPA:
`
`
`
`
`/s/ Lucy E. Brown
`JEAN E. WILLIAMS
`Acting Assistant Attorney General
`LUCY E. BROWN (HI Bar No. 10946)
`Attorney
`United States Department of Justice
`Environment & Natural Resources Division
`Environmental Defense Section
`4 Constitution Square
`150 M Street N.E., Suite 4.1410
`Washington D.C. 20002
`Tel. (202) 598-1868
`Email: lucy.e.brown@usdoj.gov
`
`Attorneys for Defendant EPA
`
`
`
`Of counsel:
`
`Emily Seidman
`Office of General Counsel
`U.S. Environmental Protection Agency
`
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`[PROPOSED] CONSENT DECREE
`CASE NO. 3:20-cv-05436-EMC
`Page 16
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