EPA-HQ-OGC-2023-0349-0002content

DRAFT - Settlement Confidential [Proposed] Consent Decree Case No. 3:23-cv-00780-TLT Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ALEX J. HARDEE (NC Bar No. 56321) United States Department of Justice Environment & Natural Resources Division Environmental Defense Section P.O. Box 7611 Washington, DC 20044 202-514-2398 [email protected] Attorney for Defendants KRISTIN HENRY (CA Bar No. 220908) JOSHUA SMITH (OR Bar No. 071757) DRU SPILLER (DC Bar No. 1736750) Sierra Club 2101 Webster Street, Suite 1300 Oakland, CA 94612 415-977-5716 [email protected] [email protected] [email protected] Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION SIERRA CLUB, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and MICHAEL S. REGAN, in his official capacity as Administrator of the United States Environmental Protection Agency, Defendants. Case No. 3:23-cv-00780-TLT [PROPOSED] CONSENT DECREE

DRAFT - Settlement Confidential [Proposed] Consent Decree Case No. 3:23-cv-00780-TLT Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, this Consent Decree is between Plaintiff Sierra Club and Defendants U.S. Environmental Protection Agency and Michael S. Regan in his official capacity as Administrator (collectively, EPA); WHEREAS, Plaintiff filed this lawsuit on February 22, 2023; WHEREAS, Plaintiff alleges EPA has failed to perform a nondiscretionary duty under the Clean Air Act (CAA), as follows; WHEREAS, portions of Rusk and Panola Counties, Texas, have been designated as a "nonattainment" area for the 2010 sulfur dioxide (SO 2 ) National Ambient Air Quality Standard (NAAQS) effective January 12, 2017. 81 Fed. Reg. 89870 (Dec. 12, 2016) (Air Quality Designations for 2010 SO 2 NAAQS); WHEREAS, within 18 months of the effective date of the nonattainment designation (by July 12, 2018), the CAA required the State of Texas to submit a State Implementation Plan (SIP) that would provide the pollution reductions necessary for the Rusk-Panola nonattainment area to attain the SO 2 NAAQS as expeditiously as practicable, but not later than five years from the date of the designation. 81 Fed. Reg. at 89871; see also 42 U.S.C. §§ 7514(a), 7514a; WHEREAS, Texas did not submit a SIP within 18 months of the effective date of the nonattainment designation, and EPA subsequently issued a statutorily required finding of failure to submit a SIP. See 85 Fed. Reg. 48111 (Aug. 10, 2020) (Finding of Failure to Submit). The Finding of Failure to Submit created a duty for EPA to promulgate a Federal Implementation Plan (FIP) for the nonattainment area unless EPA takes final action approving a corrective SIP from the State within two years of the effective date of the Finding of Failure to Submit (by September 9, 2022). 85 Fed. Reg. at 48112; see also 42 U.S.C. § 7410(c)(1)(A); WHEREAS, Texas subsequently submitted a SIP for the nonattainment area to EPA on February 28, 2022. 1 WHEREAS, EPA did not issue a FIP by September 9, 2022, as Plaintiff alleges was required by 42 U.S.C. § 7410(c)(1)(A); 1 Available at https://www.tceq.texas.gov/downloads/air-quality/sip/so2/rusk- panola/20057sip_ruskpanola_adsip_adoption_web.pdf.

DRAFT - Settlement Confidential [Proposed] Consent Decree Case No. 3:23-cv-00780-TLT Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, Plaintiff alleges that such alleged failure is actionable under 42 U.S.C. § 7604(a)(2). Compl. ¶ 53. Plaintiff seeks declaratory and injunctive relief as well as attorney fees and other costs of litigation pursuant to 42 U.S.C. § 7604(a) & (d). Compl. at 17; WHEREAS, the relief requested in the Complaint includes, among other things, an order from this Court to establish a date certain by which EPA must fulfill its nondiscretionary obligations under the CAA; WHEREAS, Plaintiff and EPA have agreed to a settlement of this action without admission of any issue of fact or law, except as expressly provided herein; WHEREAS, Plaintiff and EPA, by entering into this Consent Decree, do not waive or limit any claim, remedy, or defense, on any grounds, related to any final EPA action; WHEREAS, Plaintiff and EPA consider this Consent Decree to be an adequate and equitable resolution of all claims in this matter and therefore wish to effectuate a settlement; WHEREAS, it is in the interest of the public, Plaintiff, EPA, and judicial economy to resolve this matter without protracted litigation; WHEREAS, Plaintiff 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 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; THEREFORE, before the taking of testimony, without trial or determination of any issues of fact or law, and upon the consent of Plaintiff and EPA, it is decreed that: 1. This Court has subject-matter jurisdiction over the claims set forth in the Complaint pursuant to the citizen suit provision of the Clean Air Act, 42 U.S.C. § 7604(a)(2). 2. By December 13, 2024, the appropriate EPA official shall sign a notice of final rulemaking pursuant to CAA section 110(c)(1), 42 U.S.C. § 7410(c)(1), promulgating a FIP for the Rusk-Panola nonattainment area unless the EPA approves a corrective SIP for the area satisfying the requirements of CAA section 172(c), 42 U.S.C. § 7502(c), prior to December 13, 2024.