North Dakota Et Al. Response To 2nd Motion For Summary Judgment 5/22/2014 ND Cal

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INTERVENOR-PLAINTIFFS THE STATE OF NORTH DAKOTA ET AL.S RESPONSE IN OPPOSITION TO
PLAINTIFFS AND EPAS NOTICE OF LODGING PROPOSED CONSENT DECREE
AND MOTION TO STAY PROCEEDINGS UNTIL AUGUST 1, 2014
CASE NO.: 3:13-cv-03953 SI

Paul M. Seby (Admitted Pro Hac Vice)
pmseby@hollandhart.com
Marian C. Larsen (Admitted Pro Hac Vice)
mclarsen@hollandhart.com
HOLLAND & HART LLP
555 17th Street, Suite 3200
P.O. Box 8749
Denver, CO 80201-8749
Telephone: (303) 295-8430
Facsimile: (303) 291-9177

Attorneys for Intervenor Plaintiffs
The State of North Dakota Attorney General
Wayne Stenehjem, The State of Arizona
Attorney General Tom Horne, The Commonwealth
of Kentucky Energy and Environment Cabinet,
The State of Nevada Attorney General Catherine
Cortez Masto, The State of Louisiana Department
of Environmental Quality, and the State of Texas
Attorney General Greg Abbott

[Counsel Listing Continued on Next Page]

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
SIERRA CLUB et al.,

Plaintiffs,

v.

REGINA MCCARTHY, in her official capacity
as Administrator of the United States
Environmental Protection Agency,

Defendant.
CASE NO.: 3:13-CV-03953 SI

INTERVENOR PLAINTIFFS THE STATE
OF NORTH DAKOTA, THE STATE OF
ARIZONA, THE COMMONWEALTH OF
KENTUCKY ENERGY AND
ENVIRONMENT CABINET, THE STATE
OF LOUISIANA DEPARTMENT OF
ENVIRONMENTAL QUALITY, THE
STATE OF NEVADA, AND THE STATE OF
TEXASS RESPONSE IN OPPOSITION TO
PLAINTIFFS AND EPAS NOTICE OF
LODGING PROPOSED CONSENT DECREE
AND MOTION TO STAY PROCEEDINGS
UNTIL AUGUST 1, 2014

Date: May 30, 2014
Time: 9:00 AM
J udge: Hon. Susan Illston
Dept: 10
Complaint Filed: August 26, 2013
Case3:13-cv-03953-SI Document107 Filed05/22/14 Page1 of 30
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CASE NO.: 3:13-cv-03953 SI

THE STATE OF NORTH DAKOTA
ATTORNEY GENERAL
Wayne Stenehjem, Attorney General
Margaret I. Olson (Admitted Pro Hac Vice)
maiolson@nd.gov
Office of Attorney General
500 North 9
th
Street

Bismarck, ND 58501-4509
Telephone: (701) 328-3640
Facsimile: (701) 328-4300

HUNTON & WILLIAMS LLP
Timothy J . Carlstedt (SBN 168855)
tCarlstedt@hunton.com
550 South Hope Street, Suite 2000
Los Angeles, CA 90071-2627
Telephone: (213) 532-2000
Facsimile: (213) 532-2020

THE COMMONWEALTH OF KENTUCKY
ENERGY AND ENVIRONMENT CABINET
C. MICHAEL HAINES (KY Bar 27872)
Executive Director
J ACQUELYN A. QUARLES (KY Bar 90400)
Pro Hac Vice
Staff Attorney,
Office of General Counsel
Energy and Environment Cabinet
200 Fair Oaks Lane, 1st Floor
Frankfort, KY 40601
Telephone: (502) 564-3999
Mike.Haines@ky.gov
J ackie.Quarles@ky.gov

THOMAS C. HORNE
ATTORNEY GENERAL
MONIQUE K. COADY (AZ Bar 025416)
Pro Hac Vice
Assistant Attorney General
1275 West Washington Street
Phoenix, Arizona 85007-2926
Telephone: (602) 542-8543
Facsimile: (602) 542-7798
monique.coady@azag.gov

LOUISIANA DEPARTMENT OF
ENVIRONMENTAL QUALITY
SPENCER B. BOWMAN (LA Bar 33515)
Pro Hac Vice
Louisiana Department of Environmental Quality,
Legal Division
602 N. 5th St.
Baton Rouge, LA 70821-4302
Telephone: (225) 219-3985
spencer.bowman@la.gov

GREG ABBOTT, Attorney General
MARK L. WALTERS (CA Bar 160232)
Environmental Protection Division
(MC-066)
P.O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 463-2012
mark.walters@texasattorneygeneral.gov
CATHERINE CORTEZ MASTO
ATTORNEY GENERAL
BELINDA A. SUWE (NV Bar 12499)
Pro Hac Vice
Deputy Attorney General
Nevada Office of Attorney General
100 North Carson Street
Carson City, NV 89701
Telephone: (775) 684-1163
bsuwe@ag.nv.gov

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CASE NO.: 3:13-cv-03953 SI

TABLE OF CONTENTS
STATEMENT OF THE ISSUES TO BE DECIDED........................................................................... 1
INTRODUCTION AND STATEMENT OF THE FACTS.................................................................. 1
LEGAL STANDARD GOVERNING PROPOSED CONSENT DECREES ...................................... 5
ARGUMENT ........................................................................................................................................ 6
I. THE PROPOSED CONSENT DECREE VIOLATES CAA 107(D). ........................................ 6
A. EPA Has Determined It Lacks Sufficient Information To Promulgate Most Areas
Of The Country As Attainment Or Nonattainment. ....................................................... 7
B. The Only Remedy That May Be Included In The Proposed Consent Decree Is For
EPA To Timely Proceed With Designations Of Unclassifiable For Areas Which
EPA Believes It Lacks Sufficient Information. ..................................................................... 8
II. THE CONSENT DECREE ADVERSELY AFFECTS THE LEGAL RIGHTS AND
INTERESTS OF THE INTERVENOR STATES. ...................................................................... 10
A. The Consent Decree Establishes Duties And Obligations Beyond When EPA Must
Take Final Action. ............................................................................................................... 10
B. The Consent Decree Impermissibly Imposes Legal Obligations Upon And
Adversely Affects The Legal Rights Of The Intervenor States. .......................................... 12
1. Including the proposed Data Requirements Rule in the proposed Consent
Decree imposes legal obligations upon the Intervenor States. ...................................... 12
2. The legal rights of the Intervenor States under the CAA are harmed by the
proposed Consent Decree. ............................................................................................. 13
C. The Consent Decree Is Unfair, Unreasonable And Violates Public Policy. ........................ 17
1. The proposed Consent Decree is not fair. ..................................................................... 17
2. The proposed Consent Decree is not reasonable. .......................................................... 20
III. THE MAY 30 HEARING ON REMEDY MUST PROCEED. .................................................. 22
CONCLUSION ................................................................................................................................... 23

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TABLE OF AUTHORITIES
Page(s)
CASES
Baughman v. Bradford Coal Co., Inc.,
592 F.2d 215 (3d Cir. 1979)...........................................................................................................13
Dep't of Toxic Substance Control v. Technichem, Inc.
2013 WL 3856386 (N.D. Cal. J uly 24, 2013) ..................................................................................5
General Motors Corp. v. United States,
496 U.S. 530 (1990) .................................................................................................................14, 16
Johnson v. Lodge #93 of Fraternal Order of Police,
393 F.3d 1096 (10th Cir. 2004) .................................................................................................6, 21
Local No. 93, Intl Assoc. of Firefighters v. Cleveland,
478 U.S. 501 (1986) .................................................................................................................5, 6, 9
Luminant Generation Co., L.L.C. v. U.S. E.P.A.,
675 F.3d 917 (5th Cir. 2012) .........................................................................................................16
Natural Resources Defense Council v. Reilly,
983 F.2d 259 (D.C. Cir. 1993) .......................................................................................................21
Reed v. United Teachers Los Angeles,
208 Cal. App. 4th 322 (2012), review denied (Oct. 24, 2012) ..................................................6, 22
Sierra Club and Natural Resources Defense Council, v. EPA and Gina McCarthy, No.
13-1262 (DC Cir. Dec. 18, 2013) ..................................................................................................15
Sierra Club, Inc. v. Elec. Controls Design, Inc.,
909 F.2d 1350 (9th Cir. 1990) ...................................................................................................5, 15
Sierra Club v. California,
658 F.Supp. 165 (N.D.Cal.1987) ...................................................................................................21
Sierra Club v. Johnson,
444 F. Supp. 2d 46 (D.D.C. 2006) ...................................................................................................8
State of North Dakota et al v. McCarthy,
1:13-cv-00109-CSM (D.N.D. Sep. 12, 2013) ..........................................................................15, 16
U.S. v. City of Hialeah,
140 F.3d 968 (11th Cir. 1998) .................................................................................................14, 16
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CASE NO.: 3:13-cv-03953 SI

U.S. v. City of Miami, Fla.,
664 F.2d 435 (5th Cir. 1981) ...........................................................................................................5
United States v. BP Exploration & Oil Co.,
167 F.Supp.2d 1045 (N.D.Ind.2001) ..................................................................................... passim
United States v. Oregon,
913 F.2d 576 (9th Cir. 1990) .......................................................................................................5, 6
STATUTES
Clean Air Act, 42 U.S.C. 7401, et seq. (2014) .................................................................................1
CAA 101(a)(3), 42 U.S.C. 7401(a)(3) (2013) .........................................................................14, 21
CAA 107(a), 42 U.S.C. 7407(a) ..............................................................................................14, 21
CAA 107(d), 42 U.S.C. 7407(d) ............................................................................................ passim
CAA 107(d)(1)(A); 42 U.S.C. 7407(d)(1)(A) .............................................................................6, 7
CAA 107(d)(1)(B)(i),42 U.S.C. 7407(d)(1)(B)(i) (2014) ......................................................7, 9, 20
CAA 113(g), 42 U.S.C. 7413(g) ......................................................................................................2
CAA 304(a)(2), 42 U.S.C. 7604(a)(2) .....................................................................................13, 21
FEDERAL REGISTER NOTICES
75 Fed. Reg. 35,520, 35,552/1, 35,574/3 (J une 22, 2010) .....................................................................7
77 Fed. Reg. 27,446 (May 13, 2014) ........................................................................................... passim
77 Fed. Reg. 46,295, 46,296/3 (Aug. 3, 2012) ......................................................................................7
78 Fed. Reg. 47,191 (Aug. 5, 2013).....................................................................................................15
OTHER AUTHORITIES
40 C.F.R. 54.3 ...................................................................................................................................15
136 CONG.REC. S2,436 (daily ed. Mar. 8, 1990) ..............................................................................21

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CASE NO.: 3:13-cv-03953 SI

STATEMENT OF THE ISSUES TO BE DECIDED
1. Whether the Court may enter the proposed consent decree (Consent Decree)
lodged by Plaintiffs the Sierra Club and the Natural Resources Defense Council (Plaintiffs) and
Defendant Regina McCarthy, in her official capacity as Administrator of the U.S. Environmental
Protection Agency (EPA), when the Consent Decree violates Clean Air Act (CAA or the Act)
107(d).
2. Whether the proposed Consent Decree imposes obligations and duties upon the
Intervenor States
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that affect and impair the rights of the Intervenor States.
3. Whether the Court shall proceed with the May 30, 2014 hearing on remedy since the
proposed Consent Decree cannot dispose of the claims or interests of the Intervenor States, or the
Plaintiffs and because the Decree violates the CAA and the Decree impermissibly seeks to dispose
of the Intervenor States claims though they are not parties to the Decree.
INTRODUCTION AND
STATEMENT OF THE FACTS
Less than two weeks before the scheduled May 30th hearing on remedy, Plaintiffs and EPA
have lodged with this Court a proposed Consent Decree that, if entered by the Court, would impose
obligations and duties upon the Intervenor States that are contrary to the CAA and which imperil the
Acts cooperative federalism structure and authority granted to the States. The proposed Consent
Decree harms the interests of the Intervenor States because it violates CAA 107(d). Under CAA
107(d), EPA was required to proceed with area designations for the sulfur dioxide (SO
2
) national
ambient air quality standard (NAAQS) as expeditiously as practicable, but in no event more than
three years from the date of the revised SO
2
NAAQS. If at the end of this three year period EPA

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The Intervenor States are North Dakota, Arizona, Kentucky, Nevada, Louisiana and Texas.
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believed that it lacked sufficient information to make area designations, the CAA 107(d) requires
EPA to promulgate area designations of unclassifiable.
Despite the clarity of CAA 107(d), EPA and Plaintiffs have proceeded to lodge with this
Court a proposed Consent Decree that far exceeds the Acts mandatory deadlines, reads out of the
Act the unclassifiable designation and imposes legal duties and obligations upon the States even
though the States were not involved in its development nor consented to its proposed terms. In fact,
the Intervenor States were only made aware by Plaintiffs counsel on May 6th that Plaintiffs and
EPA had been engaged in settlement discussions apart from the Intervenor States and that the parties
were close to finalizing the terms of a settlement. See Declaration of Paul M. Seby at 5. In that
May 6th communication, Plaintiffs counsel provided the Intervenor States with what they
represented as the principal terms of the settlement, but the draft proposed Consent Decree was not
made available to the Intervenor States until the afternoon of Friday, May 16th, despite numerous
requests beginning May 6th from the Intervenor States for a copy of the draft Decree. See id. at 5,
6 and 7. Plaintiffs and EPA lodged the proposed Consent Decree with the Court on the morning of
Monday, May 19th. See ECF No. 102.
As nonconsenting intervenor Plaintiffs, the Intervenor States cannot have their legal rights
preempted by the proposed Consent Decree. The Intervenor States understand that Plaintiffs and
EPA have at this time only lodged the proposed Consent Decree with the Court and that until the
public notice and comment process is completed pursuant to CAA 113(g), 42 U.S.C. 7413(g),
the proposed Consent Decree cannot be entered by this Court. However, the Intervenor States
respectfully ask this Court to act now to make a finding that 1) the proposed Consent Decree violates
CAA 107(d) and therefore cannot be entered; 2) the legal rights and interests of the Intervenor
States are harmed by the terms of the proposed Consent Decree and therefore the Decree cannot
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dispose of the Intervenor States claims against EPA; and 3) because the primary issue of what the
appropriate remedy is remains unresolved, the Courts May 30th hearing on remedy must proceed
and the Court must deny Plaintiffs and EPAs request for a stay of the proceedings.
When this Court granted the Intervenor States Motion to Intervene, the Court expressly
found that the States will be directly affected by the outcome of Plaintiffs case even if resolution of
the case pertained solely to the timeframe in which EPA must act to make area designations for the
SO
2
NAAQS. The States will be directly affected because they have an interest in when the EPA
makes its designations. Order at 3, ECF No. 79. In acknowledging that the States want EPA to
proceed with making area designations for the SO
2
NAAQS as soon as possible, the Court further
found that it is undisputed that if the EPA designates areas within any of the intervening states as
nonattainment, the States are required to take steps to bring those areas into compliance with the
standard. Id. In that same Order, the Court granted Plaintiffs uncontested Motion for Summary
J udgment and ordered Plaintiffs, Defendant and the Intervenor States and North Carolina to meet
and confer regarding the remedy. If no agreement could be reached within 21- days of the Order,
the parties were required to proceed to briefing on remedy. Id. at 4.
Beginning in December of 2013, the parties, including Intervenor States, did consult
regarding remedy. Despite the Intervenor States best efforts to suggest and entertain areas of
compromise with Plaintiffs and EPA, it was evident that a remedy would not be agreed upon within
21- days of the Order and that a briefing schedule on remedy would need to be established.
Accordingly, the parties filed with the Court a motion to enter a briefing schedule, with the
Intervenor States proposing a more aggressive timeline in which to complete briefing. See ECF No.
82 at 4-5. The Court granted the extended briefing schedule proposed by the Plaintiffs and
Defendant. See ECF Nos. 85 & 85-1.
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Since December 2013, the Intervenor States have repeatedly sought to reach compromise
with Plaintiffs and EPA in a manner that is consistent with CAA 107(d). As detailed in the
Intervenor States Opening Brief on Remedy and in their Response-Reply to Plaintiffs and EPAs
opening briefs, the only remedy available under CAA 107(d) for EPAs failure to timely
promulgate area designations is that the Agency must proceed as expeditiously as practicable with
designations of unclassifiable for all areas for which EPA believes there is not sufficient
information to make a designation of attainment or nonattainment. And for those areas where
EPA has sufficient information to make such designations of attainment or nonattainment, EPA
must also act as expeditiously as practicable to make such designations. However, EPA refuses to do
either.
Instead, EPA and Plaintiffs have agreed on a proposed Consent Decree that not only sets the
timetable by which EPA must act, but also defines the substantive criteria and process that EPA
must apply when making area designations. Further, the proposed Consent Decree specifically
imposes upon the Intervenor States additional specific and substantive obligations they must perform
should EPAs additional prospective data gathering initiative for SO
2
emissions be promulgated. Not
only is EPA ignoring the specific remedy that CAA 107(d) prescribes, EPA also seeks to
implement a Consent Decree that imposes upon the Intervenor States additional and burdensome
obligations and duties even though the Intervenor States are not parties to the Consent Decree.
Because the proposed Consent Decree violates the clear mandates that Congress set forth in
the CAA, and because its terms are patently unfair, unreasonable and violate public policy for the
reasons set forth below, the proposed Consent Decree cannot be entered by this Court. As such, the
Court should deny Plaintiffs and EPAs Motion to Stay the Proceedings and proceed with the
Courts May 30th hearing on remedy.
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LEGAL STANDARD GOVERNING PROPOSED CONSENT DECREES
To approve a consent decree between settling parties, a Court must be satisfied that it is at
least fundamentally fair, adequate and reasonable [and] because it is a form of judgment, a
consent decree must conform to applicable laws. United States v. Oregon, 913 F.2d 576, 580 (9th
Cir. 1990). A consent decree that affects the public interest or non-settling parties imposes a
heightened responsibility on the court to protect the interests of those who did not participate in
negotiating the decree. See Oregon, 913 F.2d at 581. While it may be appropriate for a court to
afford deference to a government agency that is a party to a consent decree and which has expertise
in the subject matter addressed in the decree, a court must avoid giving a rubberstamp approval
and instead must conduct an independent investigation of the terms of the decree. Dep't of Toxic
Substance Control v. Technichem, Inc. 2013 WL 3856386 (N.D. Cal. J uly 24, 2013) citing United
States v. BP Exploration & Oil Co., 167 F.Supp.2d 1045, 1050 (N.D.Ind.2001). When a consent
decree does more than just merely validate a compromise, but by virtue of its injunctive provisions,
reaches into the future and has continuing effect, and its terms require more careful scrutiny. U.S.
v. City of Miami, Fla., 664 F.2d 435, 441 (5th Cir. 1981).
Non-settling parties have the right to object to entry of a consent decree. See Local No. 93,
Intl Assoc. of Firefighters v. Cleveland, 478 U.S. 501, 528-29 (1986). However, while an objecting
party is entitled to present evidence and have its objections heard at the hearings on whether to
approve a consent decree, it does not have the power to block the decree merely by withholding its
consent. Id. at 529. A district court should enter a proposed consent judgment if the court decides
that it is fair, reasonable and equitable and does not violate the law or public policy. Sierra Club,
Inc. v. Elec. Controls Design, Inc., 909 F.2d 1350, 1355 (9th Cir. 1990). With respect to public
policy, the most important factor is whether the decree comports with the goals of Congress.
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BP Exploration & Oil Co., 167 F.Supp.2d at 1054. A party objecting to a consent decree must
demonstrate that the decree is unreasonable. Oregon, 913 F.2d at 581 (citations and internal
quotation marks omitted).
A consent decree is unreasonable when it adversely affects [the] legal rights or interests of
the nonconsenting intervenor. Johnson v. Lodge #93 of Fraternal Order of Police, 393 F.3d 1096,
1107 (10th Cir. 2004). Settling parties may not agree to take action [in a consent decree] that
conflicts with or violates the statute upon which the complaint was based. Local No. 93, Intl Assoc.
of Firefighters, 478 U.S. at 526. For parties that choose not to participate in a consent decree, their
rights should be given no less respect than the rights of parties who negotiate a consent decree.
In other words, all parties should have the right to either voluntarily compromise a claim or litigate.
Reed v. United Teachers Los Angeles, 208 Cal. App. 4th 322, 335-36, (2012), review denied (Oct.
24, 2012). The parties who choose to resolve litigation through settlement may not dispose of the
claims of a third party, and a fortiori may not impose duties or obligations on a third party, without
the partys agreement. Local No. 93, Intl Assoc. of Firefighters, 478 U.S. at 529. Accordingly, no
court may enter a consent decree that imposes obligations on a party that did not consent to the
decree. Id.
ARGUMENT

I. THE PROPOSED CONSENT DECREE VIOLATES CAA 107(d).
In CAA 107(d), Congress directed that EPA promulgate NAAQS designations no later than
three years after the promulgation of a new NAAQS. Congress also directed that, if the Agency
lacked sufficient information to make an area designation, it must designate that area as
unclassifiable. The Plaintiffs and Defendants proposed Consent Decree blatantly ignores CAA
107(d)s mandate. Instead, it arbitrarily grants EPA an additional seven years to do what the Agency
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was mandated to do by J une 2013: designate all areas of the country as either attainment,
nonattainment, or unclassifiable.
A. EPA Has Determined It Lacks Sufficient Information To Promulgate Most Areas Of
The Country As Attainment Or Nonattainment.

Congress gave EPA a clear directive that the Agency must promulgate NAAQS designations
within three years from the promulgation of a new NAAQS. See CAA 107(d), 42 U.S.C.
7402(d). The designation process begins with the Governor of each State submitting to the EPA
Administrator initial designations of attainment, nonattainment, or unclassifiable. CAA
107(d)(1)(A); 42 U.S.C. 7407(d)(1)(A). Upon receipt of the Governors initial designations, the
EPA Administrator shall promulgate the designations of all areas (or portions thereof) submitted
[by the Governor] as expeditiously as practicable, but in no case later than 2 years from the date of
promulgation of the new or revised [NAAQS]. CAA 107(d)(1)(B)(i); 42 U.S.C.
7407(d)(1)(B)(i). When the Administrator determines that she has insufficient information to
promulgate the designations, she may request an additional year in which to promulgate area
designations. Id. (emphasis added). In August 2012, then- EPA Administrator J ackson announced
that she lacked sufficient information to make area designations for the 1-hour SO
2
NAAQS. See
Extension of Deadline for Promulgating Designations for the 2010 Primary SO
2
NAAQS, 77 Fed.
Reg. 46,295, 46,296/3 (Aug. 3, 2012).
Then- Administrator J acksons announcement that she lacked sufficient information to
promulgate area designations was preceded by statements from EPA affirming this to be the case.
See Primary National Ambient Air Quality Standard for Sulfur Dioxide; Final Rule, 75 Fed. Reg.
35,520, 35,552/1, 35,574/3 (J une 22, 2010) (EPA stated that it expected that most, if not all, of the
country would be initially designated unclassifiable); see also Memorandum to Regional Air
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Directors, Mar. 24, 2011 at 2
2
. EPA continues to consistently assert that it lacks sufficient
information to designate areas of the country as attainment or nonattainment for the SO
2

NAAQS. For example, in the Agencys just proposed Data Requirements Rule for the 1-Hour Sulfur
Dioxide (SO
2
) Primary National Ambient Air Quality Standard (NAAQS); Proposed Rule, 77 Fed.
Reg. 27,446 (May 13, 2014) (Data Requirements Rule), EPA acknowledges that the Rule has
been proposed because many areas of the country do not have sufficient air quality monitoring in
place to identify maximum 1-hour SO
2
concentrations. 79 Fed. Reg. 27,446/1. EPA further
acknowledges that the air quality data developed by the states in accordance with this rulemaking
would be used by the EPA in future rounds of area designations for the 1-hour SO
2
[NAAQS]. Id.
Moreover, the acting Assistant Administrator for the EPA Office of Air and Radiation, J anet
McCabe, by sworn affidavit to this Court averred EPA believes that it was appropriate to not
promulgate area designations for rest (sic) of the country due to the lack of sufficient monitoring
(and modeling) data. Affidavit at 6, ECF No. 96 (emphasis added).
B. The Only Remedy That May Be Included In The Proposed Consent Decree Is For
EPA To Timely Proceed With Designations Of Unclassifiable For Areas Which
EPA Believes It Lacks Sufficient Information.
CAA 107(d) gives EPA a clear directive not only as to how long the Agency has to
promulgate NAAQS designations which it has failed to follow - , but also what those designations
must be if EPA lacks (or believes it lacks) sufficient information within the time allotted to make a
finding of attainment or nonattainment. When EPA has failed to discharge a nondiscretionary
duty under the Clean Air Act, a district court has jurisdiction to compel the Administrator to fulfill
it. Sierra Club v. Johnson, 444 F. Supp. 2d 46, 52-53 (D.D.C. 2006). Therefore, the remedy in this
case must be consistent with CAA 107(d). However, Plaintiffs and EPA improvidently seek to go

2
http://www.epa.gov/airquality/sulfurdioxide/pdfs/20110411so2designationsguidance.pdf, (last
viewed May 18, 2014).
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well beyond what CAA 107(d) prescribes to not only give EPA an additional seven years to
complete all remaining area designations, but also to prescribe an entirely new and additive
mechanism by which EPA and the States must proceed with those designations. See proposed
Consent Decree at 2-3. The remedy the CAA requires and which Plaintiffs and EPA summarily
reject - is that EPA immediately take the ministerial act of designating all areas of the country as
unclassifiable for which EPA concluded as of J une 2013 that it believed lacked sufficient data to
make designations of attainment or nonattainment. For those areas of the country that EPA has
data showing attainment and EPA has not determined the data is insufficient, then EPA must
immediately proceed to promulgate designations of attainment.
The Supreme Court of the United States has clearly stated that settling parties may not agree
to take action [in a consent decree] that conflicts with or violates the statute upon which the
complaint was based. Local No. 93, Intl Assoc. of Firefighters, 478 U.S. at 526. Here, Plaintiffs
complaint properly alleged that the CAA expressly required EPA to promulgate and publish, not
later than J une 2, 2013, designations identifying all areas of the nation violating the revised SO
2

standard, as well as all areas where the standard is met, and all areas where information is inadequate
to make a designation. 42 U.S.C. 7407(d)(1)(B)(i). ECF No. at 1. There is no dispute over
whether EPA failed to comply with CAA 107(d), as EPA has confessed to its failure to comply
with 42 U.S.C. 7407(d)(1)(B)(i). See Defendants Response to Motion for Summary J udgment at 2,
ECF No. 63 and Order at 3, ECF No. 79. Further, the same statute upon which Plaintiffs complaint
is based requires EPA to make area designations of unclassifiable when it lacks sufficient
information to promulgate a designation of attainment or nonattainment. EPA missed the
statutory deadline to promulgate area designations because it believes that it lacks sufficient
information to do so. As such, the only permitted resolution to EPAs failure is for the Court to order
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the Agency to proceed with designations of unclassifiable when EPA believes that it lacks
sufficient information. The proposed Consent Decree violates CAA 107(d) because the Decree not
only gives EPA an additional 7 years to do what it was required to do no later than J une 2013, but it
circumvents the unclassifiable designation and imposes legal obligations and duties upon EPA and
the States. As such the proposed Consent Decree cannot be entered by this Court.
II. THE CONSENT DECREE ADVERSELY AFFECTS THE LEGAL RIGHTS AND
INTERESTS OF THE INTERVENOR STATES.
A. The Consent Decree Establishes Duties And Obligations Beyond When EPA Must
Take Final Action.
Contrary to the Plaintiffs and EPAs assertion that the proposed Consent Decree only sets a
binding and enforceable schedule for EPA to complete SO
2
designations, the proposed Decree does
far more. The proposed Consent Decree specifically dictates how EPA is to proceed with area
designations. Motion to Stay at 7. The proposed Consent Decree requires EPA to conduct the SO
2

area designations in three rounds. The first round of designations is to be completed within 16-
months from the Courts entry of the Decree. In that round, EPA must designate any area that, based
upon the three most recent years of air monitoring data, shows a violation of the SO
2
NAAQS, or for
any area that contains a stationary source that emitted more than 16,000 tons of SO
2
in 2012, or (2)
emitted more than 2,600 tons of SO
2
and had an annual average emission rate of 0.45 lbs
SO
2
/Mmbtu or higher in 2012. See Consent Decree at 1(a), (b) ECF No. 102-1.
The second round of designations is to be completed no later than December 31, 2017. This
round will cover all remaining undesignated areas of the country that have not installed and begun
operating a new SO
2
monitoring network meeting EPA specifications referenced in EPAs just
proposed, but not final, Data Requirements Rule
3
. Id. at 2. The third and final round of

3
As detailed in EPAs Data Requirements Rule, States have a choice of using modeling data to
collect the data that EPA is requiring to complete the second round of area designations or proceed
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designations must be completed by December 31, 2020, and would address all remaining areas of
the country, which would be those areas that have in place a new SO
2
monitoring network sited in
accordance with the Data Requirements Rule. Id. at 3.
These proposed Consent Decree provisions go well beyond setting a mere timeline by which
EPA must act to promulgate area designations. These provisions dictate the types of sources located
in a certain area that EPA must first consider for designation with the 2010 SO
2
NAAQS. See
Consent Decree at 1(b). To prescribe the types of sources located in a certain area that must be
designated violates CAA 107(d). Area designations must be based on whether an area shows
violations of a NAAQS, meets a NAAQS, or has insufficient data to do either (which would require
a designation of unclassifiable). CAA 107(d) does not say that designations can be based on the
mere presence of very specific and large emitting sources of SO
2
in a certain area.
The Consent Decree also dictates the mechanism that States must use in collecting new data
for EPA. See Consent Decree at 2. The new SO
2
emission data that EPA requires the States to
collect and submit to the Agency is to be obtained in accordance with EPAs just proposed Data
Requirements Rule. While the Data Requirements Rule has yet to promulgated, and EPAs current
public comment period will not even close until mid-J uly
4
, EPA is nonetheless making the proposed
provisions of the Data Requirements Rule a material condition of how EPA proceeds to make area
designations for the SO
2
NAAQS.
In addition, an update concerning Plaintiffs and EPAs lodging of the proposed Consent
Decree that was prepared by EPAs Office of Air and Radiation (OAR) and sent to EPA Region
IV, VI and IX, EPAs OAR acknowledges that the proposed Decree imposes obligations upon EPA

to install new monitoring networks that data from which will be used to promulgate the third and
final round of area designations. See 79 Fed. Reg. 27,446/1.
4
Public comment on the proposed Data Requirements Rule closes J uly 14, 2014. See 79 Fed. Reg.
27,446/1.
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and the States. The EPA OAR update acknowledges that the proposed Consent Decree requires that
EPA would follow the schedule discussed in the proposed SO
2
Data Requirements Rule Seby
Declaration, Attachment No. 1. For State air agencies, EPA OAR noted that the proposed Consent
Decree would also require that they comply with the Data Requirements Rule and that States would
have the choice [pursuant to the Rule] to use either improved monitoring or modeling around
priority SO
2
sources in most areas, and then submit the additional data resulting from that work to
the EPA by certain dates. Id. EPA itself has argued that this Court may only consider a remedy that
addresses when EPA acts to promulgate area designations. See EPAs Br., ECF No. 95 at 24-26 and
ECF No. 104 at 4. Yet, the proposed Consent Decree, (as affirmed by EPAs OAR on the same day
EPA lodged the Decree with this Court), goes well beyond simply providing for when EPA must act
to make area designations.
Further, Plaintiffs and EPA are presupposing that there will be no changes to the Data
Requirements Rue as it is currently drafted. The purpose of notice and comment rulemaking is that
an agency may receive the benefit of interested stakeholder comment on proposed rules. It is
unknown whether EPA assumes that there will be no comment to the Data Requirements Rule from
stakeholders, including State air agencies who will be implementing the Rule, that will merit
revisions to the Rule. However, if EPA does assume this to be the case, it further demonstrates
EPAs unwillingness to take into account the Intervenor States positions on this matter and their
unique role under the CAA.
B. The Consent Decree Impermissibly Imposes Legal Obligations Upon And Adversely
Affects The Legal Rights Of The Intervenor States.
1. Including the proposed Data Requirements Rule in the proposed Consent
Decree imposes legal obligations upon the Intervenor States.

The proposed Consent Decree does more than just affirm a compromise reached by Plaintiffs
and EPA as to when EPA must act, the proposed Decree imposes specific criteria that EPA and the
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Intervenor States must use for making area designations. See Consent Decree at 1, 2, and 3. The
proposed Data Requirements Rule is, as EPA describes it, a rule directing state and tribal air
agencies (air agencies) to provide data to characterize current air quality in areas with large
sources of [SO
2
] emissions if such areas do not have sufficient air quality monitoring in place to
identify maximum 1-hour SO
2
concentrations. 79 Fed. Reg. 27,446/1. Including in the proposed
Consent Decree the substantive requirement that the second and third round of area designations is
to be completed in accordance with the Data Requirements Rule, Plaintiffs and EPA are imposing
obligations and requirements upon the Intervenor States.
The proposed Data Requirements Rule describes a process and timetables by which air
agencies would characterize air quality around sources through ambient monitoring and/or air
quality modeling techniques and submit such data to EPA. Id. The proposed Data Requirements
Rule is a significant proposal that, once promulgated, will require several years and significant
financial resources on the part of the States to implement. As such, including the proposed Data
Requirements Rule in the proposed Consent Decree places legal obligations upon the Intervenor
States even though they are a nonconsenting party to the Decree.
2. The legal rights of the Intervenor States under the CAA are harmed by the
proposed Consent Decree.
The CAA provides that citizens, which term includes States, may bring civil suits against
EPA for the Agencys failure to perform a nondiscretionary duty. See CAA 304(a)(2), 42 U.S.C.
7604(a)(2). Congress intended citizen suits to both goad the responsible agencies to more vigorous
enforcement of the anti-pollution standards and, if the agencies remained inert, to provide an
alternate enforcement mechanism. Baughman v. Bradford Coal Co., Inc., 592 F.2d 215, 218 (3d
Cir. 1979) (internal citations omitted). The proposed Consent Decree, if adopted, would
impermissibly deny the Intervenor States of their right to have their claims concerning EPAs failure
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to timely designate all areas of the country for the SO
2
NAAQS disposed of and would also
eviscerate the cooperative federalism structure of the CAA.
The CAA establishes a comprehensive national program that makes the States and the
Federal Government partners in the struggle against air pollution. General Motors Corp. v. United
States, 496 U.S. 530, 532 (1990). In that partnership, EPA sets various standards and goals, but air
pollution prevention . . . and air pollution control at its source is the primary responsibility of
States and local governments. CAA 101(a)(3), 42 U.S.C. 7401(a)(3) (2013) (emphasis added);
see also id. CAA 107(a), 42 U.S.C. 7407(a) (Each State shall have the primary responsibility
for assuring air quality within the entire geographic area comprising such State . . . .). The
Intervenor States sought intervention in this case because EPA had failed to take timely action on
their initial area designations. See Intervenor States Motion to Intervene at 2, ECF No. 23. It is the
States, not Plaintiffs or EPA, who are vested under the CAA to gather the data and make initial area
2
NAAQS. See CAA 107(d), 42 U.S.C. 7407(d). Under the terms of the
proposed Consent Decree, all of the work that the Intervenor States completed to make their initial
designations
5
will be arbitrarily discarded by EPA, and the States will be obligated under the
proposed Consent Decree to proceed to gather new data for EPA in accordance with onerous and
unprecedented requirements of the proposed Data Requirements Rule. To avoid the Intervenor States
being left on the sidelines while EPA and Plaintiffs negotiated an adverse settlement that the States
would then have to implement, is precisely why the States intervened in this case. See Intervenor
States Motion to Intervene at 23, ECF No. 23. And though the States are intervenors and not
plaintiffs or third-party plaintiffs, that does not permit that [they] be shafted by the settling
parties. U.S. v. City of Hialeah, 140 F.3d 968, 978 (11th Cir. 1998).

5
See Affidavit of Terry OClair at 5, ECF No. 23-1; Affidavit of Eric Massey at 5, ECF No. 23-
2; Affidavit of Sean Alteri at 8, ECF No. 23-3; Affidavit of Sanford Phillips at 5, ECF No. 23-4;
Affidavit of J asmine Mehta at 5, ECF No. 23-5; and Affidavit of Steve Hagle at 8, ECF No. 23-6.
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The Intervenor States, here and individually in other federal courts, have sought to enforce
CAA 107(d) as it relates to EPAs failure to timely promulgate area designations for the SO
2

NAAQS. In the U.S. Court of Appeals District of Columbia Circuit, the States of North Dakota,
Kentucky, Louisiana and Texas were granted intervention in the Sierra Club and the Natural
Resources Defense Councils petition for review
6
of EPAs final rule designating 29 areas of the
country as nonattainment. See Air Quality Designations for the 2010 Sulfur Dioxide (SO2) Primary
National Ambient Air Quality Standard, 78 Fed. Reg. 47,191 (Aug. 5, 2013). On J anuary 23, 2014,
the D.C. Circuit ordered that Sierra Club and the Natural Resources Defense Councils petition for
review be held in abeyance pending the outcome of a petition for reconsideration currently before
EPA. See Order, ECF No. 1476376.
The Intervenor States of North Dakota, Nevada and Texas joined by the State of South
Dakota filed a citizen suit on September 12, 2013 in the District of North Dakota
7
to compel EPA
to comply with its CAA 107(d) obligations. This citizen suit was filed after the States gave notice
on J uly 3, 2013 to EPA, pursuant to 40 C.F.R. 54.3, of the States intent to sue the Agency for its
failure to comply with CAA 107(d). EPA, over the objections of North Dakota, Nevada, Texas and
South Dakota, successfully petitioned the Court in North Dakota to hold that case in abeyance
pending the outcome of this case. In its Motion to hold the North Dakota case in abeyance, EPA told
the Court that any remedy that is stipulated to or ordered in the Sierra Club matter in the Northern
District of California would address the concerns that EPA anticipates the [States] would raise
in this matter, and would obviate the need to litigate the issues again in this Court. EPA Motion to
Hold Case in Abeyance at 6, ECF No. 19 (emphasis added).

6
Sierra Club and Natural Resources Defense Council, v. EPA and Gina McCarthy, No. 13-1262
(DC Cir. Dec. 18, 2013).
7
State of North Dakota et al v. McCarthy,1:13-cv-00109-CSM (D.N.D. Sep. 12, 2013)

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In granting EPAs motion to hold the matter in abeyance, the Court in North Dakota
concluded that it is quite likely that the issues presented in this case will be resolved by the action
now pending in the Northern District of California. State of North Dakota et al v. McCarthy, Order
at 3, Doc. No. 28. However, the resolution currently proposed by Plaintiffs and EPA completely
ignores the rights and interests of the Intervenor States. The proposed Consent Decree treats the
States not as partners in the fight against air pollution, (see General Motors Corp., 496 U.S. at 532),
but rather like junior political offices that can do nothing more than implement what EPA
(eventually) commands. Such poor regard is fundamentally contrary to the CAAs cooperative
federalism structure. Luminant Generation Co., L.L.C. v. U.S. E.P.A., 675 F.3d 917, 921 (5th Cir.
2012). The CAA establishes a comprehensive program for controlling and improving the nations
air quality through state and federal regulation. Id. (internal citations omitted) (emphasis added).
Because the proposed Consent Decree adversely affects the legal rights under the CAA of the
Intervenor States, this Court may not enter the Decree. City of Hialeah, 140 F.3d at 979.
Further, Plaintiffs and EPA assert that Plaintiff-Intervenors are not harmed by a lack of
designation of any areas in their respective states during this time, as any failure to designate on the
part of EPA results in states being in the same regulatory position as if the undesignated areas are
designated attainment or unclassifiable. Motion at 4, ECF No. 102. Plaintiffs and EPA are wrong
the Intervenor States are harmed as long as EPA fails to designate areas for the SO
2
NAAQS. As
discussed in the Intervenor States Opening and Response-Reply Briefs, the States have significant
regulatory and economic interests that are harmed by EPAs continued failure to act. See Intervenor
States Opening Brief at12, ECF No. 94 and Intervenor States Response-Reply Brief at 8, ECF No.
101. That harm is ameliorated once EPA promulgates area designations. If EPA proceeds with area
designations of unclassifiable, that would provide the States with certainty. See Intervenor States
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Opening Brief at 12, ECF No. 94 and Intervenor States Response-Reply Brief at 7-9, ECF No.101.
EPA itself has stated that issuing an unclassifiable designation for a NAAQS does not trigger any
additional requirements for states/tribes, and that [e]xisting requirements (PSD, FARR, etc. do not
change as a result of this designation. See Fact Sheet PM2.5 Designations under the Clean Air Act
8

at 2. Without a designation, including a designation of unclassifiable, the Intervenor States and
their regulated industries face uncertainty, and the likelihood that industries will be unwilling to
invest money or locate facilities in their State.
C. The Consent Decree Is Unfair, Unreasonable And Violates Public Policy.
1. The proposed Consent Decree is not fair.
Parties to a consent decree must negotiate in good faith. BP Exploration & Oil Co., 167
F.Supp.2d at 1052. Since December 2013, all parties have been engaged in discussions on remedy as
directed by the Court. Order at 3, ECF No. 79. Throughout this process, Plaintiffs and EPA have
been unwilling to seriously consider the Intervenor States proposed remedy proposals. However, the
Intervenor States have continued to engage with Plaintiffs and EPA in remedy discussions, hoping
that a reasonable compromise could be reached that complied with the CAA. As recently as April
15, counsel to Intervenor the State of North Dakota confirmed in writing to Plaintiffs and EPA the
Intervenor States desire to continue to engage in settlement discussions. See Declaration of Paul M.
Seby at 2. However, not until April 30th did EPA respond to the Intervenor States and the State of
North Carolinas separate request to continue to engage in settlement discussions. See id. at 3. On
May 1st, counsel to the parties and Intervenor States and the State of North Carolina assembled via
conference call to discuss where there may be an opportunity to reach a reasonable compromise that

8

http://yosemite.epa.gov/R10/TRIBAL.NSF/0/2b53e3b490a0ab42882575eb007dbfff/$FILE/TribalFa
ctSheetforPM2.5.pdf (last viewed May 21, 2014)
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complied with the CAA. See id. at 4. No such agreement was reached on the call, but the parties
agreed to remain open to group discussions. See id.
Five days later, on May 6, 2014, Plaintiffs counsel notified the Intervenor States that
Plaintiffs and EPA were close to finalizing a unilateral settlement of Plaintiffs claims and provided
an excerpt of the proposed Consent Decree that purported to set forth the principal terms of their
proposed settlement. See id. at 5. Notably, Intervenor States had not been apprised of these side
settlement discussions between Plaintiffs and EPA though Intervenor States and the State of North
Carolina had just been on a settlement call with EPA and Plaintiffs counsel five days earlier. See
id. at 4. The Intervenor States requested multiple times after receipt of the May 6th email a copy of
the draft proposed Consent Decree so that they may review the proposed settlement terms in the
context of the entire Consent Decree. See id. at 6. However, a copy of the proposed draft Consent
Decree was not finally offered to the Intervenor States until May 16th, (ten days later), only after the
Plaintiffs, EPA, Intervenor States and the State of North Carolina had convened a call to discuss the
principal terms of the draft proposed Consent Decree. See id. at 7.
While nothing prohibits EPA and Plaintiffs from engaging in settlement discussions separate
from the Intervenor States, to do so in light of the Intervenor States specific request to remain
engaged with all parties on settlement discussions is very troubling. Even more troubling to the
Intervenor States is that they were not presented with the proposed draft Consent Decree for review
and consideration until May 16th one business day before it was lodged with this Court and the
same day that the parties convened by telephone to discuss the proposed principal terms of the
settlement. See id.. In fact, it was not until one hour before the parties convened on a conference call
to discuss the May 6th settlement proposal that Plaintiffs counsel sent an email to the Intervenor
States stating that a copy of the proposed draft Consent Decree could be shared with the States if
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they agreed to keep the draft Decree confidential. See id. The Consent Decree was not sent to the
Intervenor States by Plaintiffs counsel until after the May 16th call. See id.
Unfortunately, Plaintiffs counsel and EPA have elected to take the attitude that the States
can take it or leave it when it comes to the terms of the proposed Consent Decree. As detailed
here, and extensively in the Intervenor States Opening Brief on Remedy and Response-Reply to
Plaintiffs and EPAs Opening Briefs, the CAA sets forth the remedy that must be implemented by
EPA. However, even before Plaintiffs commenced their suit against EPA, the Agency was explicit
that it intended to proceed with its own preferred approach - a tiered process for making area
designations over the course of the next seven years. In its Next Steps for Area Designations and
Implementation of the Sulfur Dioxide National Ambient Air Quality Standard, dated February 6,
2013
9
, EPA sets forth its preferred approach and schedule for the designations process. (EPAs
Updated Strategy Paper).
In its Updated Strategy Paper, EPA also announced that it would propose a data
requirements rule, which would provide States information on implementation of new SO
2
air
quality monitoring networks to be established in the States. Further, States would be required to
conduct air quality modeling to determine compliance in areas that lacked monitors. The new
monitoring and/or modeling data would be used by EPA and the States to make the initial area
designations for the 2010 SO
2
NAAQS. For areas that would be designated based on modeling
alone, EPA would finalize designations by December 2017 three and a half years after the
Administrators non-discretionary duty to make the initial SO
2
NAAQS designations. For areas with
new monitors, final designations would not be promulgated until six and a half years after the J une
2013 deadline, i.e., December 2020. The preferred approach set forth in EPAs Updated Strategy

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See http://www.epa.gov/airquality/sulfurdioxide/pdfs/20130207SO2StrategyPaper.pdf, (last viewed
May 20, 2014).
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Paper is virtually identical to the terms and obligations set forth in the proposed Consent Decree and
is contrary to the CAA.
The Intervenor States cannot be a party to a Consent Decree that violates the CAA. However,
while the CAA establishes the remedy that EPA must implement, that does not mean that there is no
opportunity for compromise on how quickly EPA proceeds to implement the remedy. But rather than
work cooperatively with the Intervenor States to develop a compromise that complies with the CAA,
the parties have elected to ignore the Intervenor States and have proposed a Consent Decree that
achieves Plaintiffs and EPAs agenda at the expense of the explicit mandates of the CAA.
2. The proposed Consent Decree is not reasonable.
When considering whether the proposed Consent Decree is reasonable, the Court should
consider whether the Decree actually implements and furthers the goals of the underlying statute,
and whether it is in the public interest. See BP Exploration & Oil Co., 167 F.Supp.2d at 1053. As
detailed in the Intervenor States briefs before this Court, Congress was clear that EPA shall act as
expeditiously as possible, when making area designations, and that the longest EPA shall have to
act is three years from the date a NAAQS is promulgated. CAA 107(d)(1)(B)(i),42 U.S.C.
7407(d)(1)(B)(i). Congress was also clear that if EPA lacked adequate information to determine if an
area attained a NAAQS, that area would be designated unclassifiable. Because the CAA says that
EPA must complete that designation process in no more than three years, EPA cannot on its own
decide to eschew use of the unclassifiable designation and instead take more than twice as long to
get the job done. The proposed Consent Decree does not further the goals of CAA 107(d). To the
contrary, the proposed Consent Decree frustrates Congresss intent that EPA act diligently to make
area designations and that if EPA lacks sufficient information to do so within three years, that it
proceed with unclassifiable designations.
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Further, a consent decree is unreasonable when it adversely affects [the] legal rights or
interests of the nonconsenting intervenor. Lodge #93 of Fraternal Order of Police, 393 F.3d at
1107. If the proposed Consent Decree is entered, the Intervenor States rights under the citizen suit
provision, (CAA 304(a)(2), 42 U.S.C. 7604(a)(2)), will be extinguished as the Decree will
dispose of the States claims without the States ever having their claims heard in Court. The
authority vested in the Intervenor States under CAA 101(a)(3), 42 U.S.C. 7401(a)(3) and CAA
107(a), 42 U.S.C. 7407(a) to prevent and control air pollution within their borders will have been
ignored by EPA. And the duty assigned to the Intervenor States to make and submit to EPA initial
2
NAAQS will have been tossed aside for EPAs preferred and unlawful -
approach to proceeding with area designations.
The proposed Consent Decree does not further the public interest. In CAA 107(d),
Congress provided for contingent environmental protection in the event that EPA misses a
deadline. Natural Resources Defense Council v. Reilly, 983 F.2d 259, 272 (D.C. Cir. 1993). The
contingent environmental protection here is that those areas where EPA believes it lacks sufficient
information shall be designated as unclassifiable. Congress found it necessary to take such action
because it is well aware of EPAs failure to timely meet its obligations under the CAA. [T]he
history of the Clean Air Act demonstrates that we cannot rely on EPA to follow through on even its
mandatory obligations.(statement of Senator Lieberman) 136 CONG.REC. S2,436 (daily ed. Mar.
8, 1990). EPAs long-standing unwillingness to comply with the CAA is unfortunately evident in
the proposed Consent Decree where the Agency is proposing that it be permitted to proceed with a
settlement that is contrary to the CAA. Sierra Club v. California, 658 F.Supp. 165, 175
(N.D.Cal.1987). That is not in the publics interest.
3. The proposed Consent Decree violates public policy.
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CASE NO.: 3:13-cv-03953 SI

If a consent decree contravene[s] the statute upon which initial claims are based, it violates
public policy. BP Exploration & Oil Co., 167 F.Supp.2d at 1054. As detailed in Section I supra, the
proposed Consent Decree violates CAA 107(d). As such, the proposed Consent Decree violates
public policy and must not be entered by this Court.
III. THE MAY 30 HEARING ON REMEDY MUST PROCEED.
The proposed Consent Decree violates the CAA, harms the legal rights of the Intervenor
States and violates public policy. As such, the Intervenor States cannot be a party to the Decree. Nor
can this Court enter the proposed Consent Decree. Therefore, the May 30th hearing on remedy must
proceed. Because the proposed Consent Decree cannot be entered by this Court, there remains the
question of what is the remedy in this case. The parties have all fully briefed the question of remedy.
No party would be disadvantaged by proceeding with the May 30th hearing. Counsel to Intervenor
State North Dakota will appear in person before the Court on May 30th to represent the positions of
the Intervenor States. Counsel to Intervenor States Arizona, Kentucky, Louisiana, Nevada and Texas
will appear by phone.
Were this Court to remove the May 30th hearing from its calendar and grant Plaintiffs and
EPAs Motion to Stay the proceedings that would harm the Intervenor States. Without a hearing on
remedy, the Intervenor States will have no opportunity to have their claims against EPA heard.
The Intervenor States cannot be penalized for choosing not to participate in an invalid consent
decree. The Intervenor States rights should be given no less respect than the rights of parties
who negotiate a consent decree. In other words, all parties should have the right to either voluntarily
compromise a claim or litigate. Reed, 208 Cal. App. 4th at 335-36. Accordingly, because the terms
of the proposed Consent Decree are unlawful and cannot be entered by this Court, the May 30th
hearing should proceed as to all parties to this matter.
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CASE NO.: 3:13-cv-03953 SI

CONCLUSION
For all of the foregoing reasons, the Intervenor States requests that the Court enter an order
denying EPAs and Plaintiffs requested relief and proceed with the May 30th hearing on remedy.

DATED: May 22, 2014

Respectfully Submitted,
/s/ Paul M. Seby
PAUL M. SEBY
Special Assistant Attorney-General
MARIAN C. LARSEN
Special Assistant Attorney General
HOLLAND & HART LLP
P.O. Box 8749
Denver, CO 80201-8749
Telephone: (303) 295-8430

TIMOTHY J . CARLSTEDT
Special Assistant Attorney-General
Hunton & Williams LLP
575 Market St., #3700
San Francisco, CA 94105
Telephone: (415) 975-3710
Attorneys for the State of North Dakota

NORTH DAKOTA

WAYNE STENEHJ EM
Attorney General

MARGARET I. OLSON
Office of Attorney General
500 North 9
th
Street
Bismarck, ND 58501-4509
Telephone: (701) 328-3640

ARIZONA

THOMAS C. HORNE
Arizona Attorney General

/s/ Monique K. Coady
MONIQUE K. COADY
1275 West Washington Street
Phoenix, Arizona 85007-2926
(602) 542-8543
Attorneys for the State of Arizona

KENTUCKY

C. MICHAEL HAINES
Executive Director
Commonwealth of Kentucky

/s/ Jacquelyn A. Quarles
J ACQUELYN A. QUARLES
Staff Attorney
Office of General Counsel
200 Fair Oaks Lane, 1
st
Floor
Frankfort, KY 40601
Telephone: (502) 564-3999
Attorneys for Commonwealth of Kentucky

LOUISIANA

ENVIRONMENTAL QUALITY

/s/ Spencer B. Bowman
SPENCER B. BOWMAN (#33515)
Legal Division
Louisiana Department of Environmental Quality
P.O. Box 4302
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CASE NO.: 3:13-cv-03953 SI

Baton Rouge, LA 70821-4302
Telephone: (225) 219-3985
Attorneys for State of Louisiana
Department of Environmental Quality

NEVADA

CATHERINE CORTEZ MASTO
Nevada Attorney General

/s/ Belinda A. Suwe
BELINDA A. SUWE
Nevada Bar No. 12499
Deputy Attorney General
Attorneys for State of Nevada
Department of Conservation Natural Resources
Division of Environmental Protection

TEXAS

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

J OHN B. SCOTT
Deputy Attorney General for Civil Litigation

J ON NIERMANN
Chief, Environmental Protection Division

/s/ Mark L. Walters
MARK L. WALTERS
California State Bar No. 160232
Environmental Protection Division (MC-066)
P.O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 463-2012
Attorneys for the State of Texas

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CASE NO.: 3:13-cv-03953 SI

CERTIFICATE OF SERVICE

I, Paul M. Seby, hereby certify that a true and correct copy of the foregoing was served by
Notice of Electronic Filing this 22nd day of May, 2014, upon all registered counsel of record using
the Courts CM/ECF system.

/s/Paul M. Seby
Paul M. Seby

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1
DECLARATION OF PAUL M. SEBY IN SUPPORT OF INTERVENOR PLAINTIFFS THE STATE OF
NORTH DAKOTAS ET AL. RESPONSE IN OPPOSITION TO PLAINTIFFS AND EPAS NOTICE OF
LODGING PROPOSED CONSENT DECREE AND MOTION TO STAY PROCEEDINGS
CASE NO.: 3:13-cv-03953 SI

Paul M. Seby (Admitted Pro Hac Vice)
pmseby@hollandhart.com
Marian C. Larsen (Admitted Pro Hac Vice)
mclarsen@hollandhart.com
Holland & Hart LLP
P.O. Box 8749
Denver, CO 80201-8749
Telephone: (303) 295-8430
Facsimile: (303) 291-9177

Attorneys for Intervenor Plaintiffs
The State of North Dakota Attorney General
Wayne Stenehjem, The State of Arizona
Attorney General Tom Horne, The Commonwealth
of Kentucky Energy and Environment Cabinet,
The State of Nevada Attorney General Catherine
Cortez Masto, The State of Louisiana Department
of Environmental Quality, and the State of Texas
Attorney General Greg Abbott

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

SIERRA CLUB, et al.,

Plaintiffs,

v.

REGINA MCCARTHY, in her official capacity
as Administrator of the United States
Environmental Protection Agency,

Defendant.
CASE NO.: 4:13-CV-03953 SI

DECLARATION OF PAUL M. SEBY IN
SUPPORT OF INTERVENOR PLAINTIFFS
THE STATE OF NORTH DAKOTA, THE
STATE OF ARIZONA, THE
COMMONWEALTH OF KENTUCKY
ENERGY AND ENVIRONMENT
CABINET, THE STATE OF
ENVIRONMENTAL QUALITY, THE
STATE OF NEVADA, AND THE
STATE OF TEXASS RESPONSE IN
OPPOSITION TO PLAINTIFFS AND EPAS
Case3:13-cv-03953-SI Document107-1 Filed05/22/14 Page1 of 4
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2
CASE NO.: 3:13-cv-03953 SI

NOTICE OF LODGING PROPOSED
CONSENT DECREE AND MOTION TO
STAY PROCEEDINGS UNTIL AUGUST 1,
2014

Date: May 30, 2014
Time: 9:00 AM
J udge: Hon. Susan Illston
Dept: 10

Complaint Filed: August 26, 2013
DECLARATION OF PAUL M. SEBY
I, Paul M. Seby, declare as follows:
1. I am a Special Assistant Attorney General for the State of North Dakota. I submit this
declaration in support of Intervenor-Plaintiffs the State of North Dakota, the State of
Arizona, the Commonwealth of Kentucky Energy and Environment Cabinet, the State of
Louisiana Department of Environmental Quality, the State of Nevada and the State of
Texass (the Intervenor States), Response In Opposition To Plaintiffs And EPAs
Notice of Lodging Proposed Consent Decree And Motion To Stay Proceedings Until
August 1, 2014.
2. On April 15, 2014, I confirmed via email to Plaintiffs and EPAs counsel that the
Intervenor States desired to continue to engage in settlement discussions.
3. On April 30, 2014, EPAs counsel responded via email to me, Plaintiffs counsel and to
the State of North Carolinas counsel that EPA would like to participate in further
settlement discussions with the parties.
4. On May 1, 2014, I participated in a conference call with Plaintiffs counsel, EPAs
counsel and the State of North Carolinas counsel to discuss whether there may exist an
opportunity to reach a reasonable compromise that complied with the Clean Air Act. No
such agreement was reached on the call, but the parties agreed to remain open to group
discussions.
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CASE NO.: 3:13-cv-03953 SI

5. On May 6, 2014, I received an e-mail from Plaintiffs counsel informing me that EPA
had been engaged in settlement discussions with Plaintiffs apart from the Intervenor
States and that the parties were close to finalizing the terms of a settlement. The
Intervenor States had not been previously made aware of EPA and Plaintiffs discussions.
6. After the May 6, 2014 email, I, and each of the other Intervenor States requested multiple
times that EPA and Plaintiffs provide the Intervenor States a copy of the draft proposed
Consent Decree.
7. On May 16, 2014, counsel to Intervenor States, EPAs counsel, Plaintiffs counsel and
the State of North Carolinas counsel participated in a conference call to discuss the
principal terms of settlement that Plaintiffs counsel sent on May 6th. One hour before
the parties convened on the call, Plaintiffs counsel sent to me an email stating that a
copy of the proposed draft Consent Decree could be shared with the Intervenor States if
they agreed to keep the draft Decree confidential. On May 16, after the conference call
was concluded, Plaintiffs counsel provided the Intervenor States with a copy of the draft
proposed Consent Decree.
8. By email dated May 19, 2014, the EPA Office of Air and Radiation (OAR) sent to
EPA Regional Offices IV, VI and IX an update concerning Plaintiffs and EPAs lodging
of the proposed Consent Decree in this case. EPA Regional Offices IV, VI and IX
forwarded copies of the EPA OAR email to the Commonwealth of Kentucky and the
States of Arizona, Louisiana, Nevada and Texas. A true and correct copy of the emails
sent by EPA Regional Offices IV, VI and IX to the Commonwealth of Kentucky and the
States of Arizona, Louisiana, Nevada and Texas are attached hereto at Attachments 1, 2
and 3.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true
and correct.
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CASE NO.: 3:13-cv-03953 SI

Executed May 22, 2014
/s/ Paul M. Seby
PAUL M. SEBY
ATTACHMENT 1
1
Paul M. Seby
_Designations_-_Notice_of_Lodging_Consent_Decree_and_Attachments.pdf

State&LocalAirDirectors,
Inadvanceoftheourmeeting,Iwantedtoprovideyouwithanupdateonthestatusofthelitigationinvolving
implementationofthe1hourNationalAmbientAirQualityStandard(NAAQS)forsulfurdioxide(SO
2
)
establishedinJune2010.AsrequiredbytheCleanAirAct,theEPAsetthis1hourhealthbasedstandardto
improvepublichealthprotection,especiallyforpeoplewithasthma,children,andtheelderly.
TheEPAhasreachedaproposedsettlementwithplaintiffsSierraClubandNRDCthatwouldresolvepending
litigationoverthedeadlineforEPAtocompleteinitialareadesignationsforthe1hourSO2standard.OnMay
19,2014,theplaintiffsandtheEPAfiledwiththeCourtaproposedconsentdecree.Theproposedconsent
decreeisattached.
BeforethisproposedconsentdecreecanbeenteredbytheCourt(andresultinabindingschedulefortheEPA
tocompletedesignations),theAgencymustpublishnoticeoftheproposedsettlementintheFederalRegister
andprovideapubliccommentperiodofatleast30days.If,afterreviewingthecomments,theAdministrator
thendecidestoasktheCourttoenterthedecree,theCourtwillthendeterminewhethertoenteritasafinal
order.
Undertheproposedsettlement,forthemajorityoftheareaswithSO
2
emissions,theEPAwouldfollowthe
schedulediscussedintheproposedSO
2
DataRequirementsRule,whichwaspublishedintheFederalRegister
From: Quarles, Jackie (EEC) [EMAIL ADDRESS

REDACTED]
Sent: Tuesday, May 20, 2014 11:55 AM
To: Paul M. Seby
Subject: FW: Update on SO2 Designations Litigation
Attachments:
ENV_DEFENSE-_682272-v1-SO2
From: Banister, Beverly [EMAIL ADDRESS REDACTED]
Sent: Monday, May 19, 2014 11:30 PM
To: ; Bob Colby; [EMAIL ADDRESSES REDACTED] J ohn Finke; Lyons, J ohn (EEC); J onathan Stanton; Maya Rao; Sheila
Holman; [EMAIL ADDRESSES REDACTED]
Cc: Banister, Beverly; Kemker, Carol; Gettle, J eaneanne; Mitchell, Ken
Subject: Update on SO2 Designations Litigation
Redacted - Attorney Client Privilege
2
onMay13,2014.Underthatproposedrule,airagencieswouldhavethechoicetouseeitherimproved
monitoringormodelingaroundprioritySO
2
sourcesinmostareas,andthensubmittheadditionaldata
resultingfromthatworktotheEPAbycertaindates.TheEPAandairagencieswouldusethesedatato
completeallremainingareadesignationsbyDecember31,2017(forallareas,exceptthosewithimproved
monitoring)andbyDecember31,2020(forthoseareaswithimprovedmonitoring).
Inaddition,undertheproposedsettlement,theEPAwouldbeobligatedtoconductanearlierroundof
designations,tobecompletednolaterthan16monthsfromtheCourt'sentryoftheconsentdecree,forareas
thathavenewlymonitoredviolationsofthe1hourSO
2
standardorthathavecoalfiredpowerplantsthatin
2012emittedeithermorethan16,000tonsofSO
2
,oremittedmorethan2,600tonsofSO
2
andhadan
emissionrateofatleast0.45lbsSO
2
/MMBTU.However,ifthesesourceshaveannouncedplansfor
retirement,thentheirareaswouldnotberequiredtobeincludedinthisearlierroundofdesignations.
Becausethisproposedsettlementisnotagreedtobytheintervenerstateplaintiffsinthiscaseandalsomust
bethesubjectofpubliccomment,itisnotcertainthatitwillbeenteredbytheCourtandfullyresolvethe
litigation.Followingtheresolutionofthelitigation,whetherbymeansofsettlementorbyCourtruling,the
EPAwillnotifyyouofourplansfordesignatingtheremainingareasofthecountryasorderedbytheCourt.
Ifyouwouldlikefurtherinformationabouthowthisproposedsettlementmayaffectyourstate,please
contactScottMathias(mathias.scott@epa.gov,9195415310)intheEPA'sOfficeofAirQualityPlanningand
Standards.
InclosingEPAappreciatestheongoingdiscussionswe'vehadwithyoualloverthepastcoupleofyearsto
developaneffectiveimplementationstrategyforSO
2
.Yourstronginterestandengagementhastrulymadea
positivedifferenceinadvancingoureffortsinthismatter.EPAlooksforwardtocontinuingtoworkwithyou
toensureprotectionofpublichealthandtheenvironmentthroughsound,practicablepolicyapproachesthat
reflecttheconsiderationsofthemanystakeholderswhohelpedusdevelopourSO
2
implementationstrategy.
IlookforwardtoseeingyouallonWednesdaywherewecanhavefurtherdiscussionsregardingthisupdate.
Beverly
ATTACHMENT 2
1
Paul M. Seby

First,letmethankyoufortheongoingdiscussionsoverthepastfewyearstowardsdevelopmentofan
effectiveimplementationstrategyforSO
2.
Thanksalsoforyoureffortsinimplementationofthe2010SO
2
standard.ThissettlementmaychangeorimpactyourplanningforSO2designations,whichissometimes
unavoidablewithlitigationsettlements.
EPAlooksforwardtocontinuingtoworkwithyoutoensureprotectionofpublichealthandtheenvironment
throughsound,practicablepolicyapproachesthatreflecttheconsiderationsofthemanystakeholderswho
helpedusdeveloptheSO
2
implementationstrategy.HereisanupdatedevelopedbyOARonthedecisionand
settlement.
StatusofSO
2
DesignationsLitigation
Thisemailprovidesanupdateonthestatusoflitigationinvolvingimplementationofthe1hourNational
AmbientAirQualityStandard(NAAQS)forsulfurdioxide(SO
2
)establishedinJune2010.Asrequiredbythe
CleanAirAct,theEPAsetthis1hourhealthbasedstandardtoimprovepublichealthprotection,especiallyfor
peoplewithasthma,children,andtheelderly.
decreeisattached.
order.
2
2
From: Stenger, Wren ] [EMAIL ADDRESS REDACTED]
To: Beverly Botchlet-smith; Cheryl Nolan; Michael Vince; Paul Miller (DNR); Rita Trujillo; Sanford Phillips;
Tegan Treadaway; Steve Hagle [EMAIL ADDRESSES REDACTED]
Subject: SO2 Designations Litigation
From: Tegan Treadaway [EMAIL ADDRESS REDACTED]
Sent: Tuesday, May 20, 2014 7:37 AM
To: Donald Trahan; Vivian Aucoin; Michael Vince; Gilberto Cuadra; Vennetta Hayes
Subject: FW: SO2 Designations Litigation
Attachments: ENV_DEFENSE-_682272-v1-SO2
2
2
2
2
2
andhadan
2
Standards.

WREN STENGER
Director
Multimedia Planning and Permitting Division
EPA Region 6 Dallas, Texas
214.665.6583
ATTACHMENT 3
1
Paul M. Seby
Subject: FW: SO2 Designation UPDATE: Status of SO2 Designations Litigation
Attachments: ENV_DEFENSE-_682272-v1-SO2
FYI
From: Eric C. Massey [EMAIL ADDRESS REDACTED]

To: Coady, Monique [EMAIL ADDRESS REDACTED]
Cc: Trevor Baggiore [EMAIL ADDRESS REDACTED]
Subject: FW: SO2 Designation UPDATE: Status of SO2 Designations Litigation
From: Drake, Kerry [EMAIL ADDRESSES REDACTED]
To: Henry Darwin; Eric C. Massey; Trevor Baggiore; [EMAIL ADDRESSES REDACTED]
Cc: Kelly, J ohnj; McKaughan, Colleen; Zimpfer, Amy; J ordan, Deborah; Adams, Elizabeth; Kurpius, Meredith; Lakin, Matt;
YOSHIMURA, GWEN; Bohnenkamp, Carol
Subject: SO2 Designation UPDATE: Status of SO2 Designations Litigation
[EMAIL ADDRESSES REDACTED]
From: Coady, Monique [EMAIL
ADDRESS REDACTED]
To: Paul M. Seby [EMAIL
ADDRESS REDACTED]
Redacted - Attorney Client Privilege
2
DearColleagues,
Thisemailprovidesanupdateonthestatusoflitigationinvolvingimplementationofthe1hourNational
AmbientAirQualityStandard(NAAQS)forsulfurdioxide(SO
2
)establishedinJune2010.Asrequiredbythe
CleanAirAct,theEPAsetthis1hourhealthbasedstandardtoimprovepublichealthprotection,especiallyfor
peoplewithasthma,children,andtheelderly.
decreeisattached.
order.
2
2
2
2
2
2
andhadan
2
Standards.
EPAthanksyouforyourcontinuedinterestandeffortsinimplementationofthe2010SO
2
standard.We
recognizethatthisproposedsettlementmaychangethescheduleforSO2designationsyouhadanticipatedif
youhaveanewlyviolatingmonitororanyofthecoalfiredpowerplantsdescribed,above.EPAlooksforward
tocontinuingtoworkwithyoutoensureprotectionofpublichealthandtheenvironmentthroughsound,
practicablepolicyapproachesthatreflecttheconsiderationsofthemanystakeholderswhohelpedusdevelop
ourSO
2
implementationstrategy.
3
Regards,
KerryDrake
AssociateDirector,AirDivision
U.S.EPA,Region9
4159474157

North Dakota Et Al. Response To 2nd Motion For Summary Judgment 5/22/2014 ND Cal

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From: Quarles, Jackie (EEC) [EMAIL ADDRESS

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