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Citizens for Clean Air v. Wheeler

United States District Court, W.D. Washington, Seattle

October 23, 2019

CITIZENS FOR CLEAN AIR, a project of ALASKA COMMUNITY ACTION ON TOXICS, and SIERRA CLUB, Plaintiffs,
v.
ANDREW WHEELER, in his official capacity as Administrator of the United States Environmental Protection Agency, and CHRIS HLADICK, in his official capacity as Regional Administrator of the United States Environmental Protection Agency Region 10, Defendants, STATE OF ALASKA, Defendant-Intervenor

          COUNSEL FOR PLAINTIFFS: Jeremy C. Lieb EARTHJUSTICE Erik Grafe Kristen L. Boyles Attorneys for Citizens for Clean Air, a project of Alaska Community Action on Toxics, and Sierra Club

          COUNSEL FOR DEFENDANT: JEFFREY BOSSERT CLARK SHEILA BAYNES Attorney for Defendant EPA

          CONSENT DECREE

          THOMAS S. ZILLY UNITED STATES DISTRICT JUDGE.

         WHEREAS, on December 18, 2018, Citizens for Clean Air and Sierra Club (“Plaintiffs”) filed the above-captioned matter against Andrew Wheeler, in his official capacity as Administrator of the United States Environmental Protection Agency, and Chris Hladick, in his official capacity as Regional Administrator of the United States Environmental Protection Agency, Region 10 (collectively, “EPA”);

         WHEREAS, Plaintiffs allege that EPA has failed to undertake a certain non-discretionary duty under the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401-7671q, and that such alleged failure is actionable under section 304(a)(2) of the CAA, 42 U.S.C. § 7604(a)(2);

         WHEREAS, EPA revised the 24-hour fine particulate matter (“PM2.5”) National Ambient Air Quality Standard (“NAAQS”) from 65 micrograms per cubic meter to 35 micrograms per cubic meter on October 17, 2006;

         WHEREAS, EPA designated a portion of the Fairbanks North Star Borough (“Area”) nonattainment for the 2006 24-hour PM2.5 NAAQS, and classified the Area as a “moderate” nonattainment area on December 14, 2009;

         WHEREAS, on May 10, 2017, EPA published a finding that the Area failed to attain the 2006 24-hour PM2.5 NAAQS by the moderate area attainment date of December 31, 2015;

         WHEREAS, as a consequence of this finding and by virtue of section 188(b)(2) of the CAA, 42 U.S.C. § 7513(b)(2), effective June 9, 2017, the Area was reclassified from a “moderate” to a “serious” nonattainment area, which required the State of Alaska to make a serious area state implementation plan (“SIP”) submission in accordance with title I, part D, subparts 1 and 4 of the CAA and 40 C.F.R. part 51, subpart Z;

         WHEREAS, Plaintiffs allege that EPA failed to perform a duty mandated by CAA section 110(k)(1)(B), 42 U.S.C. § 7510(k)(1)(B), by failing to determine whether the State of Alaska has made an administratively complete SIP submission intended to meet serious area nonattainment plan requirements for purposes of the 2006 24-hour PM2.5 NAAQS in the Area by the deadline triggered by the EPA's May 10, 2017 finding that the Area failed to attain the 2006 24-hour PM-2.5 NAAQS by December 31, 2015, and failing to publish a notice in the Federal Register setting forth that determination;

         WHEREAS, the relief requested in the Complaint is an order from this Court to establish a date certain by which EPA must make and publish a determination whether the State of Alaska has made an administratively complete SIP submission intended to meet serious area nonattainment plan requirements for purposes of the 2006 24-hour PM2.5 NAAQS in the Area;

         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;

         WHEREAS, Plaintiffs 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, Plaintiffs and EPA consider this Consent Decree to be an adequate and equitable resolution of all the claims in this ...


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