Case 2:13-cv JCJ Document 23-1 Filed 05/06/14 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

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1 Case 2:13-cv JCJ Document 23-1 Filed 05/06/14 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA SIERRA CLUB, Plaintiff, Case No. 2:13-cv JCJ CONSENT DECREE v. REGINA MCCARTHY, in her official capacity as Administrator of the United States Environmental Protection Agency, Defendant. CONSENT DECREE WHEREAS, on October 18, 2013, Plaintiff Sierra Club filed this action pursuant to the Clean Air Act ( CAA ), section 304(a)(2), 42 U.S.C. 7604(a)(2), alleging that Defendant Regina McCarthy, in her official capacity as Administrator of the United States Environmental Protection Agency ( EPA ), failed to perform a non-discretionary duty under CAA section 505(b)(2), 42 U.S.C. 7661d(b)(2), to grant or deny seven petitions timely submitted by Plaintiff in 2012, requesting that EPA object to CAA Title V operating permits issued by the Pennsylvania Department of Environmental Protection to seven coal-fired power plants (Shawville Generating Station ( Shawville ); Sunbury Generation Power Plant ( Sunbury ); AES Beaver Valley Power Station ( AES Beaver Valley ); Mitchell Power Station ( Mitchell ); Hatfield s Ferry Power Station ( Hatfield s Ferry ); Homer City Generating Station ( Homer City ); and Bruce Mansfield Power Station ( Bruce Mansfield )) (collectively, the Permits ); WHEREAS, Hatfield s Ferry and Mitchell were deactivated on October 9, 2013;

2 Case 2:13-cv JCJ Document 23-1 Filed 05/06/14 Page 2 of 13 WHEREAS, Shawville s four coal-fired boilers will deactivate no later than April 16, 2015, as approved by electric grid operator PJM Interconnection, L.L.C. ( PJM ); WHEREAS, Sunbury is currently in the process of replacing its five permitted coal-fired boilers with new natural gas-fired units, and Sunbury s five permitted coal-fired boilers will deactivate no later than June 1, 2015, as approved by PJM; WHEREAS, AES Beaver Valley s four coal-fired boilers will deactivate no later than June 1, 2017, as approved by PJM; WHEREAS, the respective CAA Title V operating permits for the five deactivated or projected to be deactivated coal-fired power plants referenced above are due to expire on October 17, 2017 (Shawville), November 29, 2017 (AES Beaver Valley), and November 30, 2017 (Hatfield s Ferry, Sunbury, and Mitchell); WHEREAS, Plaintiff and EPA (collectively the Parties ) wish to settle the abovecaptioned matter without expensive and protracted litigation; WHEREAS, the Parties consider this Decree to be an adequate and equitable resolution of the claims in the above-captioned matter; WHEREAS, the Court, by entering this Decree, finds that the Decree is fair, reasonable, in the public interest, and consistent with the CAA, 42 U.S.C et seq.; NOW THEREFORE, before the taking of testimony, without trial or determination of any issue of fact or law, and upon the consent of the Parties, it is hereby ORDERED, ADJUDGED, and DECREED that: 1. This Court has jurisdiction over the claims set forth in the Complaint and may order the relief contained in this Decree. Venue is proper in the United States District Court, Eastern District of Pennsylvania. 2

3 Case 2:13-cv JCJ Document 23-1 Filed 05/06/14 Page 3 of By July 31, 2014, or within 30 days of the entry of this Consent Decree, whichever is later, EPA shall sign a decision or decisions, pursuant to CAA section 505(b)(2), 42 U.S.C. 7661d(b)(2), responding to Plaintiff s September 7, 2012 CAA Title V Petition regarding the operating permit for Homer City ( Homer City Petition ), including, for purposes of this Consent Decree only, a response to Plaintiff s supplement to its Homer City Petition. 3. By July 31, 2014, or within 30 days of the entry of this Consent Decree, whichever is later, EPA shall sign a decision or decisions, pursuant to CAA section 505(b)(2), 42 U.S.C. 7661d(b)(2), responding to Plaintiff s October 18, 2012 CAA Title V Petition regarding the operating permit for Bruce Mansfield ( Bruce Mansfield Petition ). 4. EPA and Plaintiff agree that EPA may defer action on the Hatfield s Ferry, Mitchell, Shawville, Sunbury, and AES Beaver Valley petitions, submitted pursuant to CAA section 505(b)(2), 42 U.S.C. 7661d(b)(2). As a condition of this agreed deferment, EPA and Plaintiff agree as follows: a. Hatfield s Ferry (according to PJM, deactivated October 9, 2013): Not later than 90 days from EPA s receipt of written notice with supporting information from Plaintiff that Hatfield s Ferry has resumed generation of electricity from one or more of its three existing coal-fired boilers, EPA will sign a decision or decisions, pursuant to CAA section 505(b)(2), 42 U.S.C. 7661d(b)(2), responding to Plaintiff s September 7, 2012 CAA Title V Petition regarding the operating permit for Hatfield s Ferry ( Hatfield s Ferry Petition ). b. Mitchell (according to PJM, deactivated October 9, 2013): Not later than 90 days from EPA s receipt of written notice with supporting information from Plaintiff that Mitchell has resumed generation of electricity from its one existing coal-fired 3

4 Case 2:13-cv JCJ Document 23-1 Filed 05/06/14 Page 4 of 13 boiler, EPA will sign a decision or decisions, pursuant to CAA section 505(b)(2), 42 U.S.C. 7661d(b)(2), responding to Plaintiff s September 7, 2012 CAA Title V Petition regarding the operating permit for Mitchell ( Mitchell Petition ), including, for purposes of this Consent Decree only, a response to Plaintiff s supplement to its Mitchell Petition. c. Shawville: Not later than 90 days from EPA s receipt of written notice with supporting information from Plaintiff that Shawville has (i) continued to generate electricity from one or more of its four existing coal-fired boilers after April 16, 2015, or (ii) has resumed generating electricity from one or more of its four existing coal-fired boilers after April 16, 2015, EPA shall sign a decision or decisions, pursuant to CAA section 505(b)(2), 42 U.S.C. 7661d(b)(2), responding to Plaintiff s May 25, 2012 CAA Title V Petition regarding the operating permit for Shawville ( Shawville Petition ), including, for purposes of this Consent Decree only, a response to Plaintiff s supplement to its Shawville Petition. d. Sunbury: Not later than 90 days from EPA s receipt of written notice with supporting information from Plaintiff that Sunbury has (i) continued to generate electricity from one or more of its five permitted existing coal-fired boilers after June 1, 2015, or (ii) resumed generating electricity from one or more of its five permitted existing coal-fired boilers after June 1, 2015, EPA shall sign a decision or decisions, pursuant to CAA section 505(b)(2), 42 U.S.C. 7661d(b)(2), responding to Plaintiff s September 7, 2012 CAA Title V Petition regarding the 4

5 Case 2:13-cv JCJ Document 23-1 Filed 05/06/14 Page 5 of 13 operating permit for Sunbury ( Sunbury Petition ), including, for purposes of this Consent Decree only, a response to Plaintiff s supplement to its Sunbury Petition. e. AES Beaver Valley: Not later than 90 days from EPA s receipt of written notice with supporting information from Plaintiff that AES Beaver Valley has (i) continued to generate electricity from one or more of its four existing coal-fired boilers after June 1, 2017, or (ii) resumed generating electricity from one or more of its four existing coal-fired boilers after June 1, 2017, EPA shall sign a decision or decisions, pursuant to CAA section 505(b)(2), 42 U.S.C. 7661d(b)(2), responding to Plaintiff s September 7, 2012 CAA Title V Petition regarding the operating permit for AES Beaver Valley ( AES Beaver Valley Petition ), including, for purposes of this Consent Decree only, a response to Plaintiff s supplement to its AES Beaver Valley Petition. 5. Following written notice by Plaintiff under Paragraphs 4.a, 4.b., 4.c., 4.d., or 4.e., EPA reserves the right to investigate for up to 20 calendar days from Plaintiff s written notice the generating status of the plants for which Plaintiff has provided written notice. Any such investigation will not delay EPA s obligation to sign a decision or decisions within 90 days from written notice by Plaintiff, unless EPA provides to Plaintiff, within 20 calendar days of Plaintiff s written notice, a written determination with supporting information that: (i) for the plant(s) in Paragraphs 4.a. and 4.b., the plant(s) is not generating electricity; or, (ii) for the plant(s) referenced in 4.c., 4.d., and 4.e., the plant(s) has not continued to generate electricity or resumed generating electricity after the date set forth in those subparagraphs. If EPA provides such a determination, and Plaintiff disagrees, Plaintiff may seek a determination from the Court that, after the applicable date, (i) the plant(s) has generated electricity or (ii) the plant(s) has 5

6 Case 2:13-cv JCJ Document 23-1 Filed 05/06/14 Page 6 of 13 continued to generate electricity or resumed generating electricity. If the Court so determines, EPA shall sign a decision 60 days from such Court determination. 6. For purposes of providing EPA with written notice under Paragraph 4, Plaintiff will send its written notice and supporting information via to: (a) the EPA Region 3 Air Division Director; (b) the EPA Region 3 Regional Counsel; and (c) those persons listed for Defendants in Paragraph 18. Plaintiff will send s using delivery confirmation. 7. In the event that circumstances regarding the continuation or resumption of coalfired boiler operations trigger the need for EPA to respond to more than one petition during overlapping 90-day deadline periods, EPA may propose to the Plaintiff a staggered schedule of deadlines in which EPA would sign the multiple decisions at issue. In no event shall the staggered schedule allow EPA a response period of more than 90 days per petition. If the Parties cannot agree on this staggered schedule, then the Parties may invoke the dispute resolution provisions of Paragraph EPA s obligation to respond to any of the petitions in Paragraph 4 will terminate upon the expiration date in an existing Title V permit, unless the permit otherwise remains in effect, or will terminate if any one of the following occurs: (a) the Pennsylvania Department of Environmental Protection issues a new final Title V permit renewal for the plant; or (b) the Pennsylvania Department of Environmental Protection rescinds the plant s Title V permit prior to its expiration date; or (c) the plant relinquishes its Title V permit as to its existing coal-fired boilers; or 6

7 Case 2:13-cv JCJ Document 23-1 Filed 05/06/14 Page 7 of 13 (d) the plant actually and permanently removes all of its existing coal-fired boilers or converts all of its existing coal-fired boilers to natural gas-fired units or other units capable of producing renewable energy, as defined in 42 U.S.C (b)(2). 9. Following signature by the EPA Administrator of EPA s response to any of the seven above-described Title V petitions, EPA shall within 10 business days deliver notice of such action to the Office of the Federal Register for review and prompt publication. Following such delivery to the Office of the Federal Register, EPA shall not take any action (other than is necessary to correct any typographical errors or other errors in form) to delay or otherwise interfere with publication of such notice in the Federal Register. EPA shall also transmit a copy of the Administrator s signed determination to Plaintiff within 5 business days, and, if such determination contains an objection in whole or in part, to the Commonwealth of Pennsylvania, Department of Environmental Protection. 10. Any provision of this Decree may be modified by: (a) written stipulation of the Parties with notice to the Court; or (b) by the Court following motion of any party to this Decree for good cause shown, pursuant to the Federal Rules of Civil Procedure, and upon consideration of any response by the non-moving party and any reply. 11. Except as permitted under Paragraph 16 of this Decree, neither Plaintiff nor EPA shall challenge the terms of this Decree or this Court s jurisdiction to enter and enforce this Decree. 12. The deadline for filing a motion for costs of litigation (including attorneys fees) for activities performed prior to execution of this Decree is hereby extended until 90 days after the Decree is entered by the Court. During this 90-day period, the Parties shall seek to resolve informally any claim for costs of litigation (including attorneys fees), and, if they cannot, will 7

8 Case 2:13-cv JCJ Document 23-1 Filed 05/06/14 Page 8 of 13 submit that issue to the Court for resolution. The United States does not waive or limit any defenses it may have to such claim. This Court shall retain jurisdiction to resolve any requests for costs of litigation, including reasonable attorneys fees. Plaintiff reserves the right to seek litigation costs for any work performed after the lodging or entry of this Consent Decree. Any motion for such fees may be filed not later than 120 days after termination of the Decree. 13. Nothing in this 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 Decree, including discretion to alter, amend, or revise any responses or actions contemplated by this Decree. EPA s obligation to perform the actions specified in Paragraphs 2, 3, and 4.a 4.e, by the deadlines specified therein does not constitute a limitation or modification of EPA s discretion within the meaning of this paragraph. 14. Nothing in this Decree shall be construed as an admission of any issue of fact or law or to waive or limit any claim or defense, on any grounds, related to any final action EPA may take with respect to the petitions. 15. Nothing in this Decree shall be construed to confer upon the district court jurisdiction to review any decision made by EPA pursuant to this Decree, except for decisions subject to the dispute resolution provisions of Paragraph 19. Nothing in this Decree shall be construed to confer upon the district court jurisdiction to review any issues that are within the exclusive jurisdiction of the United States Court of Appeals pursuant to CAA sections 307(b)(1) and 505, 42 U.S.C. 7607(b)(1), 7661d. Nothing in the terms of this Decree shall be construed to waive any claims, remedies, or defenses the Parties may have under CAA section 307(b)(1), 42 U.S.C. 7607(b)(1). 8

9 Case 2:13-cv JCJ Document 23-1 Filed 05/06/14 Page 9 of Plaintiff and EPA agree that this Consent Decree shall constitute a complete and final settlement of all claims that Plaintiff has asserted against the United States, including EPA, in Sierra Club v. McCarthy, Case No. 2:13-cv JCJ (E.D. Pa.). Except as provided in the next sentence, Plaintiff discharges and covenants not to sue the United States, including EPA, for any such claims. If any action taken by EPA pursuant to this decree is vacated in whole or part by a United States Court of Appeals under CAA section 307(b)(1), 42 U.S.C. 7607(b)(1), the Plaintiff reserves the right to seek to compel EPA action with regard to the vacated action. EPA retains all rights and defenses, including jurisdictional challenges, in the event any such claim or lawsuit is filed by the Plaintiff. 17. The obligations imposed upon EPA under this Decree can only be undertaken using appropriated funds. No provision of this Decree shall be interpreted as or constitute a commitment or requirement that EPA obligate or pay funds in contravention of the Anti- Deficiency Act, 31 U.S.C. 1341, or any other applicable provision of law. the following: For Plaintiffs: 18. Any notices required or provided for by this Decree shall be made by to Charles McPhedran Earthjustice (215) cmcphedran@earthjustice.org Kathryn Amirpashaie Law Office of Kathryn M. Amirpashaie, PLC (703) kmalawoffice@gmail.com Zachary M. Fabish Sierra Club 9

10 Case 2:13-cv JCJ Document 23-1 Filed 05/06/14 Page 10 of 13 (202) For Defendants: Austin D. Saylor United States Department of Justice (202) Susan Stahle U.S. Environmental Protection Agency (202) Donna Mastro U.S. Environmental Protection Agency (215) Robert Stoltzfus U.S. Environmental Protection Agency (215) In the event of a dispute between the Parties concerning the interpretation implementation, or compliance with any aspect of this Decree, the disputing Party may provide the other Party with a written notice outlining the nature of the dispute and requesting informal negotiations. If the Parties cannot reach an agreed-upon resolution, any party may petition the Court to resolve the dispute. 20. The Court shall retain jurisdiction over this matter to enforce the terms of this Consent Decree, once entered. After EPA s obligations under Paragraphs 2 and 3 of this Consent Decree have been completed, and Plaintiff s claim for costs of litigation (including attorneys fees) have been resolved pursuant to Paragraph 12 (or by the Court), EPA may move to partially terminate this Consent Decree as to the actions specified in Paragraphs 2 and 3 (i.e., 10

11 Case 2:13-cv JCJ Document 23-1 Filed 05/06/14 Page 11 of 13 EPA s obligations regarding the Homer City Petition and supplement thereto and the Bruce Mansfield Petition). Also at that time, the Parties agree to jointly move the Court to put this case in abeyance, pending completion or termination of all of EPA s obligations under Paragraph Once all of EPA s obligations under this Consent Decree have been completed or otherwise terminated, either party may move to terminate the Decree. The opposing party shall have 14 days to respond to such motion. 22. The Parties agree and acknowledge that before this Consent Decree can be finalized and entered by the Court, EPA must provide notice in the Federal Register and an opportunity for comment pursuant to CAA section 113(g), 42 U.S.C. 7413(g). Within ten business days of lodging, EPA shall submit a public notice of this Consent Decree to the Federal Register for publication and public comment. After this Consent Decree has undergone the requisite notice and comment, the Administrator and/or the Attorney General, as appropriate, shall promptly consider any such written comments in determining whether to withdraw or withhold consent to this Consent Decree, in accordance with CAA section 113(g), 42 U.S.C. 7413(g). If the Administrator and/or the Attorney General elect(s) to not withdraw or withhold consent to this Consent Decree, the Parties shall promptly file a motion that jointly requests the Court to enter this Consent Decree. If the Administrator and/or the Attorney General elect(s) to withdraw or withhold consent to this Consent Decree pursuant to CAA section 113(g), 42 U.S.C. 7413(g), EPA shall promptly advise Plaintiff. 23. It is hereby expressly understood and agreed that this Consent Decree was jointly drafted by Plaintiff and EPA and 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. 11

12 Case 2:13-cv JCJ Document 23-1 Filed 05/06/14 Page 12 of The undersigned representatives of each Par#y certify that they are fully authorized by the Party they represent to bind that Party Yo the ternis of this Decree. SO ORDERED on this ~ day of, SO AGREED: THE HON. JUDGE J. CURTIS JC}YNBR UNITED STATES DISTRICT JUDGE FOR A..~. ar es McPhedran Earthjustice 1617 JFK Boulevard, Suite 1 b75 ~hiladelpl~ia, PA Ph. (21S) FaY {212) cnncphedran@earthjustice.org Kathryn Amirpashaie Law Office of Kathryn M. Amirpashaie, PLC 7556 Blanford Court Alexandria, VA (703) kmal awo ffice@gmail. com FOR DEFENDANTS O ERT G. D ER Acting Assistant Attorney General Environment &Natural Resources Division Austin D. Saylor United States Departrz~ent of Justice ENRD/Environmental Defense Section P.O. Box 7611 Washington, DC

13 Case 2:13-cv JCJ Document 23-1 Filed 05/06/14 Page 13 of 13 Ph. (202) Fax (202)