SETTLEMENT AGREEMENT This Settlement Agreement is made by and between: 1) Sierra Club; and 2) the U.S. Environmental Protection Agency and its Administrator, Gina McCarthy (collectively EPA ). WHEREAS, pursuant to 42 U.S.C. 7607(b)(1), Sierra Club on May 27, 2016, filed a petition for judicial review of the final action taken by EPA under the Clean Air Act ( CAA ) at 81 Fed. Reg. 17,248 (Mar. 28, 2016) titled Revisions to Ambient Monitoring Quality Assurance and Other Requirements ( final action ), which is currently pending before the U.S. Court of Appeals for the District of Columbia Circuit in a case captioned Sierra Club v. Environmental Protection Agency, No. 16-1158; WHEREAS, Sierra Club and EPA (collectively, the Parties ) wish to implement this Settlement Agreement resolving Sierra Club s petition, without any admissions or adjudications of fact or law; WHEREAS pursuant to 40 C.F.R. 58.10 (2016), state, or where applicable local, agencies are required to submit annual monitoring network plans ( monitoring plans ) to EPA; WHEREAS EPA s September 2013 Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2) (the 2013 isip Guidance ) states that to meet CAA Section Page 1 of 10
110(a)(2)(B), the best practice for an air agency submitting an infrastructure SIP would be to submit, for inclusion into the SIP (if not already part of the SIP), the statutory or regulatory provisions that provide the air agency or official with the authority and responsibility to perform the actions listed in the 2013 isip Guidance along with a narrative explanation of how the provisions meet the requirements of CAA Section 110(a)(2)(B) (see 2013 isip Guidance, pp. 22-23); WHEREAS, the discussion at 81 Fed. Reg. at 17,251/2-3 does not alter or amend the above-cited portion of the 2013 isip guidance; WHEREAS, the Parties desire to resolve Petitioner s request for attorneys fees and costs without further litigation; WHEREAS, the Parties wish to enter into this Settlement Agreement to avoid protracted and costly litigation and to preserve judicial resources, and the Parties agree the Settlement Agreement is fair, reasonable, in the public interest, and consistent with the CAA; NOW THEREFORE, the Parties, intending to be bound by this Settlement Agreement, hereby stipulate and agree as follows: 1. Within ten business days after this Settlement Agreement is executed by the Parties, but before finalization pursuant to Paragraph 12 of this Settlement Agreement, the Parties shall file a joint motion with the Court notifying it of this Page 2 of 10
Settlement Agreement and requesting that Sierra Club s petition for review be held in abeyance as further provided herein. 2. Not later than 30 days after finalization of this Settlement Agreement, EPA will issue a guidance document ( guidance ) at the Office of Air Quality Planning and Standards ( OAQPS ) division director level to state and (where applicable) local monitoring agencies recommending that such agencies make monitoring plans available on their websites for public comment, and that the plans should remain available during the comment period. In addition, the guidance will recommend that states provide notification by email to interested stakeholders at the beginning of the 30-day comment period that the monitoring plan is available for comment. The guidance will further request that the state confirm in the submitted plan or cover letter thereto the timing and form of notice that was given. The guidance would not contain binding requirements, but rather recommendations on how to best implement the regulatory requirements. EPA shall provide Sierra Club a copy of the above-described guidance within ten business days of issuance thereof through its undersigned counsel. 3. Not later than 30 days after finalization of this Settlement Agreement, EPA will issue guidance at the OAQPS division director level to the EPA regional office air division directors asking that they ensure interested stakeholders are informed by email within 15 business days of monitoring plan approvals and Page 3 of 10
disapprovals by EPA, and that the approved plans are promptly made available on EPA s Ambient Monitoring Technology Information Center ( AMTIC ) web site. The guidance will further request that the regions make the plans available on the AMTIC web site within 15 business days of the action on the plan. EPA shall provide Sierra Club with a copy of this guidance within ten business days of issuance thereof through its undersigned counsel. 4. If EPA takes all the actions specified in Paragraphs 2 and 3 above within the time frames specified therein, and if the guidance documents specified in those paragraphs remain in effect and unchanged for 270 days after finalization of this settlement agreement, Sierra Club shall, no later than ten business days after such 270 th day, file an appropriate pleading seeking the dismissal of Petition for Review No. 16-1158, with prejudice, in accordance with Rule 42(b) of the Federal Rules of Appellate Procedure. 5. If: a) EPA and/or the Attorney General determine to withdraw or withhold consent to this Settlement Agreement as described in Paragraph 12; b) EPA does not take all the actions as described in Paragraphs 2 and 3 within the time frames specified therein; or c) the guidance documents referenced in Paragraphs 2 and 3 do not remain in effect and unchanged for at least 270 days after finalization of this Settlement Agreement; then Sierra Club s sole remedy with respect to the final action at issue in this case shall be the right to ask the Page 4 of 10
Court to lift the abeyance of proceedings and establish a schedule for briefing and oral argument of the pending petition for judicial review. 6. This Settlement Agreement constitutes the sole and entire understanding of EPA and Sierra Club, and no statement, promise or inducement made by any Party to this Settlement Agreement, or any agent of such Parties, that is not set forth in this Settlement Agreement shall be valid or binding. 7. Except as expressly provided in this Settlement Agreement, none of the Parties waives or relinquishes any legal rights, claims or defenses it may have. 8. The provisions of this Settlement Agreement can be modified at any time by written mutual consent of the Parties. 9. Except as expressly provided herein, nothing in the terms of this Settlement Agreement shall be construed to limit or modify the discretion accorded EPA by the CAA or by general principles of administrative law. 10. The commitments by EPA in this Settlement Agreement are subject to the availability of appropriated funds. No provision of this Settlement Agreement shall be interpreted as or constitute a commitment or requirement that EPA obligate, expend or pay funds in contravention of the Anti-Deficiency Act, 31 U.S.C. 1341, or any other applicable appropriations law or regulation, or otherwise take any action in contravention of those laws or regulations. Page 5 of 10
11. The Parties recognize that the possibility exists that a total lapse in the appropriations that fund EPA resulting in an EPA shutdown could delay compliance with the time frames contained in this Agreement. Should a delay occur due to such a lapse in appropriations, any resulting failure to meet the time frames set forth herein shall not constitute a failure to comply with the terms of this Settlement Agreement, and any such lapse in appropriation that occurs within 90 days prior to any deadlines shall cause the deadline to be automatically extended one day for each day of the lapse in appropriations. Nothing in this Paragraph shall preclude EPA from seeking an additional extension through modification of this Settlement Agreement pursuant to Paragraph 8 nor limit Sierra Club s right to oppose any such request for an additional extension. 12. The Parties agree and acknowledge that before this Settlement Agreement is final, EPA must provide notice in the Federal Register and an opportunity for public comment pursuant to CAA Section 113(g), 42 U.S.C. 7413(g). Upon signature of the parties but before the Settlement Agreement is final, EPA shall promptly submit such notice of this Settlement Agreement to the Federal Register for publication and public comment. After this Settlement Agreement has undergone an opportunity for notice and comment, EPA and/or the Attorney General, as appropriate, shall promptly consider any such written comments in determining whether to withdraw or withhold consent to the Page 6 of 10
Settlement Agreement, in accordance with section 113(g) of the CAA. If the Administrator and/or the Attorney General elect(s) to not withdraw or withhold consent to this Settlement Agreement, this Settlement Agreement shall become final on the date that EPA provides written notice of such finality to Sierra Club through its undersigned counsel. 13. It is understood and agreed that this Settlement Agreement was jointly drafted by Sierra Club and EPA. Accordingly, the Parties hereby agree that 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 Settlement Agreement. 14. In the event of a dispute between the Parties concerning the interpretation or implementation of any aspect of this Settlement Agreement, including, but not limited to, Paragraph 11, the disputing Party shall 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 within fifteen business days after receipt of the notice, any Party may move to lift the stay. 15. The parties agree to address the issue of costs of litigation, including attorney s fees, as follows: a. If the conditions specified in Paragraph 4 are fully and timely satisfied, then within 150 days of Sierra Club s filing of a pleading pursuant Page 7 of 10
to Paragraph 4 seeking dismissal of Petition for Review No. 16-1158, the United States will pay the sum of $23,454 in full settlement of Sierra Club s claims for fees and costs in this matter. Such payment shall be made pursuant to electronic payment instructions from the Sierra Club. b. If the United States makes the payment specified in subparagraph a above within the timeframe specified therein, or if Sierra Club accepts such payment thereafter, then such payment or acceptance constitutes full and final payment of all costs and fees incurred by Sierra Club in connection with the litigation. Upon such payment or acceptance, Sierra Club shall release the United States, including EPA, from any claims regarding costs (including reasonable attorneys fees) incurred in this litigation. c. If the United States fails to make timely payment as specified in subparagraph a of this paragraph, and Sierra Club does not accept such payment after the timeframe specified in subparagraph a, then Sierra Club may make application to the Court for an award of costs (including reasonable attorneys fees) in connection with the litigation without regard to the amount of the payment specified in subparagraph a. Such application shall be Sierra Club s sole remedy for any failure by the United Page 8 of 10
States to make timely payment under this Agreement, and the United States may oppose such application. d. The provisions of this paragraph shall have no force and effect if the Court lifts the abeyance of proceedings in response to a request by Sierra Club pursuant to Paragraph 5. 16. The undersigned representatives of each Party certify that they are fully authorized by the Party that they represent to bind that respective Party to the terms of this Settlement Agreement. This Settlement Agreement will be deemed to be executed when it has been signed by the representatives of the Parties set forth below, subject to final approvals pursuant to Paragraph 12. 17. This Settlement Agreement may be signed in counterparts, and such counterpart signatures shall be given full force and effect. DATE: p Z o i PHILLIP R. D U.S. Department o ice Environment and Natural Resources Division Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044-7611 (202) 616-7501 phillip.r. dupre@usdoj. gov Counsel for EPA Page 9 of 10
DATE: () I/; D I /"'C6!7 I DAVID S. BARON Earth justice 1625 Massachusetts Avenue, NW, Suite 702 Washington, DC 20036 202-667-4500 dbaron@earthjustice.org Counsel for Sierra Club Page IO of IO