1 ADAM R.F. GUSTAFSON Acting Assistant Attorney General 2 3 ALEX J. HARDEE (NC Bar No. 56321) United States Department of Justice 4 Environment & Natural Resources Division Environmental Defense Section 5 P.O. Box 7611 6 Washington, DC 20044 202-514-2398 7 alex.hardee@usdoj.gov

8 Attorney for Defendants 9

UNITED STATES DISTRICT COURT

10 NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

11

12

COMMITTEE FOR A BETTER ARVIN,

13 et al., Case No. 3:25-cv-03326-MMC 14 Plaintiffs, 15 [PROPOSED] CONSENT DECREE v. 16 17 UNITED STATES ENVIRONMENTAL Hon. Maxine M. Chesney PROTECTION AGENCY, et al., 18 Defendants. 19 20 21 22 23 24 25 26 27 28 1 WHEREAS, on April 14, 2025, Plaintiffs Committee for a Better Arvin, Healthy 2 Environment for All Lives, Medical Advocates for Healthy Air, and Sierra Club filed a 3 Complaint against Defendants United States Environmental Protection Agency (EPA), the EPA 4 Administrator, and the EPA Regional Administrator, alleging that Defendants failed to undertake 5 certain nondiscretionary duties under the Clean Air Act, 42 U.S.C. §§ 7509(c)(1) & 7410(k)(2); 6 WHEREAS, on April 28, 2025, Plaintiffs filed an Amended Complaint for Injunctive and 7 Declaratory Relief maintaining the same allegations as the Complaint but amending certain 8 requested remedies; 9 WHEREAS, the Clean Air Act controls air pollution through a system of shared federal 10 and state responsibility. Gen. Motors Corp. v. United States, 496 U.S. 530, 532 (1990). EPA sets 11 national ambient air quality standards (NAAQS) for several enumerated air pollutants, including 12 ozone. 42 U.S.C. § 7409. Areas that are designated “nonattainment” with one or more NAAQS 13 are subject to more stringent requirements under the Clean Air Act than areas that are in 14 “attainment.” To achieve and maintain the NAAQS, the Act requires states to develop state 15 implementation plans (SIPs), which are subject to EPA approval. Id. § 7410(k). SIPs must 16 contain contingency measures to take effect if a plan fails to make “reasonable further progress” 17 or attain the NAAQS by the applicable attainment date. Id. § 7502(c)(9); 18 WHEREAS, in 1997, EPA established a NAAQS for ozone of 0.08 parts per million 19 averaged over an 8-hour period, 40 C.F.R. § 50.10; 20 WHEREAS, EPA updated the ozone NAAQS in 2008 and revoked the 1997 ozone 21 NAAQ S, but is still required to determine whether an area attained the 1997 ozone NAAQS by 22 the area’s attainment date for “anti-backsliding purposes to address an applicable requirement for 23 nonattainment contingency measures and [Clean Air Act] section 185 fee programs,” 40 C.F.R. § 24 51.1105(d)(2)(iii); 25 WHEREAS, the San Joaquin Valley is classified as “Extreme” nonattainment for the 26 1997 ozone NAAQS, see 75 Fed. Reg. 24409 (May 5, 2010); 27 WHEREAS, the attainment date for the 1997 ozone NAAQS in the San Joaquin Valley is 28 June 15, 2024, see id. at 24415; 1 WHEREAS, the Clean Air Act requires EPA to determine whether a nonattainment area 2 attained the relevant NAAQS within six months of the attainment date, 42 U.S.C. § 7509(c)(1), 3 or, in this case, by December 15, 2024; 4 WHEREAS, the Clean Air Act requires EPA to “act on” a SIP submission within 12 5 months of a determination of completeness (or of completeness by operation of law), either 6 approving or disapproving it in whole or in part, or conditionally approving it, depending on 7 whether the SIP submission’s components meet the Act’s requirements, 42 U.S.C § 7410(k)(2), 8 (4); 9 WHEREAS, on November 13, 2023, the California Air Resources Board (CARB) 10 submitted the California Smog Check Contingency Measure State Implementation Plan Revision 11 (Smog Check Contingency Measure SIP) to EPA as a revision to the California SIP for San 12 Joaquin Valley area, among other areas; on December 20, 2023, EPA found the Smog Check 13 Contingency Measure SIP to be administratively complete, 88 Fed. Reg. 87981, 87982 (Dec. 20, 14 2023); and on July 9, 2024, EPA approved the Smog Check Contingency Measure SIP as 15 “providing an individual contingency measure for the various nonattainment areas and NAAQS 16 to which the SIP applies,” but did not make a determination as to whether the Smog Check 17 Contingency Measure SIP meets the overarching attainment-related contingency measure 18 requirements under the Clean Air Act for San Joaquin Valley for the 1997 ozone NAAQS, 89 19 Fed. Reg. 56222, 56227 (July 9, 2024); 20 WHEREAS, the Clean Air Act requires EPA to take final action on the Smog Check 21 Contingency Measure SIP with respect to the overarching contingency measures requirements, 22 by full or partial approval or disapproval, or conditional approval, for the San Joaquin Valley 23 area for purposes of the 1997 Ozone NAAQS, by December 20, 2024, 42 U.S.C. § 7410(k)(2); 24 WHEREAS, the Amended Complaint alleges that EPA did not make an attainment 25 determination for the San Joaquin Valley with respect to the 1997 ozone NAAQS by the 26 December 15, 2024 deadline; 27 WHEREAS, the Amended Complaint alleges that EPA did not take final action on the 28 Smog Check Contingency Measure SIP by the December 20, 2024 deadline; 1 WHEREAS, EPA has committed to take the statutorily required actions in accordance 2 with the agreed deadlines set forth below; 3 WHEREAS, the parties, by entering into this Consent Decree, do not waive or limit any 4 claim or defense, on any grounds, related to any final EPA actions; 5 WHEREAS, the parties consider this Consent Decree to be an adequate and equitable 6 resolution of all claims in this matter; 7 WHEREAS, it is in the interest of the parties, judicial economy, and the public to resolve 8 this matter without protracted litigation; 9 WHEREAS, the Court, by entering this Consent Decree, finds that the Consent Decree is 10 fair, reasonable, in the public interest, and consistent with the Clean Air Act; 11 NOW, before the taking of testimony, without trial or determination of any issue of fact 12 or law, and upon the consent of the parties, it is decreed: 13 1. This Court has subject-matter jurisdiction over the claims in this action under 28 14 U.S.C. § 1331 and the citizen suit provision in 42 U.S.C. § 7604(a)(2) and personal jurisdiction 15 over the parties. 16 2. Venue is proper in this judicial district pursuant to 42 U.S.C. § 9613(b), 28 U.S.C. 17 § 1391(e), and Civil Local Rule 3-2(c), (d). 18 3. No later than September 15, 2025, consistent with 42 U.S.C. § 7509(c)(1) and 19 pursuant to 40 C.F.R. § 51.1105(d)(2)(iii), the appropriate EPA official shall sign a final rule 20 making a determination of attainment, or failure to attain, by the applicable attainment date for 21 San Joaquin Valley with respect to the 1997 ozone NAAQS. 22 4. No later than January 23, 2026, pursuant to 42 U.S.C. § 7410(k)(2)–(4), the 23 appropriate EPA official shall sign one or more final rules that approve, disapprove, 24 conditionally approve, or approve in part and disapprove in part the Smog Check Contingency 25 Measure SIP with respect to the overarching contingency measures requirements for the San 26 Joaquin Valley area for purposes of the 1997 ozone NAAQS. 27 28 1 5. Not later than 15 business days after signature of the final actions under 2 Paragraphs 3 and 4 of this Consent Decree, EPA shall send notice of the actions to the Office of 3 the Federal Register for review and publication in the Federal Register. 4 6. After EPA has completed the actions set forth in Paragraphs 3 and 4 of this 5 Consent Decree, after notices of the final actions required by Paragraph 5 have been published in 6 the Federal Register, and the parties have resolved the issue of costs of litigation (including 7 reasonable attorney fees), EPA may move to have this Consent Decree terminated. Only in the 8 event Plaintiffs assert that EPA has failed to meet its obligations under this Consent Decree may 9 Plaintiffs withhold consent to such motion. Plaintiffs shall have 14 days to respond to such 10 motion, unless the parties stipulate to a longer time. 11 7. If EPA extends for the public interest the notice and comment period for any rule 12 proposing the actions under Paragraphs 3 and 4, the deadlines in Paragraphs 3 and 4 shall extend 13 automatically by the number of days equal to the extension of the notice and comment period. 14 8. The deadlines established by this Consent Decree may be extended (a) by written 15 stipulation of Plaintiffs and EPA and filed with the Court, or (b) by the Court upon motion by 16 any party for good cause shown pursuant to the Federal Rules of Civil Procedure and upon 17 consideration of any response by the non-moving party and any reply. Any other provision of 18 this Consent Decree also may be modified by the Court following the motion of a party for good 19 cause shown pursuant to the Federal Rules of Civil Procedure and upon consideration of any 20 response by the non-moving party and any reply. 21 9. If a lapse in EPA appropriations occurs within 120 days prior to any deadline in 22 Paragraphs 3, 4 or 5 of this Consent Decree, all such deadlines shall be extended automatically 23 one day for each day of the lapse in appropriations. Nothing in this Paragraph shall preclude 24 EPA from seeking an additional extension of time through modification of this Consent Decree 25 pursuant to Paragraph 8. 26 10. Nothing in this Consent Decree shall be construed to limit or modify the 27 discretion accorded EPA by the Clean Air Act and by general principles of administrative law, 28 including the discretion to alter, amend, or revise any response or final action contemplated by 1 this Consent Decree. EPA’s obligation to perform each action specified in this Consent Decree 2 does not constitute a limitation or modification of EPA’s discretion within the meaning of this 3 Paragraph. 4 11. Nothing in this Consent Decree shall be construed to confer upon the Court 5 jurisdiction to review any decision made in the final actions identified in Paragraphs 3 and 4. 6 Nothing in this Consent Decree shall be construed to confer upon the Court jurisdiction to review 7 any issues that are within the exclusive jurisdiction of the United States Courts of Appeals 8 pursuant to 42 U.S.C. § 7607(b)(1). Nothing in this Consent Decree shall be construed to waive 9 any claims, remedies, or defenses that the parties may have under 42 U.S.C. § 7607(b)(1). 10 12. This Court shall retain jurisdiction to enforce the terms of this Consent Decree 11 and to resolve any requests for costs of litigation, including attorney fees. 12 13. The deadline for filing a bill of costs pursuant to Local Rule 54-1 and a motion for 13 costs of litigation (including attorney fees) pursuant to Local Rule 54-5 for activities performed 14 prior to entry of the Consent Decree is extended until 90 days after the Court enters this Consent 15 Decree. During this period, the parties shall seek to resolve any claim for costs of litigation 16 (including attorney fees), and if they cannot, Plaintiffs will file a motion for costs of litigation 17 (including attorney fees) or a stipulation or motion to extend the deadline to file such a motion. 18 EPA reserves the right to oppose any such request and shall have at least 60 days to respond to 19 any motion for costs of litigation (including attorney fees). Plaintiffs shall have at least 30 days 20 to file a reply in support of their motion. 21 14. In the event of a dispute between the parties concerning the interpretation or 22 implementation of any aspect of this Consent Decree, the disputing party shall provide the other 23 party with a written notice outlining the nature of the dispute and requesting informal 24 negotiations. The parties shall meet and confer to attempt to resolve the dispute. If the parties 25 cannot reach an agreed-upon resolution within 10 business days after receipt of the notice, any 26 party may move the Court to resolve the dispute. 27 15. No motion or other proceeding seeking to enforce this Consent Decree or for 28 contempt of Court shall be considered properly filed, unless Plaintiffs have followed the 1 procedure set forth in Paragraph 14 and provided EPA with written notice received at least 10 2 business days before the filing of such motion or proceeding. 3 16. Plaintiffs reserve the right to seek additional costs of litigation, including 4 reasonable attorney fees, consistent with 42 U.S.C. § 7604(d), for activities to enforce this 5 Consent Decree. EPA reserves the right to oppose any such request for additional costs of 6 litigation. 7 17. The obligations imposed upon EPA under this Consent Decree may only be 8 undertaken using appropriated funds legally available for such purposes. No provisions of this 9 Consent Decree shall be interpreted as or constitute a commitment or requirement that EPA 10 obligate or pay funds in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any 11 other applicable federal law. 12 18. The parties agree that before this Consent Decree is entered by the Court, EPA 13 must provide notice of this Consent Decree in the Federal Register and an opportunity for public 14 comment pursuant to 42 U.S.C. § 7413(g). After this Consent Decree has undergone notice and 15 comment, the Administrator and/or the Attorney General, as appropriate, shall promptly consider 16 any such written comments in determining whether to withdraw or withhold their consent to the 17 Consent Decree, in accordance with 42 U.S.C. § 7413(g). If the Administrator and/or the 18 Attorney General do not elect to withdraw or withhold their consent, EPA shall promptly file a 19 motion that requests the Court to enter this Consent Decree. 20 19. Except as expressly provided herein, nothing in this Consent Decree shall be 21 construed as an admission of any issue of fact or law, nor to waive or limit any claim, remedy, or 22 defense, on any grounds, related to any final action EPA takes with respect to the actions 23 addressed in this Consent Decree. 24 20. Any notices required or provided for by this Consent Decree shall be made in 25 writing, via electronic mail, facsimile, and/or other means, and sent to the following (or any new 26 address of counsel as filed and listed in the docket of the above-captioned matter, at a future 27 date): 28 1 For Plaintiffs:

2 Brent J. Newell 3 Law Office of Brent J. Newell 245 Kentucky Street, Suite A4 4 Petaluma, California 94952 Telephone: (661) 586-3724 5 Email: brent@lawofficenewell.com 6

7 For Defendants:

8 Chief, Environmental Defense Section 9 U.S. Department of Justice P.O. Box 7611 10 Washington, DC 20044-7611 Telephone: (202) 514-2219 11 Facsimile: (202) 514-8865 12 Email: alex.hardee@usdoj.gov Reference: DJ# 90-5-2-4-23013 13 Geoffrey L. Wilcox 14 Office of General Counsel 15 U.S. Environmental Protection Agency William J. Clinton Federal Building 16 1200 Pennsylvania Ave., N.W. Washington, DC 20460 17 Telephone: (202) 564-5601 18 Facsimile: (202) 564-5603 Email: wilcox.geoffrey@epa.gov 19 20 Jefferson Wehling Office of Regional Counsel 21 U.S. Environmental Protection Agency, Region 9 75 Hawthorne Street, 12th Floor 22 San Francisco, CA 94105 23 Phone: (415) 972-3901 Facsimile: (415) 947-4570 24 Email: wehling.jefferson@epa.gov 25 21. If for any reason the Court should decline to approve this Consent Decree in the 26 form presented, this agreement is voidable at the sole discretion of either party and the terms of 27 the proposed Consent Decree may not be used as evidence in any litigation between the parties. 28 22. This Consent Decree constitutes a complete settlement of all claims in this case. 1 23. Plaintiffs and EPA jointly drafted this Consent Decree. The parties agree that all 2 rules of construction providing that ambiguity is construed against the drafting party shall be 3 || inapplicable in any dispute concerning the terms, conditions, or interpretation of this Consent 4 || Decree. 5 24. The undersigned representatives of each party certify that they are authorized by 6 || the party that they represent to consent to the entry of the terms and conditions of this Consent 7 || Decree. 8 9 || IT IS SO ORDERED. 10 11 |! Dated: September 11, 2025 Cates 12 re MAXINE M. CHESNEY

UNITED STATES DISTRICT JUDGE

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 COUNSEL FOR PLAINTIFFS:

2 Dated: September 10, 2025 /s/ Brent J. Newell (with permission) 3 BRENT J. NEWELL (State Bar No. 210312) Law Office of Brent J. Newell 4 245 Kentucky Street, Suite A4 Petaluma, California 94952 5 Telephone: (661) 586-3724 6 Email: brent@lawofficenewell.com

7 Attorney for Plaintiffs

8

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 COUNSEL FOR DEFENDANTS:

2 Dated: September 10, 2025 ADAM R.F. GUSTAFSON 3 Acting Assistant Attorney General

4 /s/ Alex J. Hardee ] ; ALEX J. HARDEE (NC Bar No. 56321) 5 U.S. Department of Justice 6 Environment & Natural Resources Division Environmental Defense Section 7 Attorney for Defendants 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28