UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, v. Case No. 21-cv-2210 (JDB) U.S. ENVIRONMENTAL PROTECTION AGENCY and MICHAEL REGAN, in his Official capacity as Administrator, U.S. Environmental Protection Agency, Defendants.

ORDER

Upon consideration of [15] the Unopposed Motion for Entry of Consent Decree, and the

entire record herein, it is hereby

ORDERED that the motion is GRANTED; and it is further

ORDERED that the attached consent decree is ENTERED.

SO ORDERED. Digitally signed by John D.

John D. Bates Bates Date: 2022.07.25 10:31:57 -04'00'

JOHN D. BATES United States District Judge

Dated: July 25, 2022 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CENTER FOR BIOLOGICAL ) DIVERSITY ) ) Plaintiff, ) Case No.: 1:21-cv-2210-JDB ) v. ) ) U.S. ENVIRONMENTAL PROTECTION ) AGENCY and MICHAEL REGAN, in his ) Official capacity as Administrator, U.S. ) Environmental Protection Agency, ) ) Defendants. ) __________________________________________)

CONSENT DECREE

WHEREAS, on August 19, 2021, Plaintiff the Center for Biological Diversity (“CBD” or

“Plaintiff”) filed the above-captioned matter against the United States Environmental Protection

Agency and its Administrator in his official capacity (collectively “EPA” or “Defendants”). See

Compl. (ECF No. 1);

WHEREAS, Plaintiff alleges that EPA has failed to undertake certain non-discretionary

duties under the Resource Conservation and Recovery Act (“RCRA” or “the Act”),

-6992k, and that such alleged failure is actionable under

(a)(2), or,

alternatively, the Administrative Procedure Act,

, 701-706. See Compl. ¶¶ 4,

10-12;

WHEREAS, Plaintiff alleges that it filed a petition with EPA to classify discarded

polyvinyl chloride (“PVC”) as hazardous waste under RCRA and that EPA has failed to perform

its non-discretionary duty to “take action” on Plaintiff’s petition within a “reasonable time” as

required by

(a). See Compl. ¶¶ 9-11. WHEREAS, the Parties have agreed to a settlement of this action without admission of any

issue of fact or law, except as expressly provided herein;

WHEREAS, the Parties, 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, the Parties consider this Consent Decree to be an adequate and equitable

resolution of all the claims in this matter and therefore wish to effectuate a settlement;

WHEREAS, it is in the interest of the public, Plaintiff, EPA, and judicial economy to

resolve this matter without protracted litigation;

WHEREAS, the Court, by entering this Consent Decree, finds that the Consent Decree is

fair, reasonable, in the public interest, and consistent with RCRA and the APA;

NOW THEREFORE, before the taking of testimony, without trial or determination of any

issues 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 Plaintiff’s Complaint and

may order the relief contained in the Consent Decree. Venue is proper in the United States

District Court for the District of Columbia.

2. If CBD executes this Consent Decree by April 20, 2022, then, no later than January

20, 2023, pursuant to

(c), EPA shall sign a tentative decision on Plaintiff’s

petition to classify discarded PVC as hazardous waste under RCRA. If CBD does not execute this

Consent Decree by April 20, then EPA shall sign a tentative decision no later than nine months

after the date CBD executes this Consent Decree. EPA shall receive comments on this tentative

decision, and respond, as appropriate, even if its tentative decision is to deny Plaintiff’s petition.

2 3. No later than two years after the signature of this consent decree by Plaintiff, EPA

shall sign a final decision on Plaintiff’s petition.

4. Upon signing the documents described in Paragraphs 2-3, the appropriate EPA

official shall forward each such document to the Office of the Federal Register for review and

publication in the Federal Register. 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 the publication of each such notice in the

Federal Register.

5. Within seven (7) business days after forwarding the documents described in

Paragraphs 2–3 to the Office of the Federal Register, EPA shall send copies of such documents to

Plaintiffs.

6. The deadlines set forth in Paragraphs 2–3 may be extended (a) by written

stipulation of the Parties with notice to the Court, or (b) by the Court following a motion by EPA

for good cause shown pursuant to the Federal Rules of Civil Procedure, and upon consideration of

any response by Plaintiff and any reply by EPA. Any other provision of this Consent Decree also

may be modified by the Court following motion of an undersigned party for good cause shown

pursuant to the Federal Rules of Civil Procedure and upon consideration of any response by a non-

moving party and any reply.

7. The Parties shall not challenge the terms of this Consent Decree or this Court’s

jurisdiction to enter and enforce this Consent Decree.

8. Except as provided herein, nothing in this Consent Decree shall be construed to

limit or modify any discretion accorded to EPA by RCRA or the APA or by general principles of

administrative law in taking the actions that are the subject of this Consent Decree, including the

discretion to alter, amend, or revise any final actions promulgated pursuant to this Consent Decree.

3 EPA’s obligation to perform each action specified in this Consent Decree does not constitute a

limitation or modification of EPA’s discretion within the meaning of this paragraph.

9. Nothing in this Consent Decree shall be construed to confer upon this Court

jurisdiction to review any issues that are within the exclusive jurisdiction of the United States

Courts of Appeals pursuant to

. Nothing in the terms of this Consent Decree

shall be construed to waive, limit, or modify any remedies, rights to seek judicial review, or

defenses the Parties may have under

.

10. Any notices required or provided for by this Consent Decree shall be in writing, via

electronic mail or other means, and sent to the following (or to any new address of counsel as filed

and listed in the docket of the above-captioned matter, at a future date):

a. For Plaintiff the Center for Biological Diversity:

Kristen Monsell Emily Jeffers Center for Biological Diversity 1212 Broadway, Suite 800 Oakland, CA 94612 Email: [email protected] Email: [email protected]

b. For Defendants EPA and Michael Regan in his official capacity:

Mark L. Walters U.S. Department of Justice Environmental and Natural Resources Division Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044 Email: [email protected]

11. The obligations imposed on EPA under this Consent Decree can only be

undertaken using appropriated funds legally available for such purpose. No provision of this

Consent Decree shall be interpreted as or constitute a commitment or requirement that EPA

4 obligate funds in contravention of the Anti-Deficiency Act,

, or any other

applicable statute.

12. The Parties recognize that the possibility exists that a lapse in the appropriations

that fund EPA could delay compliance with the timetables in this Consent Decree. If a lapse in

appropriations for EPA occurs within one hundred twenty (120) days before any deadline in this

Consent Decree, that deadline shall 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 stipulation of the Parties or modification of this Consent Decree under

Paragraph 7.

13. The Parties agree that this Consent Decree shall constitute a complete and final

settlement of all claims in the Complaint.

14. In the event of a dispute between the Parties concerning the interpretation or

implementation of any aspect of this Consent Decree, the disputing party shall provide the other

party with a written notice outlining the nature of the dispute and requesting informal negotiations.

The Parties shall meet and confer to attempt to resolve the dispute. If the Parties cannot reach an

agreed-upon resolution within fifteen (15) business days after receipt of the notice, any party may

move the Court to resolve the dispute.

15. No motion or other proceeding seeking to enforce this Consent Decree or for

contempt of court shall be filed unless the procedure set forth in Paragraph 14 has been followed.

16. The deadline for filing a motion for Plaintiff’s costs of litigation (including

reasonable attorneys’ fees) for activities performed prior to entry of the Consent Decree is hereby

extended until ninety (90) days after this Consent Decree is entered by the Court. During this

period, the Parties shall seek to resolve informally any claim for costs of litigation (including

reasonable attorneys’ fees), and if they cannot, Plaintiff will file a motion for costs of litigation

5 (including reasonable attorneys’ fees) or a stipulation or motion to extend the deadline to file such

a motion. EPA reserves the right to oppose any such request.

17. The Court shall retain jurisdiction to determine and effectuate compliance with this

Consent Decree, to resolve any disputes thereunder, and to consider any requests for costs of

litigation (including reasonable attorneys’ fees). After publication in the Federal Register of the

final decision on Plaintiff’s petition described in Paragraph 3 and resolution of Plaintiff’s claim for

costs of litigation, including attorneys’ fees, EPA may move to have this Consent Decree

terminated. Plaintiff shall have thirty (30) days in which to respond to such a motion, unless the

Parties stipulate to a longer time for Plaintiff to respond.

18. If for any reason the Court declines to approve this Consent Decree in the form

presented, this agreement is voidable at the sole discretion of either Party and the Proposed

Consent Decree’s terms may not be used as evidence in any litigation between the Parties.

19. The Parties treat this Consent Decree as jointly drafted, and any rules of

construction that construe any ambiguities in this document against the drafting party shall be

inapplicable in any dispute concerning the interpretation of this Consent Decree.

20. The Parties agree and acknowledge that before this Consent Decree will be

finalized and entered by the Court, EPA will provide notice of this Consent Decree in the Federal

Register and an opportunity for public comment for 30 days. After this Consent Decree has

undergone notice and comment, the Administrator and/or the Attorney General, as appropriate,

shall promptly consider any written comments in determining whether to withdraw or withhold

their consent to this Consent Decree. If the Administrator and/or the Attorney General do not elect

to withdraw or withhold consent, EPA intends to promptly file a motion that requests that the

Court enter this Consent Decree.

6 21. This Consent Decree applies to, is binding upon, and inures to the benefit of the

Parties (and their successors, assigns, and designees).

22. The undersigned representatives of Plaintiff and Defendants EPA and Michael

Regan, in his official capacity, certify that they are fully authorized by the party they represent to

consent to the Court’s entry of the terms and conditions of this Consent Decree.

SO ORDERED on this __25th__ day of ___July____, 2022.

John D. Bates Digitally signed by John D. Bates Date: 2022.07.25 10:32:57 -04'00' _______________________________________________ Honorable John D. Bates United States District Judge

7 COUNSEL FOR PLAINTIFF:

Dated: April ___, 2022

By: ____________________________ Kristen Monsell (DC Bar No. CA00060) Emily Jeffers (CA Bar No. 274222) Center for Biolgoical Diversity 1212 Broadway, Suite 800 Oakland, CA 94612 (510) 844-7100 [email protected] [email protected]

Counsel for Plaintiff Center for Biological Diversity

COUNSEL FOR DEFENDANTS:

Dated: April __, 2022

TODD KIM Assistant Attorney General Environment and Natural Resources Division

By: ____________________________ MARK L. WALTERS U.S. Department of Justice Environment and Natural Resources Division Environmental Defense Section P.O. Box 7611 Washington, DC 20044 Telephone: (202) 616-9190 Fax: (202) 514-8865

Counsel for Defendants the United States Environmental Protection Agency and Michael Regan, in his official capacity as Administrator, United States Environmental Protection Agency

8 CO C OU UNNS SEEL FO FOR PL PLAI AIN NTT TIF IFF IFF::

Date Da ted d:: A Apprriil 202 20 22 2

Byy: B Krris K isteten M Mo ons nseelll ((D DC Ba Bar NNo o. CCAA00 00060 060 06 0)) Em E m milily iilly Je Jeffffe errs ((CCA B Ba ar No No. 27 2742422 222) Cen Ce ntterer for for B fo Biiiol olg ol go oicca all D Diive ive ve ers rrssit sit ity 12 1 21122 B Brrooaadw dwayay, S Su uiitte 800 80 8 00 Oa O akklla an nd, d, CACA 94 946 6112 ((5 510 10) 844-84 8 44 4--71 71 100 00 0 0 kkm mon onsseellll@b ell @bio olo log logi giica calld diivve errssiity ty.o org rg eje ej effffe ers rs@ @b bio olo logi giccaald div iveerrssiity itty y.oorg rg

Cou Co un nsse elfo for Pl Pla Plai aiint ntififCe Cenntte errffo or B Biiiol ollog o ogic ica allD Diive vers rsit ity

COUN COUNSSE EL FO FOR D DEE EFE FE FENDAN NDA ND AN NTS NTS TS:

Dated: AptZ2022 TODD TO ODD DD K KIIM Assssiist A sta ann ntt Ator Ato Atorrrne ne n ey Ge Gene nerra al Envi En viro ronm nmenent a an nd Na nd Natura tura tural Re Resour sso our urcce es D Diiivi vviissiio onn

Byy: B MA M AR RK K L. L. WALT WALT WA LTER TERERS U..S U S.. Depa De D eppa a art rtm rtmeen ntt o off JJuust stic ice En E nvviiiro ron ro nmme en nt an and NNa a atuturra tu al Re Resso ouurrce rce ces Di ces Divviisi sion on En E nvviirro onm nmen entta al D Deeffe efeense ensnse Se ns Seccttio ion P..O P P.O. O.. Box Box 7611 Bo 761 76 11 1 Wa Wash ash shin shin ing gtto onn, D DCC 20 20444 4 Telle Te epph hoonn ne: e:: ((2 e 202 02) 61 6166--9 9119 900 Fax: Fa x: ((2 2002 2) S S1 1 14- 4--88 4 886 8865 65 5

Cou Co Coun un nsse e ell fo for DDeefe f en nd da an ntts s tth he Un he Uniitted ed St Sttatate at ess En E nvviiro ronm nme en nta tal Pr Pro otttec ection ec tition on AgAge en nccyy anand M Miich chaeael Re R eg ga an, n, in in hhiis is oofffifici cciia ciaall ca capacipaci pa city ty as as Ad Adm miinniissttra ratto orr,, Un U nitited ed St Sta attes es EEn nvi viroronm nmen enta tal PPrrrot otec ot ecttiion ioon n Ag Age en ncy cy

8