IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SIERRA CLUB,

Plaintiff,

v.

 

REGINA MCCARTHY, in her official 

capacity as Administrator of the United States 

Environmental Protection Agency, 

 

 Defendant.

 Case No. 2:13-cv-06115-JCJ

 CONSENT DECREE

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;

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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. §§ 7401 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.

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2. 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 

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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

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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 

Case 2:13-cv-06115-JCJ Document 23-1 Filed 05/06/14 Page 5 of 13
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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 email 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 emails 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 19.

8. 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 

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(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. § 15852(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 

Case 2:13-cv-06115-JCJ Document 23-1 Filed 05/06/14 Page 7 of 13
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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).

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16. 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-06115-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 AntiDeficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law.

18. Any notices required or provided for by this Decree shall be made by e-mail to 

the following:

For Plaintiffs:

Charles McPhedran

Earthjustice

(215) 717-4521

cmcphedran@earthjustice.org

Kathryn Amirpashaie

Law Office of Kathryn M. Amirpashaie, PLC

(703) 851-9111

kmalawoffice@gmail.com 

Zachary M. Fabish

Sierra Club

Case 2:13-cv-06115-JCJ Document 23-1 Filed 05/06/14 Page 9 of 13
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(202) 675-7917

zachary.fabish@sierraclub.org

For Defendants:

Austin D. Saylor

United States Department of Justice 

(202) 514-1880

austin.saylor@usdoj.gov

Susan Stahle

U.S. Environmental Protection Agency 

(202) 564-1272

stahle.susan@epa.gov

Donna Mastro

U.S. Environmental Protection Agency 

(215) 814-2777

mastro.donna@epa.gov

Robert Stoltzfus

U.S. Environmental Protection Agency

(215) 814-2695

stoltzfus.robert@epa.gov 

19. 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., 

Case 2:13-cv-06115-JCJ Document 23-1 Filed 05/06/14 Page 10 of 13
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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 4. 

21. 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.

Case 2:13-cv-06115-JCJ Document 23-1 Filed 05/06/14 Page 11 of 13
24. 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 , 2424.

THE HON. JUDGE J. CURTIS JC}YNBR

UNITED STATES DISTRICT JUDGE

SO AGREED:

FOR A

..~.

ar es McPhedran

Earthjustice

1617 JFK Boulevard, Suite 1 b75

~hiladelpl~ia, PA 19103

Ph. (21S) 717-4521

FaY {212) 918-1556

cnncphedran@earthjustice.org

Kathryn Amirpashaie

Law Office of Kathryn M. Amirpashaie, PLC

7556 Blanford Court

Alexandria, VA 22315

(703)851-9111

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 24044

12

Case 2:13-cv-06115-JCJ Document 23-1 Filed 05/06/14 Page 12 of 13
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Ph. (202) 514-1880

Fax (202) 514-8865

austin.saylor@usdoj.gov

Case 2:13-cv-06115-JCJ Document 23-1 Filed 05/06/14 Page 13 of 13