UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

ENVIRONMENTAL INTEGRITY ) 

PROJECT, et al. ) 

 ) 

Plaintiffs, ) 

 ) 

v. ) Civil Case No. 1:14-CV-2106 (RC) 

 ) 

GINA MCCARTHY, in her official ) 

capacity as Administrator, United States ) 

Environmental Protection Agency, ) 

 ) 

Defendant. ) 

____________________________________) 

CONSENT DECREE 

 WHEREAS, Plaintiffs Environmental Integrity Project, Air Alliance Houston, and Sierra 

Club (collectively, “Plaintiffs”) filed this action pursuant to section 304(a)(2) of the Clean Air 

Act (“CAA”), 42 U.S.C. § 7604(a)(2), alleging that Defendant Gina McCarthy, in her official 

capacity as Administrator, United States Environmental Protection Agency (“EPA”), failed to 

perform a non-discretionary duty under CAA § 505(b)(2), 42 U.S.C. § 7661d(b)(2), to grant or 

deny two petitions (“Title V Petitions”) submitted by Plaintiffs on May 19, 2014 requesting that 

EPA object to two CAA Title V permits (“Permits”) issued by the Texas Commission on 

Environmental Quality (“TCEQ”) to the Shell Chemical Company and the Shell Oil Company 

authorizing the operation of the Deer Park Chemical Plant and Deer Park Refinery, respectively, 

located in Harris County, Texas; 

 WHEREAS, Plaintiffs and EPA (collectively, “the Parties”) wish to effect a settlement of 

the above-captioned matter without expensive and protracted litigation; 

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

resolution of the claims in the above-captioned matter; 

 WHEREAS, the Court, by entering this Consent Decree, finds that the Consent 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. On or before August 21, 2015, EPA shall sign a response to Plaintiffs’ CAA Title 

V Petitions on the Permits, pursuant to 42 U.S.C. § 7661d(b)(2). 

 2. Following signature of such response to Plaintiffs’ Title V Petitions, EPA shall 

expeditiously deliver notice of EPA’s responses to the Office of the Federal Register for 

publication. Following such transmission, EPA shall not take any step (other than as necessary 

to correct any typographical error or other errors in form) to delay or otherwise interfere with 

publication of such notice(s) in the Federal Register. 

 3. If EPA’s responses to Plaintiffs’ Title V Petitions include the granting of any 

portion of either petition in whole or in part, EPA shall promptly transmit its responses to TCEQ. 

4. The deadline for filing a motion for costs of litigation, including attorneys’ fees, 

incurred prior to entry of this Consent Decree is hereby extended until sixty (60) days after the 

entry of this Consent Decree by this Court. During this time, the Parties shall seek to resolve 

informally any claim for costs of litigation, including attorneys’ fees, and if they cannot, will 

submit that issue to this 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 attorneys’ fees. 

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 5. Any provision of this Consent 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 

Consent Decree, pursuant to the Federal Rules of Civil Procedure, and upon consideration of any 

response by the non-moving party. 

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

that fund EPA could delay compliance with the timetables contained in this Consent 

Decree. Should a delay occur due to a lapse in appropriations, any resulting failure to meet the 

timetables set forth herein shall not constitute a failure to comply with the terms of this Consent 

Decree, and any deadlines occurring within one hundred twenty (120) days of the termination of 

the delay shall be automatically extended one day for each day of the delay. Nothing in this 

paragraph shall preclude EPA from seeking an additional extension through modification of this 

Consent Decree pursuant to Paragraph 5. 

 7. Plaintiffs and EPA shall not challenge the terms of this Consent Decree or this 

Court’s jurisdiction to enter and enforce this Consent Decree. 

8. Plaintiffs and EPA agree that this Consent Decree shall constitute a complete and 

final settlement of all claims that Plaintiffs have asserted against the United States, including 

EPA, under any provision of law in connection with Environmental Integrity Project, et al. v. 

McCarthy, Civil Case No. 1:14-CV-2106 (RC) (D.D.C.), except as provided in Paragraph 4 of 

this Consent Decree. Plaintiffs therefore discharge and covenant not to sue the United States, 

including EPA, for any such claims. 

9. Nothing in this Consent 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 Consent Decree, including discretion to alter, amend, or 

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revise any responses or final actions contemplated by this Consent Decree. EPA’s obligation to 

perform the actions specified in Paragraphs 1, 2, and 3 of this Consent Decree by the time 

specified therein does not constitute a limitation or modification of EPA’s discretion within the 

meaning of this paragraph. 

10. Nothing in this Consent Decree shall be construed as an admission of any issue of 

fact or law nor to waive or limit any claim or defense, on any grounds, related to any final action 

EPA may take with respect to the Permits. 

 11. Nothing in this Consent Decree shall be construed to confer upon the District 

Court jurisdiction to review any final decision made by EPA pursuant to this Consent Decree. 

Nothing in this Consent 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 section 307(b)(1), 42 U.S.C. § 7607(b)(1). Nothing in the terms of 

this Consent Decree shall be construed to waive any remedies or defenses the Parties may have 

under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1). 

 12. The obligations imposed upon EPA under this Consent Decree can only be 

undertaken using appropriated funds. No provision of this Consent 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. 

 13. Any notices required or provided for by this Consent Decree shall be made in 

writing and sent to the following: 

For Plaintiffs: 

Gabriel Clark-Leach 

Environmental Integrity Project - Texas Office 

707 Rio Grande Street, Suite 200 

Austin, TX 78701 

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Tel: (512) 637-9478 

Fax: (512) 584-8019 

gclark-leach@environmentalintegrity.org 

For Defendants: 

Chief, Environmental Defense Section 

Re: DJ # 90-5-2-4-20350 

Environment and Natural Resources Division 

United States Department of Justice 

P.O. Box 7611 

Washington, DC 20044 

Tel: (202) 514-2219 

Fax: (202) 514-8865 

Richard H. Vetter 

U.S. Environmental Protection Agency 

Office of General Counsel 

US/EPA/OAQPS/SPPD/IO D205-01 

Research Triangle Park, NC 27709 

Tel: 919-541-2127 

Fax: 919-541-4991 

vetter.rick@epa.gov 

Richard H. Bartley 

Air Programs Coordinator 

U.S. Environmental Protection Agency, Region 6 

Office of Regional Counsel (6RC-M) 

1445 Ross Avenue, Suite 1200 

Dallas, TX 75202 

Tel: (214) 665-8046 

bartley.richard@epa.gov 

 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. If the Parties cannot reach an agreed-upon resolution within twenty (20) business 

days after receipt of the notice, any party may move the Court to resolve the dispute. 

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

contempt of Court shall be filed unless the Plaintiffs have followed the procedure set forth in 

Paragraph 14. 

 16. The Court shall retain jurisdiction to determine and effect compliance with this 

Consent Decree. When EPA’s obligations under Paragraphs 1 through 3 of this Consent Decree 

have been completed, and Plaintiffs’ claim for costs of litigation has been resolved pursuant to 

Paragraph 4, the above-captioned matter shall be dismissed with prejudice. The Parties may 

either jointly notify the Court that the Consent Decree should be terminated and the case 

dismissed, or EPA may so notify the Court by motion. If EPA notifies the Court by motion, then 

Plaintiffs shall have twenty (20) days in which to respond. 

 17. 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). EPA shall 

promptly submit a public notice of this Consent Decree to the Federal Register for publication 

and public comment after lodging this Consent Decree with the Court. After this Consent 

Decree has undergone an opportunity for 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 

section 113(g) of the CAA. If the federal government elects not to withdraw or withhold consent 

to this Consent Decree, the Parties promptly shall file a motion that requests the Court to enter 

this Consent Decree. If for any reason the Court does not enter the Consent Decree, the 

obligations set forth in this Consent Decree are null and void. 

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 18. It is hereby expressly understood and agreed that this Consent Decree was jointly 

drafted by Plaintiffs 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. 

 19. The undersigned representatives of each Party certify that they are fully 

authorized by the Party they represent to bind that Party to the terms of this Consent Decree. 

SO ORDERED on this ___ day of _________________, 2015. 

_________________________________ 

 HON. RUDOLPH CONTRERAS 

 United States District Judge 

SO AGREED: 

FOR PLAINTIFFS 

Gabriel Clark-Leach 

Environmental Integrity Project 

707 Rio Grande Street, Suite 200 

Austin, TX 78701 

Tel: 512-637-9478 

Fax: 512-584-8019 

gclark-leach@environmentalintegrity.org 

 Dated: _________________________ 

FOR DEFENDANT JOHN C. CRUDEN 

Assistant Attorney General 

Environment & Natural Resources Division 

 

Eileen McDonough 

Lisa Bell 

United States Department of Justice 

Environmental Defense Section 

P.O. Box 7611 

Washington, DC 20044 

Tel: (202) 514-3126 (McDonough) 

(202) 514-9275 (Bell) 

Fax: (202) 514-8865 

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Eileen.mcdonough@usdoj.gov 

lisa.bell@usdoj.gov 

 

Dated: _________________________ 

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