UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT SINCLAIR WYOMING REFINING COMPANY, et al.,

Petitioners,
v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent. No. 14
- 9594

**SETTLEMENT AGREEMENT** WHEREAS, the parties to this Settlement Agreement (the “Agreement”) are Petitioners Sinclair Wyoming Refining Company and Sinclair Casper Refining Com pany (jointly, “Sinclair”) and Respondent United States Environmental Protection Agency (“EPA”) (collectively, the “Parties”); WH EREAS, on October 24, 2014, Sinclair filed separate petitions for review in the United States Courts of Appeal for the Tenth and District of Columbia Circuits challenging, pursuant to Section 307(b)(1) of the Clean Air Act, 42 U.S.C. § 7607(b)(1), EPA’s Au gust 29, 2014 denials of Sinclair’s requests for extensions of its small refinery tem

porary exem

ptions for its refineries in Evansville and Sinclair, Wyoming (collectively, the “Small Refinery Temporary Exemptions”) (see Sinclair Wyoming Refining Co. et al. v EPA , No. 14
- 9594 (10 th Cir.) and2

Sinclair Wyoming Refining Co. et al. v. EPA , No. 14
- 1209 (D.C. Cir.) (jointly, the “Pending Cases”); WHEREAS, the Parties wish to implement this Agreement to resolve Sinclair’s challenges to EPA’s denials of its request s for extensions of its Small Refinery Temporary Exemptions; WHEREAS, Sinclair has advised EPA that it intends to submit to EPA, in accordance with 42 U.S.C. § 7545(o)(9)(B)(i), a request for an extension of its Small Refinery Temporary Exemptions with res pect to Sinclair’s 2014 obligations under the Renewable Fuel Standards (“RFS”) Program (the “2014 Exemption Request”); WHEREAS, pursuant to the timetables set forth in this Agreement and the schedule set forth in the proposed rule titled “Renewable Fuel St andard Program: Standards for 2014, 2015, and 2016 and Biomass
- Based Diesel Volume for 2017,” 80 Fed. Reg. 33100 (June 10, 2015), if Sinclair submits the 2014 Exemption Request within 30 calendar days of when EPA issues the final renewable fuel obligation for 2014, then Sinclair will not be required to submit its compliance demonstration report for the 2014 compliance year until after EPA makes a final decisio n on the 2014 Exemption Request; WHEREAS, the Parties consider this Settlement Agreement to be an
a dequate and equitable resolution of the issues in Pending Cases;3

NOW THEREFORE, Sinclair and EPA hereby agree as follows: 1. After EPA issues the final 2014 RFS, Sinclair may submit the 2014 Exem ption Request. 2. Within 14 business days after receiving the 2014 Exem ption Request from Sinclair, EPA shall either make a determination that the Request is complete or advise Sinclair in writing of any additional information needed to make the Request complete (an Incompleteness Determination). This same obligation app lies if and when Sinclair submits additional information in response to an Incom pleteness Determination. After EPA determines that the 2014 Exemption Request is complete, EPA shall issue its decision to Sinclair on the 2014 Exem ption Request within 90 cal endar days. 3. Within five business days of EPA issuing its decision on the 2014 Exem ption Request, Sinclair shall (1) voluntarily dismiss the Pending Cases with prejudice and (2) send a letter to EPA withdrawing its January 13, 2015 “Request for Reconsiderat ion of Petition for Partial Extension of Small Refinery RFS Exem ptions” regarding EPA’s August 29, 2014 denials of Sinclair’s requests for extensions of the Small Refinery Temporary Exemptions. Sinclair shall comply with the obligation s in the preceding s entence regardless of whether EPA grants or denies the 2014 Exemption Request.4

4. If EPA does not issue its decision on the 2014 Exemption Request within the time frame set forth in Paragraph 2 of this Agreement, Sinclair may seek to reactivate the Pending Ca ses. Sinclair understands that its sole and exclusive
remedy shall be to reactivate the Pending Cases. Sinclair shall not file a motion to reactivate the Pending Cases without first providing EPA with written notice: (1) outlining the nature of EPA’s all eged failure to perform its obligations; and (2) requesting informal negotiations with EPA to resolve any dispute over EPA ’ s alleged failure to perform its obligations. Such written notice must be provided to EPA and, if possible, the undersigned counsel for EPA at least five business days before filing a mo tion to reactivate the Pending Cases. Nothing in this Settlement Agreem ent waives any right or defense EPA may have if the Pending Cases are reactivated. 5. The Parties may by mutual agreement modify this Agreement by written stipulation executed by counsel for the Parties. 6. Nothing in the terms of this Agreement shall be construed to limit or
mo dify the discretion accorded EPA under the Clean Air Act or by general principles of administrative law. 7. Nothing in the terms of this Agreement shall be construed to limit EPA’s authority to alter, amend, or revise any final rule EPA may issue or to prom ulgate superseding regulations.5

8. Except as expressly provided in this Agreement, none of the Parties waives or relin quishes any legal rights, claims, or defenses it may have. 9. The Parties shall bear their own litigation costs. 10. The obligations imposed upon EPA under this Agreement can only be undertaken using appropriated funds. No provision of this Agreement shall be int erpreted 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. 11. If a lapse in appropriations for EPA occurs within 120 days prior to the deadline s in this Agreement, those deadline s will be extended automatically 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 Agree me nt pursuant to Paragraph 5
. 12. The Parties agree and acknowledge that before this Agreement can be finalized, EPA must provide notice in the Federal Register and an opportunity for comment pursuant to CAA S ection 113(g), 42 U.S.C. § 7413(g). EPA shall prom p tly submit a public notice of this Agreement to the Federal Register for publication and public comment for the required period of time
. After this Agreem ent has undergone the requisite notice and comment, the Administrator and/or the Attorney General, as appropriate, shall promptly consider any such6

written comments in determining whether to withdraw or withhold consent to this Agreem ent , in accordance with CAA S ection 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 Agreement , this Agreement shall become final on the date that EP A provides written notice of such finality to Sinclair
. EPA shall provide such written notice within 20 business days of the close of the comment period noted above. 13. The undersigned representatives of each party certify that they are fully authorized by the party or parties they represent to bind the respective parties to the term s of this Agreement. This Agreement will be deemed to be executed
when it has been signed by the representatives of the Parties, subject to final approval pursuant to Paragraph 1 2
. Dated: ______________, 2015

Dated: ______________, 2015 ___________________________________ JEFFREY R. HOLMSTEAD BRITTANY PEMB ERTON Bracewell & Giuliani LLP 2000 K Street N.W., Suite 500 Washington, D.C. 20006 ( 202 ) 828
- 5852 (telephone) (202) 857
- 4812 (facsimile) Jeff.Holmstead @bgllp
. com Counsel for Petitioners JOHN C. CRUDEN Assistant Attorney General

_______________________ ____________ PAUL CIRINO U.S. Department of Justice7 Environment & Natural Resources Division Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044 (202) 514
- 1542 (telephone) (202) 514
- 8865 (facsimile) paul
. cirino @usdoj.gov Counsel for Responde nt