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 

Company (jointly, “Sinclair”) and Respondent United States Environmental 

Protection Agency (“EPA”) (collectively, the “Parties”);

WHEREAS, 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 August 29, 2014 denials of Sinclair’s requests for extensions 

of its small refinery temporary exemptions 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 (10th Cir.) and 
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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 requests 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 respect 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 Standard 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 

decision on the 2014 Exemption Request;

WHEREAS, the Parties consider this Settlement Agreement to be an 

adequate and equitable resolution of the issues in Pending Cases;
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NOW THEREFORE, Sinclair and EPA hereby agree as follows:

1. After EPA issues the final 2014 RFS, Sinclair may submit the 2014 

Exemption Request.

2. Within 14 business days after receiving the 2014 Exemption 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 

applies if and when Sinclair submits additional information in response to an 

Incompleteness Determination. After EPA determines that the 2014 Exemption 

Request is complete, EPA shall issue its decision to Sinclair on the 2014 

Exemption Request within 90 calendar days.

3. Within five business days of EPA issuing its decision on the 2014 

Exemption 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 Reconsideration of Petition for Partial Extension of Small Refinery RFS 

Exemptions” regarding EPA’s August 29, 2014 denials of Sinclair’s requests for 

extensions of the Small Refinery Temporary Exemptions. Sinclair shall comply 

with the obligations in the preceding sentence regardless of whether EPA grants or 

denies the 2014 Exemption Request.
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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 Cases. 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 alleged 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 motion to reactivate the Pending Cases. Nothing in this Settlement 

Agreement 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 

modify 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 

promulgate superseding regulations.
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8. Except as expressly provided in this Agreement, none of the Parties 

waives or relinquishes 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 

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.

11. If a lapse in appropriations for EPA occurs within 120 days prior to 

the deadlines in this Agreement, those deadlines 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 

Agreement 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 Section 113(g), 42 U.S.C. § 7413(g). EPA shall 

promptly submit a public notice of this Agreement to the Federal Register for 

publication and public comment for the required period of time. After this 

Agreement has undergone the requisite notice and comment, the Administrator 

and/or the Attorney General, as appropriate, shall promptly consider any such 
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written comments in determining whether to withdraw or withhold consent to this 

Agreement, 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 Agreement, this Agreement shall become final on the date that EPA 

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 terms 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 12.

Dated: ______________, 2015

Dated: ______________, 2015

___________________________________

JEFFREY R. HOLMSTEAD

BRITTANY PEMBERTON

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 Justice
7

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 Respondent