IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

)

UNITED STATES OF AMERICA, )

) 

Plaintiff, ) CIVIL ACTION NO. 05CV2866

) Judge Petrese B. Tucker

STATE OF PENNSYLVANIA, CITY OF )

PHILADELPHIA, STATE OF OHIO, AND )

STATE OF OKLAHOMA, )

)

Plaintiff-Intervenors, )

v. )

)

SUNOCO, INC., )

)

Defendant. )

)

 )

MEMORANDUM IN SUPPORT OF UNITED STATES’ 

MOTION TO ENTER CONSENT DECREE
-bTABLE OF CONTENTS

TABLE OF AUTHORITIES

MEMORANDUM IN SUPPORT OF UNITED STATES’ MOTION TO ENTER CONSENT

DECREE

 I. INTRODUCTION AND SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 

II. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. Factual Background .............................................9

B. Statutory and Regulatory Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

 (1) New Source Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

 (2) Flaring and New Source Performance Standards . . . . . . . . . . . . . . . . . . 13

 (3) Leak Detection and Repair (“LDAR”) . . . . . . . . . . . . . . . . . . . . . . . . . 13

 (4) Benzene Waste NESHAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

C. EPA’s Petroleum Refinery Initiative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

D. The Violations Alleged in the United States’ Complaint. . . . . . . . . . . . . . . . 17

E. The Terms of the Settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

 (1) Emission Reductions from the FCCUs . . . . . . . . . . . . . . . . . . . . . . . . . . 19

 (2) Emission Reductions from Heaters and Boilers . . . . . . . . . . . . . . . . . . . 19

 (3) Reduction of Emissions from Sulfur Recovery Plants . . . . . . . . . . . . . . 20

 (4) Reduction of Flaring Events and Related Emissions . . . . . . . . . . . . . . . 21

 (5) Implementation of Enhanced LDAR and Benzene NESHAP 

 Compliance Programs ...................................... 23

 (6) Total Emission Reductions/Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

 (7) Civil Penalty and Supplemental Environmental Projects . . . . . . . . . . . 24

 (8) Resolution of Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

III. STANDARD OF REVIEW APPLICABLE TO CONSENT DECREES . . . . . . . . . 26

 A. General Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

B. The Legal Standard to Be Applied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

IV. THE CONSENT DECREE IS FAIR, REASONABLE, AND CONSISTENT WITH

THE PUBLIC INTEREST AND THE GOALS OF THE RELEVANT

ENVIRONMENTAL STATUTES. ................................... 31

A. The Consent Decree is Procedurally and Substantively Fair. . . . . . . . . . . . 31

 (1) Procedural Fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
-c-

 (2) Substantive Fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

B. The Decree Is Reasonable, Adequate and Consistent with the Goals of the 

 Relevant Environmental Statutes. ................................ 37

V. THE COMMENTS TO THE PROPOSED CONSENT DECREE DO NOT 

PROVIDE A BASIS FOR REJECTING THE SETTLEMENT. . . . . . . . . . . . . 39

VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

CERTIFICATE OF SERVICE

SERVICE LIST

APPENDIX A - UNITED STATES’ RESPONSE TO SPECIFIC COMMENTS RECEIVED

WITH RESPECT TO THE PROPOSED CONSENT DECREE

US-EPA MEMORANDUM: STATE IMPLEMENTATION PLANS (SIPS): POLICY

REGARDING EXCESS EMISSIONS DURING MALFUNCTIONS, STARTUP, AND

SHUTDOWN

APPENDIX B - COMMENTS RECEIVED PURSUANT TO 28 C.F.R. § 50.7, PUBLISHED

NOTICE OF THE PROPOSED CONSENT DECREE

70 FED. REG. 36409-10 (JUNE 23, 2005)
- d -

TABLE OF AUTHORITIES

American Paper Inst. v. U.S. EPA, 660 F.2d 954, 963 (4th Cir. 1981) .................... 32

Aro Corp v. Allied Witan Co., 531 F.2d 1368 (6th Cir. 1976) ........................... 6

Citizens for a Better Env't v. Gorsuch, 718 F.2d 1117 (D.C. Cir. 1983) ................ 27, 29

Donovan v. Robbins, 752 F.2d 1170 (7th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884 (7th Cir. 1985) ........... 3, 31, 33, 36

Great Neck Capital Appreciation Inv. Partnership, L.P. v. Pricewaterhouse Coopers, L.L.P. 

212 F.R.D. 400 (E.D.Wis. 2002) .............................................. 31, 33

Harris v. Pernsley, 654 F. Supp. 1042 (E.D. Pa.), aff’d, 820 F.2d 592 (3d Cir. 1987) ........ 30

In re Tutu Water Wells, 326 F.3d 201 (3d Cir. 2003) ............................... 8, 29

Makah Indian Tribe v. U.S., 501 U.S. 1250 (1991) ....................................8

Officers for Justice v. Civil Service Commission, 688 F.2d 615 (9th Cir. 1982), cert. denied sub

nom., Byrd v. Civil Service Commission, 459 U.S. 1217 (1983) . . . . . . . . . . . . . . 7, 26, 27, 29, 30

Pennwalt Corp. v. Plough, Inc., 676 F.2d 77 (3d Cir. 1982) ............................ 28

Sam Fox Publ'g Co. v. United States, 366 U.S. 683 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

SEC v. Randolph, 736 F.2d 525 (9th Cir. 1984) ....................... 4, 26, 27, 29, 30, 39

Sunoco, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) ........... 31

Union Carbide Corp. v. Natural Res. Def. Council, Inc., 467 U.S. 1219 (1984) . . . . . . . . . . . . . 27

United States v. Akzo Coatings of Am. Inc., 949 F.2d 1409 (6th Cir. 1991) ............. 28, 37

United States v. Alcan Aluminum, Inc., 1993 WL 232194, at *2-3 (E.D. Pa. 1993) ......... 28

United States v. Armour & Co., 402 U.S. 673 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 37

United States v. Atlas Minerals, 851 F. Supp 639 (E.D. Pa. 1994) ....................... 28

United States v. Bechtel Corp., 648 F.2d 660 (9th Cir. 1981) ........................... 28

United States v. BP Exploration & Oil Co., 167 F. Supp. 2d 1045 (N.D. Ind. 2001) ...........

................................................................. 2, 30, 32, 33, 38

United States v. Cannons Eng’g Corp., 899 F.2d 79 (1st Cir. 1990) .......... 28, 29, 31, 33, 37

United States v. City of Jackson, 519 F.2d 1147 (5th Cir. 1975) ...................... 27, 36

United States v. Comunidades Unidas Contra La Contaminacion, 204 F.3d 275 (1st Cir. 2000)

.................................................................. 26, 28, 325, 33

United States v. District of Columbia, 933 F. Supp. 42 (D.D.C. 1996) .................... 32

United States v. Hooker Chem. & Plastics Corp., 776 F.2d 410 (2nd Cir. 1985) ............ 26
- e -

United States v. Jones & Laughlin Steel Corp., 804 F.2d 348 (6th Cir. 1986) ........... 26, 30

United States v. Kramer, 19 F. Supp. 2d 273 (D.N.J. 1998) ............................ 29

United States v. Microsoft Corp., 56 F.3d 1448 (D.C. Cir. 1995) ........................ 39

United States v. Nicolet, Inc., 1989 WL 95555, *3 (E.D. Pa. 1989) . . . . . . . . . . . . . . . . . . . . . . 26

United States v. Ohio Edison, 276 F.Supp.2d 829 (S.D. Ohio 2003) ...................... 34

United States v. Oregon, 913 F.2d 576 (9th Cir. 1990) ........................ 8, 28, 30, 38

United States v. Southeastern Pa. Transp. Auth., 235 F.3d 817 (3d Cir. 2000) . . . . . . . . . . . . 8, 29

United States v. Union Elec. Co., 132 F.3d 422 (8th Cir. 1997) ......................... 26

Van Bronkhorst v. Safeco Corp., 529 F.2d 943 (9th Cir. 1976) ......................... 26

FEDERAL STATUTES

Clean Air Act ("CAA") , 42 U.S.C. § 7401, et seq. . . . . . . . . . . . . . . . . . . . 2, 4, 8, 13, 14, 15, 18

FEDERAL REGULATIONS

28 C.F.R. § 50.7 ............................................................ 6, 39

New Source Performance Standards (“NSPS”) & Prevention of Significant Deterioration/New

Source Review (“PSD/NSR”) Emission Limits 40 C.F.R. §§ 51.165, 52.21(b)(2)(i),

52.21(b)(23)(i), 52.21(i), 52.21(j), 52.21(k), 52.24, 60.11(d), Part 61, and Part 81 ............

......................................................... 3, 6, 10, 11, 12, 13, 14, 16

70 Fed. Reg. 36409-10 (2005) ....................................................6
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

)

UNITED STATES OF AMERICA, )

) 

Plaintiff, ) CIVIL ACTION NO. 05CV2866

) Judge Petrese B. Tucker

COMMONWEALTH OF PENNSYLVANIA, )

CITY OF PHILADELPHIA, STATE OF OHIO, )

 AND STATE OF OKLAHOMA, )

)

Plaintiff-Intervenors, )

v. )

)

SUNOCO, INC., )

)

Defendant. )

)

 )

MEMORANDUM IN SUPPORT OF UNITED STATES’ 

MOTION TO ENTER CONSENT DECREE

The United States of America, on behalf of the United States Environmental Protection

Agency ("EPA"), respectfully submits this Memorandum in support of its motion to enter the

proposed Consent Decree lodged with this Court on June 16, 2005, in the above-styled action.
1

/ See United States v. BP Exploration & Oil Co., 167 F. Supp. 2d 1045 (N.D. Ind. 2001); United

States v. Conoco, Inc., Civil No. 01-0871 (W.D. LA); United States v. Motiva Enterprises, LLC, Civil No.

01-0978 (S.D. TX.); United States v. Navajo Refining Co., Civil No. 01-1422 (D. NM); United States v.

- 2 -

The Consent Decree resolves the claims of the United States against Sunoco, Inc. (“Sunoco”) for

alleged violations of the Prevention of Significant Deterioration (“PSD”) provisions, the New

Source Performance Standards provisions, the leak detection and repair provisions, and the

benzene waste emissions control provisions of the Clean Air Act, (“CAA” or “Act”), 42 U.S.C.

§§ 7401-7671, and the portions of the Pennsylvania, Ohio, and Oklahoma State Implementation

Plans (“SIPs”) that incorporate or implement the above federal provisions. The Decree also

resolves the claims of the Commonwealth of Pennsylvania, the States of Ohio, and Oklahoma,

and the City of Philadelphia through the Philadelphia Air Management Service (hereinafter,

“Plaintiff-Intervenors”) against Sunoco under the Clean Air Act and under their respective SIPs. 

The Plaintiff-Intervenors support this Motion.

I. INTRODUCTION AND SUMMARY

This is an environmental settlement with Sunoco, Inc. (“Sunoco”), a major petroleum

refiner which owns and operates four facilities located in the states of Pennsylvania, Ohio, and

Oklahoma. The settlement is the most recent in a series of Consent Decrees arising out of EPA’s

Petroleum Refinery Initiative, an enforcement initiative targeting non-compliance with the Clean

Air Act throughout the petroleum refining industry. The Refinery Initiative focuses on

maximizing environmental benefit and enforcement resources by securing broad relief and

significant reductions in pollution emissions across each refiner’s entire system, rather than

pursuing potential claims on a facility-by-facility or unit-by-unit basis. A total of 13 settlements

have been approved to date by Federal District Courts,1

/ and other negotiations are ongoing. 
Marathon Oil Co., Civil No. 01-40119 (E.D. MI.); United States v. Koch Industries, Inc., Civil No. 00-

2756 (D. MN.); United States v. Lion Oil Company, Civil No. 03-1028 (W.D.AK.); United States et al. v.

Sunoco, Inc., Civil No. 03-04525 (D. NJ.); United States et al. v. CHS Inc., Civil No. 03-153

(D. MT.); United States et al. v. Ergon Refining, Inc. et al., Civil No. 03-01140 (S.D. MS.); United States

et al. v. Citgo Petroleum Corp. et al., Civil No. 04-03883 (S.D.TX.); United States v. Chevron U.S.A.,

Inc.,Civil No. 05-00021 (E.D.TX.); United States v. Conoco-Phillips, Civil No. H-05-0258 (S.D. TX)

- 3 -

Like other settlements under the Refinery Initiative, the proposed settlement in this

matter resolves Sunoco’s potential liability under the relevant provisions of the Clean Air Act in

exchange for Sunoco’s commitment to undertake a variety of activities directed at substantially

reducing the emissions of key air pollutants from Sunoco’s refineries. Under the proposed

Consent Decree, Sunoco has agreed to install and operate innovative pollution control

technologies that will reduce emissions of nitrogen oxides (“NOx”), sulfur dioxide (“SO2"), and

particulate matter (“PM”) from refinery process units (principally the fluidized catalytic cracking

units (“FCCUs”) and process heaters and boilers) by approximately 24,000 tons per year

consistent with best available control technology (“BACT”) standards and new source

performance standards (“NSPS”) emissions limits.

In addition, under the proposed Consent Decree, Sunoco will: (1) adopt and implement

comprehensive, facility-wide, enhanced monitoring and fugitive emission control programs for

benzene and other volatile organic compounds; (2) employ significantly improved engineering

practices to eliminate excess flaring of hydrogen sulfide; (3) control and monitor carbon

monoxide emissions to ensure that Sunoco’s FCCU meets applicable NSPS limits; (4) control and

monitor flaring devices, heaters and boilers, and sulfur recovery plants to ensure compliance with

NSPS 40 C.F.R. Part 60, Subparts A and J; (5) meet NSPS and Prevention of Significant

Deterioration/New Source Review (“PSD/NSR”) emissions limits for PM at most FCCUs;
- 4 -

(6) develop and implement hydrocarbon flaring plans to minimize hydrocarbon flaring events;

and (7) install a tail gas unit at the existing sulfur recovery plant and install a second sulfur

recovery plant with a tail gas unit at its Toledo refinery. The injunctive relief program goes well

beyond regulatory requirements and will establish new refinery standards for control technology

and CAA compliance. Moreover, Sunoco’s commitments under the Consent Decree must be

incorporated into federally-enforceable permits, and thus will have a substantial and lasting

beneficial impact on environmental quality in the communities where the refineries are located. 

The Consent Decree further requires Sunoco to pay $3.0 million in civil penalties and to spend at

least $3.5 million on several supplemental environmental projects to be performed in the vicinity

of Sunoco’s refineries. 

The United States filed its Complaint against Sunoco concurrently with the lodging of the

Consent Decree. The violations of the Clean Air Act alleged in the Complaint are significant and

supported by EPA’s knowledge of the refining industry and by specific information regarding

Sunoco’s operations. However, Sunoco has raised significant factual and legal defenses to the

allegations. Very early in the negotiations, the parties recognized the benefits of avoiding

protracted litigation of the governments’ claims and Sunoco’s defenses. In particular, the parties

recognize that through early settlement, resources that would otherwise have been spent on

litigation could be allocated to environmental improvements at the four refineries. Likewise,

settlement without litigation conserves and maximizes the effectiveness of government resources. 

See SEC v. Randolph, 736 F.2d 525, 528 (9th Cir. 1984) (the use of settlement agreements

"encourages informal resolution of disputes, thereby lessening the risks and costs of litigation");

Aro Corp v. Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir. 1976) (settlements conserve the
2

/ AMS is the local agency in Pennsylvania with air regulatory authority over Sunoco’s Philadelphia

refinery.

- 5 -

resources of the courts, the litigants, and the taxpayers and “should . . . be upheld whenever

equitable and policy considerations so permit”). 

The United States invited the Commonwealth of Pennsylvania, the States of Ohio and

Oklahoma, and the City of Philadelphia through the Air Management Service (“AMS”)2

/ to

participate in the negotiation of a global settlement. Each of these entities eventually agreed to

participate in settlement discussions and have joined as signatories to the proposed Consent

Decree. Accordingly, the States of Pennsylvania, Ohio and Oklahoma and AMS have filed

Complaints-in-Intervention alleging similar claims under the Clean Air Act and related state and

local regulations, which claims will also be resolved by the Consent Decree. 

Once engaged in negotiations, the parties to the proposed Consent Decree devoted

thousands of hours over many years to working through the numerous technical issues and to

ensuring that the Consent Decree’s terms accurately reflect the technical solutions devised by the

parties’ engineers. Thus, the settlement is the product of the parties’ deliberations regarding the

technical feasibility of the compliance measures, an assessment of the merits of the parties’

respective positions regarding numerous legal issues, a weighing of the risks and delays that

litigation would entail, and consideration of the value of an early settlement, including the

significant environmental benefits that will accrue from Sunoco’s implementation of the

comprehensive injunctive measures required by the Decree. Through this Consent Decree,

“each side gains the benefit of immediate resolution of the litigation [and potential litigation] and

some measure of vindication for its position while foregoing the opportunity to achieve an
- 6 -

unmitigated victory.” E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 889 (7th Cir. 1985),

citing United States v. Armour & Co., 402 U.S. 673, 681, 91 S. Ct. 1752, 1757 (1971) (additional

citations omitted). 

Pursuant to 28 C.F.R. § 50.7, the United States published notice of the proposed Consent

Decree in the Federal Register on June 23, 2005, see 70 Fed. Reg. 36409-10 (2005), and

provided the public with an opportunity to comment on the proposed settlement. The lodging

and comment period provides an opportunity for public scrutiny and judicial review of the

settlement. It is also an opportunity for the United States to respond to questions from the public

and to correct any misconceptions about the terms of the agreement. The comment period

extended for just over 30 days, from June 22 to July 25, 2005.

During the public comment period, the United States received three separate submissions

commenting on the Consent Decree: one from a citizens group in Philadelphia, one from a

citizens group in Toledo and one from a private individual (collectively referred to as the

“commenters”) (See Appendix B herein). The comments are similar in nature and fall generally

into one of four categories: (1) the Consent Decree does not adequately address certain issues at

the refineries including pollution prevention, opacity violations and monitoring; (2) the Consent

Decree allows inappropriate exceptions to the law; (3) the Consent Decree does not obtain

adequate penalties or supplemental environmental projects; and (4) the Consent Decree raises

some general concerns including the timing of implementation of injunctive relief, and the

measurement of actual emissions reductions. The comments raise several specific examples

which are discussed jointly herein and responded to in detail in the attached Appendix: United
- 7 -

States’ Response to Public Comments Received Regarding Proposed Consent Decree (attached

as Appendix A to this Memorandum). 

Consistent with other settlements under EPA’s Petroleum Refinery Initiative, the United

States has secured from Sunoco a broad package of injunctive relief across its refinery system

before pursuing full discovery and litigation of each potential claim on a unit-by-unit basis. 

Though the United States has alleged significant violations against Sunoco, Sunoco has disputed

and continues to dispute those violations. As discussed in more detail below, any litigation

involving the alleged violations, particularly relating to the NSR regulations, would likely be

technically complex, lengthy, expensive, and resource-intensive. Moreover, there is substantial

risk inherent in such litigation, and there is no guarantee that the United States could achieve

comparable relief or do so in a reasonable time frame. Given these realities, the commenters’

unduly narrow interpretation of settlement adequacy is simply not applicable in the present case. 

See Officers for Justice v. Civil Service Comm’n, 688 F.2d 615, 624 (9th Cir. 1982) (“Of course,

the very essence of a settlement is compromise, a yielding of absolutes and an abandonment of

highest hopes.”) 

The United States disagrees with the commenters’ evaluation of the Decree. The United

States believes that the Consent Decree, when evaluated in light of the full extent of relief

provided, provides a substantial and appropriate level of environmental benefit consistent with

the goals of the relevant statutes. Moreover, when considered in the context of the nature and

status of the claims at issue and the risk inherent in pursuing non-settlement alternatives, the

Consent Decree represents a very favorable and eminently fair and reasonable resolution

consistent with the appropriate standards for negotiated settlements.
- 8 -

The United States has reviewed and carefully considered each of the comments received

in light of the terms of the Consent Decree and the requirements of the statutes that serve as a

predicate for the United States’ claims against Sunoco. In this Memorandum and the attached

Appendix, the United States will summarize and respond to the comments received. This will

enable the Court to consider the proposed Consent Decree in light of the comments received and

the United States’ responses, and to determine whether the settlement meets the standards of

fairness, reasonableness, consistency with the relevant statutory goals, and is in the public

interest. In this process, the function of a reviewing Court is not to substitute its judgment for

that of the parties to the Decrees, but to assure itself that the terms of the Decrees are fair and

adequate and are not unlawful, unreasonable, or against public policy. United States v. Oregon,

913 F.2d 576, 580 (9th Cir. 1990) (before approving Consent Decrees, district court must be

satisfied that Decree is fundamentally fair, adequate and reasonable, and in conformity with

applicable laws), cert. denied, 501 U.S. 1250 (1991). In re Tutu Water Wells, 326 F.3d 201, 207

(3d Cir. 2003), citing, United States v. Southeastern Pa. Transp. Auth., 235 F.3d 817, 823 (3d.

Cir. 2000). If the Court finds that these standards have been met, then the settlement should be

entered. 

The United States and the Plaintiff-Intervenors believe that the terms of the proposed

Consent Decree further the objectives of the environmental laws upon which the Complaints are

based. The relief requested of this Court, as embodied in the proposed Decree, is an appropriate

response to the violations alleged and, for many units and processes, exceeds applicable

regulatory requirements and will establish new, more stringent, refinery standards for CAA

compliance. In short, the proposed Consent Decree resolves the United States' and Plaintiff-
- 9 -

Intervenors’ claims against Sunoco in a way that is fair, reasonable, and protective of public

health and the environment. For the reasons set forth herein, the United States respectfully

requests that this Court make such a finding and approve and enter the proposed Consent Decree

as a final judgment.

II. BACKGROUND

A. Factual Background

Sunoco operates four petroleum refineries for the manufacture of various petroleumbased products, including gasoline, diesel, jet fuels, and other marketable petroleum by-products. 

Sunoco’s refineries have a combined processing capacity of approximately 760,000 barrels per

day. Petroleum refining involves the physical, thermal and chemical separation of crude oil into

marketable petroleum products. The petroleum refining process at Sunoco’s refineries results in

emissions of significant quantities of the following regulated air pollutants: NOX, SO2, carbon

monoxide (“CO”), PM, and VOCs, including benzene. The primary sources of these emissions

are the fluidized catalytic cracking units (“cracking units” or “FCCUs”), the process heaters and

boilers, the sulfur recovery plants, the wastewater treatment system, fugitive emissions from

leaking components, and flares throughout the refinery where excess emissions are combusted. 

B. Statutory and Regulatory Framework

The Clean Air Act established a regulatory scheme designed to protect and enhance the

quality of the nation's air so as to promote the public health and welfare and the productive

capacity of its population. Section 101(b)(1) of the Act, 42 U.S.C. § 7401(b)(1). Section 109 of

the Act, 42 U.S.C. § 7409, requires the Administrator of EPA to promulgate regulations
- 10 -

establishing primary and secondary national ambient air quality standards ("NAAQS" or

"ambient air quality standards") for certain criteria air pollutants. The primary NAAQS are to be

adequate to protect the public health, and the secondary NAAQS are to be adequate to protect

the public welfare, from any known or anticipated adverse effects associated with the presence

of the air pollutant in the ambient air.

Section 110 of the Act, 42 U.S.C. § 7410, requires each state to adopt and submit to EPA

for approval a State Implementation Plan ("SIP") that provides for the attainment and

maintenance of the NAAQS. Under Section 107(d) of the Act, 42 U.S.C. § 7407(d), each state is

required to designate those areas within its boundaries where the air quality is better or worse

than the NAAQS for each criteria pollutant, or where the air quality cannot be classified due to

insufficient data. These designations have been approved by EPA and are located at 40 C.F.R.

Part 81. An area that meets the NAAQS for a particular pollutant is classified as an "attainment"

area; one that does not is classified as a "non-attainment" area.

 (1) New Source Review

Part C of Title I of the Act, 42 U.S.C. §§ 7470-7479, sets forth requirements for the

prevention of significant deterioration ("PSD") of air quality in those areas designated as

attaining the NAAQS standards. These requirements are designed to protect public health and

welfare, to assure that economic growth will occur in a manner consistent with the preservation

of existing clean air resources and to assure that any decision to permit increased air pollution is

made only after careful evaluation of all the consequences of such a decision and after public

participation in the decision-making process. These provisions are referred to herein as the "PSD

program." Section 165(a) of the Act, 42 U.S.C. § 7475(a), prohibits the construction and
- 11 -

subsequent operation of a major emitting facility in an area designated as attainment unless a

PSD permit has been issued. Section 169(1) of the Act, 42 U.S.C. § 7479(1), defines "major

emitting facility" as a source with the potential to emit 250 tons per year (tpy) or more of any air

pollutant. As set forth at 40 C.F.R. § 52.21(k), the PSD program generally requires a person who

wishes to construct or modify a major emitting facility in an attainment area to demonstrate,

before construction commences, that construction of the facility will not cause or contribute to

air pollution in violation of any ambient air quality standard or any specified incremental amount.

As set forth at 40 C.F.R. § 52.21(i), any major emitting source in an attainment area that

intends to construct a major modification must first obtain a PSD permit. "Major modification" is

defined at 40 C.F.R. § 52.21(b)(2)(i) as meaning any physical change in or change in the method

of operation of a major stationary source that would result in a significant net emission increase

of any criteria pollutant subject to regulation under the Act. "Significant" is defined at 40 C.F.R.

§ 52.21(b)(23)(i) in reference to a net emissions increase or the potential of a source to emit any

of the following criteria pollutants, at a rate of emissions that would equal or exceed any of the

following: for ozone, 40 tons per year of volatile organic compounds (VOCs); for carbon

monoxide (CO), 100 tons per year; for nitrogen oxides (NOx), 40 tons per year; for sulfur

dioxide (SO2), 100 tons per year, (hereinafter “criteria pollutants”). As set forth at 40 C.F.R. §

52.21(j), a new major stationary source or a major modification in an attainment area shall install

and operate best available control technology ("BACT") for each pollutant subject to regulation

under the Act that it would have the potential to emit in significant quantities. 

Part D of Title I of the Act, 42 U.S.C. §§ 7501-7515, sets forth provisions which direct

States to include in their SIPs requirements to provide for reasonable progress towards attainment
- 12 -

of the NAAQS in nonattainment areas. Section § 172(c)(5) of the Act, 42 U.S.C. § 7502(c)(5),

provides that these SIPs shall require permits for the construction and operation of new or

modified major stationary sources anywhere in the nonattainment area, in accordance with

Section 173 of the Act, 42 U.S.C. § 7503, in order to facilitate “reasonable further progress”

towards attainment of the NAAQS. Section 173 of Part D of the Act, 42 U.S.C. § 7503, requires

that in order to obtain such a permit the source must, among other things: (a) obtain federally

enforceable emission offsets at least as great as the new source*s emissions; (b) comply with the

lowest achievable emission rate (“LAER”) as defined in Section 171(3) of the Act, 42 U.S.C. §

7501(3); and (c) analyze alternative sites, sizes, production processes, and environmental control

techniques for the proposed source and demonstrate that the benefits of the proposed source

significantly outweigh the environmental and social costs imposed as a result of its location,

construction, or modification.

As set forth in 40 C.F.R. § 52.24, no major stationary source shall be constructed or

modified in any non-attainment area as designated in 40 C.F.R. Part 81, Subpart C (“nonattainment area”) to which any SIP applies, if the emissions from such source will cause or

contribute to concentrations of any pollutant for which a NAAQS is exceeded in such area,

unless, as of the time of application for a permit for such construction, such plan meets the

requirements of Part D, Title I, of the Act. A state may comply with Sections 172 and 173 of the

Act by having its own non-attainment new source review regulations approved as part of its SIP

by EPA, which must be at least as stringent as those set forth at 40 C.F.R. § 51.165.
- 13 -

 (2) Flaring and New Source Performance Standards

Section 111 of the Act, 42 U.S.C. § 7411, requires EPA to promulgate standards of

performance for certain categories of new air pollution sources (“New Source Performance

Standards” or “NSPS”). Pursuant to Section 111(b), 42 U.S.C. § 7411(b), EPA promulgated

general regulations applicable to all NSPS source categories. Those general regulations are set

forth at 40 C.F.R. Part 60 Subpart A and include requirements for implementing and utilizing

good air pollution control practices at all times; EPA’s NSPS regulations applicable to petroleum

refineries are set forth at 40 C.F.R. Part 60 Subpart J. FCCU regenerators, sulfur recovery

plants, and fuel gas combustion devices (including heaters, boilers, and flares) are among the

refinery process units subject to regulation under the NSPS requirements. 

 (3) Leak Detection and Repair (“LDAR”) 

Section 112 of the CAA, 42 U.S.C. § 7412, requires EPA to promulgate emission

standards for certain categories of sources of hazardous air pollutants (“National Emission

Standards for Hazardous Air Pollutants” or “NESHAPs”). Pursuant to Section 112(d) of the

CAA, 42 U.S.C. § 7412(d), EPA promulgated national emission standards for equipment leaks

(fugitive emission sources). Those regulations are set forth at 40 C.F.R. Part 61 Subpart J, Part

63 Subparts H and CC, and Part 60 Subparts VV and GGG. The focus of the LDAR program is

the refinery-wide inventory of all possible leaking valves (which could be tens of thousands in a

medium-size refinery), the regular monitoring of those valves to identify leaks, and the repair of

leaks as soon as they are identified.

 
- 14 -

(4) Benzene Waste NESHAP

In the 1990 amendments to the Clean Air Act, Congress defined “hazardous air

pollutant” and identified 189 pollutants under Section 122(b)(1) that would be subject to

regulation. The Act requires EPA to establish emission standards for each pollutant in

accordance with Section 112(d) of the CAA, 42 U.S.C. § 7412(d). In March 1990, EPA

promulgated national emission standards applicable to benzene-containing waste streams. 

Benzene is a listed hazardous air pollutant and a known carcinogen. The benzene waste

regulations are set forth at 40 C.F.R. Part 61 Subpart FF, “National Emission Standard for

Benzene Waste Operations.” Benzene is a naturally-occurring constituent of petroleum products

and petroleum waste and is highly volatile. Benzene emissions can be detected anywhere in a

refinery where the petroleum product or waste materials are exposed to the ambient air. 

Refineries are required to tabulate their total annual benzene emissions. If the total annual

benzene emissions is over 10 megagrams, the refinery is required to elect a control option that

will require the control of all waste streams, or control of certain select waste streams.

C. EPA’s Petroleum Refinery Initiative

Since 1996, EPA has pursued a coordinated, multi-faceted approach to enforcing Clean

Air Act compliance within the refining industry as part of its Petroleum Refinery Initiative. 

Using multiple sources of information, including inspections, information requests, and industry

trade information regarding production increases and modifications at specific refineries over the

past several decades, EPA identified four CAA programs where non-compliance appeared

widespread among petroleum refiners: (1) apparent major modifications to the FCCUs resulting

in significant increases in NOx and SO2 emissions without complying with the PSD or NSR
- 15 -

requirements for permitting and without the installation of pollution control technology; (2)

flaring of acid gases, which consist primarily of hydrogen sulfide, and failure to adequately treat

sulfur emissions as required by NSPS Subparts A & J; (3) failure to accurately identify and

minimize fugitive emissions throughout the refinery as required by the LDAR regulations; and (4)

failure to manage benzene waste streams in accordance with the Benzene Waste NESHAP. 

EPA subsequently initiated inspections and developed broad information requests pursuant to its

CAA Section 114 investigative authority to further develop its enforcement effort.

Rather than immediately pursuing costly and time-consuming enforcement litigation on a

piecemeal basis, EPA embarked on a series of multi-issue, multi-facility settlement negotiations

with major petroleum refining companies directed at addressing the above compliance issues on a

global, system-wide basis with each refiner. In preparation for discussions with specific refiners

regarding these compliance issues, the United States assembled a team of national experts from

EPA who worked with the Department of Justice to develop a “model” program for injunctive

relief under each of the four major CAA program areas discussed above. The model program

contemplates the use of innovative technologies, to include Selective Catalytic Reduction

(“SCR”), Selective Non-Catalytic Reduction (“SNCR”) and the use of NOx-reducing catalyst

additives, and/or stringent emissions limits for the control of NOx emissions from the FCCUs and

process heaters and boilers. It further contemplates a mix of technologies, including installation

of wet gas scrubbers on the cracking units, operational controls, the use of SO2-reducing catalyst

additives, and/or stringent emissions limits to reduce SO2 emissions. 

Under the LDAR and Benzene Waste NESHAP model programs, each refinery is

required to implement enhancements that go well beyond existing federal regulations. The
- 16 -

Benzene Waste enhanced program includes regular laboratory and program audits, quarterly

benzene balances, and replacement of carbon emission filters as soon as any emissions of

benzene above background are detected. The enhanced LDAR program requires each refinery

to use a lower internal leak definition, e.g., a valve is considered “leaking” when emissions of

500 ppm are detected, as opposed to the 10,000 ppm federal regulatory definition. The lower

leak definition is designed to identify potential leaks at an earlier stage so that repairs can be

made before emissions become significant. The program also requires internal and third-party

audits, more frequent monitoring, more immediate attempts to repair leaking components, and

the use of innovative technologies such as computerized dataloggers for monitoring.

In addition, the model program contemplates that all refineries must agree to comply with

the NSPS provisions that require control of SO2 emissions from sulfur recovery plants. For many

refineries this will require the installation of additional emissions control equipment (tail gas

units) so that when the primary unit is shut down for repair, gases can be rerouted to the backup

unit rather than flared to the atmosphere. The flaring program also requires the development of

specific procedures, which may include installation of flare gas recovery systems, to reduce or

eliminate flaring at each refinery and the implementation of “good air pollution control practices”

at all times, in accordance with 40 C.F.R. § 60.11(d).

Since March 2000, the United States has used the model injunctive relief program as a

framework for a series of major Clean Air Act settlements with petroleum refiners. In each case,

the parties utilized the model relief program and then customized the Consent Decrees to address

particular compliance issues at the relevant refineries. Not including the present case, the United

States has concluded global settlements with 14 refiners responsible for more than 60% of
- 17 -

domestic refining capacity and is negotiating with other refiners representing a significant

additional percentage of capacity. As noted above, each of these prior 14 settlements have been

approved by Federal District Courts. This settlement is structured consistent with, and

comparable to, the 14 other judicially approved Consent Decrees entered to date.

D. The Violations Alleged in the United States’ Complaint. 

The United States’ Complaint primarily alleges violations of the statutory and regulatory

provisions relevant to the four Clean Air Act program areas targeted in EPA’s Petroleum

Refinery Initiative. Count One alleges, upon information and belief, that Sunoco has violated the

PSD/NSR requirements, and the corresponding provisions of the relevant State SIPs, by

undertaking major modifications of its FCCUs and process heaters and boilers without

undergoing PSD/NSR review, without obtaining all appropriate permits, and without installing the

best available control technology and/or meeting the lowest achievable emission rate for the

control of those pollutants for which a significant net emissions increase occurred. Counts Two

through Five allege, upon information and belief, violations of the NSPS requirements applicable

to FCCU catalyst regenerators, sulfur recovery plants, flaring devices, and heaters and boilers at

the Sunoco refineries. Count Six alleges, upon information and belief, violations of the federal

LDAR requirements at each of Sunoco’s refineries. Count Seven alleges, upon information and

belief, violations of the Benzene Waste NESHAP at each of Sunoco’s refineries. For each of the

alleged violations in Counts One through Seven, the United States seeks both injunctive relief and

civil penalties pursuant to Section 113(b) of the Clean Air Act.

The Complaints-in-Intervention filed by the Plaintiff-Intervenors contain claims against

Sunoco under the Clean Air Act that are similar to the United States’ claims. To varying extents,
- 18 -

the Plaintiff-Intervenors also allege violations of their respective state implementation plans and

associated regulations. 

E. The Terms of the Settlement 

During the course of negotiations, Sunoco raised a number of factual, technical and legal

defenses to the above allegations. However, the parties subsequently agreed to set aside

extensive discovery and litigation in the interest of a comprehensive settlement, and Sunoco has

agreed to comply with the extensive injunctive requirements in the Consent Decree. Among its

obligations under the Decree, the most significant of which are summarized below, Sunoco must

comply with stringent emission limits, utilize new technologies, and implement improved

operational practices across all of its refineries with respect to EPA’s four CAA program areas of

concern. Sunoco’s compliance will result in substantial, timely, enforceable emissions

reductions. Given the very real uncertainties inherent in pursuing the claims against Sunoco in

litigation, there is a strong likelihood that the relief achieved through the settlement is consistent

with or exceeds the relief that ultimately could have been achieved through litigation of the

disputed issues.

(1) Emission Reductions from the FCCUs

The FCCU typically emits more NOx and SO2 emissions than any other single unit at a

refinery. Under the terms of the Consent Decree, Sunoco is required to install wet gas scrubbers

and SCR that will significantly reduce emissions of NOx and SO2 from three FCCUs at its

refineries. Wet gas scrubbers and SCR are the best control technology available today to limit or

control emissions of these pollutants.
- 19 -

Further, for the purpose of controlling NOx emissions, Sunoco will accept stringent

emission limits for these FCCUs. Specifically, Sunoco will comply with a NOx emission limit of

20 ppmvd @ 0% O2 on a 365 day rolling average basis and 40 ppmvd @ 0% O2 on a 7 day

rolling average basis at these refineries by the dates specified for installation of the wet gas

scrubbers and SCR.

Likewise for each FCCU, Sunoco must comply with an SO2 emission limit of 25 ppmvd

@ 0% O2 on a 365 day rolling average basis and 50 ppmvd @ 0% O2 on a 7 day rolling average

basis by the dates specified in the Consent Decree. 

Pursuant to the Consent Decree, Sunoco is required to incorporate the lower NOx and

SO2 emission limits established under the Decree into federally-enforceable operating permits. 

Sunoco must demonstrate future compliance with the lower emission limits through the use of

continuous emissions monitoring systems (“CEMS”). 

Additionally, Sunoco has agreed to greater controls of emissions of particulate matter

(PM). At each of the FCCU’s where Sunoco will install a wet gas scrubber, Sunoco also will

either operate a new or existing electrostatic precipitator or accept a lower emissions permit limit

of 0.5 lbs. PM per 1000 lbs of coke burned.

(2) Emission Reductions from Heaters and Boilers

By no later than December 31, 2012, Sunoco must complete a program to reduce NOx

emissions from the heaters and boilers at all refineries collectively by at least 50% (2,189 tons

per year as compared to baseline emission levels from the years 2000-2001). Sunoco may only

receive credit towards the emission reduction commitment for those heaters and boilers on which
3

/ As discussed in the attached Appendix, in the United States’ Response to Comments, Sunoco may

meet this obligation in part through the use of emission reductions generated after the 2000-2001 baseline

period but before the lodging of the Consent Decree. 

4

/ At the Tulsa refinery, Sunoco is required to meet NSPS limits for H2S for its fuel gas and recover

at least 95% of the sulfur removed from fuel gas within eight years.

- 20 -

it implements “qualifying controls,” which include SCR, SNCR, and Ultra-Low NOx Burners.

Sunoco must achieve two-thirds of the reductions by no later than four years from date of entry

of the decree, and Qualifying Controls must be placed on at least 30% of all the heaters and

boilers at Philadelphia and Marcus Hook by June 15, 2010 and at Toledo and Tulsa by eight

years from the date of entry of the decree.3

/ 

Included in Sunoco’s obligation to control sufficient units to achieve the committed NOx

emission reductions is a specific requirement that Sunoco apply for and accept lower permitted

emission limits for the controlled units. Future compliance with the lower emission limits must be

determined through the use of CEMS or predictive emissions monitoring systems (“PEMS”) for

larger units and periodic performance testing for smaller units. 

Sunoco also is accepting NSPS Subpart A & J applicability for heaters and boilers and

must comply with the SO2 emission limits for fuel gas combustion devices for all such heaters and

boilers upon entry of the Consent Decree. In addition, Sunoco will not burn fuel oil in heaters

and boilers except during periods of natural gas restriction. 4/

(3) Reduction of Emissions from Sulfur Recovery Plants

Sunoco operates sulfur recovery plants (“SRPs”) at its Philadelphia, Marcus Hook and

Toledo refineries. The Consent Decree requires Sunoco to accept NSPS applicability at all of its
5

/ Sunoco recently constructed a state-of-the art dual train SRP (with TGUs) at Marcus Hook which

is not part of this decree. Because of its size, the Tulsa refinery does not have a SRP.

- 21 -

SRPs upon entry of the Decree.5/ This includes the requirement that Sunoco install a second

SRU and two TGUs at the Toledo facility by the end of 2009 which will result in a substantial

reduction in SO2 emissions at that facility. 

For all of its SRPs, Sunoco is required to implement an EPA-approved Preventive

Maintenance and Operation Plan (“PMO Plan”) that provides for continuous operation of its

sulfur recovery plants between scheduled maintenance turnarounds to minimize emissions from

those units including the institution of sulfur shedding procedures, and procedures that will

ensure coordination of maintenance turnarounds of its sulfur recovery plants to coincide with

scheduled turnarounds of major upstream sulfur producing units. The goal of the PMO Plans is

to eliminate acid gas flaring. 

(4) Reduction of Flaring Events and Related Emissions

The Consent Decree establishes a detailed, enforceable protocol designed to minimize the

incidence and duration of flaring events and related sulfur dioxide emissions at Sunoco’s

refineries. Within 45 days of any flaring incident, Sunoco must submit a report that documents

Sunoco’s investigation and analysis of the “root cause” of the incident, identifies the corrective

action already undertaken or still to be undertaken, and provides other relevant information, such

as the duration of the incident, the quantity of sulfur dioxide emitted, and the immediate steps

that Sunoco took to limit the duration of the incident and/or quantity of sulfur dioxide emitted. 

EPA then will review the report to determine, inter alia, if the corrective action proposed or

already undertaken is/was consistent with good engineering practice. Where action is necessary,
6

/ Sunoco has agreed to accept NSPS applicability for all of the flaring devices at its

refineries through the use of one of the following three methods: (1) operating and maintaining a

flare gas recovery system; (2) operating the flaring device as an NSPS fuel gas combustion unit

and monitoring the device with a CEMS or an alternative method approved by EPA; or

(3) eliminating the routes of continuous or intermittent, routinely-generated refinery fuel gases to

the flaring device. 

- 22 -

Sunoco is required to undertake such interim and/or long term corrective actions as are consistent

with good engineering practice to minimize the likelihood of a recurrence of the cause of a

flaring incident. Sunoco is required to undertake similar procedures for tail gas incidents and

hydrocarbon flaring incidents. 

In addition, Sunoco is required to accept NSPS Subparts A & J applicability for all flaring

devices at each of its refineries. Sunoco will have approximately two years to develop a

compliance plan for all of its flaring devices and within those two years, at least 50% of

Sunoco’ssystem-wide flaring devices must meet one of three compliance methods.6

/ Within five

years, Sunoco will certify compliance with one of the three options at all of Sunoco’s flaring

devices.

The cumulative effect of these enhanced requirements will be to substantially reduce or

eliminate flaring of hydrogen sulfide, from Sunoco’s refineries, and to further minimize other

flaring incidents. The reduction in flaring, as well as compliance with NSPS emission limits, will

also reduce annual SO2 emissions across Sunoco’s refining system.
- 23 -

(5) Implementation of Enhanced LDAR and Benzene NESHAP

Compliance Programs

Under the Consent Decree, Sunoco is required to adopt an “enhanced practices

approach” that goes beyond the regulatory requirements to improve the control and management

of fugitive emissions across all refineries. 

With respect to the Benzene Waste NESHAP, Sunoco will for all refineries except Tulsa:

(1) conduct a one time review and verification of the refinery’s compliance with the Benzene

Waste NESHAP; (2) correct all areas of non-compliance identified in the compliance review;

(3) comply with stringent requirements for the use of carbon canisters as a control mechanism

under the Benzene Waste NESHAP; (4) provide enhanced training; (5) ensure that all waste and

slop oil is properly characterized for purposes of benzene NESHAP compliance; (6) undertake

monthly sampling of uncontrolled benzene waste streams to ensure ongoing compliance; and (7)

undertake corrective action if sampling demonstrates possible non-compliance. For its Tulsa

Refinery, which Sunoco has previously asserted is not subject to the control requirements in the

Benzene Waste NESHAP because the TAB is below 10 megagrams, Sunoco has agreed to certify

compliance with the 6BQ compliance option by no later than December 31, 2005.

Under the enhanced LDAR program, Sunoco will for each Refinery: (1) develop a

comprehensive, written Refinery-wide LDAR program for the Refinery; (2) provide enhanced

training; (3) retain third-parties to undertake LDAR audits and undertake internal audits of the

Refinery’s LDAR program; (4) implement corrective actions where audits show non-compliance;

(5) monitor and repair valves and pumps that are leaking at a lower rate than the applicable

regulatory leak rate, including performance of drill and tap on valves leaking in excess of 10,000
- 24 -

ppm, thereby reducing fugitive emissions; (6) increase the frequency of monitoring valves; and

(7) utilize electronic data collection devices for all LDAR monitoring.

(6) Total Emission Reductions/Cost

The injunctive relief program will be implemented by Sunoco over a period of

approximately eight years with a significant portion of the emissions reductions expected to

occur within the first four years. Under the terms of the Consent Decree, Sunoco estimates that

it will reduce NOx emissions by approximately 4,476 tons per year and emissions by

approximately 19,526 tons per year. Reductions of fugitive VOC emissions SO2 also are

expected to result from performance under the Consent Decree. The cost of this program has

been estimated by Sunoco to be approximately $250 million. 

(7) Civil Penalty and Supplemental Environmental Projects 

As part of the agreed-upon relief in this settlement, Sunoco will pay a civil penalty of $3

million. The penalty money will be allocated among the United States and the PlaintiffIntervenors as set forth in the Decree. 

In addition to paying the civil penalty, Sunoco will spend at least $3,900,000 to perform

specific supplemental environmental projects (“SEPs”) either at or in the general vicinity of its

refineries. Sunoco will perform the following five projects: (1) install next generation technology

on certain heaters and boilers at a cost of at least $1 million to achieve an additional reduction of

112 tons of NOx per year in southeast Pennsylvania over and above the reductions required by

the CD; (2) provide $300,000 for a community health based program in southeast Pennsylvania;

(3) provide $400,000 towards the acquisition of ultra low sulfur diesel for municipal vehicles in
- 25 -

southeast Pennsylvania; (4) construct a redundant power supply for the FCCU at the

Philadelphia refinery for a cost of at least $1 million to prevent outages which cause unexpected

emissions; and (5) provide $1.2 million for the acquisition of diesel retrofit packages for the

municipal vehicles in southeast Pennsylvania.

 (8) Resolution of Claims

In exchange for Sunoco’s performance of the injunctive relief required by the Consent

Decree and payment of the civil penalty, the Consent Decree resolves the claims of the United

States and the Plaintiff-Intevenors against Sunoco for violations of the applicable PSD/NSR,

NSPS Subpart J, LDAR, and Benzene Waste NESHAP requirements that may have occurred

prior to entry of the Consent Decree, including violations that began before the date of entry of

the Consent Decree and that continued after the date of entry of the Consent Decree, but only

for those specific units and for those specific pollutants that are expressly covered by the

Consent Decree. Thus, any modifications after the date of lodging or violations that occur or

begin after the relevant compliance dates are not resolved by the Decree, and are subject to

independent enforcement. 

With respect to both the United States and the Plaintiff-Intervenors, the resolution of

claims granted in the Consent Decree is, of course, contingent on Sunoco’s compliance with the

key requirements of the Decree. If Sunoco violates one of the enumerated requirements, Sunoco

loses much of the benefit of this resolution of claims provision. 
- 26 -

III. STANDARD OF REVIEW APPLICABLE TO CONSENT DECREES

A. General Principles

"The initial decision to approve or reject a settlement proposal is committed to the sound

discretion of the trial judge." SEC v. Randolph, 736 F.2d 525, 529 (9th Cir. 1984) (quoting

Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 625 (9th Cir. 1982), cert. denied sub

nom. Byrd v. Civil Serv. Comm’n, 459 U.S. 1217 (1983)); accord United States v. Jones &

Laughlin Steel Corp., 804 F.2d 348, 351 (6th Cir. 1986); United States v. Hooker Chem. &

Plastics Corp., 776 F.2d 410, 411 (2nd Cir. 1985); United States v. Union Elec. Co., 132 F.3d 422,

430 (8th Cir. 1997). Courts, however, exercise this discretion within the framework of certain

policy principles applicable to the settlement process. 

First, the reviewing court’s discretion should be exercised with deference to the “strong

public policy in favor of settlements, particularly in very complex and technical regulatory

contexts.” United States v. Comunidades Unidas Contra La Contaminacion, 204 F.3d 275, 280

(1st Cir. 2000). Voluntary settlements of disputes are favored by the Courts. 

The Third Circuit has stated that:

Voluntary settlement of civil controversies is in high judicial favor .

. . [w]hen the effort [to settle] is successful, the parties avoid the

expense and delay incidental to litigation of the issues; the court is

spared the burdens of a trial and the preparation and proceedings

that must forerun it.

Pennwalt Corp. v. Plough, Inc., 676 F.2d 77, 80 (3d Cir. 1982). Accord, United States v. Nicolet,

Inc., 1989 WL 95555, *3 (E.D. Pa. 1989); accord Hooker Chemical, 776 F.2d at 411 (district

court discretion should be exercised to further the strong public policy favoring voluntary
- 27 -

settlement); Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 950 (9th Cir. 1976) (voluntary

settlement of disputes is clearly in the public interest). This public policy in favor of voluntary

settlements recognizes the value of settlements in conserving judicial resources, see Donovan v.

Robbins, 752 F.2d 1170, 1177 (7th Cir. 1985) (stating that “the desirability of encouraging out of

court settlements in order to lighten the judicial caseload creates a presumption in favor of

approving . . . settlement[s]”); minimizing time and money parties would otherwise expend in

litigation, see Randolph, 736 F.2d at 528 (the use of settlement agreements "encourages informal

resolution of disputes, thereby lessening the risks and costs of litigation"); Citizens for a Better

Env’t v. Gorsuch, 718 F.2d 1117, 1126 (D.C. Cir. 1983), cert. denied sub nom. Union Carbide

Corp. v. Natural Res. Def. Council, Inc., 467 U.S. 1219 (1984) (both the parties and the public

benefit from the "saving of time and money that results from the voluntary settlement of

litigation"), and “maximiz[ing] the effectiveness of limited law enforcement resources,” United

States v. City of Jackson, 519 F.2d 1147, 1151-52 (5th Cir. 1975). 

Second, the reviewing court should accord deference to the judgment of the United States

and its agencies in settling a matter. The Supreme Court, in Sam Fox Publ’g Co. v. United States,

366 U.S. 683, 689 (1961), emphasized the importance of deference to the United States regarding

settlement: “Sound policy would strongly lead us to decline . . . to assess the wisdom of the

Government’s judgment in negotiating and accepting the . . . Consent Decree, at least in the

absence of any claim of bad faith or malfeasance on the part of the Government in so acting.”

The Circuit Courts have echoed this principle of deference to the United States. A court

reviewing a settlement “should pay deference to the judgment of the government agency which

has negotiated and submitted the proposed judgment.” Randolph, 736 F.2d at 529 (citing
- 28 -

Marshall v. Holiday Magic, Inc., 550 F.2d 1173, 1178 (9th Cir. 1977)); Officers for Justice, 688

F.2d at 625); see also, United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)

(balancing of competing interests affected by proposed Consent Decree “must be left, in the first

instance, to the direction of the Attorney General”). The First Circuit has directed courts to

“refrain from second-guessing the Executive Branch.” Cannons, 899 F.2d at 84. 

Judicial deference to a settlement is “particularly strong where a Consent Decree has

been negotiated by the Department of Justice on behalf of a federal administrative agency like

EPA which enjoys substantial expertise in the environmental field.” United States v. Akzo

Coatings of Am. Inc., 949 F.2d 1409, 1436 (6th Cir. 1991); see also Comunidades, 204 F.3d at

281 (“In environmental cases, EPA’s expertise must be given the benefit of the doubt when

weighing substantive fairness.”) (internal quotations omitted); Cannons, 899 F.2d at 84

(deference toward settlements particularly compelling where a governmental agency with special

expertise that is “committed to the protection of the public interest has pulled the laboring oar in

constructing the proposed settlement”). Hence, a court’s review of an environmental Consent

Decree should be deferential. “The balance of competing interests must initially be left to the

discretion of the Attorney General when the United States brings the action, especially when the

Justice Department negotiated the Consent Decree on behalf an agency specially expert in the

field.” United States v. Atlas Minerals, 851 F. Supp 639, 648 (E.D. Pa. 1994); United States v.

Alcan Aluminum, Inc., 1993 WL 232194, at *2-3 (E.D. Pa. 1993).

B. The Legal Standard to Be Applied

In reviewing a Consent Decree, a district court must determine whether the proposed

settlement fairly and reasonably resolves the controversy in a manner consistent with the public
- 29 -

interest and applicable law. United States v. Oregon, 913 F.2d 576, 580-81 (9th Cir. 1990).

"Unless a Consent Decree is unfair, inadequate, or unreasonable, it ought to be approved." SEC

v. Randolph, 736 F.2d at 529.

Thus, a reviewing court is not required to make the same in-depth analysis of a proposed

settlement that it would be required to make in order to enter a judgment on the merits after trial:

The trial court in approving a settlement need not inquire into the precise legal rights of

the parties nor reach and resolve the merits of the claims or controversy, but need only

determine that the settlement is fair, adequate, reasonable and appropriate under the

particular facts and that there has been valid consent by the concerned parties.

Citizens for a Better Env’t v. Gorsuch, 718 F.2d at 1126; accord Officers for Justice, 688 F.2d at

625.

The relevant standard "is not whether the settlement is one which the court itself might

have fashioned, or considers as ideal, but whether the proposed decree is fair, reasonable, and

faithful to the objectives of the governing statute." United States v. Kramer, 19 F. Supp. 2d 273,

280 (D.N.J. 1998) (quoting United States v. Cannons Eng’g Corp., 899 F.2d 79, 84 (1st Cir.

1990)). Accord, In re Tutu Water Wells, 326 F.3d 201, 207 (3d Cir. 2003) (“A court should

approve a proposed Consent Decree if it is fair, reasonable, and consistent with CERCLA’s

goals”), citing, United States v. Southeastern Pa. Transp. Auth., 235 F.3d 817, 823 3d. Cir. 2000). 

Thus, although the approval of a settlement is a judicial act committed to the informed discretion

of the trial court, the court cannot “substitute its judgment for that of the parties nor conduct the

type of detailed investigation required if the parties were actually trying the case.” BP

Exploration, 167 F. Supp. 2d at 1050. Nor should the court judge the proposed settlement

“against a hypothetical or speculative measure of what might have been achieved by the
- 30 -

negotiators.” Officers for Justice, 688 F.2d at 626 (citations omitted). Ultimately, “[t]he court

need only be satisfied that the decree represents a ‘reasonable factual and legal determination.’” 

Oregon, 913 F.2d at 581 (quoting United States v. City of Miami, 664 F.2d 435, 441 (5th Cir.

1981) (Rubin, J. concurring)). 

Ensuring that the settlement is in the public interest is but one factor to be considered by

the Court and does not alter the fundamental reasonableness standard or the policy of deference

to the settling agency. Randolph, 736 F.2d at 529 (holding that the district court applied “too

strict a standard” when it “closely scrutinize[d] the proposed decree to see if it was in the

public’s best interest”). Even where a Consent Decree affects the public interest or third parties,

“the court need not require that the decree be ‘in the public’s best interest’ if it is otherwise

reasonable.” Oregon, 913 F.2d at 581 (quoting Randolph, 736 F.2d at 529 (emphasis in

original)).

The court’s role in considering a proposed decree is a limited one, “[t]he court may either

approve or disapprove the settlement; it may not rewrite it.” Harris v. Pernsley, 654 F. Supp.

1042, 1049 (E.D. Pa.), aff’d, 820 F.2d 592 (3d Cir. 1987). The question to be resolved in

reviewing the settlement, and the degree of scrutiny to be applied, are distinct from the merits of

the underlying action. Officers for Justice, 688 F.2d at 630; Jones & Laughlin Steel, 804 F.2d at

351 (a court does not have the power to modify a Consent Decree; it may only accept or reject

the terms to which the parties have agreed.)

In sum, this Court's role in reviewing the proposed Consent Decree is limited to approval

or denial, based on an evaluation of the fairness and reasonableness of the settlement as

presented by the parties. The Court must conduct this evaluation in the context of the strong
- 31 -

public policy supporting settlement. Moreover, the Court should give substantial deference to

EPA’s and DOJ’s interpretations of applicable environmental laws and regulations as well as to

EPA’s engineering and scientific determinations, see, e.g., Sunoco, U.S.A., Inc. v. Natural

Resources Defense Council, 467 U.S. 837, 843-44 (1984); American Paper Inst. v. U.S. EPA,

660 F.2d 954, 963 (4th Cir. 1981).

IV. THE CONSENT DECREE IS FAIR, REASONABLE, AND CONSISTENT

WITH THE PUBLIC INTEREST AND THE GOALS 

OF THE RELEVANT ENVIRONMENTAL STATUTES.

As discussed above, in reviewing a Consent Decree, a district court must determine

whether the proposed settlement fairly and reasonably resolves the controversy in a manner

consistent with the public interest and applicable law. As demonstrated below, the proposed

Decree satisfies this standard for district court approval of a settlement: the settlement is fair,

reasonable, and in the public interest and in accord with the relevant environmental statutes. 

Accordingly, the Court should sign and enter the Decree.

A. The Consent Decree is Procedurally and Substantively Fair.

Procedural fairness concerns the negotiations process, i.e., whether it was open and at

arms-length. BP Exploration, 167 F. Supp. 2d at 1051 (citing Cannons, 899 F.2d at 93). To

determine whether a proposed settlement is substantively fair, courts look to factors such as the

strengths of the plaintiff’s case versus the amount of the settlement offer, the likely complexity,

length and expense of litigation, the amount of opposition to the settlement, the opinion of

competent counsel, the stage of the proceeding, and the amount of discovery undertaken. Great

Neck, 212 F.R.D. at 409 (citing E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 889 (7th
- 32 -

Cir. 1980)); BP Exploration, 167 F. Supp. 2d at 1051. When measured against each of these

factors, this settlement is both procedurally and substantively fair. As set forth in greater detail

below, the commenters’ assertions to the contrary are without merit. 

1. Procedural Fairness

 The settlement embodied in the proposed Decree is the product of extended, arms-length

negotiations. Representatives of the United States and Sunoco, including their respective legal

counsel and engineers, labored over each provision of the proposed Decree during both in-person

meetings and numerous conference calls over the course of many months. In most of these

discussions, representatives of the Plaintiff-Intervenors also participated and provided input on

the substance and language of the Decree. In short, the negotiation process was conducted in

good faith and entirely consistent with longstanding government practices for resolving disputed

claims.

One of the commenters, however, raises a complaint purporting to relate to procedural

fairness, indicating that they were not invited to participate in the negotiation process. As

explained in the attached Appendix, this complaint is not well founded and does not impact

upon the procedural fairness of the Consent Decree. There is no requirement that the

Government allow third parties to participate in settlement negotiations. BP Exploration, 167 F.

Supp. 2d at 1052. See also, Comunidades, 204 F.3d at 279 (1st Cir. 2000). Consequently, the

mere failure to include a third party in settlement negotiations does not in and of itself render a

resulting Consent Decree procedurally unfair. See United States v. District of Columbia, 933 F.

Supp. 42, 48 n.6 (D.D.C. 1996).
- 33 -

2. Substantive Fairness

Substantive fairness is determined after considering “a comparison of the strengths of the

plaintiff’s case versus the amount of the settlement offer; the likely complexity, length and

expense of litigation; the amount of opposition to the settlement among affected parties; the

opinion of competent counsel; and the stage of the proceedings, and the amount of discovery

already undertaken at the time of settlement.” Hiram Walker, 768 F.2d at 889; see also Great

Neck, 212 F.R.D. at 409. Because these concepts do not lend themselves to “verifiable

precision[,] [i]n environmental cases, EPA’s expertise must be given ‘the benefit of the doubt

when weighing substantive fairness.’” United States v. Comunidades Unidas Contra La

Contaminacion, 204 F.3d 275, 281 (1st Cir. 2000) (quoting Cannons, 899 F.2d at 88).

The comparison of the strength of the plaintiff’s case against the proposed relief is most

indicative of substantive fairness. The United States has alleged significant Clean Air Act

violations in its Complaint, including NSR and NSPS violations at each of Sunoco’s refineries. 

Certain of these claims are based on facility-specific inspections and investigations. However,

consistent with the intent of EPA’s Petroleum Refinery Initiative, described above, EPA has not

attempted to investigate and document each potential violation at each facility. Indeed, the

resources required to conduct such investigations at more than 100 national refineries, with

thousands of emissions units per refinery, would be staggering. EPA must be able to use its

enforcement resources wisely, such as through effective global settlements under the Petroleum

Refinery Initiative. Therefore, certain claims are based primarily on information and expertise

gained by EPA through its work on the Petroleum Refinery Initiative. Not surprisingly, Sunoco

believes that it has strong defenses against the United States’ claims and has asserted those
7

/ United States v. Illinois Power, No. 99-CV-0833-MJR (S.D. Ill.).

8

/ Ohio Edison, 276 F.Supp.2d 829 (S.D.Ohio, 2003) Civil No. 2:99-cv-01181. The liability

portion of the trial lasted 12 days. The case settled on the eve of the second trial.

- 34 -

defenses vigorously in negotiations. While the United States believes that its claims are wellfounded, there is certainly significant risk that the United States would not prevail on certain of

the alleged claims and, even if successful, would not achieve a level of relief comparable in

scope or timing to the relief required by the Consent Decree. 

Moreover, any litigation involving alleged NSR violations would likely be technically

complex, lengthy, expensive, and resource-intensive. For example, recent litigation between the

United States and electric utilities regarding alleged NSR violations has proven to be extremely

complex and require an enormous resource commitment on the part of the United States. In a

recently concluded case that involved alleged violations at only one facility, the parties produced

more than 2.6 million pages of documents, the United States proffered 20 experts, and the single

question of whether a particular “modification” resulted in a “net emissions increase” – which

would also be at issue in any litigation against Sunoco – was the subject of hundreds of pages of

expert reports and several days of court testimony.7

/ Another case involving NSR violations at a

single utility plant was set to move into the remedy phase of trial, and was projected to last six to

seven weeks during which the parties expected to offer testimony from more than 40 experts.8

/ 

Moreover, it has taken five years of discovery and contested litigation just to reach the point at

which remedy issues will be joined. Implementation of any relief is likely yet another period of

years away. These examples underscore the extensive resources, time delay, and uncertainty

that would be associated with pursuing Sunoco through traditional enforcement methods for even
- 35 -

a limited subset of the potential violations at each of its four refineries, and that such a strategy

could not be expected to produce implementation of remedial measures as quickly as under this

Consent Decree even if the United States were ultimately to prevail. 

In light of the risks, timing, and resource concerns inherent in litigating its claims on an

individual basis, EPA has elected to focus its limited resources on requiring Sunoco to implement

the specific emissions reduction programs developed by EPA’s team of national experts. The

relief negotiated by the United States and Plaintiff-Intervenors and embodied in the Consent

Decree is tailored to address the compliance deficiencies alleged in the United States’ Complaint

and correlates closely with the strength and status of the United States’ case and with the relief in

other Petroleum Refinery Initiative settlements. The Consent Decree requires Sunoco to utilize

the best available control technology, accept more stringent emission limits, and implement other

enhancements that will reduce NOx and SO2 emissions across its entire refining system by an

anticipated 24,000 tons per year. These reductions will be undertaken in a timely fashion

pursuant to a strict schedule enforceable by stipulated penalties. Moreover, Sunoco must

incorporate its lower emission limits into federally-enforceable permits that will survive the

termination of the Consent Decree. The United States believes the injunctive relief package is at

the highest end of the range of possible relief. In addition to the injunctive relief, which is

projected to cost hundreds of millions of dollars, Sunoco will also pay a penalty of $3 million and

perform supplemental environmental projects in and around its refineries valued, at a minimum,

at $3.9 million. Although the penalty is arguably less than the maximum relief potentially

available in a fully successful litigation, it is substantial. Overall, this settlement represents a
- 36 -

substantial environmental benefit and is undoubtedly fair given the uncertainty and delay

inherent in litigating the relevant claims.

 In short, the proposed Decree reflects the parties’ careful and informed assessment of the

relative merits of each other’s claims, while taking into consideration the costs, risks, and time

associated with litigating a case of this magnitude. As with any fair settlement, the United States,

the Plaintiff-Intervenors, Sunoco, and the public gain from the immediate and certain resolution

of the matter, while foregoing the opportunity to seek an unmitigated victory. See EEOC v.

Hiram Walker & Sons, 768 F.2d at 889.

The commenters, however, essentially assert that the proposed Decree is not

substantively fair, because they perceive the relief required under the Decree to be less than

adequate. Although the commenters recognize that the Consent Decree requires the installation

of substantial pollution reduction measures, they still claim it is inadequate and in one example

state, erroneously, that the relief would be required with or without the decree. This allegation is

simply not true. Indeed the decree brings certainty to the remedial landscape at Sunoco’s

refineries that otherwise could not be assured.

It is further apparent from their statements that the commenters believe that the Clean Air

Act regulations should apply in this case as if the United States had already prevailed on every

claim against Sunoco. That is simply not the case. The issue before the Court is the adequacy of

the Consent Decree, and by definition a Consent Decree embodies a settlement which, as with

any settlement, is the product of compromise in which, "in exchange for the saving of cost and

elimination of risk, the parties each g[a]ve up something they might have won had they

proceeded with the litigation . . . ." City of Jackson, 519 F.2d at 1152 (quoting United States v.
- 37 -

Armour & Co., 402 U.S. 673, 682 (1971)). The proposed settlement need only be compliant with

the applicable standards of review for Consent Decrees. 

The commenters have identified specific aspects of the proposed settlement that they

believe impact on the substantive fairness of the Consent Decree, and the United States will

address each of the specific contentions in the attached Appendix. However, it is important to

note that the commenters’ complaints regarding the perceived inadequacy of the proposed relief

in the present case are in most instances based on misinterpretation or mischaracterization of the

Consent Decree terms. When the full benefits provided by the Consent Decree are considered in

the context of the alternatives to settlement, the Consent Decree clearly meets the standards of

substantive fairness. 

B. The Decree Is Reasonable, Adequate and Consistent with the Goals of the

Relevant Environmental Statutes.

In determining whether the Decree is “reasonable, adequate, and consistent with the

goals of the governing statute,” courts have evaluated the following factors: “(1) the nature and

extent of potential hazards; (2) the availability and likelihood of alternatives to the Consent

Decree, (3) whether the Decree is technically adequate to accomplish the goal of cleaning the

environment; (4) the extent to which the Consent Decree furthers the goals of the statutes which

form the basis of the litigation; (5) the extent to which the Court’s approval of the Consent

Decree is in the public interest; and (6) whether the Consent Decree reflects the relative

strengths and weakness of the Government’s case against the Defendants.” BP Exploration, 167

F. Supp. 2d at 1053 (citing Akzo, 949 F.2d at 1436; Cannons, 899 F.2d at 89-90). 
- 38 -

The Decree should be considered reasonable and adequate for many of the same reasons

discussed above with respect to substantive fairness. The Decree provides specific, tailored

relief ensuring that emissions reductions of pollutants such as NOx,SO2, and benzene will occur

across Sunoco’s refining system. It obtains this relief in a time frame far shorter than could be

expected if the United States engaged in the alternative to settlement, i.e., complex and resourceintensive litigation of all potential claims.

Moreover, the substantial relief achieved through the Consent Decree is in the public

interest and consistent with the goals of the Clean Air Act. One of the primary purposes of the

Clean Air Act is to protect and enhance the quality of the Nation’s air resources so as to promote

the public health and welfare. 42 U.S.C. § 7401(b)(1). As discussed in detail above, the Consent

Decree will substantially reduce the annual emissions of NOx and SO2 from Sunoco’s refineries

both during and after the life of the Consent Decree. The Decree further requires enhanced

controls to reduce fugitive emissions from leaking equipment and benzene emissions from plant

operations. Sunoco also will perform supplemental environmental projects valued at a minimum

of $3.9 million, including projects that will benefit the communities in the vicinity of the Sunoco

refineries. All of these benefits will be achieved in the near term, on an enforceable schedule,

without the uncertainty of litigation involving each emission unit. The combined impact of this

settlement represents a significant advancement of the Clean Air Act goals. 

When evaluating whether a Consent Decree is in the public interest, “[t]he court should

bear in mind the flexibility of the public interest inquiry: the court’s function is not to determine

whether the resulting array of rights and liabilities is the one that will best serve society, but only

to confirm that the resulting settlement is within the reaches of the public interest.” United States
- 39 -

v. Microsoft Corp., 56 F.3d 1448, 1460 (D.C. Cir. 1995) (internal quotations omitted); U.S. v.

Oregon, 913 F.2d at 581 (“[T]he court need not require that the decree be ‘in the public’s best

interest’ if it is otherwise reasonable.”) (quoting Randolph, 736 F.2d at 529 (emphasis in

original)). While the Consent Decree reflects a compromise based on the technical and legal

judgment of the United States, the relief afforded by this settlement provides real benefits to the

citizens in the vicinity of the Sunoco refineries and real progress toward the Clean Air Act goals

of enhancing air quality and promoting public health and welfare. 

The commenters, however, have alleged that certain aspects of the Consent Decree are

unreasonable, and that the Decree does not provide adequate relief consistent with the public

interest and the goals of the relevant statutes. As with their arguments concerning substantive

fairness, many of these allegations arise from an incorrect interpretation of the Consent Decree’s

provisions. The United States will address each specific contention in the attached Appendix. 

V. THE COMMENTS TO THE PROPOSED CONSENT DECREE DO NOT 

PROVIDE A BASIS FOR REJECTING THE SETTLEMENT

As noted above, pursuant to 28 C.F.R. § 50.7, the United States published notice of the

proposed Decree for public comment and received three submissions in response. The United

States carefully reviewed and considered those comments. One comment was submitted by the

Community Labor Refining Tracking Committee (“CLRTC”), a citizen’s group located in

Pennsylvania, and directs its comments at the provision of the Consent Decree involving

Sunoco’s Philadelphia refinery. A second set of comments was provided jointly by Ohio Citizen

Action, Eastside-Oregon Environmental Group, the National Refinery Reform Campaign and

Environmental Integrity Project (“collectively referred to as the Ohio Citizen Group”) and
- 40 -

specifically references Sunoco’s refinery in Toledo, Ohio. A third comment was sent in by an

individual, B. Sachau, from Florham Park, NJ who criticizes only the size of the penalty. The

comments are attached to this memorandum. The comments address several topics including the

adequacy of the emission and monitoring requirements and the adequacy of the penalties. One

commenter suggests that this Court reject the settlement and reopen negotiations. Besides being

an inappropriate remedy by the Court as explained above, such a result would be disastrous as it

would lead to no better injunctive relief and longer delays in obtaining the corrective measures

that are essential to the environment.

In sum, the United States has carefully considered all of the comments received, and a

detailed response to each comment is presented in the attached Appendix. After a thorough

evaluation of the issues presented, the United States has concluded that none of the comments

warrants either a change to the settlement terms or the wholesale rejection of the proposed

Decree. 

VI. CONCLUSION

The agreement now before the Court was reached after the parties’ careful and informed

assessment of the merits of the case, the costs, risks and delays that litigation would entail, and

the value of an early settlement, including the significant environmental benefits that will accrue

from Sunoco commencing many of the comprehensive injunctive measures contained in the

proposed Decree immediately or within the first few years. As explained above, the proposed

settlement is fair, adequate and reasonable, and consistent with the goals of the Clean Air Act. 

Because the public comments submitted on the proposed Decree do not provide a basis for the
United States to withhold its consent to the settlement, the United States requests that this Court

approve and enter the proposed Consent Decree as a final judgment.

 Respectfully submitted,

THE UNITED STATES OF AMERICA

KELLY A. JOHNSON

Acting Assistant Attorney General

Environment and Natural Resources Division

U.S. Department of Justice

//s// Michael J. McNulty______________

MICHAEL J. McNULTY, Trial Attorney 

Environmental Enforcement Section

U.S. Department of Justice

P.O. Box 7611

Washington, D.C. 20044-7611

Phone: (202) 514-1210

Fax: (202) 514-4180

Attorney-in-Charge for the United States

PATRICK L. MEEHAN

United States Attorney

Eastern District of Pennsylvania

MARGARET L. HUTCHINSON

Assistant United States Attorney

Pennsylvania Bar No.

616 Chestnut Street, Suite 1250

Philadelphia, Pennsylvania 19106

OF COUNSEL:

BRUCE FERGUSSON

Attorney-Advisor

U.S. Environmental Protection Agency

1200 Pennsylvania Ave, NW

Washington, DC 20460
CERTIFICATE OF SERVICE

As per the Eastern District of Pennsylvania, Electronic Case Filing System, Attorney User

Manual, Procedural Order Rule 7(a) & (b), I hereby certify that I caused a copy of the foregoing 

UNITED STATES MOTION TO ENTER CONSENT DECREE

 and

MEMORANDUM IN SUPPORT OF UNITED STATES’

 MOTION TO ENTER CONSENT DECREE

to be served upon the parties and their counsel identified on the list below via Federal Express,

Priority Delivery or USPS First Class Priority, postage pre-paid, and/or direct Electronic

Notification to those recipients having consented to electronic service. 

September 26, 2005 //S// Michael J. McNulty

MICHAEL J. McNULTY

Trial Attorney

Environmental Enforcement Section 

U.S. Department of Justice

P.O. Box 7611

Washington, D.C. 20044

(202) 514-1210

michael.mcnulty@usdoj.gov
SERVICE LIST*

*Indicates Party to Action

PLAINTIFF INTERVENORS

THE COMMONWEALTH OF

PENNSYLVANIA*

JOSEPH A. FEOLA

REGIONAL DIRECTOR

SOUTHEAST REGIONAL OFFICE

COMMONWEALTH OF

PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL

PROTECTION

2 EAST MAIN STREET

NORRISTOWN, PA 19401-4915

T: 484.250.5816

F: 484.250.5943

DOUGLAS G. WHITE

ASSISTANT COUNSEL

SOUTHEAST REGIONAL OFFICE

COMMONWEALTH OF

PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL

PROTECTION

2 EAST MAIN STREET

NORRISTOWN, PA 19401

T: 484.250.5816

F: 484.250.5943

douwhite@state.pa.us

CITY OF PHILADELPHIA*

PATRICK K. O'NEILL

DIVISIONAL DEPUTY CITY SOLICITOR,

ENVIRONMENTAL LAW

CITY OF PHILADELPHIA LAW DEPT.

ONE PARKWAY BLDG. 16TH FLOOR

1515 ARCH STREET

PHILADELPHIA, PA 19102

T: 215.683.5172

patrick.o'neill@phila.gov

MORRIS FINE

DIRECTOR

PHILADELPHIA AIR MANAGEMENT

SERVICES

321 UNIVERSITY AVENUE, SECOND

FLOOR

PHILADELPHIA, PA 19104

T: 215.685.7585

THE STATE OF OKLAHOMA*

STEVEN A. THOMPSON

EXECUTIVE DIRECTOR

OKLAHOMA DEPARTMENT OF

ENVIRONMENTAL QUALITY

707 NORTH ROBINSON

P.O. BOX 1677

OKLAHOMA CITY, OKLAHOMA

73101-1677

T: 405-702-1000

F: 405-702-1001

THE STATE OF OHIO*

JOHN K. MCMANUS

ASSISTANT ATTORNEY GENERAL

ENVIRONMENTAL ENFORCEMENT

SECTION

30 EAST BROAD STREET, 25TH FLOOR

COLUMBUS, OHIO 43215-3400 

T: 614.466.3840

F: 614.752.5083

jkmcmanus@ag.state.oh.us
DEFENDANT

SUNOCO, INC.*

JOEL H. MANESS

SENIOR VICE-PRESIDENT

SUNOCO, INC. 

1801 MARKET STREET

PHILADELPHIA, PA 19103

T: 215.567.0249

THOMAS S. STAMMEL

SENIOR COUNSEL

SUNOCO INC. (R&M)

100 GREEN STREET 

P.O. BOX 26

MARCUS HOOK, PA 19103

T: 610.859.6363

COURTESY COPIES 

PATRICK L. MEEHAN

UNITED STATES ATTORNEY

EASTERN DISTRICT OF PENNSYLVANIA

615 CHESTNUT STREET SUITE 1250

PHILADELPHIA, PA 19106

T: 215. 861.8200

MARGARET L. HUTCHINSON

ASSISTANT UNITED STATES ATTORNEY

EASTERN DISTRICT OF PENNSYLVANIA

615 CHESTNUT STREET SUITE 1250

PHILADELPHIA, PA 19106

T: 215. 861.8200

BRUCE FERGUSSON 

2248A 

USEPA HEADQUARTERS 

ARIEL RIOS BUILDING 

1200 PENNSYLVANIA AVENUE, N. W. 

WASHINGTON, DC 20460 

202-564-1261 

fergusson.bruce@epa.gov

RHONDA JEFFRIES - CRAIG

ADMINISTRATIVE PROGRAMS DIRECTOR

OKLAHOMA DEPARTMENT OF

ENVIRONMENTAL QUALITY

707 N. ROBINSON

OKLAHOMA CITY, OK 73102

T: 405-702-1000

F: 405-702-1001

rhonda.jeffries@deq.state.ok.us

BERNIE TURLINSKI

OFFICE OF AIR PROTECTION

EPA REGION III

1650 ARCH STREET

MAIL CODE 3AF10

PHILADELPHIA, PA 19103

T: 215.814.2052
WILLIAM WAGNER

ASSOCIATE REGIONAL COUNSEL

EPA REGION 5

77 WEST JACKSON BLVD.

MAIL DROP C14J

CHICAGO, IL 60604=3590

T: 312.886.4684

wagner.william@epa.gov

RUSTY HERBERT

6RC-EA 

USEPA REGION 6 

1445 ROSS AVENUE 

SUITE 1200 

DALLAS, TX 75202-2733 

214-665-3197 

herbert.rusty@epa.gov

ROBERT BRAGER, ESQ.

BEVERIDGE & DIAMOND, P.C.

201 NORTH CHARLES STREET

SUITE 2210

BALTIMORE, MD 21201-4150

T: 410.230.3855

F: 410.230.3868

rdrager@bdlaw.com

AMY LINCOLN, ESQ.

BEVERIDGE & DIAMOND, P.C.

1350 I STREET N.W.

WASHINGTON, D.C. 20005-3111

T: 202.789.6000F

F: 202.789.6190

MARCIA JOHNSON

CIVIL CHIEF

OFFICE OF US ATTORNEY

NORTHERN DISTRICT OF OHIO

801 WEST SUPERIOR AVENUE

SUITE 400

CLEVELAND, OH 44113-1852

T: 216.622.3670

KEVIN G. LEITCH

CIVIL CHIEF

OFFICE OF US ATTORNEY

NORTHERN DISTRICT OF OKLAHOMA

110 W. SEVENTH ST.

SUITE 300 

TULSA, OK 74119

T: 918.382.2710

COMMENTERS

MICHAEL D. FLORENTINE, ESQ.

MID-ATLANTIC ENVIRONMENTAL LAW

CENTER obo/

THE LABOR REFINERY TRACKING

COMMITTEE

4601 CONCORD PIKE

PO BOX 7474.

WILMINGTON, DE 19803-0474

(302) 477-2182

SANDY BUCHANAN, EXECUTIVE DIRECTOR

TODD PINCOMBE, PROGRAM DIRECTOR

OHIO CITIZEN ACTION

614 W. SUPERIOR AVE.

SUITE 1200 

CLEVELAND, OH 44113 

EASTSIDE-OREGON ENVIRONMENTAL GROUP

1103 MAMBRINO RD.

OREGON, OH 43616

DENNY LARSON

DIRECTOR / GLOBAL COMMUNITY MONITOR

NATIONAL REFINERY REFORM CAMPAIGN 

222 RICHLAND AVE.

SAN FRANCISCO, CA 94110
KELLY HARAGAN, COUNSEL

EQUAL JUSTICE WORKS FELLOW 

ENVIRONMENTAL INTEGRITY 

PROJECT 

919 18TH ST., NW

SUITE 650

WASHINGTON, D.C. 20006

MS. BARBRA. SACHAU

15 ELM STREET

FLORHAM PARK, NJ 07932