1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AIR ALLIANCE HOUSTON, et al. ,

Plaintiff s ,

v. GINA McCARTHY, Administrator, United States Environ mental Protection Agency, in her official capacity , Defendant. ) ) ) ) ) Case No. 12

- 1607 (RMC) ) ) ) ) CONSENT DECREE ) ) ) ) ) ) )

WHEREAS, on September 27, 2012, Plaintiffs Air Alliance Houston, California Communities Against Toxics, Coalition For A Safe Environment, Community In

- Power and Development Association, Del Amo Action Committee, Environmental Integrity Project, Louisiana Bucket Brigade, and Texas Environmental Justice Advocacy Services (collectively, “Plaintiffs”) filed the above

- captioned matter against Gina McCarthy , in her official capacity as Administrator of the United States Environmental Protection Agency (“EPA” or “Defendant”) ; 1 WHEREAS, Plaintiff s allege that EPA failed to perform its obligations under Clean Air Act (“CAA”) section 112(d)(6), 42 U.S.C. § 7412(d)(6), to “review, and revise as necessary (taking into account developments in practices, processes, and control technologies)” the national emission standards for hazardous air pollutants (“NESHAP”) for petroleum refineries

1 P ursuant to F ED
. R. C IV
. P. 25(d), Administrator Gina McCarthy is automatically substituted for forme r Acting Administrator Bob Perciasepe

. Case 1:12-cv-01607-RMC Document 15-1 Filed 08/02/13 Page 1 of 112 u nder 40 C

. F

. R

. P art 63 , S ubparts CC and UUU within 8 years of the promulgation of suc h standards, see Complaint ¶¶ 36

- 37, 87, 89 (Dkt. 1); WHEREAS, Plaintiff s allege that for Petroleum Refineries, 40 C.F.R. Part 63, Subpart
CC ( “NESHAP Subpart CC” or “Subpart CC” ) , and Petroleum Refineries: Catalytic Cracking Units, Catalytic Reforming Units, and Sulfur Recovery Units, 40 C.F.R. Part 63, Subpart UUU ( “NESHAP Subpart UUU” or “Subpart UUU” ) , EPA failed to perform its obligations under CAA section 112 (f)(2), 42 U.S.C. § 7412(f)(2), within 8 years of the promulgation of the section 112(d) emission standards identified above , to review and “promulgate standards [under section 112(f)(2)] for such category or subcategory if promulgation of such standards i s required in order to provide an ample margin of safety to protect public health . . . or to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmen tal effect,”

see Compl. ¶¶ 36

- 37, 87

- 88 ; WHEREAS, the r elief requested in the Complaint includes, among other things, an order from this Court to establish a date c ertain by which EPA must fulfill each of its listed CAA obligations for the above

- described categories of petroleum refineries , see Compl. at 27 ; WHEREAS, EPA has not promulgated a final rul e or determination pursuant to s ection 112(d)(6) or section 112(f)(2) for petroleum refineries subject to Subpart CC or Subpart UUU as required by the CAA ; WHEREAS, before filing the C omplaint in this action, Pla intiff s served notice on EPA as required by the CAA to inform EPA of Plaintiff s ’ intent to initiate the present action; WHEREAS, Plaintiff s and EPA (collectively, “the P arties”) have agreed to a settlement of this action without admission of any issue of f act or law, except as expressly provided herein; Case 1:12-cv-01607-RMC Document 15-1 Filed 08/02/13 Page 2 of 113 WHEREAS, the Parties , by entering into this Consent Decree, do not waive or limit any claim, remedy, or defense, on any grounds, related to any final EPA action; WHEREAS, the Parties consider this Consent D ecree to be an adequate and equitable resolution of all the claims in this matter and therefore wish to effectuate a settlement; WHEREAS, it is in the interest of the public, Plaintiff s , EPA, and judicial economy to resolve this matter without protracted litigation; WHEREAS, the Parties agree that this Court has jurisdiction over this matter pursuant to the citizen suit provision in CAA section 304(a)(2), 42 U.S.C. § 7604(a)(2), and that venue is proper in the U nited States District Court for the District of Columbia pursuant to 28 U.S.C. § 1391(e); WHEREAS, the Court, by entering this Consent Decree, finds that the Consent Decree is fair, reasonable, in the public interest, and consistent with the Clean Air Act;
NOW THEREFORE, before the taking of testimony, without trial or determination of any issues of fact or law, and upon the consent of the Parties , it is hereby ordered, adjudged and decreed that:
1. This Court has jurisdiction over the claims set forth in the Comp laint and may order the relief contained in the Consent Decree. Venue is proper in the United States District Court for the District of Columbia

. 2. For Petroleum Refineries, 40 C.F.R. Part 63, Subpart CC, and Petroleum Refineries: Catalytic Cracking Units, Catalytic Reforming Units, and Sulfur Recovery Units, 40 C.F.R. Part 63, Subpart UUU , the EPA Administrator shall:

a. No later than February 14, 2014 : Case 1:12-cv-01607-RMC Document 15-1 Filed 08/02/13 Page 3 of 114 (i) review a nd either sign a propos al to revise the emission standards
in 40 C.F.R. P art 63, S ubpar t CC under CA A section 112(d)(6), 42 U.S.C. § 7412(d)(6), or sign a propos ed determination that revision of Subpart CC is not necessary under CAA section 112(d)(6); (ii) review a nd either sign a proposal to revise the emission standards in 40 C.F.R. Part 63, Subpart UUU under CAA section 112(d)(6), 42 U.S.C. § 7412(d)(6), or sign a proposed determination that revision of Subpart UUU is not necessary under CAA section 112(d)(6); (iii) review and either sign a proposal to promulgate residual ri sk standards for the Petroleum Refineries source categor y subject to
NESHAP S ubpart CC under CAA section 112(f)(2), 42 U.S.C. § 7412(f)(2), or sign a propos ed determination that promulgation of such standards is not required under CAA section 112(f)(2); and (iv) review and either sign a proposal to promulgate residual risk standards for the Petroleum Refineries source category subject to NESHAP Subpart UUU under CAA section 112(f)(2), 42 U.S.C. § 7412(f)(2), or sign a proposed determination that promulgation of such standards is not required under CAA section 112(f)(2); b. No later than December 19, 2014: Case 1:12-cv-01607-RMC Document 15-1 Filed 08/02/13 Page 4 of 115 (i) sign a final rule pr omulgating revisions to the emission standards
in NESHAP Subpart CC under CAA section 112(d)(6) , or sign a final determi nation that revision of NESHAP Subpart CC is not necessary under CAA section 112(d)(6) ; (ii) sign a final rule promulgating revisions to the emission standards
in NESHAP Subpart UUU under CAA section 112(d)(6), or sign a final determination that revision of NESHAP Subpart UUU is

n ot necessary under CAA section 112(d)(6); (iii) sign a final rule promulgating residual risk standards for the Petroleum Refineries source categor y subject to NESHAP
S ubpart CC under CAA section 112(f)(2 ), or sign a final determination that promulgation of such standards is not required under CAA section 112(f)(2) ; and (iv) sign a final rule promulgating residual risk standards for the Petroleum Refineries source category subject to NESHAP Subpart UUU under CAA section 112(f)(2), or sign a final determination that promulgation of such standards is not required under CAA section 112(f)(2).
3. Within fifteen (15) days of signing each proposed rule or determination (or combination thereof) and each final rule or determination (or combination thereof) as described
in parag raph 2 of this Consent Decree, EPA shall deliver signed notice of each such action to the Office of the Federal Register for prompt publication. Following such delivery to the Office of the Federal Register, EPA shall not take any action (other than is ne cessary to correct any Case 1:12-cv-01607-RMC Document 15-1 Filed 08/02/13 Page 5 of 116 typographical errors or other errors in form) to delay or otherwise interfere with the publication of each such notice in the Federal Register. In addition, EPA shall provide a copy of each such notice to Plaintiff s within seven ( 7 ) days of delivery to the Office of the Federal Register.
4. Once EPA has completed all of the actions set forth above and after the final actions required by paragraph 2 have been published in the Federal Register , EPA may move to have this Consent Decree ter minated , and the action dismissed . Plaintiff s shall have thirty (30 ) days in which to respond to such motion.
5. The deadlines established by this Consent Decree may be modified (a) by written stipulation of EPA and Plaintiffs with notice to the Court, or (b) by the Court on motion of EPA for good cause shown pursuant to the Federal Rules of Civil Procedure, and upon con sideration of any response by Plaintiff ( s )

. Any other provision of this Consent Decree also may be modified by the Court following motion of an undersigned party for good cause shown pursuant to the Federal Rules of Civil Procedure and upon consideration of any response by a non - moving party.
6. In the event of a dispute between the P arties concerning the interpret ation or implementation of any aspect of this Consent Decree, the disputing par ty shall provide the other parties with a written notice outlining the nature of the dispute and requesting informal negotiations. The P arties shall meet and confer in order to attempt to resolve the dispute. If the
P arties are unable to resolve the dispute within fourteen (14) days after receipt of the notice, a party may petition the Court to resolve the dispute.
7. This Court shall retain jurisdiction over this matter to enforce the terms of this
Consent Dec ree and to consider any request s from Plaintiffs for costs of litigation, including attorney fees. Case 1:12-cv-01607-RMC Document 15-1 Filed 08/02/13 Page 6 of 117 8. Nothing in the terms of this Consent Decree shall be construed (a) to confer upon this Court jurisdiction to review any final rule or determination issued by EPA pursuant to this Consent Decree, (b) to confer upon this Court jurisdiction to review any issues that are within the exclusive jurisdiction of the United States Courts of Appeals under CAA section 307(b)(1), 42
U.S .C. § 7607(b)(1), or (c) to waive any claims, remedies, or defenses that the P arties may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1).
9. Nothing in this Consent Decree shall be construed to limit or modify any discretion accorded EPA by the Clean Air Act or by general principles of administrative law in taking the actions which are the subject of this Consent Decree, including the discretion to alter, amend, or revise any final actions promulgated pursuant to this Consent Decree. EPA’s obligation to perform each action specified in this Consent Decree does not constitute a limitation or modification of EPA’s discretion within the meaning of this paragraph.
10. Except as expressly provided herein, nothing in this Consent Decree shall be construed as an admission of any issue of fact or law . By entering into this Consent Decree, EPA and Plaintiff s do not waive or limit any claim, remedy, or defense, on any grounds, related to any final action EPA takes with respect to the actions addressed in this Consent Decree.
11. The deadline for filing a motion for costs of litigation (including attorney fees) for activities performed prior to e ntry of the Consent Decree is hereby extended until ninety ( 9 0 ) days after this Consent Decree is entered by the Court. D uring this period, the P arties shall seek to resolve informally any claim for costs of litigation (including attorney fees), and if they
cannot, Plaintiff s will file a motion for costs of litigation (including attorney fees) or a stipulation or motion to e xtend the deadline to file such a motion

. EPA reserves the right to oppose any such request. Case 1:12-cv-01607-RMC Document 15-1 Filed 08/02/13 Page 7 of 118 12. Plaintiff s reserve the right to seek additional costs of litigation, including attorney fees, incurred subsequent to entry of this Consent Decree and arising from Plaintiff s’ need to enforce or defend against efforts to modify its terms or the underlying schedule outlined herein, or for any other unforeseen continuation of this action. EPA reserves the right to oppose any such request.
13. It is hereby expressly unde rstood and agreed that this Consent Decree was jointly drafted by Plaintiff s and EPA. Accordingly, the P arties hereby agree that any and all rules of construction to the effect that ambiguity is construed against the drafting party shall be inapplicable i n any dispute concerning the terms, meaning, or interpretation of this Consent
Decree. 14. The P arties agree and acknowledge that before this Consent Decree is entered by the Court, EPA must provide notice of this Consent Decree in the Federal Register and an opportunity for public comment pursuant to CAA section 113(g), 42 U.S.C. § 7413(g). After this Consent Decree has undergone notice and comment, the Administrator and/or the Attorney General, as appropriate, shall promptly consider any written comments rec eived in determining whether to withdraw or withhold their consent to the Consent Decree, in accordance with CAA section 113(g). If the Administrator and the Attorney General do not elect to withdraw or withhold consent, EPA shall promptly file a motion t hat requests that the C ourt enter this
Consent Decree. 15. Any notices required or provided for by this Consent Decree shall be in writing, via electronic mail or certified mail, and sent to each of the following counsel (or to any new address of the P arties’ counsel as filed and listed in the docket of the above

- capti oned matter, at a future date): Case 1:12-cv-01607-RMC Document 15-1 Filed 08/02/13 Page 8 of 119 a. For Plaintiff s California Communities Against Toxics, Coalition For A Safe Environment, and Del Amo Action Committee : Emma Cheuse James Pew Earthjustice 1625 Mass achusetts Avenue, N.W., Suite 702 Washington, D.C. 20036 E

- mail: echeuse@earthjustice.org E

- mail: jpew@earthjustice.org

b. For Plaintiff s Air Alliance Houston, Community In

- Power and Development Association, Environmental Integrity Project, Louisiana Bucket Brigade, and Texas Environmental Justice Advocacy Services: Jennifer Peterson Sparsh Khandeshi Environmental Integrity Project 1 Thomas Circle, Suite 900 Washington, D.C. 20005 E

- mail: jpeterson@environmentalintegrity.org E

- mail: skhandeshi@environmentalintegrity.org

c. Michele L. Walter For Defendant EPA:
United States Department of Justice Environment & Natural Resources Division P.O. Box 7611 Washington, D.C. 20044 E

- mail: michele.walter@usdoj.gov
16. EPA and Plaintiff s recognize and acknowledge that the obligations imposed upon EPA under this Consent Decree can only be undertaken using appropriated funds legally available for such purpose. No provision of this Consent Decree shall be interpreted as or constitute a commitment or requ irement that the United States obligate or pay funds in contravention of the Anti

- Deficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law. Case 1:12-cv-01607-RMC Document 15-1 Filed 08/02/13 Page 9 of 1110 17. If for any reason the Court should decline to approve this Consent Decree in the form presented, t his agreement is voidable at the sole discretion of either party and the terms of the proposed Consent Decree may not be used as evidence in any litigation between the P arties.
18. The undersig ned representatives of Defendant EPA and Plaintiffs Air Alliance
Ho uston, California Communities Against Toxics, Coalition For A Safe Environment, Community In

- Power and Development Association, Del Amo Action Committee, Environmental Integrity Project, Louisiana Bucket Brigade, and Texas Environmental Justice Advocacy Se rvices certify that they are fully authorized by the party they represent to consent to the Court’s entry of the terms and conditions of this Consent Decree.

COUNSEL FOR PLAINTIFF S : Date d :

__________________ /s/______________________ EMMA C. CHEUSE , D.C. Bar No. 488201 JAMES S. PEW , D.C. Bar No. 448830 Earthjustice 1625 Massachusetts Ave., NW, Suite 702 Washington, D.C., 20036 Tel: (202) 667

- 4500 ext. 5220 or ext. 5214 echeuse@earthjustice.org jpew@earthjustice.org Counsel for Plaintiffs California Commu nities Against Toxics, Coalition F or A Safe Environment, and Del Amo Action Committee

/s/______________________ JENNIFER PETERSON , D.C. Bar. No. 978352 SPARSH KHANDESHI , D.C. Bar No. 1000899 Environmental Integrity Project 1 Thomas Circle, Suite 900 Wash ington, D.C. 20005 Tel: (202) 263

- 4446 jpeterson@environmentalintegrity.org Case 1:12-cv-01607-RMC Document 15-1 Filed 08/02/13 Page 10 of 1111 skhandeshi@environmentalintegrity.org Counsel for Plaintiffs Air Alliance Houston, Community In

- Power and Development Association, Environmental Integrity Project, Louisiana Bucket Brigade, and Texas Environmental Justice Advocacy Services

COUNSEL FOR DEFENDANT: Dated:

__________________ /s/______________________
ROBERT G. DREHER Acting Assistant Attorney General Environment & Natural Resources Division
MICHELE L. WALTER , D.C. Bar No. 487329 United States Department of Justice Environment & Natural Resources Division P.O. Box 7611 Washington, D.C. 20044 Tel: (202) 514

- 2795 E

- mail: michele.walter@usdoj.gov

Counsel for Defendant EPA

SO ORDERED on this _____ day of _____________________, 201 3

.

___________________________________ ROSEMARY M. COLLYER United States District Judge Case 1:12-cv-01607-RMC Document 15-1 Filed 08/02/13 Page 11 of 11