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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

AIR ALLIANCE HOUSTON, et al.,

 Plaintiffs,

 v.

GINA McCARTHY, Administrator, United 

States Environmental Protection Agency, in 

her official capacity,

 Defendant.

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) Case No. 12-1607 (RMC)

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) CONSENT DECREE

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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, Plaintiffs 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 Pursuant to FED. R. CIV. P. 25(d), Administrator Gina McCarthy is automatically substituted for

former Acting Administrator Bob Perciasepe.

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under 40 C.F.R. Part 63, Subparts CC and UUU within 8 years of the promulgation of such 

standards, see Complaint ¶¶ 36-37, 87, 89 (Dkt. 1);

WHEREAS, Plaintiffs 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 is 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 environmental effect,” 

see Compl. ¶¶ 36-37, 87-88;

WHEREAS, the relief requested in the Complaint includes, among other things, an order 

from this Court to establish a date certain 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 rule or determination pursuant to section

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 Complaint in this action, Plaintiffs served notice on EPA as 

required by the CAA to inform EPA of Plaintiffs’ intent to initiate the present action;

WHEREAS, Plaintiffs and EPA (collectively, “the Parties”) have agreed to a settlement 

of this action without admission of any issue of fact or law, except as expressly provided herein; 

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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 Decree 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, Plaintiffs, 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 United 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 Complaint 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:

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(i) review and either sign a proposal to revise the emission standards 

in 40 C.F.R. Part 63, Subpart CC under CAA section 112(d)(6), 

42 U.S.C. § 7412(d)(6), or sign a proposed determination that 

revision of Subpart CC is not necessary under CAA section 

112(d)(6); 

(ii) review and 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 risk 

standards for the Petroleum Refineries source category subject to 

NESHAP Subpart CC 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);

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:

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(i) sign a final rule promulgating revisions to the emission standards 

in NESHAP Subpart CC under CAA section 112(d)(6), or sign a 

final determination 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 

not necessary under CAA section 112(d)(6); 

(iii) sign a final rule promulgating residual risk standards for the 

Petroleum Refineries source category subject to NESHAP 

Subpart 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 paragraph 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 necessary to correct any 

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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 Plaintiffs 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 terminated, and the action dismissed. Plaintiffs 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 consideration 

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 Parties concerning the interpretation or 

implementation of any aspect of this Consent Decree, the disputing party shall provide the other 

parties with a written notice outlining the nature of the dispute and requesting informal

negotiations. The Parties shall meet and confer in order to attempt to resolve the dispute. If the 

Parties 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 Decree and to consider any requests from Plaintiffs for costs of litigation, including 

attorney fees.

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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 Parties 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 Plaintiffs 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 entry of the Consent Decree is hereby extended until ninety (90)

days after this Consent Decree is entered by the Court. During this period, the Parties shall seek 

to resolve informally any claim for costs of litigation (including attorney fees), and if they 

cannot, Plaintiffs will file a motion for costs of litigation (including attorney fees) or a stipulation 

or motion to extend the deadline to file such a motion. EPA reserves the right to oppose any 

such request.

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12. Plaintiffs reserve the right to seek additional costs of litigation, including attorney 

fees, incurred subsequent to entry of this Consent Decree and arising from Plaintiffs’ 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 understood and agreed that this Consent Decree was jointly 

drafted by Plaintiffs and EPA. Accordingly, the Parties hereby agree that any and all rules of 

construction to the effect that ambiguity is construed against the drafting party shall be 

inapplicable in any dispute concerning the terms, meaning, or interpretation of this Consent 

Decree.

14. The Parties 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 received 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 that requests that the Court 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 Parties’ counsel as filed and listed in the docket of the above-captioned matter, at a 

future date):

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a. For Plaintiffs California Communities Against Toxics, Coalition For A Safe 

Environment, and Del Amo Action Committee:

Emma Cheuse

James Pew

Earthjustice

1625 Massachusetts Avenue, N.W., Suite 702 

Washington, D.C. 20036 

E-mail: echeuse@earthjustice.org

E-mail: jpew@earthjustice.org

b. For Plaintiffs 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 Plaintiffs 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 requirement 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.

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17. If for any reason the Court should decline to approve this Consent Decree in the 

form presented, this 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 Parties.

18. The undersigned representatives of Defendant EPA and 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 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 PLAINTIFFS:

Dated: __________________ /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 Communities 

Against Toxics, Coalition For 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

Washington, D.C. 20005

Tel: (202) 263-4446

jpeterson@environmentalintegrity.org 

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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 _____________________, 2013.

___________________________________

ROSEMARY M. COLLYER

United States District Judge

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