SETTLEMENT AGREEMENT 

WHEREAS, Plaintiffs Environmental Integrity Project and Sierra Club ("Plaintiffs") 

filed Civil Action No. 14-1196-CRC (D.D.C.) pursuant to section 304(a)(2) of the Clean Air Act 

("CAA"), 42 U.S.C. § 7604(a)(2), alleging that Defendant Gina McCarthy, in her official 

capacity as Administrator, United States Environmental Protection Agency ("EPA"), failed to 

perform a non-discretionary duty under CAA § 505(b)(2), 42 U.S.C. § 7661d(b)(2), to grant or 

deny within 60 days three petitions ("Title V Petitions") submitted by Plaintiffs requesting that 

EPA object to operating permits ("Permits") issued by the Texas Council on Environmental 

Quality ("TCEQ") to Luminant Generating Company. See Petition for Objection to Texas Title 

V Permit No. 065 for the Operation ofthe Big Brown Steam Electric Station, Freestone County, 

Texas (Mar. 3, 2014) (Exhibit I) ("Big Brown Petition"); Petition for Objection to Texas Title V 

Permit No. 064 for the Operation of the Monticello Steam Electric Station, Titus County, Texas 

(Mar. 3, 2014) (Exhibit 2) ("Monticello Petition"); and Petition for Objection to Texas Title V 

Permit No. 053 for the Operation of the Martin Lake Steam Electric Station in Rusk County, 

Texas (Feb. 24, 2014) (Exhibit 3) ("Martin Lake Petition"). 

WHEREAS, Plaintiffs and EPA ("the Parties") wish to effect a settlement of Civil Action 

No. 14-1 I 96-CRC (D.D.C.) without expensive and protracted litigation; 

WHEREAS, the Parties consider this Settlement Agreement to be an adequate and 

equitable resolution of the claims in Civil Action No. 14-1196-CRC (D.D.C.); 

NOW THEREFORE IT IS AGREED that: 

1. By no later than January 23, 2015, EPA shall sign a response addressing the 

following issues from Plaintiffs' Title V Petitions: 
a. Big Brown Petition, Objection V.A (pp. 7-14); 

b. Monticello Petition, Objection V.A (pp. 5-11); and 

c. Martin Lake Petition, Objection V.A (pp. 5-9). 

2. By no later than May 15, 2015, EPA shall sign a response addressing the 

following issues from Plaintiffs' Title V Petitions: 

a. Big Brown Petition, Objection V.D (pp. 17-20); 

b. Monticello Petition, Objection V.B (pp. 11-14); and 

c. Martin Lake Petition, Objection V.B (pp. 9-14). 

3. EPA shall have no obligation to respond to any issue in Plaintiffs' Title V 

Petitions except those specifically identified above. Within 60 days after execution of this 

Settlement Agreement by all Parties, Plaintiffs shall send a letter to the EPA Administrator 

withdrawing the remaining portions of their Big Brown Petition, namely: 

a. Big Brown Petition, Objection V.B (pp. 14-15); and 

b. Big Brown Petition, Objection V.C (pp. 15-17). 

This letter may speciry that this withdrawal is contingent upon EPA's performance of its 

obligations under Paragraphs 1, 2, and 4. 

4. Following signature of such responses to Plaintiffs' Title V Petitions, EPA shall 

expeditiously deliver notice of EPA's response to the Office of the Federal Register for review 

and publication. Following such transmission, EPA shall not take any step (other than as 

necessary to correct any typographical error or other errors in form) to delay or otherwise 

interfere with publication of such notice in the Federal Register. 

5. If EPA's response to Plaintiffs' petition includes the granting of any portion of the 

petition in whole or in part, EPA shall also promptly transmit the response to TCEQ. 

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6. EPA agrees to pay Plaintiffs' costs of litigation, including attorneys' fees, 

pursuant to 42 U.S.C. § 7604(d). Within 30 days of signature of this Settlement Agreement by 

all Parties, Plaintiffs will provide EPA with a written request for costs of litigation, including 

attorneys' fees, incurred prior to execution of this Settlement Agreement. EPA and Plaintiffs 

shall use good faith efforts to resolve informally any claim for costs oflitigation, including 

attorneys' fees. 

7. Any provision of this Settlement Agreement may be modified by written 

agreement of the Parties. 

8. The Parties recognize that the possibility exists that circumstances outside the 

reasonable control of EPA could delay compliance with the timetables contained in this 

Settlement Agreement. Such situations include, but are not limited to, a government shut-down 

such as occurred in 1995,1996, and 2013, or catastrophic environmental events requiring 

immediate and/or time-consuming response by EPA. Should a delay occur due to such circumstances, any resulting failure to meet the timetables set forth herein shall not constitute a failure 

to comply with the terms ofthis Settlement Agreement, and the Parties will meet and confer 

about the extension of any deadlines occurring within one hundred twenty (120) days of the 

termination of the delay. Such dates shall be extended no less than one day for each day of the 

delay. EPA will provide Plaintiffs with notice as soon as is reasonably possible under the 

circumstances in the event that EPA invokes this term of the Settlement Agreement and will 

provide Plaintiffs with an explanation of EPA's basis for invoking this term. Plaintiffs may 

challenge the invocation of this term of this Settlement Agreement by filing a new complaint 

pursuant to Paragraph 11 below. EPA shall bear the burden of justifying its invocation of this 

term. 

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9. The Parties agree that, within 15 days after all Parties have signed the Settlement 

Agreement, Plaintiffs shall file a motion for voluntary dismissal without prejudice of Civil 

Action No. 14-1196 (D.D.C.), in accordance with Rule 41(a) of the Federal Rules of Civil 

Procedure. 

lOIn the event of a disagreement between the Parties concerning the interpretation or 

performance of any aspect of this Settlement Agreement, the dissatisfied Party shall provide the 

other Party with written notice of the dispute and a request for negotiations. The Parties shall 

meet and confer in order to attempt to resolve the dispute within 30 days of the written notice, Of 

such time thereafter as is mutually agreed. If the Parties are unable to resolve the dispute within 

60 days of such meeting, Plaintiffs' sole remedy is to file a new lawsuit pursuant to Paragraph II 

below. EPA does not waive or limit any defense relating to such litigation. The Parties agree 

that contempt of court is not an available remedy under this Settlement Agreement or in Civil 

Action No. 14-1196 (D.D.C.). 

II. If EPA fails to take action as set forth in Paragraphs I, 2, or 4 above, the 

Plaintiffs' sole remedy under this Settlement Agreement shall be to file a new complaint 

asserting the claim(s) related to any action required by this Settlement Agreement that EPA did 

not perform by the deadlines established above. EPA does not waive or limit any defense 

relating to such litigation. The Parties agree that contempt of court is not an available remedy 

under this Settlement Agreement 

12. Plaintiffs and EPA agree that performance ofthe obligations described in 

Paragraphs I, 2, 3, 4, and 6 shall constitute a complete and final settlement of all claims that 

Plaintiffs have asserted against the United States, including EPA, under any provision of law in 

connection with Civil Action No. 14-1 I 96-CRC (D.D.C.). Plaintiffs therefore discharge and 

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covenant not to sue the United States, including EPA, for any such claims except as authorized 

by Paragraph 11 above. 

13. Nothing in this Settlement Agreement shall be construed to limit or modifY any 

discretion accorded EPA by the CAA or by general principles of administrative law in taking the 

actions which are the subject of this Settlement Agreement, including discretion to alter, amend, 

or revise any responses or final actions contemplated by this Settlement Agreement. EPA's 

obligation to perform the actions specified in Paragraphs 1 and 2 by the time specified therein 

does not constitute a limitation or modification of EPA's discretion within the meaning ofthis 

paragraph. 

14. Nothing in this Settlement Agreement shall be construed as an admission of any 

issue of fact or law nor to waive or limit any claim or defense, on any grounds, the Parties may 

have related to any final action EPA may take with respect to these Petitions. 

15. Nothing in this Settlement Agreement shall be construed to confer upon the 

District Court jurisdiction to review any issues that are within the exclusive jurisdiction of the 

United States Court of Appeals pursuant to CAA section 307(b)(l), 42 U.S.c. § 7607(b)(l). 

Nothing in the terms of this Settlement Agreement shall be construed to waive any remedies or 

defenses the Parties may have under CAA sections 307(b)(1) and 505, 42 U.S.C. §§ 7607(b)(1), 

7661d, in any action before the United States Court of Appeals. 

16. The obligations imposed upon EPA under this Settlement Agreement can only be 

undertaken using appropriated funds. No provision of this Settlement Agreement shall be 

interpreted as or constitute a commitment or requirement that EPA obligate or pay funds in 

contravention ofthe Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable provision of 

law. 

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17. Any notices required or provided for by this Settlement Agreement shall be made 

in writing and sent to the following: 

For Plaintiffs: 

Ilan Levin 

Environmental Integrity Project 

1002 West Avenue 

Suite 305 

Austin, TX 78701 

Tel: (512) 637-9479 

Fax: (512) 584-8019 

ilevin@environmentalintegrity.org 

For Defendants: 

Eileen McDonough 

United States Department of Justice 

Environmental Defense Section 

P.O. Box 7611 

Washington, D.C. 20044 

Tel: (202) 514-3126 

Fax: (202) 514-8865 

eileen.mcdonough@usdoj.gov 

Karen Bennett Bianco 

U.S. Environmental Protection Agency 

Office of General Counsel 

1200 Pennsylvania Ave., N.W. 

Washington, D.C. 20460 

Tel: (202) 564-3298 

bianco.karen@epa.gov 

Richard Bartley 

U.S. Environmental Protection Agency 

Office of Regional Counsel, Region 6 

1445 Ross Avenue 

Suite 1200 

Mail Code: 6RC 

Dallas, TX 75202-2733 

Tel: (214) 665-8046 

Bartley.richard@Epagov 

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18. The Parties agree and acknowledge that before this Settlement Agreement 

becomes fmal and binding upon EPA, EPA must provide notice of this Settlement Agreement in 

the Federal Register and an opportunity for comment pursuant to CAA section 113(g), 42 U.S.C. 

§ 7413(g). After the Assistant Attorney General of the Environment and Natural Resources 

Division has authorized publication of notice of this Settlement Agreement, EPA will 

expeditiously transmit the appropriate notice to the Office of the Federal Register. After this 

Settlement Agreement has undergone an opportunity for notice and comment, the Administrator 

and/or the Attorney General, as appropriate, shall promptly consider any such written comments 

in determining whether to withdraw or withhold consent to this Settlement Agreement, in 

accordance with section 113(g) ofthe CAA. If the federal government elects not to withdraw or 

withhold consent to this Settlement Agreement, EPA will expeditiously provide written notice of 

that election to Plaintiffs. 

19. It is hereby expressly understood and agreed that this Settlement Agreement was 

jointly drafted by Plaintiffs and EPA and 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 Settlement Agreement. 

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20. The undersigned representatives of each Party certify that they are fully 

authorized by the Party they represent to bind that Party to the terms of this Settlement 

Agreement. 

SO AGREED: 

FOR PLAINTIFFS 

FOR DEFENDANTS 

dlQb{j.Le~vin~·/V"~--7~i:..:::=---./ Environmental Integrity Project 

1 002 West Avenue 

Suite 305 

Austin, TX 78701 

Tel: (512) 637-9476 

Fax: (512) 584-8019 

ilevin@environmentalintegrity.org 

Dated: 

SAM HIRSH 

Acting Assistant Attorney General 

Environment & Natural Resources Division 

Eileen T. McDonough 

United States Department of Justice 

Environmental Defense Section 

P.O. Box 7611 

Washington, D.C. 20044 

Tel: (202) 514-3126 

Fax: (202) 514-8865 

eileen.mcdonough@usdoj.gov 

Dated: ________ _ 

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