UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ENVIRONMENTAL INTEGRITY

PROJECT, and SIERRA CLUB,

Plaintiffs,

~~ Civil Case No. 1:15-CV-745 (ABJ)

GINA MCCARTHY, in her official

capacity as Administrator, United States

Environmental Protection Agency,

Defendant.

CONSENT DECREE

WHEREAS, Plaintiffs Environmental Integrity Project and Sierra Club (collectively,

"Plaintiffs") filed this action 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 an

administrative petition submitted by Plaintiffs in October 2014 requesting that EPA object to a

revised CAA Title V permit issued by the Texas Commission on Environmental Quality to the

Southwestern Electric Power Company for operation of the H.W. Pirkey Power Plant in Harrison

County, Texas ("Pirkey Petition");

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

the above-captioned matter without expensive and protracted litigation;

WHEREAS, the Parties consider this Consent Decree to be an adequate and equitable

resolution of the claims in the above-captioned matter;
WHEREAS, the Court, by entering this Consent Decree, finds that the Consent Decree is

fair, reasonable, in the public interest, and consistent with the CAA, 42 U.S.C. §§ 7401 et seg:;

NOW THEREFORE, before the taking of testimony, without trial or determination of

any issue of fact or law, and upon the consent of the Parties, it is hereby ORDERED,

ADJUDGED, and DECREED that:

This Court has subject matter jurisdiction over the claims set forth in the

Complaint and to order the relief contained in this Consent Decree. Venue is proper in the

United States District Court for the District of Columbia.

2. On or before February 12, 2016, EPA shall sign a response to the Pirkey Petition,

pursuant to 42 U.S.C. § 7661d(b)(2).

Following signature of such response to the Pirkey Petition, EPA shall

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

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.

4. If EPA's response includes the granting of any portion of the Pirkey Petition in

whole or in part, EPA shall promptly transmit its response to the Texas Commission on

Environmental Quality.

The deadline for filing a motion for costs of litigation, including attorneys' fees,

incurred prior to entry of this Consent Decree is hereby extended until sixty (60) days after the

entry of this Consent Decree by this Court. During this time, the Parties shall seek to resolve

informally any claim for costs of litigation, including attorneys' fees, and if they cannot, will

submit that issue to this Court fir resolution. The United States daes not waive cr limit any

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defenses it may have to such claim. This Court shall retain jurisdiction to resolve any requests

for costs of litigation, including attorneys' fees.

6. Any provision of this Consent Decree may be modified by (a) written stipulation

of the Parties with notice to the Court, or (b) by the Court following motion of any party to this

Consent Decree, pursuant to the Federal Rules of Civil Procedure, and upon consideration of any

response by the non-moving party.

7. The Parties recognize that the possibility exists that a lapse in the appropriations

that fund EPA could delay compliance with the timetables contained in this Consent

Decree. Should a delay occur due to a lapse in appropriations, any resulting failure to meet the

timetables set forth herein shall not constitute a failure to comply with the terms of this Consent

Decree, and any deadlines occurring within one hundred twenty (120) days of the termination of

the delay shall be automatically extended one day for each day of the delay. Nothing in this

paragraph shall preclude EPA from seeking an additional extension through modification of this

Consent Decree pursuant to Paragraph 6.

8. Plaintiffs and EPA shall not challenge the terms of this Consent Decree or this

Court's jurisdiction to enter and enforce this Consent Decree.

9. Plaintiffs and EPA agree that this Consent Decree 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 Environmental Inte~ty Project, et al. v.

McCarthy, Civil Case No. 1:15-CV-745 (ABJ) (D.D.C.), except as provided in Paragraph 5 of

this Consent Decree. Plaintiffs therefore discharge and covenant not to sue the United States,

including EPA, for any such claims.

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10. Nothing in this Consent Decree 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 Consent Decree, including discretion to alter, amend, or

revise any responses or final actions contemplated by this Consent Decree. EPA's obligation to

perform the actions specified in Paragraphs 2, 3 and 4 of this Consent Decree by the time

specified therein does not constitute a limitation or modification of EPA's discretion within the

meaning of this paragraph.

11. Nothing in this Consent Decree 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, related to any final action

EPA may take with respect to the Pirkey Petition.

12. Nothing in this Consent Decree shall be construed to confer upon the District

Court jurisdiction to review any final decision made by EPA pursuant to this Consent Decree.

Nothing in this Consent Decree 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)(1), 42 U.S.C. § 7607(b)(1). Nothing in the terms of

this Consent Decree shall be construed to waive any remedies or defenses the Parties may have

under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1).

13. The obligations imposed upon EPA under this Consent Decree can only be

undertaken using appropriated funds. No provision of this Consent Decree shall be interpreted

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

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

14. Any notices required or provided for by this Consent Decree shall be made in

writing and sent to each of the following:
For Plaintiffs:

Ilan Levin

Environmental Integrity Project

707 Rio Grande, Suite 200

Austin, TX 78701

Tel: (512) 637-9479

ilevin@environmentalintegrity. org

For Defendants:

Chief, Environmental Defense Section

Re: DJ # 90-5-2-4-20410

Environment and Natural Resources Division

United States Department of Justice

P.O. Box 7611

Washington, DC 20044

Tel: (202) 514-2219

Fax: (202) 514-8865

Jonathan Skinner-Thompson

Office of the General Counsel

U.S. Environmental Protection Agency

WJC North, MC 2344A

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

Tel: (202) 564-0291

Skinner-Thompson. Jonathan@epa. gov

15. 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

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

negotiations. If the Parties cannot reach an agreed-upon resolution within twenty (20) business

days after receipt of the notice, any party may move the Court to resolve the dispute.

16. No motion or other proceeding seeking to enforce this Consent Decree or for

contempt of Court shall be filed unless the Plaintiffs have followed the procedure set forth in

Paragraph 15.

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17. The Court shall retain jurisdiction to determine and effect compliance with this

Consent Decree. When EPA's obligations under Paragraphs 2 through 4 of this Consent Decree

have been completed, and Plaintiffs' claim for costs of litigation has been resolved pursuant to

Paragraph 5, the above-captioned matter shall be dismissed with prejudice. The Parties may

either jointly notify the Court that the Consent Decree should be terminated and the case

dismissed, or EPA may so notify the Court by motion. If EPA notifies the Court by motion, then

Plaintiffs shall have twenty (20) days in which to respond.

18. The Parties agree and acknowledge that before this Consent Decree can be

finalized and entered by the Court, EPA must provide notice in the Federal Register and an

opportunity for comment pursuant to CAA section 113(g), 42 U.S.C. § 7413(g). EPA shall

promptly submit a public notice of this Consent Decree to the Federal Register for publication

and public comment after lodging this Consent Decree with the Court. After this Consent

Decree 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 Consent Decree, in accordance with

section 113(g) of the CAA. If the federal government elects not to withdraw or withhold consent

to this Consent Decree, the Parties promptly shall file a motion that requests the Court to enter

this Consent Decree. If for any reason the Court does not enter the Consent Decree, the

obligations set forth in this Consent Decree are null and void.

19. It is hereby expressly understood and agreed that this Consent Decree 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, ar interpretation ai this Consent Decree.
20. The undersigned representatives ofeach Party certify that they ara futly

authorized by the Party they represent to bind that Party to the terms of this Consent Decree.

SO ORDERED on this _day of , 201 S.

HON. AMY BERMAN JACKSON

United States District Judge

SO AGREED:

FOR PLAINTIFFS ~ '

Ilan Levin

Environmental Integrity Project

?0? Rio Grande, Suite 200

Austin, TX 78701

Tet: (5I2) 637-9479

ilevin@enviranrnental integrity.org

c ~ ~ ~.~ Dated: I

FOR DEFENDANT JOHN C. CRUDEN

Assistant Attorney General

Environment &Natural Resources Division

.—Q.l

Heather E. Gange

United States Department of Justice

Environmental Defense Section

P.O. Box 7611

Washington, DC 20444

Tel: {202) 514-4206

Fax: (202} 514-8865

Heather.Gange@usdoj.gov

Dated: ~U~(p1 ~.0~ s~

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