IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BCCA APPEAL GROUP, TEXAS

ASSOCIAnON OF BUSINESS, AND

TEXAS OIL AND GAS ASSOCIATION

Plaintiffs,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, LISA P.

JACKSON, in her official capacity as

Administrator ofthe United States

Environmental Protection Agency, and

Lawrence E. Starfield, in his official

capacity as Acting Regional Administrator

for Region VI ofthe United States

Environmental Protection Agency,

Defendants.

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§ Case No.3-08CV1491-G

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SETTLEMENT AGREEMENT

..- WHEREAS, Plaintiffs BCCA Appeal Group, Texas Association of Business, and Texas

Oil and Gas Association (collectively "Plaintiffs"), filed a Complaint in this action on August 25,

2008, against Defendants the United States Environmental Protection Agency, the Administrator

of the United States Environmental Protection Agency, and the Regional Administrator for

Region VI ofthe United States Environmental Protection Agency (collectively "EPA"); and

WHEREAS, Plaintiffs' Complaint alleges that EPA has. failed to perform

nondiscretionary duties pursuant to Section 110(k)(1 )(B) and (k)(2) ofthe federal Clean Air Act

("CAA"), 42 U.S.C. § 740l(k)(l)(B) and (k)(2), to take approval action on numerous Texas States
Implementation Plan ("SIP") air quality revisions by the statutory deadline (collectively the "SIP

Revisions"); and

WHEREAS, Plaintiffs and EPA (collectively the "Parties") have entered into a Consent

Decree that, when entered by the court, will govern the resolution of certain of Plaintiffs' claims;

and

WHEREAS, in order to avoid protracted and costly litigation and to preserve judicial

resources the Parties wish to implement this Settlement Agreement ("Agreement") to govern the

resolution ofmatters not addressed in the Consent Decree;

NOW, THEREFORE, the Parties, intending to be bound by this Agreement, hereby

stipulate and agree as follows:

1. Concurrently with the lodging of the proposed Consent Decree, the Parties shall

notify the court of this Agreement and request that this case be stayed in its entirety pending

completion of, and subject to, the terms ofthe Consent Decree and this Agreement.

2. By the dates set forth in the Schedule .attached hereto as Exhibit A, EPA shall sign

for publication in the Federal Register a notice(s) of final rulemaking to approve or disapprove, . .,'

in whole or in part, the SIP Revisions identified on that Exhibit. EPA shall promptly deliver the

notice(s) to the Office of the Federal Register for publication. EPA shall mail a copy of the

notice(s) ofrulemaking to Plaintiffs within five'business days following signature.

3. If EPA fails to take action as set forth in Paragraph 2, Plaintiffs' sole remedy

under this Agreement shall be the right to ask the court to lift the stay ofproceedings with regard

to claims governed by this Agreement and establish a schedule for further proceedings.

4. The parties agree and acknowledge that before this Agreement is final, 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 will expeditiously prepare such notice and forward it to the

Office of Federal Register after execution of this Agreement. After this Agreement has

undergone an opportunity for notice and comment, the Administrator of EPA ("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 Agreement, in accordance with

CAA section 113(g), 42 U.S.C. § 7413(g). Once the Administrator and/or the Attorney General

elect whether or not to withdraw or withhold their consent to this Agreement, EPA shall provide

written notice to Plaintiffs as expeditiously as possible. This Agreement shall become final on

the date that EPA provides such notice to Plaintiffs. If EPA does not provide such notice within

90 days after notice of the Agreement is published in the Federal Register, Plaintiffs' sole

remedy shall be the right to ask the Court to lift the stay of proceedings with regard to the claims

governed by this Agreement and establish a schedule for further proceedings.

5. The commitments of EPA in this Settlement Agreement are subject to the

availability of appropriated funds. No provision of this Agreement shall be interpreted as or

constitute a requirement that EPA obligate or pay funds in contravention of the Anti-Deficiency < • • '

Act, 31 U.S.C. § 1341, or any other applicable federal statute.

6. Nothing in this Agreement shall be construed to limit or modify the discretion

accorded EPA by the Clean Air Act or by general principles of administrative law in taking the

actions referred to in Paragraph 2.

7. Nothing in this Agreement shall be considered to limit or modify any discretion

EPA may have to alter, amend, or revise the actions taken pursuant to Paragraph 2 of this

Agreement.
8. Nothing in this 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, related to any fmal action

EPA may take pursuant to Paragraph 2 above.

9. Except as explicitly set forth in this Agreement, the Parties retain all rights,

claims, and defenses they may otherwise have.

10. Any notices required or provided for by this Agreement shall be in writing,

effective upon receipt, and sent to the following:

For Plaintiffs:

Matthew L. Kuryla

Baker Botts LLP

One Shell Plaza

910 Louisiana Street

Houston, Texas 77002

telephone: (713).229-1234

email: matthew.kuryla@bakerbotts.com

For Defendants:

Victoria Johnson

United States Environmental Protection Agency

Region VI

Office ofRegional Counsel

1445 Ross Avenue, Suite 1200

Dallas, TX 75202-2733

telephone: (214) 665-8027

email: johnson.victoria®epa.gov

Scott Jordan, Attorney,

Air and Radiation Law Office

Office of General Counsel

U.S. Environmental Protection Agency

1200 Pennsylvania Ave., NW.

Washington, D.C. 20460

telephone: (214) 564-7508

email: jordan.scott@epa.gov

.',
Angeline Purdy

Environmental Defense Section

Environment and Natural Resources Division

United States Department ofJustice

P.O. Box 23986

Washington, D.C. 20026-3986

Attn: DJ # 90-5-2-4-16726

telephone: (202) 514-0996

Email: angeline.purdy@usdoj.gov

or such other person as either party may subsequently identify in writing to the other party.

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

authorized by the Party that they represent to bind that Party to the terms ofthis Agreement.

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SO AGREED:

For Plaintiffs

Matthew L. Kury a

Baker Botts LLP

One Shell Plaza

910 Louisiana Street

Houston, Texas 77002

telephone: (713) 229-1234

fax: (713) 229-2714

matthew.kuryla@bakerbotts.com

Dated:~

For Defendants

2/ !

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Angeline Purd

Environmental ense Se ion

United States Department of

Post Office Box 23986

Washington, D.C. 20026-3986

telephone: (202) 514-0996

fax: (202) 514-8865

angeline.purdy@usdoj . gov

Dated: _
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BCCA APPEAL GROUP, TEXAS

ASSOCIATION OF BUSINESS, AND

TEXAS OIL AND GAS ASSOCIATION

Plaintiffs,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, LISA P.

JACKSON, in her official capacity as

Administrator ofthe United States

Environmental Protection Agency, and

Lawrence E. Starfield, in his official

capacity as Acting Regional Administrator

for Region VI ofthe United States

Environmental Protection Agency,

Defendants.

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Case No.3-08CVI491-G

EXHIBIT A TO SETTLEMENT AGREEMENT

RULE ACTION

DATE

Public Participation Chapter 39, 55 (Rule Project No. 88030-039- November 30, 2009

AD and 99030-039-AD)(submittal of 12/15/95, as modified

7/22/98, 10/25/99).

Emissions Event and Maintenance, Startup and Shutdown (MSS) October 31,2010

revisions to Chapter 101 Subchapter F

1993 Recodification ofChapter 116 October 31,2011

NSR Rules Revisions; 112(g) Revisions (Rule Project No. 98001- October 31, 2011

116-AI) (excepting those portions ofthe rule acted on at earlier

dates with the flexible permit, qualified facilities, public

participation, and permit renewals actions; see Exhibit 1 to

Consent Decree in the above-captioned matter).

Emergency and Temporary Orders (Rule Project No. 97142-035- December 31, 2012

AD), and Revisions to Provisions for Emergency Orders (Rule

Project No. 2005-070-035-LS).

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Air Permits (SB 766) - Phase I (Rule Project No. 99029A-116- December 31, 2012

AI).

Air Permits (SB 766) - Phase II (Rule Project No. 99029B-116- December 31, 2012

AI).

..'