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AUDIT AGREEMENT

FOR TEXAS FLEXIBLE PERMIT HOLDERS

between the

Environmental Protection Agency

and

[Audit Participant]

Whereas, the United States Environmental Protection Agency (“EPA”) recognizes the 

value to Government Industry, and the Public, of clearly defined emission, monitoring, 

and reporting obligations under federal law for sources currently regulated under the 

Texas flexible permit program.

Whereas, EPA has exercised its enforcement discretion to create a voluntary Audit 

Program designed to allow Texas flexible permit holders to establish and/or identify

federally-enforceable Emission Unit Requirements, as the term is defined herein, for 

inclusion in federal Clean Air Act (“CAA”) Title V permits, and appropriate federallyenforceable non-Title V permits. See ___________ (“Program Notice”).

Whereas, the Texas Commission on Environmental Quality (“TCEQ”) is the authorized

permitting entity for the State of Texas, providing guidance on Texas permitting and 

regulations, and processing permit applications filed pursuant to the Consent Agreement 

and Final Order (“CAFO”) entered as part of this Audit Program. 
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Whereas, EPA and _______ (“Audit Participant”) intend to enter into a CAFO

memorializing the Audit Participant’s commitment to seek the inclusion of agreed upon 

Emission Unit Requirements in both Title V and appropriate federally-enforceable nonTitle V permits.

Whereas, EPA is offering a release and covenant not to sue for those alleged violations 

identified in the CAFO.

Whereas EPA and the Audit Participant (the “Parties”) desire to enter into and be bound 

by the terms of this “Audit Agreement for Texas Flexible Permit Holders”

(“Agreement”).

Now, therefore, in consideration of the above, EPA and the Audit Participant agree as 

follows:

I. Applicability 

1. This Agreement shall apply to and be binding upon EPA and the Audit 

Participant, including but not limited to, its officers, directors, agents, servants, 

employees, successors, and assigns. The Audit Participant shall give notice of 

this Agreement to any successor in interest prior to the transfer of the Facility or 

any ownership interest in any Emission Source regulated under the Texas flexible 

permit.
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II. Representations

2. The Audit Participant represents that:

a. The facility that shall be subject to the terms of this Agreement is _____ and is 

located at ______ (“Facility”).

b. It is the owner and/or operator of the Facility.

c. It is submitting this executed Agreement to EPA within ___ days of the Audit 

Program Notice.

III. General Provisions

3. For purposes of this Agreement and any proceeding, without trial or any 

adjudication of facts, the Audit Participant admits that EPA has jurisdiction over 

the subject-matter of the terms of this Agreement and any materials submitted to 

EPA pursuant to this Agreement.

4. The auditor’s identification of potential areas of noncompliance pursuant to this 

Agreement shall not constitute an admission of any violation of the CAA or any

other environmental requirements for purposes of this Agreement or any other 

civil, criminal, or administrative proceeding.

5. No later than 30 days prior to the closing date of a transfer of the facility to 

another party , the Audit Participant shall provide written notice and a copy of this 
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Agreement to each party accepting transfer of the Facility. Such notice shall 

include this Agreement and any materials developed pursuant to this Agreement. 

Further, the Audit Participant shall notify EPA in writing of such a transfer of the 

Facility at least 10 days prior to such transfer, including identification of the 

purchaser and the Facility. 

6. EPA will place executed Audit Agreements on EPA’s website to provide upfront 

notification to communities of those facilities participating in the Audit Program

and to facilitate community engagement in the development of Community 

Projects.

IV. Definitions

7. “Audit” shall mean the comprehensive third-party CAA compliance audit as 

described in this Agreement and at __ Fed. Reg. ___ (Date).

8. “Audit Participant’s Report and Certification” shall mean the report that provides 

the Audit Participant’s comments on the Audit Report, including the Audit 

Participant’s proposed table of applicable Emission Unit Requirements for each 

Emission Unit. Proposal of Emission Unit Requirements in the Audit 

Participant’s Report and Certification binds the Audit Participant to apply for a 

revision to its Title V permit, and to obtain appropriate federally-enforceable non-
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Title V permits. This obligation shall be memorialized in a federal administrative 

CAFO between the Audit Participant and EPA. 

9. “Audit Program” shall mean the Audit itself, all deliverables, and process 

required under this Audit Agreement. 

10. “Audit Report” shall mean the report drafted by the Third-Party Auditor that 

presents the detailed results of the Audit and identifies Emission Unit 

Requirements for each Emission Unit. 

11. “Audit Team” shall mean the group of individuals representing the Third-Party

Auditor either as employees or under contract that are conducting the Audit. 

All members of the Audit Team must be presented to EPA at the time of ThirdParty Auditor approval.

12. “Best Available Control Technology” or “BACT” shall mean Best Available 

Control Technology pursuant to PSD as defined in the federally-approved Texas 

SIP or as defined in 40 C.F.R. § 52.21 where no federally approved definition of 

BACT can be identified in the Texas SIP. 

13. “Change” shall mean the act, process, or result of altering or modifying the 

physical or operational characteristics of an Emissions Unit or Facility. 
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14. “Community-based Project” or “CP” shall mean a project completed by or paid 

for by an Audit Participant focused on improving, protecting, or reducing 

community risks to public health or the environment that could have been caused 

by alleged violations by the Audit Participant. The nature and valuation of 

community projects will be based upon the outcome of the audit and will be 

finalized during post-audit negotiations with EPA.

15. “Consent Agreement and Final Order” or “CAFO” shall mean the final order 

memorializing the Audit Participant’s commitment to comply with a compliance 

plan and apply for a Title V permit revision, and appropriate federally-enforceable 

permit(s).

16. “Emission Determination(s)” shall mean the conclusions of the Third-Party

Auditor as to pollutant emission levels, increases, or decreases at any Emission 

Unit and non-Texas Flexible Permit Emission Units at the Facility. 

17. “Emission Unit” shall mean any part of a stationary source regulated under a 

Texas Flexible Permit that emits, or would have the potential to emit, any

pollutant subject to regulation under the Federal CAA.

18. “Emission Unit Requirements” shall mean: 1) pollutant emission 

limitations/standards; 2) controls/operational changes/operational practices 

needed to meet the emission limitations/standards; 3) monitoring and reporting 
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requirements necessary to determine continuous compliance with emission 

limitations; 4) a compliance schedule, if needed; and 5) interim emission 

limitations/standards, if needed.

19. “Facility” shall mean the ______ [type of facility, i.e., refinery, olefins plant, 

power generating plant, etc.] located at _____ [address] _____ [owned and/or 

operated] by ______ holding the Texas Flexible Permit number(s) ______ 

[flexible permit number].

20. “Federal CAA Compliance Status” shall mean a determination of the Emission 

Unit Requirements for a particular Emission Unit based on review of the 

operational and physical history of the Emission Unit with reference to applicable 

federal regulations and requirements in the federally-approved Texas SIP. 

The concept of Federal CAA Compliance Status in the context of this program is 

further defined and explained in paragraphs below. 

21. “Hyperlinks” shall mean a reference to an external piece of information in any of 

the work products generated pursuant to this Agreement accessible by clicking on 

the Hyperlink. 

22. “Hypertext” shall mean text, displayed on a computer, with references 

(Hyperlinks) to other text that the reader can immediately access by a mouse 

click.
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23. “Lowest Achievable Emissions Rate” or “LAER” shall mean Lowest Achievable 

Emissions Rate as defined in the federally-approved Texas SIP, or as defined in 

40 C.F.R. § 52.21 where no federally-approved definition of LAER can be 

identified in the Texas SIP. 

24. “New Source Review” or “NSR” shall mean both the New Source Review and 

Prevention of Significant Deterioration programs authorized by Congress at 

42 U.S.C. §§ 111 and 112, the federal rules at 40 C.F.R. Parts 51 and 52, and the 

Texas SIP requirements promulgated to implement the same.

25. “Program Notice” shall mean EPA’s Texas Flexible Permit Audit Program Notice 

published on _____ at __ Fed. Reg. _____.

26. “Texas Flexible Permit(s)” shall mean Texas air emission control permits issued 

Texas to the Facility pursuant to 30 TAC 116.710.

27. “Texas State Implementation Plan” or “Texas SIP” shall mean the portions of 

Texas state air regulations that were submitted by Texas and approved by EPA for 

inclusion in the federally-recognized SIP. The current content of the SIP and a 

historical overview of previous versions of the SIP can be found at 

http://yosemite1.epa.gov/r6/Sip0304.nsf/home?Openview&Start=1&Count=30&
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Expand=6. 

28. “Third-Party Auditor” shall mean the independent Third-Party company(ies) hired 

by the Audit Participant to conduct the Audit and who meet the requirements set 

forth in Paragraph 29 below. 

V. Specific Requirements and Instructions Regarding the Audit and Reports

A. Independence of and Requirements Regarding the Third-Party Auditor

29. The requirements of paragraphs 30 - 34 below, shall apply to the Third-Party

Auditor and employees of the Third-Party Auditor working on the Audit 

performed to satisfy this Audit Agreement.

30. The Third-Party Auditor shall ensure that all audit team members meet the 

qualification requirements for independence and professional care found in ISO 

19011(First edition, 2002-10-01) or as defined by the 2008 Board of 

Environmental, Health and Safety Auditor Certifications (BEAC) Standards.

31. The Third-Party Auditor shall be paid by the Audit Participant in an amount 

sufficient to carry-out the provisions of this Audit Agreement. The service 

agreement between the Audit Participant and the Third-Party Auditor should 

contain surety provisions satisfactory to both parties to ensure that work is not 
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terminated, either due to the Audit Participant’s failure to make payment or other 

circumstances that may lead to work stoppage. The Third-Party Auditor must 

not be an employee or former employee of the Audit Participant. The ThirdParty Auditor must not directly own any stock in the Audit Participant or in any

parent or subsidiary, and must have no direct financial stake in the outcome of 

the Audit conducted pursuant to this Audit Agreement. 

32. The Third-Party Auditor and members of the audit team shall not have been 

involved in any capacity in the development of any air permits or authorizations 

held by the Audit Participant at the facility being audited under this program.

33. If the Audit Participant has any contractual relationship with the Third-Party

Auditor, the Audit Participant shall disclose to EPA such past or existing 

contractual relationships in an attachment to this Audit Agreement. 

34. The Audit Participant agrees to not enter into any contractual or employment 

relationships with the Third-Party Auditor or any member of the audit team for a 

period of one (1) year after the submission of the Audit Report.

35. Within 15 days of the Audit Participant’s execution of this Audit Agreement, 

EPA may choose to reject the Third-Party Auditor. EPA may elect to reject the 

Third-Party Auditor for failing to meet any of the conditions identified in 

paragraphs 30 - 34 of this Audit Agreement or where it has reason to believe that 
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an actual or potential conflict may exist between the Audit Participant and its 

proposed Third-Party Auditor. If EPA rejects the Third-Party Auditor, the Audit 

Participant may choose another Third-Party Auditor, again subject to EPA 

rejection. 

36. The conclusions of the Third-Party Auditor must be its own, based on best 

professional judgment applied to the facts, materials, and information collected, 

obtained, or learned during the course of the Audit. The Audit Report submitted 

by the Third-Party Auditor must be stamped by a professional engineer or 

certified auditor. 

37. The Audit Participant shall take all steps necessary to ensure that it openly shares

with the Third-Party Auditor confidential and business sensitive information. 

38. To the extent that documents needed to complete the Audit are not available in the 

files of the Audit Participant, the Third-Party Auditor, with assistance as 

necessary from the Audit Participant, shall seek the needed documentation 

elsewhere. 

39. This Audit Agreement includes requirements regarding the performance of the 

Audit and the form of deliverables. The Audit Participant and Third-Party

Auditor are responsible for abiding by these requirements. Deliverables must be 

clear and detailed, and supporting information must be submitted in a manageable 
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form. Lack of clarity, incomplete documentation, and/or documentation 

submitted in an unorganized or difficult to manage manner shall be grounds for 

rejection of the Audit.

40. As to all Emission Determinations made and Emission Unit Requirements 

recommended pursuant to this Agreement, the Third-Party Auditor shall make 

best professional efforts to ensure the information reported to EPA is as accurate 

as possible. The Third-Party Auditor may arrive at Emission Determinations and 

Emission Unit Requirements by: verifying emissions estimates and measurements 

made by the Audit Participant or a predecessor in interest, re-calculating emission 

values previously used in permitting or other contexts, or using its best 

professional judgment to calculate emissions using the most accurate 

assumptions, emission factors, or other available information and/or tools (eg. 

stack tests). 

B. Overview of Audit Requirements and Scope

41. The Audit Participant shall make best efforts to ensure that the Audit represents: 

a) an accurate determination of the applicable Emission Unit Requirements for 

each Emission Unit; and; b) an accurate determination of each Emission Unit’s 

current Federal CAA Compliance Status. 

42. The Audit will include a detailed review of the physical, operational, and 
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regulatory history of each Emission Unit. The review time frame, except for 

NSR, shall be from the date the Texas Flexible Permit became effective to the 

present. In the case of the NSR review, the emissions review time frame may

need to include a period of time prior to the issuance of the flexible permit in 

order to establish a NSR emissions baseline. The Audit Participant shall conduct 

a major/minor NSR analysis of the operational and permitting history of each 

Emission Unit under the Texas Flexible Permit beginning with the last 

SIP-approved authorization issued prior to the issuance of the Texas Flexible 

Permit (if any). The review is critical to this process because various types of 

Changes may have caused Emission Units to be subject to various federal CAA 

regulations. The Audit shall clearly identify federal rules applicable to each 

Emission Unit and demonstrate each Emission Unit’s compliance status with 

federal rules. 

43. The Third-Party Auditor shall evaluate the Monitoring, Recordkeeping and 

Reporting (MRR) provisions for each emissions unit to ensure that the 

requirements are sufficient to determine continuous compliance with applicable 

emissions limits. If MRR is insufficient, the Auditor will provide 

recommendations for additional MRR.

44. The Third-Party Auditor shall prepare a version of the Audit Report that excludes 

any Confidential Business Information (“CBI”). The Audit Participant shall 

prepare a version of the Audit Participant’s Report and Certification that excludes 
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any CBI. These CBI redacted reports, along with the negotiated CAFO between 

the Audit Participant and EPA, shall be posted on the Internet for public review .

45. All Audit deliverables shall be electronic Hypertext documents allowing all 

supporting material related to the Audit to be accessed by clicking on the 

Hyperlinks imbedded in the deliverables.

46. Documents supporting the analysis and conclusions of the Audit shall be scanned 

into pdf files in the manner in which they were originally produced and delivered 

by the author. For example, in scanning a permit application, the scan should 

include everything that was in the envelope that was originally sent to the state of 

Texas. Items like reports should include the transmittal letter and all attachments 

as part of the same pdf file that includes the report. CBI documents shall be 

provided separately.

47. Each scanned document shall be named in the following manner: date 

[underscore] transmitting party [underscore] primary recipient [underscore] 

beginning bates stamp number [underscore] .pdf. For example, a letter from John 

Doe, the plant manager of X corporation’s facility to Tom Permit-Writer of 

TCEQ sent June 6, 2006 with a beginning bates stamp of 0005555 should be 

titled: 06062006_xcorp_tceq_0005555.pdf. In the situation where transmittal 

letters have a different issuance date from the attached material, the date of the 

transmittal letter shall be used in the title of the pdf.
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C. Development of Community-Based Projects

48. Community-Based Project(s) (CP(s)) are projects designed to address community

impacts resulting from noncompliance identified through the Audit including the 

violations identified in the model CAFO. Within 90 days of the completion of the 

Audit Report, the Audit Participant shall present to EPA a community project(s) 

for post-audit negotiations. In developing their CP(s), Audit Participants will be 

required to work with the local community representatives to develop the project 

details and an implementation schedule that will be included in the final CAFO. 

Outreach to the community groups should extend beyond any pre-established 

community advisory panels. EPA acknowledges that 90 days may not be 

sufficient time to engage the community and develop a community project;

therefore, EPA encourages the Audit Participant to solicit input from the 

community earlier in the process (prior to the completion of the Audit). Each CP 

must have a clear nexus to potential air emissions from the Facility and clearly

identify the benefits to be received by the community as a result of the project. 

49. The required value of CPs to be implemented by each Audit Participant will be 

based upon the outcome of the Audit and will be finalized during post-audit 

negotiations with EPA.
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50. Within 90 days of the Audit Report, the Audit Participant will submit to EPA a 

final CP proposal for approval. The CP proposal shall include a detailed 

description of the project(s), a schedule for project implementation (CPs must be 

completed within one year of the CAFO date), a clear discussion of air nexus, and 

a discussion of the community involvement and outreach conducted as the project 

was developed.

51. The final CP(s) will be specified in the CAFO and will include a detailed 

description of the project and a schedule for implementation of the project, 

interim status reports and a final project report to be completed within the term of 

the CAFO.

D. Applicable Law and Guidance for the NSR Portion of the Audit

52. The Third-Party Auditor shall apply the version of the NSR regulations that were 

federally-approved and therefore included in the Texas SIP at the time of the 

particular Change being reviewed. In reviewing Changes that triggered or should 

have triggered NSR review, the attainment status of the area in which the Facility

is located at the time of the Changes under review shall be used for purposes of 

determining the major modification threshold and the required level of control, 

unless NSR non-compliance is identified. In the case of non-compliance, the 

current attainment status shall be used to determine the level of control.
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53. In addition to applying the version of NSR regulations in the approved Texas SIP, 

the Third-Party Auditor shall also perform its NSR analysis consistent with EPA 

NSR Guidance.

E. Establishment of NSR Emission Unit Requirements

54. This Audit Program does not automatically require participants to seek current 

LAER/BACT Emission Unit Requirements at every Emission Unit regulated 

under a Texas Flexible Permit. 

55. NSR Emission Unit Requirements shall be currently applicable, and therefore 

approvable by EPA in the context of this Audit Program, where during the term of 

the flexible permit the Emission Unit was not changed in such a way so as to 

require new more stringent NSR Emission Unit Requirements. 

56. If NSR Emission Unit Requirements were developed during the term of the Audit 

Participant’s Flexible Permit, such Emission Unit Requirements may be currently 

applicable, and therefore approvable by EPA in the context of this Audit Program,

where such Emission Unit Requirements were developed in a manner fully

consistent with the federally-approved SIP in effect at the time of the 

promulgation of the Emission Unit Requirements. The Third-Party Auditor shall 

make a specific determination to ensure that each Emission Unit Requirement was 
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issued consistent with the processes outlined in the federally-approved SIP. 

57. If EPA determines that the Audit Participant is in non-compliance with NSR, 

installation of emission controls consistent with current year LAER/BACT for the 

Emission Units implicated by the NSR non-compliance is required under this 

program. EPA may determine that non-compliance with NSR should result in 

the collection of civil penalties from the Audit Participant. The Audit Participant

must agree to the level of such penalties prior to EPA’s issuance of a covenantnot-to-sue under this program. As indicated in the Audit FRN, Audit Participants 

who proactively execute an Audit Agreement within 45 days of the publishing of 

the Final Audit Program will be evaluated as meeting EPA’s conditions for 

penalty mitigation under EPA’s Audit Policy and will receive a waiver of the 

gravity component of any penalties resulting from noncompliance uncovered by

the Audit. 

F. Requirements for the NSR Section of the Audit Report

58. Part 1 of the NSR Section of the Audit Report shall consist of an overview of the 

Audit process and scope. This part shall include a description of the personnel 

and data tools used, a general description of the documents reviewed, and a 

discussion of any serious problems encountered in conducting the Audit.
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59. Part 2 of the NSR Section of the Audit Report shall consist of an executive 

summary of the findings of the NSR portion of the Audit, including, but not 

limited to: 

a. A detailed description of all prior NSR permits that were replaced by the 

flexible permit;

b. A description of the NSR potential noncompliance found, if any, at each 

Emission Unit; 

c. A list of Emission Unit projects/Changes that exceeded NSR significance 

thresholds but that netted out of BACT review or LAER review; 

d. A list of the recommended Emission Unit Requirements dictated by the NSR

review; 

e. Summaries of all Emission Determinations; 

f. Summaries of BACT or LAER determinations; 

g. For all NSR Emission Unit Requirements established by TCEQ during the 

term of the Flexible Permit, a detailed analysis of whether the process used by

TCEQ complied with the contemporaneous, federally-approved SIP; and 

h. For all instances of NSR non-compliance identified, a list of proposed 

Emission Unit Requirements for each emissions unit where non-compliance 

was identified. The Third-Party Auditor will use the BACT/LAER Clearing 

House to provide recommendations of present day (2010) BACT or LAER. 

60. Part 3 of the NSR Section of the Audit Report shall consist of a detailed narrative 
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describing the Audit review process for each Emission Unit, including, but not 

limited to, the process analyses, emissions analyses, and regulatory analyses,

emissions calculations (including any formula, assumptions and/or emission 

factors used), and the conclusions. All supporting materials shall be referenced in 

footnotes with Hyperlinks to historical and contemporaneous supporting 

documents. 

61. Part 4 of the NSR Section of the Audit Report shall consist of a chronological list 

of all documents produced in support of the NSR portion of the audit. The list 

shall state the name of the document, its date, its bates stamp range, attachments 

appended to the document and the bates stamp range of such attachments, and a 

Hyperlink to the pdf of each document. All documents shall be produced in 

searchable pdf format utilizing optical character recognition. 

62. Part 5 of the NSR Section of the Audit Report shall consist of a table of all 

applicable NSR related Emission Unit Requirements for each Emission Unit that 

will provide the basis for necessary permitting revisions by the appropriate 

permitting authority.

G. Requirements for Non-NSR Audit and Non-NSR section of the Audit Report
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63. The non-NSR CAA Audit shall determine the CAA compliance status and 

recommended Emission Unit Requirements for each Emission Unit with reference 

to the non-NSR federal CAA regulations in effect at the time of the Emission 

Unit’s construction or at the time of any event that may have caused the Emission 

Unit to be subject to non-NSR federal CAA regulations or that may have changed 

the Emission Unit’s requirements pursuant to non-NSR federal CAA regulations. 

In the case of Emission Units that triggered NSR and require BACT or LAER 

level controls, the Audit Report shall also explicitly state all other applicable 

CAA regulations and the corresponding Emission Unit Requirements.

64. Part 1 of the non-NSR Section of the Audit Report shall consist of a detailed 

summary of the Audit process. This section shall include a description of the 

personnel and data tools used, a general description of the documents reviewed, 

and a discussion of any serious problems encountered in conducting the Audit.

65. Part 2 of the non-NSR Section of the Audit Report shall consist of an executive 

summary of the findings of the non-NSR audit, including but not limited to:

a. A detailed description of all prior SIP-based permits that were replaced by the 

flexible permit;

b. A description of all non-NSR CAA potential violations found; 

c. Summaries of all Emission Determinations; and

d. Recommended non-NSR Emission Unit Requirements. 
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66. Part 3 of the non-NSR Section of the Audit Report shall consist of a detailed 

narrative describing the review process of each Emission Unit, including but not 

limited to, the process analyses, emissions analyses, and regulatory analyses,

emissions calculations (including any formula, assumptions and/or emission 

factors used), and the conclusions. All supporting materials shall be referenced in 

footnotes with Hyperlinks to historical and contemporaneous supporting 

documents. 

67. Part 4 of the non-NSR Section of the Audit Report shall consist of a 

chronological list of all documents produced in support of the non-NSR portion of 

the audit. The list shall state the name of the document, its date, its bates stamp 

range, attachments appended to the document and the bates stamp range of such 

attachments, and Hyperlinks to the pdf of each document. All documents shall be 

produced in searchable pdf format utilizing optical character recognition. 

68. Part 5 of the non-NSR Section of the Audit Report shall consist of a table of all 

applicable non-NSR related Emission Unit Requirements for each Emission Unit 

that will provide the basis for necessary permitting revisions by the appropriate 

permitting authority.

H. Audit Report Certifications 

69. The Audit Report shall include the following certification executed by a 
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responsible official representing the Third-Party Auditor:

I certify under penalty of law that this document was prepared 

at my direction, and to the best of my knowledge and belief, 

the information submitted is true, accurate, and complete. 

70. The Audit Report and all Emission Unit Requirements (including underlying 

Emission Determinations and LAER/BACT analysis) shall be certified as 

accurate by a registered professional engineer or certified auditor. 

71. The Audit Report shall include the following certification executed by a 

responsible official representing the Audit Participant:

I certify under penalty of law that _____ [the Audit Participant] 

to the best of my knowledge and belief has cooperated fully

with _____ [the Third-Party Auditor] in its efforts to prepare 

this document, has provided all information requested by ____ 

[the Third-Party Auditor], and that the information provided to 

____ [the Third-Party Auditor] is true, accurate, and complete. 

I. Audit Participant’s Report and Certification 

72. The Audit Participant’s Report and Certification shall consist of the following 
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sections:

a. An Introduction/Executive Summary outlining the differences between the 

conclusions made in the Audit Report and the conclusions made in the Audit 

Participant’s Report and Certification, if any.

b. A version of the Audit Report with “redline” comments, deletions, and 

insertions by the Audit Participant. In this section, the Audit Participant shall 

make, to the extent necessary, detailed presentations on why its conclusions 

differ from those in the Audit Report. The Audit Participant may present 

information in the form of bracketed text within the Audit Report redline or 

by adding Hyperlinks to more detailed supplementary materials.

c. An Excel spreadsheet including a row for each Emission Unit regulated 

pursuant to the Texas Flexible Permit with proposed Emission Unit 

Requirements. This spreadsheet shall include Hyperlinks to all material 

supporting each proposed Emission Unit Requirement.

d. The following certification executed by a responsible official representing the 

Audit Participant:

I certify under penalty of law that this document was 

prepared at my direction, and to the best of my knowledge 

and belief, the information submitted is true, accurate, and 

complete, and that all Emission Unit Requirements, 

Emission Determinations, and LAER/BACT analyses were 

reviewed and certified as accurate by a registered 
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professional engineer or certified auditor. 

J. Notification 

73. The Audit Participant designates the following individual as its contact person to 

receive all communication from EPA and the Third-Party Auditor concerning this 

Agreement:

_______________________________________

(name, title, address, phone, email)

74. The Third-Party Auditor designates the following individual as its contact person 

to receive all communication from EPA and the Audit Participant concerning this 

Agreement:

_______________________________________

75. EPA designates the following individual as its contact person to receive all 
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communication from the Audit Participant and Third-Party Auditor concerning 

this Agreement:

______________________________________

76. The parties may re-designate their contact persons in writing at any time.

VI. Audit Schedule and CAFO Process

77. The Audit Report shall be delivered to EPA no later than 160 days or a timeframe 

agreed upon by EPA, after the effective date of the Audit Agreement. A version 

of the Audit Report with CBI redacted will be published on the Internet upon 

receipt by EPA. EPA shall review the independence of the Third-Party Auditor 

prior to executing the Audit Agreement.

78. No later than 250 days after the effective date of the Audit Agreement, the Audit 

Participant shall deliver to EPA the Audit Participant’s Report and Certification. 

A version of the Audit Participant’s Report and Certification with CBI redacted 

will be published on the Internet upon receipt by EPA.
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79. No later than 90 days after the date of the Audit Report, the Audit Participant will 

submit to EPA a final CP proposal for approval.

80. In the period subsequent to delivery of the Audit Participant’s Report and 

Certification, EPA and the Audit Participant may discuss the content of the Audit 

Report and the Audit Participant’s Report and Certification. EPA may seek 

additional information from the Audit Participant. The Audit Participant agrees to 

respond in a timely manner to any such request.

81. At any time after the delivery of the Audit Participant’s Report and Certification, 

EPA may propose to the Audit Participant a form of CAFO that is consistent with 

the model CAFO attached to this agreement as Attachment A.

82. If EPA agrees with all of the Emission Unit Requirements proposed in the Audit 

Participant’s Report and Certification, the CAFO will require that the Audit 

Participant comply with the compliance plan and schedule attached and apply for 

a Title V permit revision to incorporate and obtain appropriate federallyenforceable permits to memorialize all such Emission Unit Requirements and 

require the Audit Participant to perform agreed upon CP(s). The Audit 

Participant hereby agrees to sign such a CAFO within 15 days of receipt. If the 

Audit Participant does not sign the CAFO, the Audit process ends with no 

agreement as to Emission Unit Requirements or CP(s) and EPA retains its 
Page 28 of 31

enforcement authority.

83. If EPA agrees with some, but not all of the Emission Unit Requirements proposed 

in the Audit Participant’s Report and Certification, the CAFO may include a 

subset of the Emission Unit Requirements proposed in the Audit Participant’s 

Report and Certification, along with either Emission Unit Requirements agreed to 

by the Parties, and/or where no agreement can be reached, Emission Unit 

Requirements chosen by EPA. The CAFO will require that the Audit Participant 

comply with the requirements of the compliance schedule attached and apply for a 

Title V permit revision to incorporate and obtain appropriate federallyenforceable permits to memorialize all such Emission Unit Requirements and 

require the Audit Participant to perform agreed upon CP(s). The Audit 

Participant shall have 30 days to sign the CAFO. If the Audit Participant does not 

sign the CAFO, the Audit process ends with no agreement as to Emission Unit 

Requirements or CP(s) and EPA retains its enforcement authority.

84. Once a CAFO has been signed by the Audit Participant and by EPA, EPA will file 

the CAFO with the EPA Region 6 Judicial Officer. At the same time, the CAFO

will be published on the Internet for a public comment period of 30 days. 

85. After the public comment period ends, EPA will consider any public comments, 
Page 29 of 31

and, as appropriate, seek to work with the Audit Participant to revise the CAFO 

based on such public comments. After any necessary revisions are made, EPA 

will seek finalization of the CAFO by the Region 6 Judicial Officer. The offering 

of the CAFO for public comment does not explicitly create an obligation for EPA 

response or inclusion of such comments nor does this create any rights for public 

objection to the final CAFO.

VII. Compliance with Laws and Regulations, Reservation of Rights, and 

Modifications

86. Neither the existence of this Agreement nor compliance with this Agreement 

relieves the Audit Participant of the obligation of continued compliance with the 

regulations covered under this Agreement, and all other applicable federal, state, 

and local laws and regulations.

87. This Audit and CAFO do not prejudge the permitting process or replace it. 

The agreed upon Emission Unit Requirements are minimum requirements in order 

for the Audit Participant to receive a covenant-not-to-sue pursuant to the Audit 

Program. The permitting authority will follow the rules and processes in place, 

including public participation, at the appropriate time.

88. EPA reserves its rights to proceed against the Audit Participant for violations 

outside the scope of the Audit and for violations within the scope of this Audit 
Page 30 of 31

that are not explicitly released in the CAFO. EPA reserves the right to commence 

an action against any person, including the Audit Participant, in response to any

condition which EPA determines may present an imminent and substantial 

endangerment to the public health, welfare, or environment. This Agreement is 

not intended, and shall not be construed, to resolve any claim for criminal 

sanctions now pending or sought in the future, and shall not limit the right of the 

United States to pursue criminal sanctions for violation of law.

89. Nothing in this Agreement shall limit the authority of EPA to conduct any

inspections or information gathering under applicable federal law.

90. A writing signed by the parties may modify this Agreement.
Page 31 of 31

WE, THE UNDERSIGNED, HEREBY AGREE TO BE BOUND BY THIS 

AGREEMENT: 

For U.S. EPA:

______________________________________ __ 

John Blevins, Date

Director

Compliance Assurance and Enforcement Division

EPA, Region 6

For ___________ [Audit Participant]:

 ___________________ _______________________

Date

Attachment A to Audit Agreement

Model Consent Agreement and Final Order (CAFO)

Texas Flexible Permit Audit Program

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

REGION 6

DALLAS, TEXAS

IN THE MATTER OF: §

§

[NAME OF AUDIT PARTICIPANT] § EPA DOCKET NO. CAA-06-2010-xxxx

[NAME OF CITY, TEXAS] §

§

§ COMPLAINT AND

§ CONSENT AGREEMENT AND

§ FINAL ORDER

§

The Director of the Compliance Assurance and Enforcement Division of the United 

States Environmental Protection Agency (EPA), Region 6 (Complainant), and [Name of Audit 

Participant, Name of City, Texas] (Respondent) in the above referenced proceeding, hereby 

agree to resolve this matter through the issuance of this Complaint and Consent Agreement and 

Final Order (Complaint and CAFO).

I. PRELIMINARY STATEMENT

1. This proceeding is for the assessment of civil penalties pursuant to Section 113(d) of 

the Clean Air Act, as amended (CAA), 42 U.S.C. § 7413(d), and for additional terms of 

settlement as agreed to by Respondent. This proceeding was instituted by the issuance of a 

Complaint and Notice of Opportunity for Hearing (Complaint) incorporated herein, and is 

simultaneously concluded by the issuance of this CAFO against Respondent pursuant to 

40 C.F.R. §§ 22.13(b) and 22.34.

2. The Complaint alleges [Name of Audit Participant] (abbreviated name) violated the 

CAA and specific requirements promulgated thereunder at its [Name of Facility or Plant] located 

in [Name of City, County, Texas] (Facility).
Page A-2

3. For purposes of this proceeding, Respondent admits the jurisdictional allegations of 

this Complaint; however, Respondent neither admits nor denies the specific factual allegations 

contained in this Complaint.

4. Respondent consents to the issuance of this CAFO hereinafter recited and consents 

to the assessment and payment of any stated civil penalty in the amount and by the method set 

out in this CAFO; in addition, Respondent agrees to perform the additional terms of settlement 

set forth in Paragraphs 28 through 41 as a condition precedent for the release and covenant not to 

sue provisions set forth in Paragraph 42 through 44 below.

5. Respondent waives any right to contest the allegations in the CAFO and its right

to appeal the Final Order set forth herein, and Respondent waives all defenses which have been 

raised or could have been raised to the claims set forth in the CAFO.

6. This CAFO shall only resolve Respondent’s liability for federal civil penalties for 

the violations and facts alleged in this Complaint; furthermore, Respondent shall not assert, and 

may not maintain, any defense or claim based upon the principles of waiver, res judicata, 

collateral estoppel, issue preclusion, or claim-splitting for violations not alleged in this 

Complaint.

7. Nothing in this CAFO shall be construed to prevent or limit EPA's civil and 

criminal authorities, or that of other Federal, State, or local agencies or departments to obtain 

penalties or injunctive relief under other Federal, State, or local laws or regulations.

8. Respondent represents that it is duly authorized to execute this CAFO and that the 

party signing this CAFO on behalf of the Respondent is duly authorized to bind the Respondent 

to the terms and conditions of this CAFO.
Page A-3

9. Respondent agrees that the provisions of this CAFO shall be binding on its 

officers, directors, employees, agents, servants, authorized representatives, successors, and 

assigns.

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

10. Respondent is a [insert nature of business, e.g., corporation, partnership, etc.] 

doing business in the State of Texas and is a “person” as that term is defined in Section 302(e) of 

the Act, 42 U.S.C. § 7602(e), and within the meaning of Section 113(d) of the CAA, 42 U.S.C. 

§ 7413(d).

11. At all relevant times, Respondent owned and operated a [insert type of facility, 

e.g., refinery, chemical manufacturing facility, etc.] located in [insert name of city], Texas.

12. Pursuant to Section 110 of the Act, 42 U.S.C. § 7410, Texas has submitted and 

EPA has approved a state implementation plan (Texas SIP) which contains, inter alia, the group 

of control strategies and regulations designed to attain and maintain the national ambient air 

quality standards (NAAQS) for criteria air pollutants. 

13. The Texas SIP includes an air permitting program for new and modified sources 

of air pollution which provides various mechanisms for sources to obtain authorizations for their 

air emissions. In 1994, Texas created a flexible air permit program (Texas Flexible Permit 

Program), found at 30 TAC Chapter 116, Subchapter G, and submitted that program to EPA for 

approval as a revision to the Texas SIP. EPA disapproved the Texas Flexible Permit Program

effective July 15, 2010. See 75 Fed. Reg. 41312 (July 15, 2010). Sources remain subject to the 

federally-approved Texas SIP and the mechanisms contained therein to effect changes to their 

operations that may affect air emissions.
Page A-4

14. Pursuant to Title V of the Act, 42 U.S.C. §§ 7661-7661f, and the implementing 

regulations at 40 C.F.R. Part 70, EPA has approved an air operating permits program for major 

and area sources of air pollution in Texas (Texas Title V program). 30 TAC § 122.132(e)(2) of 

the Texas Title V program requires major sources to submit permit applications that identify all 

applicable requirements, including the requirements of the Texas SIP. See also 40 C.F.R. 

§ 70.5 (a),(c). Requirements imposed by state-only programs, such as the Texas Flexible Permit 

Program which is not part of the Texas SIP, should be designated as not being federally

enforceable in a source’s Title V permit, as required by 30 TAC § 122.142(b)(2) and 40 C.F.R. 

§ 70.6(b)(2). 

Count 1

15. On or about [INSERT date of issuance of Flexible Permit], Respondent was 

issued [Permit No. xxxxxxx], an air permit issued under the Texas Flexible Permit Program. 

Permit No. xxxxxx covers various emission units at Respondent’s facility, including [Insert 

general description of the emission units covered by Flexible permit, identifying each 

emission point number (EPN) covered by the flexible permit]. 

16. Under the flexible permit referenced above, Respondent effected changes at the 

[name of facility] which altered the nature and quantity of air emissions authorized from 

emission units covered by the flexible permit; these emission units were either previously 

authorized by permits issued under the federally-approved Texas SIP or had never been 

authorized under the federally-approved Texas SIP. 

17. Respondent failed to seek and obtain authorization(s) under the federallyapproved Texas SIP for the unit-specific changes in emission rates/limitations and other 

requirements when obtaining their flexible permit, Permit No. xxxxxx.
Page A-5

18. Therefore, Respondent violated the requirements of 30 TAC Chapter 116 of the 

federally-approved Texas SIP, approved by EPA under Section 110 of the Act, 42 U.S.C. 

§ 7410. On [Insert date], notice of these violations was provided to Respondent and Texas, as 

required by Section 113(a)(1) of the Act, 42 U.S.C. § 7413(a)(1). 

Count 2

19. On [date of issuance], Respondent was issued an air operating permit, Permit No. 

O-xxxxx, a permit issued under the EPA-approved Texas Title V program. 

20. Permit No. O-xxxx fails to designate the requirements of Respondent’s flexible 

permit, Permit No. xxxxxx, as not being federally enforceable and fails to include all applicable 

requirements, such as those requirements contained in permits issued under the federallyapproved Texas SIP.

21. Respondent’s failure to identify the terms and conditions of all permits issued 

under the federally-approved Texas SIP, as applicable requirements, in its Title V permit 

application constitutes a violation of 30 TAC § 122.132(e)(2) of the federally-approved Texas 

Title V program, Title V of the Act and the requirements of 40 C.F.R. § 70.5.
Page A-6

III. TERMS OF SETTLEMENT

A. CIVIL PENALTY

22. For the reasons set forth above, Respondent has agreed to pay a civil penalty

which has been determined in accordance with Section 113(d) of the CAA, 42 U.S.C. § 7413(d), 

which authorizes EPA to assess a civil penalty of up to twenty-five thousand dollars ($25,000)1

per day for each violation of the Act. Upon consideration of the entire record herein, including 

the Findings of Fact and Conclusions of Law, which are hereby adopted and made a part hereof, 

and upon consideration of the size of the business, the economic impact of the penalty on the 

business, the violator’s full compliance history and good faith efforts to comply, the duration of 

the violation, payment by the violator of penalties previously assessed for the same violation, the 

economic benefit of noncompliance, the seriousness of the violation, specific facts and equities, 

litigation risks, and other factors as justice may require, INCLUDING Respondent’s agreement 

to perform the additional terms of settlement set forth below, it is ORDERED that Respondent be 

assessed a civil penalty in the amount of XXXXXXXXXXXX dollars ($xxxxxxx).

23. Within thirty (30) days of Respondent’s receipt of this fully executed CAFO, 

Respondent shall pay xxxxxxxxxxxx dollars ($xxxxxxx) by cashier’s or certified check made 

payable to “Treasurer, United States of America, EPA - Region 6.” Payment shall be remitted in 

one of four (4) ways: regular U.S. Postal Service mail, to include certified mail; overnight mail; 

wire transfer; or On Line Payment. For regular U.S. Postal Service mail, U.S. Postal Service 

certified mail, or U.S. Postal Service express mail, the check(s) should be remitted to:

 

1

The Civil Penalty Inflation Adjustment Act of 1990, 28 U.S.C. § 2461, as amended by 31 U.S.C. § 3701 provides for increases 

in the statutory penalty provisions ($25,000) cited in the Clean Air Act Stationary Source Civil Penalty Policy dated October 25, 

1991 (CAA Penalty Policy). It provides for up to $25,000 per day of violation for violations occurring on or before January 30, 

1997; up to $27,500 per day for each such violation occurring after January 30, 1997 through March 15, 2004; up to $32,500 per 

day for each such violation occurring after March 15, 2004 through January 12, 2009; and up to $37,500 per day for each such 

violation occurring after January 12, 2009.
Page A-7

U.S. Environmental Protection Agency

Fines and Penalties

Cincinnati Finance Center

PO Box 979077

St. Louis, MO 63197-9000

For overnight mail (non-U.S. Postal Service, e.g. Fed Ex), the check(s) should be remitted to:

U.S. Bank

1005 Convention Plaza

Mail Station SL-MO-C2GL

St. Louis, MO 63101

Contact: Natalie Pearson

(314) 418-4087

For wire transfer, the payment should be remitted to:

Federal Reserve Bank of New York

ABA = 021030004

Account = 68010727

SWIFT address = FRNYUS33

33 Liberty Street

New York, NY 10045

Field Tag 4200 of the Fedwire message should read “D 68010727 

 Environmental Protection Agency”

phone number (412) 234-4381.

For On-line Payment:

WWW.PAY.GOV

Enter sfo 1.1 in search field

Open form and complete required fields.

PLEASE 

NOTE: Docket Number CAA-06-2010-xxxx shall be clearly typed on the check to ensure 

proper credit. The check shall also be accompanied by a transmittal letter and 

shall reference Respondent’s name and address, the case name, and docket 

number of the administrative complaint and CAFO. Respondent’s adherence to 

this request will ensure proper credit is given when penalties are received for the 

Region. Respondent shall also send a simultaneous notice of such payment, 

including a copy of the money order, or check, and transmittal letter to the 

following:
Page A-8

Steve Thompson (6EN-AA)

U.S. EPA, Region 6

1445 Ross Avenue, Suite 1200

Dallas, TX 75202-2733 

Region 6 Hearing Clerk

U.S. EPA, Region 6

1445 Ross Avenue, Suite 1200

Dallas, TX 75202-2733

24. Respondent agrees not to claim, or attempt to claim, a federal income tax 

deduction or credit covering all or any part of the civil penalty paid to the United States 

Treasurer.

25. Pursuant to 31 U.S.C. § 3717 and 40 C.F.R. § 13.11, unless otherwise prohibited 

by law, EPA will assess interest and late payment penalties on outstanding debts owed to the 

United States and a charge to cover the costs of processing and handling a delinquent claim. 

Interest on the civil penalty assessed in this CAFO will begin to accrue thirty (30) days after the 

effective date of the CAFO and will be recovered by EPA on any amount of the civil penalty that 

is not paid by the respective due date. Interest will be assessed at the rate of the United States 

Treasury tax and loan rate in accordance with 40 C.F.R. § 13.11(a). Moreover, the costs of the 

Agency’s administrative handling of overdue debts will be charged and assessed monthly

throughout the period the debt is overdue. See 40 C.F.R. § 13.11(b).

26. EPA will also assess a fifteen dollar ($15.00) administrative handling charge for 

administrative costs on unpaid penalties for the first thirty (30) day period after the payment is 

due and an additional fifteen dollars ($15.00) for each subsequent thirty (30) day period that the 

penalty remains unpaid. In addition, a penalty charge of up to six percent per year will be 

assessed monthly on any portion of the debt which remains delinquent more than ninety (90) 
Page A-9

days. See 40 C.F.R. § 13.11(c). Should a penalty charge on the debt be required, it shall accrue 

from the first day payment is delinquent. See 31 C.F.R. § 901.9(d). Other penalties for failure to 

make a payment may also apply.

27. Pursuant to Section 113(d)(5) of the Act, 42 U.S.C. § 7413(d)(5), any person who 

fails to pay on a timely basis a civil penalty ordered or assessed under this section shall be 

required to pay, in addition to such penalty and interest, the United States enforcement expenses, 

including, but not limited to, attorneys fees and costs incurred by the United States for collection 

proceedings, and a quarterly nonpayment penalty for each quarter during which such failure to 

pay persists. Such nonpayment penalty shall be 10 percent of the aggregate amount of such 

person’s outstanding penalties and nonpayment penalties accrued as of the beginning of each 

quarter.

B. ADDITIONAL TERMS OF SETTLEMENT

Community Projects

28. [Insert language describing the community project(s) (CPs) in general and 

referencing the approved final CPs specifically described in Attachment A to the CAFO] 

29. The Respondent shall submit a Community Project Completion Report 

(Completion Report) to EPA within thirty (30) days of the completion of the community projects 

described in Paragraph 28 above and Attachment A to this CAFO. The Completion Report shall 

contain the following information:

A. A detailed description of the community project(s) as implemented;

B. A description of any operating or logistical problems encountered and the 

solutions thereto;

C. Itemized final costs with copies of receipts for all expenditures;
Page A-10

D. Certification that the community projects have been fully implemented pursuant 

to the provisions of this CAFO; and

E. A description of the environmental, emergency preparedness, and/or public health 

benefits resulting from implementation of the community projects.

30. In itemizing its costs in the Completion Report, Respondent shall clearly identify

and provide acceptable documentation for all eligible costs. For purposes of this Paragraph, 

“acceptable documentation” includes invoices, purchase orders, or other documentation that 

specifically identifies and itemizes the individual costs of the goods and/or services for which 

payment is being made. Canceled drafts do not constitute acceptable documentation unless such 

drafts specifically identify and itemize the individual costs of the goods and/or services for which 

payment is being made.

31. The Respondent shall submit the following certification in the Completion Report, 

signed by a responsible corporate official: 

I certify under penalty of law that I have examined and am familiar with the 

information submitted in this document and all attachments and that, based on my

inquiry of those individuals immediately responsible for obtaining the 

information, I believe that the information is true, accurate, and complete. I am 

aware that there are significant penalties for submitting false information, 

including the possibility of fines and imprisonment.

32. After receipt of the Completion Report described in Paragraph 29 above, EPA 

will notify the Respondent, in writing, regarding: (a) any deficiencies in the Completion Report 

itself along with a grant of an additional thirty (30) days for Respondent to correct any 

deficiencies; or (b) indicate that EPA concludes that the project has been completed 

satisfactorily; or (c) determine that the project has not been completed satisfactorily.

33. If EPA elects to exercise option (a) in Paragraph 32 above, i.e., if the Completion

Report is determined to be deficient but EPA has not yet made a final determination about the 
Page A-11

adequacy of completion itself, EPA shall permit the Respondent the opportunity to object in 

writing to the notification of deficiency given pursuant to Paragraph 32 within ten (10) days of 

receipt of such notification. EPA and the Respondent shall have an additional thirty (30) days 

from the receipt by EPA of the notification of objection to reach agreement on changes necessary

to the Completion Report. If agreement cannot be reached on any such issue within this thirty

(30) day period, EPA shall provide a written statement of its decision on adequacy of the 

completion of the Community Project(s) to Respondent, which decision shall be final and 

binding upon the Respondent. The Respondent agrees to comply with any requirements imposed 

by EPA as a result of any failure to comply with the terms of this CAFO. In the event the 

Community Project(s) are not completed as contemplated herein, as determined by EPA, the 

conditions precedent to the release and covenant not to sue provisions set forth in Paragraph 42 

herein shall be deemed not to have been satisfied and Respondent is not afforded the protections 

provided by those provisions.

Emission Unit Requirements

34. Respondent agrees to immediately comply with all emission limitations/standards 

and monitoring, recordkeeping, and reporting requirements set forth in the Emission Unit 

Requirements Table, except as provided for in this paragraph. For those emission units 

identified in Attachment B that require additional emission authorizations under the federallyapproved Texas SIP and/or additional monitoring, recordkeeping, or reporting requirements to 

ensure continuous compliance with emission limitations or standards, a written compliance plan 

and schedule has been developed as discussed in Paragraph 35 below. For those emission units 

identified in Attachment B that cannot achieve immediate compliance, the written compliance 
Page A-12

plan and schedule discussed in Paragraph 35 below includes provisions sufficient to bring those 

units into compliance as expeditiously as possible.

Application for Title V Permit Revision

[Preamble- not be included in final CAFO - This section relates to the Compliance Plan 

and Schedule which will form the basis for effecting the changes identified by the audit report 

and the Emission Unit Requirements Table (Attachment B) necessary to bring all emission units 

covered by Respondent’s flexible permit back into compliance with the requirements of the CAA 

and the federally-approved Texas SIP. The Compliance Plan and Schedule will be submitted by

the Respondent to the permitting authority, as part of an application for a Title V revision 

request, and it will include, at a minimum, a detailed schedule meeting the requirements of 30 

TAC 

§ 122.132 and 40 C.F.R. § 70.5(c)(8), to obtain full emission requirements for all emission units 

regulated under Respondent’s flexible permit, accomplished through applications for

amendments to existing or new authorizations under the federally-approved Texas SIP, 

otherwise known as the appropriate federally-enforceable permits). If an additional legally 

appropriate permitting mechanism is agreed to by EPA and TCEQ, another permitting option 

may be agreed to in a CAFO. The final CAFOs will be posted for public review before they

become final. ]

35. Within thirty (30) days of the effective date of this CAFO, Respondent agrees to 

submit an application to the appropriate permitting authority for a Title V permit revision to 

incorporate the requirements of the Compliance Plan and Schedule, attached as Attachment C to 

this CAFO and incorporated herein by reference. The Compliance Plan and Schedule is 

designed to be at least as stringent as the requirements set for in 40 C.F.R. § 70.5(c)(8) and 30 

TAC § 122.132 of the federally-approved Texas Title V operating permits program. 

36. Respondent agrees to comply with the requirements of the Compliance Plan and 

Schedule set forth in Attachment C to this CAFO until the Compliance Plan and Schedule is 

approved into Respondent’s Title V permit(s) and the revised Title V permit(s) becomes 

effective, after which time Respondent will comply with the Compliance Plan and Schedule in 

the effective revised Title V permit. 
Page A-13

37. Nothing in the Compliance Plan and Schedule or this CAFO shall be interpreted 

to limit the authority to impose more stringent requirements in Respondent’s Title V permit(s) or 

in Respondent’s underlying authorizations or requirements of the Texas SIP, including the 

appropriate federally-enforceable permit(s). 

Other Settlement Terms

38. Nothing in this agreement shall be construed as prohibiting, altering or in any way

limiting the ability of EPA to seek any other remedies or sanctions available by virtue of the 

Respondent's violation of this agreement or of the statutes and regulations upon which this 

agreement is based, or for the Respondent's violation of any applicable provision of law.

39. Any public statement, oral or written, in print, film, or other media, made by the 

Respondent making reference to the Community Project(s) shall include the following language, 

"This project was undertaken in connection with the settlement of an enforcement action taken 

by the U.S. Environmental Protection Agency for violations of the federal CAA.”

40. This CAFO shall not relieve the Respondent of its obligation to comply with all 

applicable provisions of federal, state or local law, nor shall it be construed to be a ruling on, or 

determination of, any issue related to any federal, state or local permit, nor shall it be construed 

to constitute EPA approval of any equipment or technology installed by the Respondent in 

connection with any Community Project undertaken pursuant to this CAFO. Nothing in this 

CAFO shall be construed to prohibit or prevent the federal, state, or local government from 

developing, implementing, and enforcing more stringent standards through rulemaking, the 

permit process, or as otherwise authorized or required.
Page A-14

41. This document is a “Final Order” as that term is defined in the CAA Penalty 

Policy for the purpose of demonstrating a history of “prior such violations.”

IV. RELEASE AND COVENANT NOT TO SUE

42. In consideration of Respondent's obligations under this CAFO and subject to the 

limitations and conditions herein, EPA releases and covenants not to sue Respondent, with 

respect to the emission units listed in the Emission Unit Requirements Table in Attachment B to 

this CAFO, for the civil violations alleged herein that may have occurred prior to the effective 

date of this CAFO. 

43. The release and covenant not to sue described above does not extend to any other 

requirements of the Act, including but not limited to, requirements that relate to emission units at 

Respondent’s facility which are not listed in the Emission Unit Requirements Table (Attachment 

B to this CAFO).

44. The release and covenant not to sue described herein covers Respondent’s 

liability for civil violations with respect to an emission unit listed in the Emission Unit 

Requirements Table (Attachment B to this CAFO) if, and only if, Respondent complies with all 

terms and conditions of this CAFO, including the receipt of a revised and effective Title V 

permit incorporating the Compliance Schedule set forth in this CAFO.
Page A-15

V. RETENTION OF ENFORCEMENT RIGHTS

45. EPA does not waive any rights or remedies available to EPA for any violations by

the Respondent of any other Federal laws, regulations, statutes, or permitting programs not the 

subject of this action.

46. Nothing in this CAFO shall relieve Respondent of the duty to comply with all 

applicable provisions of the CAA.

VI. COSTS

47. Each party shall bear its own costs and attorneys fees.

IT IS SO AGREED:

FOR THE RESPONDENT:

Date: ________________ 

Name of Authorized party: ___________________ 

Title of Authorized Party:____________________

[Name of Audit Participant]

FOR THE COMPLAINANT:

Date: _________________ 

John Blevins

Director

Compliance Assurance and 

 Enforcement Division
Page A-16

FINAL ORDER

Pursuant to Section 113(d) of the CAA (Act), 42 U.S.C. § 7413(d), and the Consolidated 

Rules of Practice Governing the Administrative Assessment of Civil Penalties, 40 C.F.R. Part 

22, the foregoing Consent Agreement is hereby ratified. This Final Order shall not in any case 

affect the right of EPA or the United States to pursue appropriate injunctive or other equitable 

relief or criminal sanctions for any violations of law. This Final Order shall resolve only those 

causes of action alleged in this CAFO. The successful completion of the terms of settlement set 

forth in Paragraphs 28 through 41 are conditions precedent to the release and covenant not to sue 

provisions set forth in Paragraphs 42 through 44 of the this CAFO. Nothing in this Final Order 

shall be construed to waive, extinguish, or otherwise affect Respondent’s (or its officers, agents, 

servants, employees, successors, or assigns) obligation to comply with all applicable federal, 

state, and local statutes and regulations, including the regulations that were the subject of this 

action. The Respondent is ordered to comply with the terms of settlement as they relate to the 

assessment of civil penalties as set forth in the Consent Agreement. In accordance with 

40 C.F.R. § 22.31(b), this Final Order shall become effective upon filing with the Regional 

Hearing Clerk.

Dated __________________ 

Michael Barra

Regional Judicial Officer

U.S. EPA, Region 6
Page A-17

CERTIFICATE OF SERVICE

I hereby certify that on the day of , 2010, the original and one 

copy of the foregoing Complaint and Consent Agreement and Final Order (“Complaint and 

CAFO”) was hand delivered to the Regional Hearing Clerk, U.S. EPA - Region 6, 1445 Ross 

Avenue, Suite 1200, Dallas, Texas 75202-2733, and a true and correct copy was delivered to the 

following individual(s) by the method indicated below:

CERTIFIED MAIL - RETURN RECEIPT REQUESTED: ________________________

Name of authorized party: _______________________

Title of authorized party: ________________________

[Name of Audit Participant]

Address:

 

U.S. EPA, Region 6

Dallas, Texas