1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AIR ALLIANCE HOUSTON, et al. ,

Plaintiff s ,

v. GINA McCARTHY, Administrator, United States Environ mental Protection Agency, in her official capacity , Defendant. ) ) ) ) Case No. 1:13

- cv
- 00621 (KBJ ) ) ) ) ) ) CONSENT DECREE ) ) ) ) ) ) )

WHEREAS, on May 1, 2013, Plaintiffs, Air Alliance Houston, Community In

- Power and Development Association, Inc., Louisiana Bucket Brigade, and Texas Environmental Justice Advocacy Services , filed their Complaint alleging that Gina McCarthy, in her official capacity as Administrator of the United States Environmental Protection Agency (“ EPA ”), failed to perform nondiscretionary duties under Clean Air Act (“CAA”) Section 130, 42 U.S.C. § 7430. Specifically, Plaintiffs allege th at EPA failed to review and, if necessary, revise the emission factors for volatile organic compounds (“VOCs”), carbon monoxide, and nitrogen oxides at least once every three years. 42 U.S.C. § 7430. WHEREAS, the relief requested in the Complaint inclu des , among other things, a n order from this Court to establish a date certain by which EPA must complete a review of the VOC emission factors for flares, liquid storage tanks (“tanks”) , and wastewater collection, treatment, and storage systems (“ wastewater treatment systems ”) identified in the Complaint , and either Case 1:13-cv-00621-KBJ Document 19-1 Filed 02/11/14 Page 1 of 102 revise these factors or make a final determination that revision is not appropriate as required by CAA Section 130, 42 U.S.C. § 7430 ; WHEREAS, EPA has not conducted a review of the VOC emission factors for flares, tanks, and wastewater treatment systems identified in the Complaint or revised these factors
under CAA Section 13 0, 42 U.S.C. § 7430 in over three years ; WHEREAS, EPA maintains an official Compilation of Air Pollutant Emiss ion Factors,
referred to as AP

- 42; WHEREAS, EPA has issued a series of report s known as the Locating and Estimating Air Toxics Emissions Report (“L&E Report”) that contains available information on source categories of toxic air emission and identifies p otential release points and emission factors; WHEREAS, before filing the C omplaint in this action, Plaintiff s served notice on EPA as required by the CAA to inform EPA of Plaintiff s ’ intent to initiate the present action; WHEREAS, Plaintiff s and EPA (coll ectively, “the P arties”) have agreed to a settlement of this action without admission of any issue of fact or law, except as expressly provided herein; WHEREAS, the Parties , by entering into this Consent Decree, do not waive or limit any claim, remedy, or defense, on any grounds, related to any final EPA action; WHEREAS, the Parties consider this Consent Decree to be an adequate and equitable resolution of all the claims in this matter and therefore wish to effectuate a settlement; WHEREAS, it is in the i nterest of the public, Plaintiff s , EPA, and judicial economy to resolve this matter without protracted litigation; WHEREAS, the Parties agree that this Court has jurisdiction over this matter pursuant to the citizen suit provision in CAA section 304(a)(2) , 42 U.S.C. § 7604(a)(2), and that venue is Case 1:13-cv-00621-KBJ Document 19-1 Filed 02/11/14 Page 2 of 103 proper in the U nited States District Court for the District of Columbia pursuant to 28 U.S.C. § 1391(e); WHEREAS, the Court, by entering this Consent Decree, finds that the Consent Decree is fair, reasona ble, in the public interest, and consistent with the Clean Air Act; NOW THEREFORE, before the taking of testimony, without trial or determination of any issues of fact or law, and upon the consent of the Parties , it is hereby ordered, adjudged and
decreed that:
1. This Court has jurisdiction over the claims set forth in the Complaint and may order the relief contained in the Consent Decree. Venue is proper in the United States District
Court for the District of Columbia

. 2. For the VOC emissions factors for flare s, tanks and wastewater treatment systems identified in the Complaint , the EPA Administrator shall:

a. No later than August 19 , 2014 : (i) review a nd either propose revis ions to the VOC emission factors
for flares under CAA section 130 , 42 U.S.C. § 7430 , or propos e a determination that revision of the VOC emission factors for flares
is not necessary under CAA section 130 ; (ii) review a nd either propose revis ions to the VOC emission factors
for tanks under CAA section 130 , 42 U.S.C. § 7430 , or propose a determination th at revision of VOC emission factors for tanks is not necessary under CAA section 130 ; (iii) review and either propose revisions to the VOC emission factors for wastewater treatment systems under CA A section 130, 42 Case 1:13-cv-00621-KBJ Document 19-1 Filed 02/11/14 Page 3 of 104 U.S.C. § 7430 , or propos e a determination that revision of VOC emission factors for wastewater treatment systems is not necessary under CAA section 130 ; b. No later than December 19, 2014: (i) issue final revisions to the VOC emission factors for flares under
CAA section 130 , or issue a final determi nation that revision of
VOC emission factors for flares is not necessary under CAA
section 130 ; (ii) issue final revisions to the VOC emission factors for tanks under
CAA section 130 , 42 U.S.C. § 7430, or issue a final
determination that revision of the VOC emi ssion factors for tanks is not necessary under CAA section 130 ; (iii) issue final revisions to the VOC emission factors for wastewater treatment systems under CAA section 130 , 42 U.S.C. § 7430, or issue a final determination that revision of the VOC emission
fa ctors for wastewater treatment systems is not necessary under
CAA section 130.
3. EPA shall post each proposed revision or determination (or combination thereof) , and each final revision or determination (or combination thereof) , as described in paragraph 2 o f this Consent Decree, on its AP

- 42 website (located at http://www.epa.gov/ttn/chief/ap42/ ) on the dates described in paragraph 2. In addition, EPA shall provide a copy of each such action to
Plaintiff s ’ counsel indicated in Paragraph 15 within seven ( 7 ) days of posting

. Case 1:13-cv-00621-KBJ Document 19-1 Filed 02/11/14 Page 4 of 105 4. Once EPA has completed all of the actions set forth above and after the final actions required by paragraph s 2 and 3 have been completed , EPA may move to have this
Consent Decree terminate d , and the action dismissed . Plaintiff s shall have thirty (30 ) days in which to respond to such motion.
5. The deadlines established by this Consent Decree may be modified (a) by written stipulation of EPA and Plaintiffs with notice to the Court, or (b) by the Court on motion of EPA
for good cause shown pursuant to the Federal Rules of Civil Procedure, and upon con sideration of any response by Plaintiff ( s )

. Any other provision of this Consent Decree also may be modified by the Court following motion of an undersigned party for good cause shown pursuant
to the Federal Rules of Civil Procedure and upon consideration of any response by a non
- moving party.
6. In the event of a dispute between the P arties concerning the interpretation or implementation of any aspect of this Consent Decree, the disputing par ty shall provide the other parties with a written notice outlining the nature of the dispute and requesting informal negotiations. The P arties shall meet and confer in order to attempt to resolve the dispute

. If the
P arties are unable to resolve the dispute within fourteen (14) days after receipt of the notice, a party may petition the Court to resolve the dispute.
7. This Court shall retain jurisdiction over this matter to enforce the terms of this
Consent Dec ree and to consider any request s from Plaintiffs for costs of litigation, including attorney fees.
8. Nothing in the terms of this Consent Decree shall be construed (a) to confer upon this Court jurisdiction to review any final rule or determination issued by EPA pursuant to this Consent Decree, (b) to confer upon this Court jurisdiction to review any issues that are within the Case 1:13-cv-00621-KBJ Document 19-1 Filed 02/11/14 Page 5 of 106 exclusive jurisdiction of the United States Courts of Appeals under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1), or (c) to waive any claims, remedies, or defenses that the P arties may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1).
9. Nothing in this Consent Decree shall be construed to limit or modify any discretion accorded EPA by the Clean Air Act or by general principles of administrative law in taking the actions which are the subject of this Consent Decree, including the discretion to alter, amend, or revise any final actions promulgated pursuant to this Consent Decree. EPA’s obligation to perform each action specified in this Consent Decree does not constitute a limitation or modification of EPA’s discretion within the meaning of this paragraph.
10. Except as expressly provided herein, nothing in this Consent Decree shall be construed as an admission of any issue of fact or la w . By entering into this Consent Decree,
EPA and Plaintiff s do not waive or limit any claim, remedy, or defense, on any grounds, related to any final action EPA takes with respect to the actions addressed in this Consent Decree.
11. The deadline for filing a motion for costs of litigation (including attorney fees) for activities performed prior to e ntry of the Consent Decree is hereby extended until ninety ( 9 0 ) days after this Consent Decree is entered by the Court. During this period, the P arties shall seek to resolve informally any claim for costs of litigation (including attorney fees), and if they
cannot, Plaintiff s will file a motion for costs of litigation (including attorney fees) or a stipulation
or motion to extend the deadline to fi le such a motion

. EPA reserves the right to oppose any such request.
12. Plaintiff s reserve the right to seek additional costs of litigation, including attorney fees, incurred subsequent to entry of this Consent Decree and arising from Plaintiff s’ need to
enf orce or defend against efforts to modify its terms or the underlying schedule outlined herein, Case 1:13-cv-00621-KBJ Document 19-1 Filed 02/11/14 Page 6 of 107 or for any other unforeseen continuation of this action. EPA reserves the right to oppose any such request.
13. It is hereby expressly understood and agreed that t his Consent Decree was jointly drafted by Plaintiff s and EPA. Accordingly, the P arties hereby agree that any and all rules of construction to the effect that ambiguity is construed against the drafting party shall be inapplicable in any dispute concerning the terms, meaning, or interpretation of this Consent
Decree.
14. The P arties agree and acknowledge that before this Consent Decree is entered by the Court, EPA must provide notice of this Consent Decree in the Federal Register and an opportunity for public c omment pursuant to CAA section 113(g), 42 U.S.C. § 7413(g). After this Consent Decree has undergone notice and comment, the Administrator and/or the Attorney General, as appropriate, shall promptly consider any written comments received in determining
whe ther to withdraw or withhold their consent to the Consent Decree, in accordance with CAA section 113(g). If the Administrator and the Attorney General do not elect to withdraw or withhold consent, EPA shall promptly file a motion that requests that the C o urt enter this
Consent Decree.
15. Any notices required or provided for by this Consent Decree shall be in writing, via electronic mail or certified mail, and sent to each of the following counsel (or to any new
address of the P arties’ counsel as filed and lis ted in the docket of the above

- capti oned matter, at a future date):

a. For Plaintiff s Air Alliance Houston, Community In

- Power and Development Association, Inc., Louisiana Bucket Brigade, and Texas Environmental Justice Advocacy Services : Jennifer Duggan Case 1:13-cv-00621-KBJ Document 19-1 Filed 02/11/14 Page 7 of 108 Whitney Ferrell Environmental Integrity Project 1000 Vermont Avenue, Suite 1100 Washington, D.C. 20005 E

- mail: jduggan@environmentalintegrity.org E

- mail: wferrell@environmentalintegrity.org
b. For Defendant EPA:
Michele L. Walter United States Department of Justice Environment & Natural Resources Division P.O. Box 7611 Washington, D.C. 20044 E

- mail: michele.walter@usdoj.gov
16. EPA and Plaintiff s recognize and acknowledge that the obligations imposed upon EPA under this Consent Decree can only be undertaken using appropriated funds legally available for such purpose. No provision of this Consent Decree shall be interpreted as or
constitute a comm itment or requirement that the United States obligate or pay funds in
contravention of the Anti

- Deficiency Act, 31 U.S.C. § 1341, or any other applicable provision of
law.
17. If for any reason the Court should decline to approve this Consent Decree in the
for m presented, this agreement is voidable at the sole discretion of either party and the terms of the proposed Consent Decree may not be used as evidence in any litigation between the P arties.
18. The undersig ned representatives of Defendant EPA and Plaintiffs A ir Alliance Houston, Community In

- Power and Development Association, Inc., Louisiana Bucket Brigade, and Texas Environmental Justice Advocacy Services certify that they are fully authorized by the party they represent to consent to the Court’s entry of the terms and conditions of this Consent
Decree. Case 1:13-cv-00621-KBJ Document 19-1 Filed 02/11/14 Page 8 of 109 COUNSEL FOR PLAINTIFF S :
Date d :

__________________ /s/______________________ Jennifer Duggan, D.C. Bar No. 978352 Environmental Integrity Project 1000 Vermont Avenue, Suite 1100 Washingto n, D.C. 20005 Tel: (802) 225

- 6774 E

- mail: jduggan@environmentalintegrity.org Whitney Ferrell, D.C. Bar No. 1013459 Environmental Integrity Project 1000 Vermont Avenue, Suite 1100 Washington, D.C. 20005 Tel: (202) 263

- 4456 E

- mail: wferrell@environmentalintegrity.org

Counsel for Plaintiffs Air Alliance Houston, Community In

- Power and Development Association, Inc., Louisiana Bucket Brigade, and Texas Environmental Justice Advocacy Services

COUNSEL FOR DEFENDANT:
Dated:

__________________ /s/______________________
ROBERT G. DREHER Acting Assistant Attorney General Environment & Natural Resources Division
MICHELE L. WALTER , D.C. Bar No. 487329 United States Department of Justice Environment & Natural Resources Division P.O. Box 7611 Washington, D.C. 20044 Tel: (202) 514

- 2795 E

- mail: michele.walter@usdoj.gov

Counsel for Defendant EPA Case 1:13-cv-00621-KBJ Document 19-1 Filed 02/11/14 Page 9 of 1010 SO ORDERED on this _____ day of _____________________, 201 4

.

___________________________________ KETANJI BROWN JACKSON United States District Judge Case 1:13-cv-00621-KBJ Document 19-1 Filed 02/11/14 Page 10 of 10