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Programs and Projects of the Office of General Counsel (OGC)

Proposed Consent Decrees and Draft Settlement Agreements

Under the Administrator’s Transparency and Public Participation in Litigation Directive (October 16, 2017), EPA is committed to promote transparency and public participation in the settlement process involving lawsuits against EPA. As a part of that commitment, the Agency is providing information regarding the public review and comment period for all draft settlement agreements and proposed consent decrees that resolve claims against EPA.

On this page:

Our Children’s Earth Foundation v. Wheeler

In accordance with section 113(g) of the Clean Air Act, as amended (“CAA” or the “Act”), notice is given of a proposed consent decree in Our Children’s Earth Foundation v. Wheeler, No. 3:19-cv-09125 (N.D. Cal.). On October 29, 2019, Our Children’s Earth Foundation filed a complaint in the United States District Court for the Northern District of California, alleging that the Administrator of the United States Environmental Protection Agency (“EPA”) failed to perform non-discretionary duties to review, and if appropriate revise, four new source performance standards (NSPS) under Clean Air Act section 111(b)(1)(B) and three national emission standards for hazardous air pollutants (NESHAP) under Clean Air Act section 112(d)(6). The standards OCE identified are:

  • Secondary Lead Smelters, 40 CFR Part 60, Subpart L (NSPS)
  • Lead-Acid Battery Manufacturing Plants, 40 CFR Part 60, Subpart KK (NSPS)
  • Automobile and Light Duty Truck Surface Coating Operations, 40 CFR Part 60, Subpart MM (NSPS)
  • Industrial Surface Coating: Surface Coating of Plastic Parts for Business Machines, 40 CFR Part 60, Subpart TTT (NSPS)
  • Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources, 40 CFR Part 63, Subpart HHHHHH (NESHAP)
  • Dry Cleaning Facilities: National Perchloroethylene Air Emission Standards, 40 CFR Part 63, Subpart M (NESHAP)
  • Lead Acid Battery Manufacturing Area Sources, 40 CFR Part 63, Subpart PPPPPP (NESHAP)

The public is invited to comment on the proposed consent decree’s terms through regulations.gov.  All comments submitted are available to the public.

A copy of the proposed consent decree and the Federal Register notice with further details can be found under docket no. EPA-HQ-OGC-2020-0368.  Public comments on the proposed settlement agreement may be submitted to that online docket until August 24, 2020.

Waterkeeper Alliance, et al v. EPA – Safe Drinking Water Act Claims

In accordance with the Environmental Protection Agency (EPA) Administrator’s October 16, 2017, Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements, notice is hereby given of a proposed settlement agreement to address several claims in a lawsuit filed by the Waterkeeper Alliance, Inc., Waterkeeper Chesapeake, Inc. and California Coastkeeper (d/b/a California Coastkeeper Alliance)(‘‘Plaintiffs’’) in the United States District Court for the Southern District of New York. On January 30, 2019, the Plaintiffs filed a complaint pursuant to the Safe Drinking Water Act and the Administrative Procedure Act seeking declaratory and injunctive relief to resolve the claims regarding EPA’s obligations to develop new and revised National Primary Drinking Water Regulations. Under the proposed settlement agreement, the EPA would agree to deadlines with respect to certain actions under the Safe Drinking Water Act.

The public is invited to comment on the proposed consent decree’s terms through regulations.gov. All comments submitted are available to the public.

A copy of the proposed consent decree and the Federal Register notice with further details can be found under Docket no. EPA-HQ-OGC-2020-0140. Public comments on the proposed settlement agreement may be submitted to that online docket until May 18, 2020.

Natural Resources Defense Council, et al v. EPA, et al - Comment period closed 03/04/20

In accordance with the EPA Administrator’s October 16, 2017, Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements, notice is hereby given of a proposed consent decree to address claims in a lawsuit filed by the Natural Resources Defense Council, Clean Water Action, and the Environmental Justice Health Alliance for Chemical Policy Reform (collectively, “Plaintiffs”) in the United States District Court for the Southern District of New York. Natural Resources Defense Council, et. al v. United States Environmental Protection Agency, et. al, No. 1:19-cv-02516 (S.D.N.Y., filed Mar. 21, 2019). Plaintiffs filed a complaint alleging, inter alia, that the United States Environmental Protection Agency (‘‘EPA’’) had a duty under Clean Water Act (“CWA”) section 311(j)(5)(A)(i), to issue regulations that require an owner or operator of a non-transportation-related onshore “facility described in subparagraph (C) to prepare and submit to the President a plan for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge, of . . . a hazardous substance” (the “Hazardous Substance Worst Case Discharge Planning Regulations”) by August 18, 1992. The proposed consent decree would set deadlines for EPA to complete a notice of proposed rulemaking pertaining to the issuance of the Hazardous Substance Worst Case Discharge Planning Regulations, and for publication of a notice taking final action following notice and comment rulemaking pertaining to the issuance of Hazardous Substance Worst Case Discharge Planning Regulations.

The public is invited to comment on the proposed consent decree’s terms through regulations.gov. All comments submitted are available to the public.

A copy of the proposed consent decree and the Federal Register notice with further details can be found under Docket no. EPA-HQ-OGC-2019-0667. Public comments on the proposed settlement agreement may be submitted to that online docket until March 4, 2020.

Center for Biological Diversity, et al. v. Wheeler - Comment period closed 01/16/20

In accordance with section 113(g) of the Clean Air Act, as amended (“CAA” or the "Act"), notice is given of a proposed consent decree in Center for Biological Diversity, et al., v. Wheeler, No. 4:19-cv-01544 (N.D. Cal.). On March 26, 2019, the Center for Biological Diversity and the Center for Environmental Health filed a complaint in the United States District Court for the Northern District of California, alleging that the Administrator of the United States Environmental Protection Agency (“EPA”) failed to perform non-discretionary duties to take final action to make a determination whether the West Central Pinal nonattainment area attained the 2006 24-hour fine particulate matter (“PM2.5”) NAAQS by the attainment date and to take final action to promulgate a federal implementation plan (“FIP”) addressing certain deficiencies in the State of Arizona’s new source review program.  The EPA has already taken final action to find that the West Central Pinal nonattainment area attained the NAAQS.  Thus, the proposed consent decree would establish deadlines for EPA to take specified actions as to the remaining claim.

The public is invited to comment on the proposed consent decree’s terms through regulations.gov.  All comments submitted are available to the public.  

A copy of the proposed consent decree and the Federal Register notice with further details can be found under Docket no. EPA-HQ-OGC-2019-0683.  Public comments on the proposed settlement agreement may be submitted to that online docket until January 16, 2020.

United States Steel Corporation v. EPA, Case Nos. 13–3595 (8th Cir. filed November 29, 2013), 16–2668 (8th Cir. filed June 13, 2016), and 18–1249 (8th Cir. filed February 1, 2018) - Comment period closed 10/11/19

In accordance with section 113(g) of the Clean Air Act, as amended (‘‘CAA’’ or the ‘‘Act’’), notice is hereby given of a proposed settlement agreement to resolve petitions for review filed by United States Steel Corporation (‘‘U.S Steel’’) with respect to U.S. Steel’s Minntac taconite facility, involving several actions taken by EPA with regard to nitrogen oxide (NOX) emission limits for Minntac. On November 29, 2013, June 13, 2016, and February 1, 2018, U.S. Steel filed petitions in the United States Court of Appeals for the Eighth Circuit challenging EPA’s 2013 Regional Haze (RH) Federal Implementation Plan (FIP) for Minnesota and Michigan; 2013 RH State Implementation Plan (SIP) partial disapprovals for Michigan and Minnesota; 2016 revised RH FIP for Michigan and Minnesota; and EPA’s denial of U.S. Steel’s petitions for reconsideration of the 2013 FIP, 2013 SIP partial disapprovals, and 2016 revised FIP. The Settlement Agreement would resolve U.S. Steel’s challenges to these actions, with respect to Minntac. Under the proposed settlement agreement, the parties agree to take certain specified actions.

The public is invited to comment on the proposed settlement agreement’s terms through regulations.gov.  All comments submitted are available to the public. A copy of the proposed settlement agreement and the Federal Register notice with further details can be found under Docket No. EPA-HQ-OGC-2019-0519. Public comments on the proposed settlement agreement may be submitted to that online docket until October 11, 2019.

Center for Biological Diversity et. al., v. US EPA et al., No. 3:11 cv 0293 (N.D.Ca.) - Comment period closed 8/23/19

In accordance with the EPA Administrator’s October 16, 2017, Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements, EPA is taking comment on a proposed stipulated partial settlement agreement in the case of Center for Biological Diversity et. al., v. United States Environmental Protection Agency et al., No. 3:11 cv 0293 (N.D. Cal.). Plaintiffs filed the original case on January 20, 2011, asserting a single claim against EPA for allegedly violating section 7(a)(2) of the Endangered Species Act (ESA) by failing to initiate and reinitiate consultation with the National Marine Fisheries Service and/or the United States Fish and Wildlife Service (the Services) with respect to its ongoing oversight of 382 pesticide active ingredients. After several motions and an appeal to the Ninth Circuit Court of Appeals that significantly narrowed the case, the plaintiffs filed their fourth amended complaint on June 29, 2018, alleging that EPA failed to initiate ESA section 7(a)(2) consultation for certain pesticide products containing 35 pesticide active ingredients. After several discussions, the parties reached the proposed stipulated partial settlement agreement that EPA is taking comment on beginning August 23, 2019. Among other provisions, this agreement would set a February 14, 2021, deadline for EPA to complete ESA section 7(a)(2) effects determination for carbaryl and methomyl, and, as appropriate, request initiation of any ESA section 7(a)(2) consultations with the Services that EPA may determine to be necessary as a result of those effects determinations. Additional deadlines would include August 14, 2021, for atrazine and simazine, and August 14, 2024, for brodifacoum, bromadiolone, warfarin, and zinc phosphide for EPA to complete effects determinations, and, as appropriate, request initiation of any ESA consultations with the Services. The stipulated partial settlement agreement would also include a meet and confer deadline of August 30, 2021, for all parties to discuss possible resolution of the remaining issues in this case.

A copy of the proposed stipulated partial settlement agreement and the Federal Register notice with further details can be found under Docket no. EPA-HQ-OGC-2019-0478; FRL #: 9998-70-OGC. A 30-day public comment period begins on August 23, 2019.

ArcelorMittal Burns Harbor LLC v. US EPA - Comment period closed 7/24/19

In accordance with section 113(g) of the Clean Air Act, as amended (“CAA” or the “Act”), notice is hereby given of a proposed settlement agreement to resolve a case filed by ArcelorMittal Burns Harbor, L.L.C. (“ArcelorMittal”), involving an EPA action on a State Implementation Plan (“SIP”) revision submitted by the State of Indiana.  On February 25, 2014, ArcelorMittal filed a petition with the United States Court of Appeals for the Seventh Circuit challenging EPA’s disapproval of Indiana’s SIP revision which would have removed the emissions limit for SO2 from the blast furnace gas flare at ArcelorMittal’s steel mill in Porter County, Indiana.  ArcelorMittal Burns Harbor LLC v. EPA (14-1412, 7th Cir.).  Under the proposed settlement agreement, the parties agree to take certain specified actions. 

The public is invited to comment on the proposed settlement agreement’s terms through regulations.gov.  All comments submitted are available to the public.

A copy of the proposed settlement agreement and the Federal Register notice with further details can be found under Docket no. EPA-HQ-OGC-2018-0767. Public comments on the proposed settlement agreement may be submitted to that online docket until July 24, 2019.

Citizens for Clean Air, et al v. Wheeler, et al - Comment period closed 7/5/19

EPA is taking comment on a proposed consent decree in a lawsuit filed by Citizens for Clean Air, a project of Alaska Community Action on Toxics, and Sierra Club (Plaintiffs) in the United States District Court for the Western District of Washington. On December 17, 2018, Plaintiffs filed a complaint alleging that EPA failed to perform a mandatory duty to determine whether the State of Alaska (Alaska) has made a specific state implementation plan (SIP) submission. Alaska is required to make the submission at issue to meet “Serious area” SIP planning requirements for the Fairbanks nonattainment area for purposes of attaining the 2006 24-hour PM2.5 NAAQS. EPA has a statutory duty to make a completeness determination concerning whether a state has made a required SIP submission. The proposed consent decree would establish a deadline for EPA to make the determination whether Alaska made a complete SIP submission intended to meet the Serious area planning requirements for the Fairbanks area.

A copy of the proposed consent decree and the Federal Register notice with further details can be found at https://www.regulations.gov under Docket No. EPA-HQ-OGC-2019-0209. Public comment on the proposed consent decree may be submitted to that online docket until July 5, 2019.

Our Children’s Earth Foundation v. Wheeler - Comment period closed 4/4/19

EPA is taking comment on a proposed consent decree in a lawsuit filed by Our Children’s Earth Foundation (OCE) in the United States District Court for the Northern District of California. On August 7, 2018, Plaintiff filed a complaint alleging that the EPA failed to perform non-discretionary duties to review and if appropriate revise two new source performance standards (NSPS) under Clean Air Act section 111(b)(1)(B) and four national emission standards for hazardous air pollutants (NESHAP) under Clean Air Act section 112(d)(6). The standards OCE identified are:

  • Electric Arc Furnaces and Argon-Oxygen Decarburization Vessels in Steel Plants, 40 CFR 60, Subparts AA & AAa (NSPS)
  • Bulk Gasoline Terminals, 40 CFR 60, Subpart XX (NSPS)
  • Gasoline Distribution Facilities (Bulk Gasoline Terminals and Pipeline Breakout Stations), 40 CFR 63, Subpart R (NESHAP)
  • Gasoline Distribution Bulk Terminals, Bulk Plants, and Pipeline Facilities, 40 CFR 63, Subpart BBBBBB (NESHAP)
  • Iron and Steel Foundries Area Sources, 40 CFR 63, Subpart ZZZZZ (NESHAP)
  • Wood Preserving Area Sources, 40 CFR 63, Subpart QQQQQQ (NESHAP)

The proposed consent decree would settle these claims and establish deadlines for EPA to undertake reviews for these six standards. A copy of the proposed partial consent decree and the Federal Register notice with further details can be found under Docket No. EPA-HQ-OGC-2018-0848. Public comment on the proposed partial consent decree may be submitted to that online docket until April 4, 2019.

Sierra Club v. EPA - Comment period closed 3/25/19

EPA is taking comment on a proposed partial Consent Decree in a lawsuit filed by Sierra Club in the United States District Court for the District of Columbia. On October 19, 2017, Plaintiff filed a complaint alleging that the EPA failed to perform a non-discretionary duty to assess and report to Congress on the environmental and resource conservation impacts of the Energy Independence and Security Act’s Renewable Fuel Standard (RFS) program, failed to complete the required anti-backsliding study to determine whether the vehicle and engine air pollutant emissions changes resulting from the RFS program’s renewable fuel volumes adversely impact air quality, and failed to promulgate fuel regulations to implement appropriate measures to mitigate any such adverse impacts or make a determination that such regulations were unnecessary.  The proposed partial consent decree would establish a deadline for EPA to take action on the anti-backsliding study.

A copy of the proposed partial consent decree and the Federal Register notice with further details can be found under Docket No. EPA-HQ-OGC-2018-0818. Public comment on the proposed partial consent decree may be submitted to that online docket until March 25, 2019.

On August 21, 2019, EPA and Plaintiff entered into a finalized settlement agreement

Ellis, et al. v. Keigwin, et al. - Comment period closed 1/11/19

On May 8, 2017, the U.S. District Court for the Northern District of California found that EPA had failed to comply with the consultation requirements of section 7(a)(2) of the Endangered Species Act (ESA) with respect to 59 products containing the insecticide active ingredients clothianidin and thiamethoxam. The proposed stipulation and stipulated notice of dismissal would settle the remedy proceeding in that matter. The proposed stipulation provides, among other things, that EPA would agree to complete ESA effects determinations by June 30, 2022, for its FIFRA registration reviews of clothianidin and thiamethoxam and, as appropriate, request initiation of ESA consultation with the U.S. Fish and Wildlife Service and National Marine Fisheries Service.

A copy of the proposed stipulation and proposed stipulated notice of dismissal and the Federal Register notice with further details can be found under Docket No. EPA-HQ-OGC-2018-0745. Public comment on the proposed order may be submitted on that online docket until January 11.

West Goshen Sewer Authority v. EPA, et al. - Comment period closed 9/20/18

EPA is taking comment on a proposed Second Interim Settlement Agreement in a lawsuit filed by the West Goshen Sewer Authority (WGSA) in the United States District Court for the Eastern District of Pennsylvania: West Goshen Sewer Authority v. EPA, et al.  On September 19, 2012, Plaintiff filed a complaint alleging that the EPA exceeded its statutory authority under the Clean Water Act and acted arbitrarily and capriciously when it established a “total maximum daily load” for Goose Creek in southeastern Pennsylvania. The proposed Second Interim Settlement Agreement would memorialize commitments by WGSA, among other things, to install a “CoMag” ballasted flocculation system at its wastewater treatment plant and achieve certain specified discharge limits for phosphorus. After a period of time, EPA would reassess the water quality of Goose Creek and decide whether to withdraw, revise or retain the Goose Creek TMDL.

A copy of the proposed settlement agreement and the Federal Register notice with further details can be found under Docket No. EPA-HQ-OGC-2018-0591.Public comment on the proposed order may be submitted on that online docket until September 20.

Northwest Environmental Advocates v. EPA - Comment period closed 7/23/18

EPA is taking comment on a proposed stipulated order of partial dismissal (proposed order) to resolve several claims in Northwest Environmental Advocates v. United States Environmental Protection Agency before the United States District Court for the Western District of Washington, under section 7 of the Endangered Species Act (ESA) . Within three years of the entry of the proposed order, EPA will complete an ESA effects determination for its February 11, 2008 approval of Washington’s revisions to the State’s ammonia criteria and, as appropriate, request initiation of any necessary ESA consultation with the Fish & Wildlife Service and the National Marine Fisheries Service (the Services). If during that time, Washington submits revisions to the ammonia criteria and EPA intends to approve, EPA will complete an effects determination and, if appropriate, request initiation of any necessary ESA consultation with the Services within one year of submission or three years of the Court’s approval of the proposed order, whichever is later. The proposed order also includes commitments by the State of Washington to resolve claims under the Clean Water Act and the Administrative Procedure Act; however, EPA is not taking comment on those aspects of the proposed order.

A copy of the proposed order and the Federal Register notice with further details can be found under Docket No. EPA-HQ-OGC-2018-0378. Public comment on the proposed order may be submitted on that online docket until July 23.

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