Case 4:17-cv-00660 Document 23 Filed in TXSD on 07/26/18 Page 1 of 2

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
____________________________________
ENVIRONMENT AMERICA, INC.
d/b/a ENVIRONMENT TEXAS and
SIERRA CLUB,
Plaintiffs,

Civil Action No. 4:17-cv-00660

v.
PASADENA REFINING SYSTEM, INC.,
Defendant.
___________________________________

JOINT MOTION FOR ENTRY OF CONSENT DECREE
The parties jointly move this Court to enter, after a statutorily mandated 45-day waiting
period, the attached consent decree to fully settle this case. The parties represent that the
settlement terms are fair, adequate, reasonable, and consistent with the purposes of the federal
Clean Air Act ("CAA").
Pursuant to the Clean Air Act, 42 U.S.C. § 7604(c)(3), a copy of the attached consent
decree is being sent to the U.S. Attorney General and the U.S. Environmental Protection Agency.
Under that section of the CAA, the federal government has 45 days from receipt of the proposed
consent decree to submit to the Court any comments it has on the decree. The parties will notify
the Court of the dates upon which the Attorney General and the EPA received copies of the
consent decree, and of the expiration of the 45-day waiting period.

 Case 4:17-cv-00660 Document 23 Filed in TXSD on 07/26/18 Page 2 of 2

Dated: July 26, 2018

Plaintiffs, by their Attorneys:
/s/ Philip H. Hilder
Philip H. Hilder
Hilder & Associates, P.C.
819 Lovett
Houston, Texas 77006
(713) 655-9111 (phone)
(713) 655-9112 (fax)
Joshua R. Kratka
National Environmental Law Center
294 Washington Street, Suite 500
Boston, Massachusetts 02108
(617) 747-4333 (phone)
(617) 292-8057 (fax)
David A. Nicholas
20 Whitney Road
Newton, Massachusetts 02460
(617) 964-1548 (phone)
(617) 663-6233 (fax)
Defendant, by their Attorneys:
Tynan Buthod
Matthew L. Kuryla
Mark Hamlin
Baker Botts L.L.P.
910 Louisiana
Houston, Texas 77002
(713) 229-1912 (phone)
(713) 229-2712 (fax)

CERTIFICATE OF SERVICE
On July 26, 2018, a true and correct copy of the foregoing was served through the Court’s
ECF system and in compliance with the Federal Rules of Civil Procedure on all counsel of
record.
/s/ Philip H. Hilder
Philip H. Hilder

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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
____________________________________
ENVIRONMENT AMERICA, INC.
d/b/a ENVIRONMENT TEXAS and
SIERRA CLUB,
Plaintiffs,

Civil Action No. 4:17-cv-00660

v.
PASADENA REFINING SYSTEM, INC.,
Defendant.
___________________________________
CONSENT DECREE AND ORDER
Upon consideration of the Motion for Entry of Consent Decree and Order filed by the
parties, it is hereby ORDERED, ADJUDGED AND DECREED as follows:
I. BACKGROUND
1.

Environment America, Inc. d/b/a Environment Texas and Sierra Club

(collectively, “Plaintiffs”) brought this suit against Pasadena Refining System, Inc. (“Defendant”
or “PRSI”) under the federal Clean Air Act (the “CAA” or “the Act”), 42 U.S.C. § 7401, et seq.,
for alleged violations of the Act at PRSI’s refinery in Pasadena, Texas (the “Pasadena
Refinery”).
2.

The parties recognize and the Court, by entering this Consent Decree and Order

(the “Consent Decree”), finds that this Consent Decree has been negotiated by the parties in good
faith; settlement will avoid continued litigation between the parties; settlement of this matter is in
the public interest and in accordance with the CAA; and, entry of this Consent Decree is fair and
reasonable.

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3.

On the date this Consent Decree was filed with the Court, the Plaintiffs

concurrently served a copy of this Consent Decree on the United States Environmental
Protection Agency and the United States Department of Justice, consistent with the requirements
of 42 U.S.C. § 7604(c)(3).
II.
4.

JURISDICTION AND VENUE

This Court has jurisdiction over the parties and subject matter of this Consent

Decree pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 7604. Venue is proper in this Court
pursuant to 42 U.S.C. § 7604(c) and 28 U.S.C. §§ 1391(b) and (c).
III.
5.

APPLICABILITY

The provisions of this Consent Decree shall apply to and be binding upon the

parties and their successors and assigns. In the event PRSI proposes to sell or transfer, in whole
or in part, its legal or equitable interest in the Pasadena Refinery before the termination of this
Consent Decree, or if PRSI’s operational responsibilities for the Pasadena Refinery are
transferred or assigned in whole or in part before the termination of this Consent Decree, PRSI
shall notify Plaintiffs of such proposed sale, transfer or assignment, shall advise the proposed
purchaser, successor-in-interest, assignee or transferee of the existence of this Consent Decree,
and shall condition the sale, transfer or assignment on the purchaser’s, successor-in-interest’s,
assignee’s or transferee’s agreement to comply with the terms hereof. In the event of a sale,
transfer or assignment by PRSI, PRSI shall file a motion to modify this Consent Decree with the
Court to make the terms and conditions of this Consent Decree applicable to the purchaser,
successor-in-interest, assignee, or transferee.
6.

Definitions. Terms used in this Consent Decree that are defined in the CAA or in

regulations promulgated pursuant to the CAA, shall have the meanings assigned to them in the

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CAA or such regulations, unless otherwise provided in this Consent Decree. Whenever the
terms set forth below are used in this Consent Decree, they shall have the following meanings:
(a)

“Day” shall mean a calendar day, except that when computing any period of time

under this Consent Decree for purposes of completion of milestones or submittal of reports,
where the last day would fall on a Saturday, Sunday or legal holiday, the period shall run until
the close of business of the next working day.
(b)

“Emissions Event” shall have the meaning set forth in 30 Tex. Admin. Code §

101.1(28).
(c)

“ESP Stack” shall mean the Electrostatic Precipitator Stack at the Pasadena

Refinery, which has been assigned emission point number HTBLR010 in Permit No. 20246.
(d)

“Excess Emissions” shall mean, for each of the pollutants and emission points

listed in paragraph 19 of this Consent Decree, the quantity of a pollutant emitted to the
atmosphere from an emission point in excess of the hourly (lbs/hr) or annual (tons/yr)
authorization as set forth in the applicable Maximum Allowable Emissions Rate Table
(“MAERT”) or other applicable authorization in effect at the time of the emissions. In the case
of the emission of a pollutant for which no authorization is provided, all of such emission is an
Excess Emission. Notwithstanding the foregoing, emissions that are caused by a Force Majeure
event as defined in paragraph 20 are not Excess Emissions. However, if the Force Majeure event
is a declared hurricane emergency or an External Electrical Grid Failure (as defined in paragraph
6(e)), the resulting emissions are exempt from this definition only if PRSI has notified Plaintiffs
that it complied with the most current version of the Hurricane Startup and Shutdown Plan
described in paragraph 11 or with the most current version of the Electrical Grid Failure Plan
described in paragraph 13, respectively.

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(e)

“External Electrical Grid Failure” means a loss or interruption of the Pasadena

Refinery’s electric power feed from the power supplier (i) from causes beyond the control of
PRSI and (ii) that results in a major interruption in operations at the Pasadena Refinery. PRSI
shall have the burden of reasonably establishing the occurrence of an External Electrical Grid
Failure by providing documentation from the transmission distribution service provider or such
other data as PRSI may possess or reasonably obtain that reasonably establishes that such
occurrence was caused by an External Electrical Grid Failure.
(f)

“Seal Pot” shall mean the emission point at the Pasadena Refinery which has been

assigned emission point number VTFCC003 in Permit No. 20246
(g)

“VOCs” means total emissions of all volatile organic compounds as defined in 30

Tex. Admin. Code 101.1(116).
(h)

“Year,” for purposes of annual emissions estimations and the actions and

milestones that must be reported upon pursuant to paragraph 7, means the twelve-month period
beginning on April 1, 2018, or the yearly recurrence of such twelve-month period.
IV.

COMPLIANCE AND REPORTING REQUIREMENTS

7.

Annual Reporting Requirements:

(a)

On an annual basis beginning on June 1, 2019, and annually thereafter until

termination, PRSI shall submit to Plaintiffs an annual written report that contains, at a minimum,
the following information regarding pollutant emissions and stipulated payments:
(i)

The date, duration, emission point, pollutant, and quantity of emissions (in

pounds) for each incident of Excess Emissions occurring during the previous Year;
(ii)

The total quantity of Excess Emissions of each pollutant from each

emission point during the previous Year (in pounds);

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(iii)

The date, duration, emission point, pollutant, and quantity of emissions (in

pounds) for each incident occurring during the previous Year that PRSI contends was
attributable to Force Majeure events as defined in paragraph 20;
(iv)

A table showing each monthly total of the 12-month rolling annual total of

PM10 emissions from the Seal Pot during the previous Year, and either a written
explanation of the basis for each monthly total or the underlying data supporting these
calculations;
(v)

The amount of any stipulated payments payable pursuant to paragraph 19

for the previous Year, the calculations used to compute such stipulated payments, and
documentation and a written explanation of any amounts deducted pursuant to paragraph
19(a)(ix) from PRSI’s stipulated payments reflecting penalties actually paid to TCEQ for
violations of the same emission limits for which stipulated payments were incurred;
(vi)

A copy of the semi-annual New Source Performance Standards

compliance reports submitted to TCEQ during the previous Year regarding Boiler #4 and
Boiler #6 at the Pasadena Refinery.
(b)

PRSI shall submit to Plaintiffs an annual written report that describes its progress

in implementing the measures described in paragraphs 8(b) and (c), and that includes the
information required to be provided by paragraphs 8(d), 10(c) and 14.
(c)

The information required by paragraphs 7(a) and 7(b) shall be submitted to

Plaintiffs not later than June 1, 2019, and annually thereafter not later than June 1 of each year,
until termination.
(d)

The annual reporting requirements in paragraphs 7(a)(i)-(v) shall terminate as to

each emission point and pollutant upon termination of the stipulated payments related to that

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emission point and pollutant pursuant to paragraph 29. The annual reporting requirements in
paragraph 7(a)(vi) shall terminate upon termination of all stipulated payments pursuant to
paragraph 29.
(e)

The annual reporting requirements in paragraph 7(b) shall terminate after: (i)

PRSI has provided the one-time reports required by paragraphs 8(a), (b) and (d), 9, 10, 11, 12, 13
and 14; (ii) PRSI has satisfied its obligations under paragraphs 8(b) and (c); and (iii) the
stipulated payment provisions set forth in paragraph 19(a) have terminated.
8.

Control of Emissions from the ESP Stack and Seal Pot. PRSI shall maximize use

of the Electrostatic Precipitator (“ESP”), consistent with plant and worker safety, to control
emissions associated with the Fluid Catalytic Cracking Unit (“FCCU”) at the Pasadena Refinery.
In addition:
(a)

Not later than 60 Days after entry of the Consent Decree, PRSI shall provide to

Plaintiffs a report that: clearly identifies the current operating parameters, values, or set points
that PRSI uses to trigger use of the energized ESP and discontinuation of such use, and how they
are currently measured; and identifies parameters that can be used to further maximize the use of
the ESP for control of emissions in either an energized or non-energized state.
(b)

Not later than December 31, 2019, PRSI shall install analyzers, including carbon

monoxide (“CO”) and/or lower explosive limit (“LEL”) analyzers and associated equipment and
any systems needed to obtain data for each of the parameters identified in the report described in
paragraph 8(a), for the purpose of maximizing ESP usage consistent with safe operation. In the
next annual report, PRSI shall notify Plaintiffs upon compliance with this sub-paragraph.

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(c)

Beginning not later than 180 days after installation of the analyzers, equipment,

and systems described in paragraph 8(b), PRSI shall utilize the additional equipment and
information to maximize ESP usage for control of emissions consistent with safe operation.
(d)

Not later than 60 days after entry of the Consent Decree, PRSI shall develop,

implement, and provide to Plaintiffs the procedure used to assess elevated opacity events,
defined as any opacity of emissions from the ESP Stack (as measured by the ESP Stack’s
continuous opacity monitoring system) that exceeds 20% as a sixty (60) minute average.
Elevated opacity events shall exclude planned start-up and shutdown events. The procedure
shall provide that as soon as practicable after the start of an elevated opacity event, PRSI shall
attempt to determine its cause and shall take corrective action sufficient to address the cause of
the elevated opacity. The procedure shall describe how PRSI will record all elevated opacity
events, the assessments conducted to determine the causes, and the corrective actions taken to
address elevated opacity. A brief summary of elevated opacity events and corrective actions
taken shall be included in the annual reports provided to Plaintiffs pursuant to paragraph 7(b) of
the Consent Decree.
9.

Flare Minimization Plan. Not later than 60 days after entry of the Consent

Decree, PRSI shall:
(a)

Update and provide to Plaintiffs the Flare Minimization Plan for the Pasadena

Refinery. The plan shall cover each flare at the Pasadena Refinery and the contents of the plan
shall include:
(i)

Flow rates, including: the estimated maximum vent gas flow; the

estimated maximum sweep gas flow rate sent to each flare; the estimated minimum purge

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gas flow rate sent to each flare; and the estimated minimum total steam flow rate sent to
each flare;
(ii)

A description and simplified diagram of the flow rates listed in paragraph

9(a); and
(iii)

Identification of the monitor type used to monitor the flow rates described

in paragraph 9(a) to each flare.
(b)

Provide to Plaintiffs a description of major projects implemented within the last

five years to reduce flaring, including the addition of flare gas recovery capacity and the year of
installation for such equipment. The description shall also specify any planned flaring reduction
measures and when such measures will be implemented.
10.

Community Complaint and Response Plan. Not later than 60 days after entry of

the Consent Decree, PRSI shall develop, implement, and provide to Plaintiffs a written plan for
responding to community concerns or complaints involving odors or emissions in accordance
with the requirements of this paragraph. The plan shall include the following:
(a)

A telephone number answered at all times and an email address to enable

individuals to contact PRSI directly regarding odors or emissions. Both the number and email
address shall be made available to the public through PRSI’s website, public meetings and
communication to local government officials.
(b)

How PRSI documents, investigates and follows up on complaints received.

(c)

How PRSI shall maintain an electronic or paper complaint log that includes the

name and address of the complainant (if provided), the date and time of the complaint, and the
nature of the complaint, and any associated investigation and corrective actions. A copy of the
complaint log shall be made available to Plaintiffs upon request (but no more frequently than

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twice per year) or included in the annual report provided to Plaintiffs pursuant to paragraph 7(b)
of the Consent Decree, until termination pursuant to paragraph 7(e).
(d)

The plan shall specify that PRSI shall promptly initiate an investigation of any

complaint involving odors or emissions reported by a complainant as having been detected from
a location within close proximity (approximately two miles) of the facility.
(e)

The plan shall specify that, if PRSI determines as part of an investigation of a

complaint that odors or emissions originated from the Pasadena Refinery, PRSI shall take
corrective action as soon as practicable to address the suspected cause and shall provide the
complainant (if known) with a description of the corrective action taken.
11.

Hurricane Preparedness. Not later than 180 days after entry of the Consent

Decree, PRSI shall revise and provide to Plaintiffs its Hurricane Shutdown and Startup Plan and
shall implement such updated Plan when a plant-wide shutdown is necessitated by hurricane or
similar State-declared emergency. The Plan shall include measures to minimize emissions of air
contaminants to the extent possible consistent with worker safety. The Plan shall specify that
after any plant-wide shutdown necessitated by a hurricane during the life of the Consent Decree,
PRSI shall review lessons learned as a result of implementation of the Plan, and update the Plan
as appropriate to, among other things, further minimize air emissions.
12.

Preventive Maintenance. Not later than 180 days after entry of the Consent

Decree, PRSI shall provide to Plaintiffs up-to-date preventive measures that, as part of the
Pasadena Refinery’s overall preventive maintenance system, facilitate the reduction of emission
event root causes at the FCCU. These measures shall include rotating and electrical equipment
preventive maintenance programs along with a fixed equipment inspection and maintenance
program.

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13.

External Electrical Grid Failures. Within 60 days of entry of the Consent Decree,

PRSI shall develop, implement, and provide to Plaintiffs its Electrical Grid Failure Plan, which
specifies operational procedures to safely shut down the refinery and minimize unauthorized
emissions in the event of External Electrical Grid Failures. This Electrical Grid Failure Plan
shall specify that after any Emissions Event caused by an External Electrical Grid Failure during
the life of the Consent Decree, PRSI shall reassess its preparations for, response to, and
equipment and back-up systems affected by, such event.
14.

Emissions Event Tracking and Prevention Systems. Not later than 60 days after

entry of the Consent Decree, PRSI shall develop, implement, and provide to Plaintiffs its
procedures for tracking and preventing Emissions Events, which shall include the following
components:
(i)

Tracking Emissions Events according to underlying cause and location

within the Pasadena Refinery;
(ii)

Assessing Emissions Events according to root cause(s);

(iii)

Developing strategies for prevention of Emissions Events; and

(iv)

Setting targets for reductions in occurrence of Emissions Events.

PRSI shall include in the annual reports provided to Plaintiffs pursuant to paragraph 7(b) of the
Consent Decree the annual targets established under sub-paragraph (iv), above, for the preceding
year and the corresponding numbers of actual Emissions Events occurring during the preceding
year until termination pursuant to paragraph 7(e).

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V.
15.

CIVIL PENALTY

Not later than 30 days after this Court’s approval of the Consent Decree, PRSI

shall pay a civil penalty to the U.S. Department of Treasury in the amount of $350,000 in
settlement of the violations that are the subject of this suit.
VI.
16.

ADDITIONAL PAYMENTS

Not later than 30 days after this Court’s entry of the Consent Decree, PRSI shall

pay the sum of $3,175,000 (the “Additional Payment”) as a part of the settlement reached to
conclude this litigation. The Additional Payment shall be disbursed to the Emission Reduction
Credit Corporation (“ERCC”), an Area Emission Reduction Credit Organization (“AERCO”)
created and administered by the Houston-Galveston Area Council (“H-GAC”). ERCC shall use
the Additional Payment exclusively for the following environmental project to benefit the
communities in the vicinity of the Pasadena Refinery: a charitable fund to be known as the
Vehicle Emission Reduction Fund (the “Fund”).
(a)

The Fund shall solicit proposals from, and disburse grants to, school districts and

local governments exclusively for the purpose of improving air quality in Pasadena, Galena Park,
and Southeast Harris County, Texas, by reducing mobile source emissions. Priority shall be
given to air quality improvements in Pasadena and Galena Park over those located elsewhere in
Southeast Harris County, with a second order of preference for zero-emission projects over nearzero-emission projects. Eligible projects include (i) replacing or converting vehicles, engines,
and equipment with zero-emission or near-zero-emission vehicles, with a strong preference for
electric and hybrid engines certified by EPA or the California Air Resources Board (“CARB”) to
meet stringent emission standards, and with the proviso that any vehicle, engine, or equipment
being replaced must be scrapped or rendered permanently disabled within 90 days of

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replacement using the methods described in EPA’s Diesel Emissions Reduction Act program, or
be certified as having been rendered inoperable as a result of flooding from Hurricane Harvey,
and (ii) the purchase and installation of electric vehicle charging stations or related electric
vehicle infrastructure. Eligible vehicles would include school buses with a model year earlier
than 2010, transit buses and class 1 through class 8 vehicles (with model years earlier than 2010),
local government or school district light duty fleet vehicles, heavy duty equipment (e.g.,
forklifts), unregulated marine engines, and unregulated and tier 0 locomotives.
(b)

The ERCC shall agree, as a condition of receiving any funds pursuant to

paragraphs 16 and 17 of this Consent Decree: (i) to represent that it is a 501(c)(3) tax-exempt
entity; (ii) to obtain TCEQ review of expenditures of the Fund as “other contributions” under the
Clean Vehicles Partnership Project that H-GAC administers through the AERCO; (iii) to use any
money it receives under this Consent Decree solely for the purposes described in paragraph 16(a)
of this Consent Decree; (iv) not to use any money received under this Consent Decree for
advocacy or political lobbying activities; and (v) to provide the parties with a report on the first
anniversary of receiving the funds and on each anniversary thereafter until the funds are
expended, certifying that the funds were used in the manner proposed. In the case of a failure to
provide the above certification, or if the funds are not disbursed within three years of date of
receipt of funds, the parties reserve their right to seek an order directing the return of such funds.
In the event such funds are returned, the returned funds shall be disbursed to another project to
fund environmental mitigation, research, health, restoration or education projects relating to
environmental quality or public health in the Pasadena and Galena Park area, as agreed upon by
the parties within 90 days of receipt of returned funds.

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17.

Any stipulated payments incurred pursuant to paragraph 19 of the Consent Decree

shall be paid to the ERCC to replenish the Fund, or to such other group or groups designated by
the parties pursuant to paragraph 16(b) of the Consent Decree.
18.

The civil penalty, the Additional Payment, and any stipulated payments shall not

be tax deductible by PRSI. Any public statement made by PRSI in any press release, in any oral
or written material promoting PRSI’s environmental or charitable practices or record, or in
PRSI’s Annual Reports, that makes reference to PRSI’s funding of the project described in
paragraph 16 shall include the following language: “Funding of this project was made pursuant
to the settlement of a Clean Air Act enforcement suit brought by Environment Texas and the
Sierra Club.”
19.

Stipulated payments.

(a)

Excess Emissions. PRSI shall be liable for stipulated payments for Excess

Emissions each Year, as follows:
(i)

PRSI shall pay $1 per pound for the first 1 through 4,000 pounds of

Excess Emissions of SO2 from the East and West Flares (emission point numbers
FLRFNEAST and FLRFNWEST, respectively), and $5 per pound for each additional
pound of Excess Emissions above 4,000 pounds, emitted during the Year. For purposes
of computing Excess Emissions, emissions from the East and West Flares shall be
totaled.
(ii)

PRSI shall pay $1 per pound for the first 1 through 5,000 pounds of

Excess Emissions of VOCs from the East and West Flares (emission point numbers
FLRFNEAST and FLRFNWEST, respectively), and $5 per pound for each additional
pound of Excess Emissions above 5,000 pounds, emitted during the Year. For purposes

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of computing Excess Emissions, emissions from the East and West Flares shall be
totaled.
(iii)

PRSI shall pay $1 per pound for the first 1 through 4,000 pounds of

Excess Emissions of PM10 from the ESP Stack (emission point number HTBLR010), and
$5 per pound for each additional pound of Excess Emissions above 4,000 pounds,
emitted during the Year.
(iv)

PRSI shall pay $1 per pound for the first 1 through 1,000 pounds of

Excess Emissions of PM10 from the Seal Pot (emission point number VTFCC003), and
$5 per pound for each additional pound of Excess Emissions above 1,000 pounds,
emitted during the Year.
(v)

PRSI shall pay $1 per pound for the first 1 through 1,000 pounds of

Excess Emissions of VOCs from the Seal Pot (emission point number VTFCC003), and
$5 per pound for each additional pound of Excess Emissions above 1,000 pounds,
emitted during the Year.
(vi)

PRSI shall pay $1 per pound for the first 1 through 3,000 pounds of

Excess Emissions of SO2 from the Seal Pot (emission point number VTFCC003), and $5
per pound for each additional pound of Excess Emissions above 3,000 pounds, emitted
during the Year.
(vii)

PRSI shall pay $1 per pound for the first 1 through 2,000 pounds of

Excess Emissions of NOx from the Seal Pot (emission point number VTFCC003), and $5
per pound for each additional pound of Excess Emissions above 2,000 pounds, emitted
during the Year.

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(viii) PRSI shall pay $20,000 for each month during the Year for which the 12month rolling annual total of PM10 emissions from the Seal Pot (emission point number
VTFCC003) exceeds the authorization set forth in the Maximum Allowable Emissions
Rate Table (“MAERT”) and Special Condition 2 of Permit No. 20246 and other
applicable authorizations in effect at the time of the emissions.
(ix)

PRSI shall be entitled to subtract, from any annual stipulated payment it

has incurred, the portion of any TCEQ penalty or any payment for a Supplemental
Environmental Project (“SEP”) made in lieu of penalties that was actually paid to TCEQ
or to a SEP during the Year and that was attributable to the same violation(s) of the same
emission limit(s) for which PRSI has already paid, or is currently required to pay, a
stipulated payment pursuant to this Consent Decree.
(b)

Compliance Measures. For any failure to comply with a deadline set forth in

paragraphs 8 through 14, PRSI shall pay a stipulated payment of $5,000 per month (or partial
month) of delay, which amount shall be doubled to $10,000 per month (or partial month)
beginning with the fourth consecutive month of delay. For any failure to comply with a
reporting deadline set forth in paragraph 7, PRSI shall pay a stipulated payment of $2,000 for the
first month (or partial month) of delay, which amount shall increase to $5,000 per month (or
partial month) for each additional month of delay. Compliance measures and deadlines
referenced by this section shall not include any planned projects described in paragraph 9(b).
(c)

Stipulated payments under this paragraph shall be due automatically and without

notice. Stipulated payments shall be payable annually, and shall be paid not later than 60 Days
after the annual report required by paragraph 7(a).

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(d)

Any payment of stipulated payments shall neither waive PRSI’s duty to meet its

obligations under this Consent Decree nor preclude the Plaintiffs from commencing an action to
compel PRSI’s compliance with the terms and conditions of this Consent Decree.
VII.
20.

FORCE MAJEURE

PRSI shall take all necessary measures to avoid delays in compliance with this

Consent Decree. “Force Majeure” for the purposes of this Consent Decree is defined as an event
that (i) is beyond the control of PRSI or the control of any entity controlled by PRSI; (ii) could
not have been foreseen and prevented by the exercise of reasonable diligence; (iii) delays or
prevents the performance of any obligation under paragraphs 8 through 14 of this Consent
Decree, and/or causes Excess Emissions or an Emissions Event; and (iv) is a result of war,
terrorism, strike, riot, External Electrical Grid Failure, or an act of God resulting in a
government-declared emergency. Unanticipated or increased costs, or changed financial
circumstances, are not Force Majeure events. If any event occurs that causes or may cause a
claim of Force Majeure, PRSI shall so notify Plaintiffs in writing within 20 business days after
the event or after the date PRSI first became aware or reasonably should have become aware of
the event. The notice shall describe the basis for PRSI’s contention that it experienced a Force
Majeure event, the cause of the event, the measures taken to prevent it, the anticipated length of
time that any delay may persist, and, if applicable, PRSI’s compliance with its Hurricane
Shutdown and Startup Plan or Electrical Grid Failure Plan. Failure to so notify shall constitute a
waiver of the claim of Force Majeure as to the event in question.
21.

If Plaintiffs agree to PRSI’s claim of Force Majeure, the parties shall stipulate to

an extension of the timeframe(s) affected by the delay, and/or to an exclusion from the
calculation of Excess Emissions, as applicable. PRSI shall not be liable for stipulated penalties

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for such period of delay or excluded Excess Emissions. If Plaintiffs do not agree with PRSI’s
claim of Force Majeure, or if the parties cannot agree on a reasonable extension of time, either
party may submit the matter to the Court for resolution. PRSI shall have the burden of proving
that a delay or noncompliance or Emissions Event is or was caused by a Force Majeure event,
and of proving the duration of any such delay or noncompliance or the amount of such exclusion
from Excess Emissions. In the event of such a dispute, PRSI shall not be considered to be in
violation of the Consent Decree, or to have been in violation of the Consent Decree, until such
time that the dispute is resolved by the parties or the Court.
VIII. RETENTION OF JURISDICTION
22.

The Court will retain jurisdiction of this matter for the purposes of implementing

and enforcing the terms and conditions of this Consent Decree and adjudicating all disputes
between the Parties that may arise under the provisions of this Consent Decree until the Consent
Decree terminates in accordance with Part XI, below.
IX.
23.

COSTS OF LITIGATION

Pursuant to 42 U.S.C. § 7604(d), not later than 30 days after the Court’s entry of

this Consent Decree, PRSI shall pay $547,000 for costs of litigation (including reasonable
attorney and expert witness fees) to Plaintiffs’ counsel by bank draft made payable to “Hilder &
Associates, P.C.”
X.
24.

GENERAL PROVISIONS

This Consent Decree constitutes a full settlement of, and shall resolve all civil

liability of PRSI for, civil penalties and injunctive relief pursuant to the CAA for the violations
specifically alleged in the Complaint and such other violations of the same regulatory provisions
occurring from the date of the Complaint to the date of filing of this Consent Decree. In any

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future action brought to enforce the CAA regarding the Pasadena Refinery, neither PRSI nor the
Plaintiffs shall assert any claim that this Consent Decree or any of its terms operates as res
judicata or has the effect of issue preclusion with respect to any alleged violations occurring after
the termination date of this Consent Decree.
25.

PRSI shall not assert any claim of confidentiality for any documents or

information it is required to report to Plaintiffs or government agencies pursuant to this Consent
Decree, except that PRSI may exclude from the information provided to Plaintiffs any
information which is determined to be confidential business information or required to be kept
confidential by law. As to documents previously produced, the Agreed Protective Order entered
by the Court on August 23, 2017, shall remain in effect until termination of this Consent Decree.
Notification to Plaintiffs or to PRSI shall be deemed submitted on the date it is postmarked. All
correspondence concerning this Consent Decree and all documents that are submitted pursuant to
this Consent Decree shall be addressed as follows:
As to Plaintiffs:
Joshua R. Kratka
National Environmental Law Center
294 Washington Street, Suite 500
Boston, Massachusetts 02108
Or via electronic mail to:
josh.kratka@nelconline.org
As to PRSI:
Fernando Feitosa de Oliveira
Pasadena Refining Systems, Inc.
111 Red Bluff Road
Pasadena, Texas 77506
Or via electronic mail to:
PRSI-Govt-Email@pasadenarefining.com

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26.

There shall be no modification of this Consent Decree without agreement among

all parties to the Consent Decree and written approval by the Court, or by Order of the Court.
27.

The effective date of this Consent Decree shall be the date of its entry.
XI.

28.

TERMINATION

This Consent Decree shall terminate automatically upon completion of all the

requirements of this Consent Decree provided PRSI certifies it has satisfied all requirements of
this Consent Decree. If Plaintiffs object to PRSI’s certification, then the matter shall be
submitted to the Court for resolution. In such case, PRSI shall bear the burden of proving that
this Consent Decree should be terminated.
29.

For each of the categories of stipulated payments described in paragraphs 19(a)(i)

– (vii), PRSI’s obligation to pay stipulated payments for Excess Emissions pursuant to paragraph
19(a)(i) – (vii) shall expire upon the earlier of five Years or PRSI’s substantial compliance with
the limit for two consecutive Years. For each category described in 19(a)(i) – (vii), “substantial
compliance” shall mean that Excess Emissions during each Year were less than the threshold
number of pounds triggering a $5 per pound stipulated payment. For the annual emission limit
described in paragraph 19(a)(viii), PRSI’s obligation to pay stipulated penalties pursuant to
paragraph 19(a)(viii) shall expire upon the earlier of five Years or the completion of 24
consecutive months for which the 12-month rolling annual total of PM10 emissions from the
Seal Pot do not exceed the authorization described in paragraph 19(a)(viii) of the Consent
Decree. Substantial compliance may occur for one or more categories described in 19(a)(i) –
(viii) even though stipulated payment obligations may continue to be applicable to other
categories.

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XII.
30.

CONSENT TO ENTRY OF DECREE

Each of the parties consents to entry of this Consent Decree, subject to the Court’s

approval of this Decree. The undersigned representatives of each party certify that they are fully
authorized by the party to enter into the terms and conditions of this Decree and to execute and
legally bind the represented parties to it. This Decree can be signed in counterparts.

Judgment is hereby entered in accordance with this Consent Decree and Order this ______ day
of __________________, 2018.

_________________________________
Kenneth M. Hoyt
United States District Judge

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 Case Document 23-1 Filed in TXSD on 07/26/18 Page 21 of 23

AGREED AND CONSENTED TO:

FOR PLAINTIFF ENVIRONMENT AMERICA, INC. drb/a ENVIRONMENT TEXAS:

.1.)
Date: 20 

Luke Metzger
Director
Environment Texas
815 Brazos, Suite 600
Austin, Texas 73701

 

 

FOR PLAINTIFF SIERRA CLUB:

Date:

 

 

Neil J. Carman

Clean Air Program Director

Lone State Chapter of the Sierra Club
6406 N. Suite 1806

Austin, Texas 78752

21

Case Document 23-1 Filed in TXSD on 07/26/18 Page 22 of 23

AGREED AND CONSENTED TO:

FOR PLAINTIFF ENVIRONMENT AMERICA, INC. d/b/a ENVIRONMENT TEXAS:

Date:

 

 

Luke Manger
Director

Environment Texas
815 Brazos, Suite 600
Austin. Texas 7870]

PLAINTIFF SIERRA CLUB:

?MW/me W7

Neil J. Canan

Clean Wm Director

Lone State Chapter of the Sierra Club
6406 N. Suite 1806

Austin. Texas 78752

 

 

2]

Case Document 23-1 Filed in TXSD on 07/26/18 Page 23 of 23

FOR DEFENDANT PASADENA REFINING SYSTEM, INC:


d2} 0' Date: 06/? 
Fernando Feitosa de 01 :veira
Chief Executive Of?cer
Pasadena Re?ning Systems, Inc.
111 Red Bluff Road
Pasadena, Texas 77506

 

 

22