United States District Court, D. Maine
MEMORANDUM DECISION GRANTING MOTION TO ENTER CONSENT
Brock Hornby United States District Judge.
a case about emissions of smog-causing compounds from a
petroleum storage site in South Portland. The federal
government and the site owners have agreed to settle their
dispute and have proposed a consent decree for which they
seek court approval. South Portland's local government
and residents widely criticized the proposed decree during an
extended public comment period, but no one has moved to
intervene in this lawsuit, and the criticisms generally
relate to matters outside the scope of the complaint that the
government filed in court against the defendants. As the
executive branch, the government has full control over what
legal proceedings to bring, and as a judge, I must measure
the settlement and proposed decree against the scope of the
complaint the government actually filed, not against what it
could have or perhaps should have done. See SEC v.
Citigroup Glob. Mkts., Inc., 752 F.3d 285, 297 (2d Cir.
2014) (“To the extent the district court withheld
approval of the consent decree on the ground that it believed
the S.E.C. failed to bring the proper charges against
Citigroup, that constituted an abuse of discretion. . . . The
exclusive right to choose which charges to levy against a
defendant rests with the S.E.C.”); United States v.
Davis, 261 F.3d 1, 22 (1st Cir. 2001) (“[A]
consent decree must . . . come within the general scope of
the case based on the pleadings.”); see
generally Brandon L. Garrett, The Public Interest in
Corporate Settlements, 58 B.C. L. Rev. 1483, 1514-16
(2017). I conclude that I must Grant the
motion to enter the consent decree.
March 25, 2019, the United States, on behalf of the
Environmental Protection Agency (I will call the government
or plaintiff the EPA), filed in this court a complaint
against the defendants (I will call them collectively
Global). Compl. (ECF No. 1). Global owns and operates a
petroleum storage facility in South Portland. The EPA's
complaint says that Global failed to comply with several
licensing and emission requirements for volatile organic
compounds (VOCs) that come out of its storage tanks or its
transfer of petroleum products. VOCs react with nitrogen
oxides in sunlight to produce ground-level ozone, a pollutant
that contributes to smog. EPA, Ground-level Ozone
(last visited Dec. 19, 2019). Because VOCs have unhealthy
effects, the EPA and state authorities try to control them
using the Clean Air Act, 42 U.S.C. § 7401 et
the legal framework. Under the Clean Air Act, Maine has
created a state implementation plan (the jargon is
“SIP, ” but there are enough other acronyms in
this lawsuit, so I will call it the “Plan”) that
limits VOC emissions, and the EPA approved it. See
EPA Approved Regulations in the Maine SIP,
(last visited Dec. 19, 2019); 42 U.S.C. § 7410 (provision
of the Clean Air Act concerning state implementation plans).
Maine's Plan prohibits any VOC emission without a
license. Me. Plan Ch. 115 § II. To obtain a license, an
entity must demonstrate that its air emissions are receiving
the “best practical treatment, ” id.
§ V(A)(2)(a), which means that the entity is reducing
its emissions to the lowest level possible given existing
technology, the effectiveness of alternative methods, and
economic feasibility, id. Ch. 100(19). Any facility
that has the potential to emit at least 40 tons of VOCs per
year must comply with additional “reasonably available
control technology” requirements to limit its VOC
emissions. Id. Ch. 134. Finally, an entity that is a
“major source” of air pollution-meaning it is
subject to certain federal regulations and has the potential
to emit at least 50 tons of VOCs per year, id. Ch.
100(78)-must obtain what is known as a Part 70 license (also
called a Title V operating permit). Id. Ch. 140
(laying out details of Part 70 licensing program); 40 C.F.R
§ 70.5 (requiring major sources to apply for the
2014, the EPA informed Global that its South Portland
facility was a “major source” of air pollution
and it therefore had to obtain a Title V operating
permit. June 6, 2014, Notice of Violation,
Kudarauskas Decl. Ex. D at 63 ¶ 15 (ECF No. 19-3). The
EPA said Global was also exceeding the VOC emissions limit
contained in its existing Maine license and failing to apply
“best practical treatment” to its emissions.
Id. at 63 ¶¶ 16-17. The following year,
the EPA issued a second notice finding that the South
Portland facility was subject to and failing to follow the
“reasonably available control technology”
requirements. April 7, 2015, Notice of Violation, Kudarauskas
Decl. Ex. D at 66 (ECF No. 19-3).
March 25, 2019, the EPA filed in this court a four-count
complaint alleging that Global violated: (1) Chapter 115 of
the Maine Plan by failing to obtain a license for its VOC
emissions and failing to control VOC emissions by applying
“best practical treatment”; (2) Chapter 115 of
the Plan by exceeding the VOC emissions limit of its existing
license; (3) Chapter 134 of the Plan by failing to comply
with the “reasonably available control
technology” requirements; and (4) Sections 502(a) and
503(c) of the Clean Air Act, 42 U.S.C. §§ 7661a(a)
and 7661b(c), by failing to obtain a Title V operating permit
even though the facility was a “major source” of
same day it filed its complaint, the EPA also filed a
proposed consent decree. The decree, to which Global
consented, would require Global to pay a $40, 000 penalty,
follow a variety of new requirements aimed at reducing VOC
emissions, apply for an amended VOC license from the Maine
Department of Environmental Protection, and spend at least
$150, 000 on “a supplemental environmental
project” to improve local air quality by replacing
residential wood-burning stoves or boilers in Cumberland
County. Consent Decree ¶¶ 8, 11, 14 (ECF No. 4-1).
The proposed decree also includes penalties in case Global
fails to meet any of the requirements in the future.
Id. ¶¶ 30-42. The EPA estimates that the
terms of the consent decree will result in Global emitting 20
fewer tons of VOCs each year and will cost Global a total of
about $440, 000. Gov't's Consent Mot. to Enter
Consent Decree (Mot.) at 9 (ECF No. 19); Kudarauskas Decl.
¶¶ 7, 11 (ECF No. 19-3). The EPA says the
supplemental wood-burning stove project has a sufficient
“nexus” to Global's VOC emissions because
newer or retrofitted wood stoves emit fewer VOCs than older
stoves do, so the replacement program will reduce VOCs in the
same county where Global emitted excessive VOCs (albeit the
county is a geographic area much larger than South Portland).
Mot. at 13 (ECF No. 19).
held a 30-day public comment period that it later extended to
90 days-60 days longer than required by federal regulation.
See 28 C.F.R. § 50.7(b). It received about 90
comments. Mot. at 1 (ECF No. 19). The comments overwhelmingly
opposed the consent decree. See Comments (ECF No.
19-1). They said the $40, 000 penalty was inadequate to
punish Global for polluting the community over many years, or
to dissuade Global or other companies from violating
environmental laws in the future. They raised concerns about
odors and hazardous air pollutants emanating from
Global's tanks but not addressed by the decree. They
criticized the EPA for failing to inform the City of South
Portland or its residents about the excessive emissions over
the nearly five years between when the EPA learned about the
emissions and when it filed the complaint in this case.
Finally, many commenters criticized the proposed decree's
lack of an ongoing air monitoring requirement and what they
saw as an inadequate connection between the wood stove
project and the harm caused by Global. The EPA responded to
the public comments but did not seek to alter the proposed
decree or withhold its consent. See Responsiveness
Summ. (ECF No. 19-2). After the close of the public comment
period, the EPA filed the consent motion to enter the decree.
October 31, I entered a procedural order with three questions
for the parties: (1) whether the record-which was limited to
the complaint, proposed decree, motion to enter the decree,
and documents attached to the motion- should contain more
information about the parties' legal and factual
contentions and their bargaining efforts; (2) whether
voluntary actions undertaken by local and state authorities
are relevant to my consideration of the proposed decree; and
(3) asking for additional information concerning a section in
the proposed decree on the procedures and burden of proof
required to enforce the decree. Proc. Order at 3-5 (ECF No.
20). The parties provided responses that sufficiently
satisfied my concerns. See Defs.' Resp. to Proc.
Order (ECF No. 21); Gov't's Resp. to Proc. Order (ECF
No. 22). The content of their responses is interspersed in
the relevant places below. Whether to enter the proposed
consent decree is now ripe for decision.
deciding whether to grant the parties' request to enter
their consent decree, I must review the decree to ensure that
it is fair, reasonable, and “faithful to the
statute's objectives.” City of Bangor v.
Citizens Commc'ns Co., 532 F.3d 70, 93 (1st Cir.
2008) (quoting United States v. Charles George Trucking,
Inc., 34 F.3d 1081, 1084 (1st Cir. 1994)). The First Circuit
Court of Appeals, whose law I follow, recognizes “the
strong public policy in favor of settlements, particularly in
very complex and technical regulatory
contexts”-especially where, as here, “the
settlement has been advanced for entry as a decree by a
government actor committed to the protection of the public
interest and specially trained and oriented in the
field.” United States v. Comunidades Unidas Contra
La Contaminacion, 204 F.3d 275, 280 (1st Cir. 2000);
see also Charles George Trucking, 34 F.3d 1081, 1085
(1st Cir. 1994) (“[A] trial court, without abdicating
its responsibility to exercise independent judgment, must
defer heavily to the parties' agreement and the EPA's
expertise.”). With that deference in mind, I review the
proposed decree's fairness, reasonableness, and
consistency with the Clean Air Act. I also consider the many
public responses opposing the decree.
fairness requirement contains two elements. The decree must
be procedurally fair-requiring, among other things, that the
parties engaged in “arm's length, good faith
bargaining”-and substantively fair, a standard that
considers “concepts of corrective justice and
accountability.” Comunidades Unidas, 204 F.3d
measure procedural fairness, a court should ordinarily look
to the negotiation process and attempt to gauge its candor,
openness, and bargaining balance.” United States v.