SETTLEMENT AGREEMENT WHEKEAS the State ofMichigan ( "Michigan")filed a petition for review, pursuant to section 509(b)(1)ofthe Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., ("CWA"), ofthe final general permit entitled "Final National Pollutant Discharge Elimination System (NPDES)General Permit for Discharges Incidental to the Normal Operation ofa Vessel," 73 Fed.Reg. 79,473 (Dec. 29,2008)(the "Vessel General Permit" or "VGP")against Respondent the United States Environmental Protection Agency ( "EPA"), which matter is pending in United States Court ofAppeals for the District ofColumbia Circuit( "the Court"); WHEREAS the Natural Resources Defense Council,Inc.,National Wildlife Federation,Indiana Wildlife Federation, League ofOhio Sportsmen,Minnesota Conservation Federation,Prairie Rivers Network, Wisconsin Wildlife Federation, Alliance for the Great Lakes, Ohio Environmental Council,the Northwest Environmental Advocates,Center for Biological Diversity, and People for Puget Sound also filed a petition for review ofthe VGP; WHEREAS all ofthe foregoing petitions for review were consolidated by the Court as Case No.09-1089; WHEREAS the VGP expires at midnight,December 19,2013 and EPA intends to issue by November 30,2012 a new Vessel General Permit("Next VGP")to authorize the types ofdischarges currently subject to the VGP; WHEREAS nothing in this Agreement is intended to affect the terms and conditions ofthe VGP,including its December 19, 2013 expiration date; WHEREAS the Clean Water Act requires that all point source discharges, including ballast water discharges addressed by the VGP,must meet technology -based 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 2effluent limitations representing the applicable levels oftechnology-based control, and

more stringent water quality-based effluent limitations where such technology-based

-~~ limitations are not sufficient to meet applicable water quality standards (See P.U.D. No. 1of Jefferson County et al. v Washington Dept. of Ecology, 511 U.S. 700,704 (1994)) ; WHEREAS EPA has entered into arrangements with the National Academy of Sciences ("NAS")and EPA's Science Advisory Board ( "SAB")to produce,respectively, (1)a report on approaches for deriving ecologically protective numeric concentrations of organisms in ballast water discharges, and (2)a report on the performance and availability ofballast water treatment technologies,both ofwhich EPA intends to consider in developing the Next VGP; WHEREAS EPA's primary purpose in arranging for the NAS and SAB reports is to put the Agency in the best position, when it is determining conditions for the next VGP,to: (1)derive numeric technology-based effluent limits for ballast water (SAB Report),(2)determine whether technology-based limits will cause,have reasonable potential to cause, or contribute to an excursion above any applicable state water quality standard,including narrative criteria (NAS Report), and (3)ifwater quality-based effluent limits are required, derive numeric water quality -based effluent limits for ballast water (NAS Report); WHEREAS EPA intends to encourage the NAS and the SAB to complete their final reports by May 31, 2011; WHEREAS EPA intends, when it processes the Next VGP,to improve upon the approach the Agency used to implement CWA §401's state certification provision for the VGP;

2 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 3WHEREAS nothing in this Agreement is intended to affect any rights states may

have under CWA §401,including paragi~ph (a)(2)ofthat section; WHEREAS the Parties intend this Agreement to set forth terms for certain matters associated with EPA's issuance ofthe Next VGP. NOW, THEREFORE,the Parties agree as follows:

I. General Terms The Parties to this Agreement are Michigan and EPA. The Parties understand that Lisa Jackson was sued in her official capacity as Administrator ofthe United States Environmental Protection Agency,and that all responsibilities arising under this Agreement are to be performed by EPA and not by Lisa Jackson in her individual capacity. 2. This Agreement applies to, is binding upon,and inures to the benefit of the Parties (and their successors, assigns, and designees). 3. For purposes ofthis Settlement Agreement,the following terms shall have the meanings provided below:
a. "EPA"or "Agency"means Lisa Jackson, in her official capacity as the Administrator ofEPA,or the Administrator's duly authorized representative,and the United States Environmental Protection Agency; b. The "United States" means the United States ofAmerica,including its officers, agencies,departments and instrumentalities;

"The Litigation" means the petition for review filed by Michigan. d. "VGP"means the general permit entitled "Final National Pollutant Discharge Elimination System (NPDES)General Permit for Discharges Incidental to the

3 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 4

### Normal Operation ofa Vessel"finalized on December 18,2008 and announced at 73

Fed.Reg. 79,473 (Dec. 29, 2008); e. "Next VGP"means the permit EPA intends to issue to authorize the types ofdischarges incidental to the normal operation ofa vessel currently authorized by the VGP to become effective upon the VGP's expiration; f. "Draft Next VGP"means the draft permit EPA intends to draft and publish notice ofin accordance with 40 CFR §124.6 and other applicable regulations prior to issuing the Next VGP; g. "NAS Report" means the report that EPA has entered into arrangements with the NAS to produce on approaches for deriving ecologically protective numeric concentrations oforganisms in ballast water discharges; h. "SAB Report" means the report that EPA has entered into arrangements with the SAB to produce on the performance and availability ofballast water treatment technologies. II. EPA Milestones 4. EPA will obtain final signatures)ofappropriate EPA officials on the Draft Next VGP by November 30, 2011 and promptly submit notice ofthe Draft Next VGP to the Federal Register for publication.

EPA will take final action on the DraftNext VGP by November 30, 2012. IfEPA does not issue (i.e., obtain final signatures ofappropriate EPA officials on)a final Next VGP by November 30,2012,Michigan may invoke its rights under the dispute resolution and remedy for non-compliance provisions in Paragraphs 29 and 30 ofthis Agreement. Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 56. EPA will commence consultation under the Endangered Species Act, 16

U.S.C. §1531 et seq.,for the Next VGP no later than 30 days after notification ofthe Draft Next VGP in the Federal Register.

III. Clean Water Act Section 401 Certification 7. EPA will provide states with at least 6 months after publication ofthe Draft Next VGP to grant, grant with condition,deny or waive certification under CWA §401. 8. EPA will provide information to the states and facilitate communication among the states at a regional (e.g., Great Lakes,Atlantic,Pacific, and Gul 

## f level regarding state certification ofthe Next VGP. For purposes ofthis Paragraph,to "facilitate communication" means,at a minimum,to arrange for at least one conference call or meeting between the states at each regional level during the 6-month period referenced in Paragraph 7 to discuss appropriate interstate coordination on the states' CWA §401 certifications. For purposes ofthis Paragraph,to "provide information" means,at a minimum,to explain to the states in a letter or other written format the states' obligations under 33 U.S.C. § 1341 and 40 C.F.R. §124.53(e)either prior to or upon commencement ofthe 6-month period referenced in Paragraph 7. IV.The Draft Next VGP 9. EPA will include in the Draft Next VGP numeric concentration-based effluent limits for discharges ofballast water expressed as organisms per unit ofballast water volume. Such limits will address at least the following three size groupings of organisms: (i)macrofauna/zooplankton,(ii)phytoplankton,and (iii) indicator microbes. Such limits will be either technology-based or water quality-based, or both. The content

5 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 6and applicability of such limits for discharges ofballast water included in the Draft Next

VGP pursuant to this paragraph may vary depending upon vessel characteristics. 10. EPA will make every effort to express 

### both any technology and any necessary water quality-based effluent limits for ballast water included in the Draft Next VGP numerically. EPA may express 

### either any technology oN any necessary water quality-based effluent limits for ballast water narratively (e.g., as BMPs)only if, in accordance with 40 C.F.R. §122.44(k)(3), EPA concludes that numeric limits are infeasible to calculate. Under no circumstances,however,will EPA decline to include in the Draft Next VGP the numeric limits to be developed under paragraph 9 for 

### both technology- and water quality-based effluent limits for any given size grouping of organism on the basis that such limits are infeasible to calculate. 11. IfEPA concludes that either any technology-based effluent limits or any necessary water quality-based limits for ballast water discharges are infeasible to calculate numerically, EPA will include a detailed explanation for that conclusion in the administrative record for the Draft Next VGP and expressly request comment on it. 12. Regardless ofwhether the numeric concentration-based effluent limits in the Next Draft VGP are water quality- or technology-based, or both, EPA will include in the administrative record for the Draft Next VGP an explanation ofhow the Agency complied with 40 C.F.R. §122.44(d)(1)'s requirements for (1)determining whether a discharge will cause, or have the reasonable potential to cause, or contribute to an excursion above any water quality standard, including EPA's explanation ofhow it evaluated applicable state water quality standards, including state narrative criteria, and (2)deriving appropriate water-quality based effluent limits (ifrequired). 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 7

### 13. Nothing in this Agreement shall be read to in any way affect EPA's

obligations under the Clean Water Act and its implementing regulations, including the requirement that effluent limitations in permits for ballast water discharges must represent the applicable levels oftechnology-based control and permits must include
more stringent water quality-based effluent limitations where such technology-based limitations are not sufficient to meet applicable water quality standards. 14. EPA will include in the Draft Next VGP monitoring requirements for ballast water treatment systems onboard vessels specifying the parameters)to be monitored (e.g.,treatment unit flow,treatment unit pressure, active substance concentration,residual active substances, suspended solids, and/or indicator organisms)
as EPA determines necessary to assess compliance with the ballast water effluent limits, consistent with 40 C.F.R. § 122.44(i)(1)(i)&(ii)and 122.45(e), with at least one ofthese parameters to be monitored on a monthly or more frequent basis. EPA will include in the administrative record for the Next Draft VGP an explanation ofhow it determined the frequency ofreporting ofmonitoring results by assessing the nature and effect ofthe discharges, as required by 40 CFR 122.44(1). EPA will propose to make any ballast water monitoring information transmitted to the Agency in electronic form available to the public in electronic form. 15. EPA will include in the Draft Next VGP an expiration date of4 years from its effective date. 16. EPA will include in the Draft Next VGP a reopener provision substantially the same as that in Attachment A to this Agreement.

7 Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 817. When EPA publishes notice ofthe Draft Next VGP for public comment,

the Agency will specifically request comment on whether the following numeric limits for ballast water discharges (from Performance Standards for the Discharge of

Ballast Water For Vessels Operating in California Waters, California Code of Regulations Title 2, Division 3, Chapter 1, Article 4.7, ~,~2293-2294 as codified as ofthe date ofthis Agreement)should be included in the Next VGP: (a)No detectable living organisms that are greater than 50 micrometers in minimum dimension; (b)Less than 0.01 living organisms per milliliter that are less than 50 micrometers in minimum dimension and more than 10 micrometers in minimum dimension; (c)For living organisms that are less than 10 micrometers in minimum dimension: (1)less than 1,000 bacteria per 100 milliliter; (2)less than 10,000 viruses per 100 milliliter; (3)concentrations ofmicrobes that are less than: (A)126 colony forming units per 100 milliliters ofEscherichia coli; (B)33 colony forming units per 100 milliliters ofIntestinal enterococci; and (C)1 colony forming unit per 100 milliliters or 1 colony forming unit per gram ofwet weight ofzoological samples ofToxicogenic Vibrio cholerae (serotypes O1 and 0139). 18. When EPA publishes notice ofthe DraftNext VGP for public comment, the Agency will specifically request comment on whether any ballast water management plans that would be required under the Draft Next VGP should be made available to the public. V. Other 19. Ifeither the NAS Report or the SAB Report (or both)have not been completed by May 31, 2011,EPA will,no later than June 9,2011,provide Michigan with
a summary ofany information it has regarding the progress ofthe reports)and a 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 9

### summary ofthe Agency's plans for accomplishing its goal ofderiving numeric

concentration-based effluent limits for ballast water for inclusion in the Draft Next VGP in light ofsuch delay. After receiving such sununaries,Michigan may invoke its rights under the dispute resolution and remedy for non-compliance provisions ofthis Agreement in Paragraphs 29 and 30 by providing written notice and a request for negotiations indicating that it is Michigan's view that EPA's plan for how to proceed in light ofthe delay is unsatisfactory. Completion ofthe delayed reports)which precipitated invocation ofthe dispute resolution process in paragraphs 29 and 30 during the pendency ofthat process shall constitute resolution ofthe dispute. For purposes of this Paragraph and Paragraph 20,the NAS Report will be considered "complete" when the NAS informs EPA that apre-publication version may be made available to the public, and the SAB Report will be considered "complete" when the Science Advisory Board either posts the final report on its official webpage or transmits the report to the Administrator,whichever is earlier. 20. EPA will make appropriate Agency staff(as determined by EPA) available for at least two meetings with Michigan after the later ofthe NAS and SAB reports is complete,with the first meeting to take place within 30 days ofthe receipt of the later ofthe two reports and the second to take place within 30 days ofthe first meeting. The primary purpose ofthe first meeting will be for Michigan to present its views to EPA staffregarding appropriate numeric concentration-based effluent limits for ballast water and appropriate timeframes for regulated entities to come into compliance with such limits for the DraftNext VGP. The primary purpose ofthe second meeting will be for EPA staffto explain to Michigan their expectations at that time regarding

D Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 10

### appropriate numeric concentration-based effluent limits for ballast water and timeframes

for regulated entities to come into compliance with such limits for the Draft Next VGP. For purposes ofthis Paragraph,EPA will be deemed to have made appropriate staff available ifEPA has provided Michigan with its choice ofthree one-hour periods within the prescribed timeframes during which such staffare available to meet with Michigan either in person or by conference call. EPA will schedule and hold the meetings during the time Michigan chooses. 21. Ifwithin 21 days after the second meeting described in Paragraph 20, Michigan provides EPA with written notice that it believes EPA is unlikely to establish appropriate effluent limits and compliance timeframes for ballast water for the Draft Next VGP,EPA will provide Michigan with an 

### opportunity for a meeting with appropriate Agency political management (as determined by EPA). For the purposes ofthis Paragraph,EPA will be deemed to have provided Michigan with an "opportunity for a meeting" ifEPA has provided Michigan with its choice oftwo one-hour periods during which Agency political management is available to meet with Michigan either in person or by conference call. Barring unforeseen circumstances,EPA will schedule and hold the meeting during the time Michigan chooses. In the event ofunforeseen circumstances, EPA will promptly reschedule the meeting after conferring with Michigan. 22. In the event Michigan chooses to attend any meeting scheduled by EPA under Paragraphs 20 or 21 in person rather than via conference ca11, Michigan will bear all ofits costs associated with attendance. 23. EPA will promptly provide_ Michigan with copies ofthe NAS and SAB reports when they are "complete" as defined in Paragraph 19.

10 Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 11VI. Effective Date 24. This Agreement shall become effective on the date (the "Effective Date") that a fully executed copy ofthe Agreement is delivered by EPA to Michigan. Such delivery shall be accomplished by sending such executed copy to Michigan by electronic transmission promptly upon final execution ofthe Agreement by the United States. VII. Release and Reservation ofRights 25. This Agreement shall not constitute or be construed as an admission or adjudication by the United States or EPA ofany question offact or law with respect to any claim related to the VGP. Nor is it an admission ofviolation ofany law,rule, regulation, or policy by the United States or EPA. 26. This Agreement does not waive Michigan's right to challenge any final agency action following compliance with the terms ofthis Agreement. EPA does not waive any defenses to such a challenge. VII. Termination of Settlement Agreement 27. This Agreement shall terminate on the earlier of(a)the date that EPA fulfills the last of its obligations under this Agreement, or (b)the date that Michigan notifies EPA that it has elected to terminate this Agreement and reactivate the Litigation. VIII.Abeyance,Dispute Resolution and Remedy for Non-Compliance 28. Promptly after the Effective Date,the Parties agree to file with the Court a joint motion to hold the Litigation in abeyance. Said joint motion will request that the Court hold said litigation in abeyance until such time as this Agreement is terminated. In the event that this Agreement is terminated because Michigan has chosen to reactivate the Litigation, the Parties will file motions to govern further proceedings. In the event that

11 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 12this Agreement is terminated because EPA has discharged its obligations hereunder,the

Parties agree to join in a motion to dismiss the Litigation with prejudice. 29. In the event of a disagreement concerning any aspect ofthis Agreement, including any asserted noncompliance with the Agreement,EPA or Michigan (whichever is dissatisfied) shall provide the other with written notice ofthe dispute and a request for negotiations. EPA and Michigan shall meet and confer in order to attempt to resolve the dispute within 21 days ofthe written notice, or, for a dispute concerning the failure ofthe NAS or the SAB to complete its report by May 31, 2011,within 14 days ofthe written notice, or such time thereafter as is mutually agreed. IfEPA and Michigan are unable to resolve the dispute within 21 days of such meeting, or, for a dispute concerning the failure ofthe NAS or the SAB to complete its report by May 31, 2011,within 14 days of the meeting,then Michigan's sole remedy for asserted noncompliance is to reactivate the Litigation, and any such reactivation renders any remaining EPA obligations under this Agreement null and void. EPA does not waive or limit any defense relating to such litigation. The Parties agree that contempt ofcourt is not an available remedy under this Agreement. 30. In order to invoke the procedures and remedies in Paragraph 29, any written notice of a dispute and request for negotiations under that Paragraph provided by Petitioners must be signed by authorized representatives ofMichigan. IX.Force Majeure 31. The Parties recognize that performance ofthis Agreement is subject to fiscal and procurement laws and regulations ofthe United States which include, but are not limited to, the Anti-Deficiency Act, 31 U.S.C. § 1341, et The possibility exists

12 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 13that circumstances outside the reasonable control ofEPA could delay EPA's compliance

with the deadlines,responsibilities or other expectations specified or contained in this Agreement. Such situations include,but are not limited to, a government shutdown; or an extreme weather event that prevents EPA staff(or, in the case ofmatters addressed in Paragraph 19,the NAS or SAB) from meeting the deadlines,fulfilling the responsibilities, or meeting the expectations specified or contained in this Agreement; or a catastrophic environmental event that diverts EPA's staffresources away from meeting the deadlines, fulfilling the responsibilities, or meeting the expectations specified or contained in this Agreement. Should a delay occur due to such circumstances, any resulting failure by EPA to meet the responsibilities set forth herein shall not constitute a failure to comply with the terms ofthis Agreement,and any deadlines (including the May 31, 2011 date for completion ofthe NAS and SAB reports) so affected shall be extended
one day for each day ofthe delay. EPA will provide Michigan with reasonable notice and explanation for the delay (including an explanation ofhow EPA staffassigned to the VGP were affected by the event causing the delay)in the event that EPA invokes this provision. Any dispute regarding invocation ofthis provision, or the length ofthe claimed delay, shall be resolved in accordance with the dispute resolution provision of Paragraphs 29 and 30 ofthis Agreement. X. 1l~odifications 32. If a subsequent change in law relieves EPA ofits responsibilities concerning matters addressed in this Agreement,then the Parties shall amend the Agreement to conform to such changes. Any dispute regarding invocation ofthis provision shall be resolved in accordance with the dispute resolution provision of

13 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 14

### Paragraphs 29 and 30 ofthis Agreement. 33. The Parties may modify any deadline or other term ofthis Agreement in writing. In the event litigation is reactivated in Natural Resources Defense Council v. EPA, No. 09-1089 (D.C. Cir.)by any party other than Michigan,either Michigan or EPA, by notification ofthe other,may unilaterally modify this Agreement to provide for its immediate termination. XI. Agency Discretion 34. Except as expressly provided herein, or in any subsequent amendment to this Settlement Agreement,nothing in this Settlement Agreement shall be construed to limit or modify the discretion accorded to EPA by the CWA, the Administrative Procedure Act,or by any other law,including general principles ofadministrative law. XII.Notice 35. All notices required or made with respect to this Agreement shall be in writing and shall be effective, unless otherwise stated, on the date that notice is delivered by an overnight mail/delivery service. For any matter relating to this Agreement,the contact persons for Michigan and EPA are: For Petitioner, Michigan: Division Chief Environment,Natural Resources and Agriculture Division Michigan Department ofAttorney General 525 W.Ottawa Street P.O.Box 30212 Lansing, MI 48909 Chief Water Resources Division Michigan Department ofNatural Resources and Environment 525 W.Allegan Street P.O.Box 30473 Lansing,Michigan 48909-7973

14 Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 15For EPA: Associate General Counsel, Water Law Office Office ofGeneral Counsel (2355) U.S. Environmental Protection Agency 401 M Street, S.W. Washington,DC 20460 Chief Environmental Defense Section Environment &Natural Resources Division United States Department ofJustice P.O. Box 23986 Washington,D.C. 20026-3986 36. Upon written notice to the other Party, any Party may designate a successor contact person for any matter relating to this Agreement. XIII. Representative Authority 37. Each undersigned representative ofthe Parties certifies that he or she is fully authorized by the Party to enter into, execute, and bind such Party to this Agreement. XIV.Mutual Drafting 38. This Agreement was negotiated between EPA and Michigan and jointly drafted by the Parties. Accordingly,the Parties 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 ofthis Agreement. XV.Counterparts 39. This Agreement maybe executed in any number ofcounterpart originals, each of which shall be deemed to constitute an original Agreement,and all ofwhich shall

15 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 16constitute one Agreement. The execution ofone counterpart by any Party shall have the

same force and effect as ifthat Party had signed all other counterparts. XVI.Use of Settlement Agreement 40. This Agreement sha11 not constitute an admission or evidence ofany fact, wrongdoing,misconduct, or liability on the part ofany Party. XVII.Compliance with Other Laws 41. No provision ofthis Agreement shall be interpreted as or constitute a commitment or requirement that EPA obligate or pay funds in contravention ofthe AntiDeficiency Act, 31 U.S.C. § 1341,or take any action in contravention ofthe APA,the CWA,or any other law or regulation,either substantive or procedural. XVIII.Applicable I,a~v 42. This Agreement shall be governed by and construed under the laws ofthe United States: XIX.Third Party Beneficiaries 43. Nothing in this Agreement shall be construed to make any other person or entity not executing this Agreement athird-party beneficiary to this Agreement. 44. The Parties consent to the form and substance ofthe foregoing Agreement. XX. Fees or Other Costs 45. Michigan agrees that it will not seek reimbursement from EPA or the United States for any attorneys' fees or other costs that it has incurred or may hereafter incur in connection with this litigation or this Settlement Agreement.

L[7 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 17DATE: ~~~ Z`'~~

DATE: ~ ~ ~ ~~~ ~ ~~~' ~ ~ MARTIN F. MCDERMOTT United States Department ofJustice Environment and Natural Resources Division Environmental Defense Section P.O. Box 23986 Washington,D.C. (202)5 14-4122 Counsel for EPA 20026-3986

~ ~ I ~, i i ~ ROBERT P.REICHEL Assistant Attorney General Environment,Natural Resources and Agriculture Division Michigan Department ofAttorney General 525 W.Ottawa Street P.O. Box 30212 Lansing,Michigan 48909 (517)373-7540 Counsel for State of

Michigan

17 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 18ATTACHMENT A ~X~~— Modification ofthe VGP:This permit is subject to modification in accordance with 40 CFR 124.5 and 122.62. Grounds for such modification include receipt ofnew information that was not available at the time ofpermit issuance (other than revised regulations, guidance, or test methods)and would have justified the application ofdifferent permit conditions at the time ofpermit issuance. With respect to ballast water discharges,new information that will be considered in determining whether to modify this permit includes,but is not limited to, data or information from permittees, the general public, states, academia, scientific or technical articles or studies, and results ofmonitoring conducted under this permit indicating that: Treatment technology has improved such that these improved technologies would have justified the application ofsignificantly more stringent effluent limitations or other permit conditions had they been known at the time of permit issuance; Treatment technologies known ofat the time ofpermit issuance perform significantly better than understood at the time ofpermit issuance such that this improved performance would have justified the application of significantly more stringent effluent limitations or other permit conditions had this been understood at the time of permit issuance; ■ Scientific understanding ofpollutant effects or ofinvasion biology has evolved such that this new information would have justified the application ofsignificantly more stringent effluent limitations or other permit conditions had this been understood ofat the time ofpermit issuance; or ■ The cumulative effects ofany discharge authorized by the VGP on the environment are unacceptable.

18 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 19SETTLEMENT AGREEMENT WHEREAS the Natural Resources Defense Council, Inc.("NRDC")filed a petition for review,pursuant to section 509(b)(1)ofthe Federal Water Pollution Control Act, 33 U.S.C. §1251 et seq., ( "CWA"), ofthe final general permit entitled "Final National Pollutant Discharge Elimination System (NPDES)General Permit for Discharges Incidental to the Normal Operation ofa Vessel," 73 Fed.Reg. 79,473 (Dec. 29, 2008)(the "Vessel General Permit" or "VGP")against Respondent the United States Environmental Protection Agency ( "EPA"), which matter is pending in United States Court ofAppeals for the District ofColumbia Circuit( "the Court"); WHEREAS the National Wildlife Federation, Indiana Wildlife Federation, League ofOhio Sportsmen,Minnesota Conservation Federation,Prairie Rivers Network, Wisconsin Wildlife Federation,Alliance for the Great Lakes,and Ohio Environmental Council (collectively "NWF")also filed a petition for review ofthe VGP; WHEREAS the Northwest Environmental Advocates,Center for Biological Diversity, and People for Puget Sound (collectively "NWEA")also filed petitions for review ofthe VGP and VGP-related action; WHEREAS NRDC on behalfofitselfand NWF has also sent a notice ofintent to pursue legal action under the Endangered Species Act, 16 U.S.C. §1531 et seq., with respect to the VGP ("Notice ofIntent"); WHEREAS all ofthe foregoing petitions for review were consolidated by the Court as Case No.09-1089; WHEREAS the VGP expires at midnight,December 19, 2013 and EPA intends to issue by November 30, 2012 a new Vessel General Permit( "Next VGP")to authorize the types ofdischarges currently subject to the VGP; 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 2WHEREAS nothing in this Agreement is intended to affect the terms and

conditions ofthe VGP,including its December 19, 2013 expiration date; WHEREAS the Clean Water Act requires that all point source discharges, including ballast water discharges addressed by the VGP,must meet technology-based effluent limitations representing the applicable levels oftechnology-based control, and
more stringent water quality-based effluent limitations where such technology-based limitations are not sufficient to meet applicable water quality standards (See P.U.D. No. 1of Jefferson County et al. v Washington Dept. of Ecology, 511 U.S. 700, 704 (1994)) ; WHEREAS EPA has entered into arrangements with the National Academy of Sciences( "NAS")and EPA's Science Advisory Board ("SAB")to produce,respectively, (1)a report on approaches for deriving ecologically protective numeric concentrations of organisms in ballast water discharges, and (2)a report on the performance and availability ofballast water treatment technologies,both ofwhich EPA intends to consider in developing the Next VGP; WHEREAS EPA's primary purpose in arranging for the NAS and SAB reports is to put the Agency in the best position, when it is determining conditions for the next VGP,to: (1)derive numeric technology-based effluent limits for ballast water (SAB Report),(2)determine whether technology-based limits will cause,have reasonable potential to cause, or contribute to an excursion above any applicable state water quality standard, including narrative criteria (NAS Report), and (3)ifwater quality-based effluent limits are required, derive numeric water quality-based effluent limits for ballast water (NAS Report);

2 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 3WHEREAS EPA intends to encourage the NAS and the SAB to complete their

final reports by May 31, 2011; WHEREAS EPA intends, when it processes the Next VGP,to improve upon the approach the Agency used to implement CWA §401's state certification provision for the VGP; WHEREAS nothing in this Agreement is intended to affect any rights states may have under CWA §401, including paragraph (a)(2)ofthat section; WHEREAS the Parties intend this Agreement to set forth terms for certain matters associated with EPA's issuance ofthe Next VGP. NOW, THEREFORE,the Parties agree as follows:

I. General Terms 1. The Parties to this Agreement are NRDC, NWF, NWEA and EPA. The Parties understand that Lisa Jackson was sued her official capacity as Administrator of the United States Environmental Protection Agency,and that all responsibilities arising under this Agreement are to be performed by EPA and not by Lisa Jackson in her individual capacity. 2. This Agreement applies to, is binding upon,and inures to the benefit of the Parties (and their successors, assigns, and designees).

For purposes ofthis Settlement Agreement,the following terms shall have the meanings provided below:
a. "EPA" or "Agency" means Lisa Jackson, in her official capacity as the Administrator ofEPA,or the Administrator's duly authorized representative, and the United States Environmental Protection Agency; 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 4b. "Petitioners," with an upper case "P," means the Natural Resources

Defense Council, Inc., National Wildlife Federation, Indiana Wildlife Federation, League ofOhio Sportsmen, Minnesota Conservation Federation,Prairie Rivers Network, Wisconsin Wildlife Federation, Alliance for the Great Lakes, Ohio Environmental Council,Northwest Environmental Advocates, Center for Biological Diversity, and People for Puget Sound,acting collectively, as a group;

"Petitioner" or "petitioners" with a lower case "p" means any one or more ofthe parties listed in subparagraph 3.b., above ; d. The "United States" means the United States ofAmerica, including its officers, agencies,departments and instrumentalities;
e. "The Litigation" means the petitions for review filed by NRDC,NWF, and NWEA. £ "VGP"means the general permit entitled "Final National Pollutant Discharge Elimination System (NPDES)General Permit for Discharges Incidental to the Normal Operation ofa Vessel" finalized on December 18, 2008 and announced at 73 Fed. Reg. 79,473 (Dec. 29, 2008); g. "Next VGP"means the permit EPA intends to issue to authorize the types ofdischarges incidental to the normal operation ofa vessel currently authorized by the VGP to become effective upon the VGP's expiration; h. "Draft Next VGP"means the draft permit EPA intends to draft and publish notice of in accordance with 40 CFR §124.6 and other applicable regulations prior to issuing the Next VGP; 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 5"NAS Report" means the report that EPA has entered into arrangements

with the NAS to produce on approaches for deriving ecologically protective numeric concentrations oforganisms in ballast water discharges;

"SAB Report" means the report that EPA has entered into arrangements with the SAB to produce on the performance and availability ofballast water treatment technologies. II. EPA Milestones 4. EPA will obtain final signatures)ofappropriate EPA officials on the Draft Next VGP by November 30, 2011 and promptly submit notice ofthe Draft Next VGP to the Federal Register for publication.

EPA will take final action on the Draft Next VGP by November 30,2012. IfEPA does not issue (i.e., obtain final signatures ofappropriate EPA officials on)a final Next VGP by November 30,2012,Petitioners may invoke their rights under the dispute resolution and remedy for non-compliance provisions in Paragraphs 29 and 30 ofthis Agreement. 6. EPA will commence consultation under the Endangered Species Act, 16 U.S.C. §1531 et seq., for the Next VGP no later than 30 days after notification ofthe Draft Next VGP in the Federal Register.

III. Clean Water Act Section 401 Certification 7. EPA will provide states with at least 6 months after publication ofthe Draft Next VGP to grant,grant with condition, deny or waive certification under CWA §401. 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 68. EPA will provide information to the states and facilitate communication

among the states at a regional (e.g., Great Lakes,Atlantic,Pacific, and Gul fl level regarding state certification ofthe Next VGP. For purposes ofthis Paragraph,to "facilitate communication" means,at a minimum,to arrange for at least one conference call or meeting between the states at each regional level during the 6-month period referenced in Paragraph 7 to discuss appropriate interstate coordination on the states' CWA §401 certifications. For purposes ofthis Paragraph,to "provide information" means,at a minimum,to explain to the states in a letter or other written format the states' obligations under 33 U.S.C. § 1341 and 40 C.F.R. §124.53(e)either prior to or upon commencement ofthe 6-month period referenced in Paragraph 7. IV.The Draft Next VGP 9. EPA will include in the Draft Next VGP numeric concentration-based effluent limits for discharges ofballast water expressed as organisms per unit ofballast water volume. Such limits will address at least the following three size groupings of organisms:(i)macrofaunalzooplankton,(ii)phytoplankton,and (iii) indicator microbes. Such limits will be either technology -based or water quality

-based, or both. The content and applicability ofsuch limits for discharges ofballast water included in the Draft Next VGP pursuant to this paragraph may vary depending upon vessel characteristics. 10. EPA will make every effort to express both any technology and any necessary water quality-based effluent limits for ballast water included in the Draft Next VGP numerically. EPA may express either any technology or any necessary water quality-based effluent limits for ballast water narratively (e.g., as BMPs)only if, in accordance with 40 C.F.R. §122.44(k)(3), EPA concludes that numeric limits are

C~



### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 7

### infeasible to calculate. Under no circumstances,however,will EPA decline to include in

the Draft Next VGP the numeric limits to be developed under paragraph 9 for both technology- and water quality-based effluent limits for any given size grouping of organism on the basis that such limits are infeasible to calculate. 11. IfEPA concludes that either any technology-based effluent limits or any necessary water quality-based limits for ballast water discharges are infeasible to calculate numerically,EPA will include a detailed explanation for that conclusion in the administrative record for the Draft Next VGP and expressly request comment on it. 12. Regardless ofwhether the numeric concentration-based effluent limits in the Next Draft VGP are water quality- or technology-based,or both,EPA will include in the administrative record for the Draft Next VGP an explanation ofhow the Agency complied with 40 C.F.R. §122.44(d)(1)'s requirements for (1)determining whether a discharge will cause, or have the reasonable potential to cause, or contribute to an excursion above any water quality standard, including EPA's explanation ofhow it evaluated applicable state water quality standards, including state narrative criteria, and (2)deriving appropriate water-quality based effluent limits (ifrequired). 13. Nothing in this Agreement shall be read to in any way affect EPA's obligations under the Clean Water Act and its implementing regulations, including the requirement that effluent limitations in permits for ballast water discharges must represent the applicable levels oftechnology-based control and permits must include
more stringent water quality-based effluent limitations where such technology -based limitations are not sufficient to meet applicable water quality standards. 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 814. EPA will include in the Draft Next VGP monitoring requirements for

ballast water treatment systems onboard vessels specifying the parameters)to be monitored (e.g., treatment unit flow,treatment unit pressure, active substance concentration,residual active substances, suspended solids, and/or indicator organisms)
as EPA determines necessary to assess compliance with the ballast water effluent limits, consistent with 40 C.F.R. § 122.44(i)(1)(i)&(ii)and 122.45(e), with at least one ofthese parameters to be monitored on a monthly or more frequent basis. EPA will include in the administrative record for the Next Draft VGP an explanation ofhow it determined the frequency ofreporting ofmonitoring results by assessing the nature and effect ofthe discharges, as required by 40 CFR 122.44(1). EPA will propose to make any ballast water monitoring information transmitted to the Agency in electronic form available to the public in electronic form. 15. EPA will include in the Draft Next VGP an expiration date of4 years from its effective date. 16. EPA will include in the Draft Next VGP a reopener provision substantially the same as that.in AttachmEnt A to this Agreement. 17. When EPA publishes notice ofthe Draft Next VGP for public comment, the Agency will specifically request comment on whether the following numeric limits for ballast water discharges (from Performance Standardsfor the Discharge of Ballast Water For Vessels Operating in California Waters, California Code of Regulations Title 2, Division 3, Chapter 1, AYticle 4.7, ~~2293-2294 as codified as ofthe date ofthis Agreement)should be included in the Next VGP: (a)No detectable living organisms that are greater than 50 micrometers in minimum dimension; 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 9(b)Less than 0.01 living organisms per milliliter that are less than 50 micrometers in

minimum dimension and more than 10 micrometers in minimum dimension; (c)For living organisms that are less than 10 micrometers in minimum dimension: (1)less than 1,000 bacteria per 100 milliliter; (2)less than 10,000 viruses per 100 milliliter; (3)concentrations ofmicrobes that are less than: (A) 126 colony forming units per 100 milliliters ofEscherichia coli; (B)33 colony forming units per 100 milliliters ofIntestinal enterococci; and (C) 1 colony forming unit per 100 milliliters or 1 colony forming unit per gram ofwet weight ofzoological samples ofToxicogenic Vibrio cholerae (serotypes O1 and 0139). 18. When EPA publishes notice ofthe Draft Next VGP for public comment, the Agency will specifically request comment on whether any ballast water management plans that would be required under the Draft Next VGP should be made available to the public. V. Other 19. Ifeither the NAS Report or the SAB Report (or both)have not been completed by May 31, 2011,EPA will, no later than June 9, 2011,provide Petitioners with a summary ofany information it has regarding the progress ofthe reports)and a summary ofthe Agency's plans for accomplishing its goal ofderiving numeric concentration-based effluent limits for ballast water for inclusion in the Draft Next VGP in light ofsuch delay. After receiving such summaries,Petitioners may invoke their rights under the dispute resolution and remedy for non-compliance provisions ofthis Agreement in Paragraphs 29 and 30 by providing written notice and a request for negotiations indicating that it is Petitioners' view that EPA's plan for how to proceed in light ofthe delay is unsatisfactory. Completion ofthe delayed reports)which

D 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 10

### precipitated invocation ofthe dispute resolution process in paragraphs 29 and 30 during

the pendency ofthat process shall constitute resolution ofthe dispute. For purposes of this Paragraph and Paragraph 20,the NAS Report will be considered "complete" when the NAS informs EPA that apre-publication version may be made available to the public, and the SAB Report will be considered "complete" when the Science Advisory Board either posts the final report on its official webpage or transmits the report to the Administrator,whichever is earlier. 20. EPA will make appropriate Agency staff determined by EPA) available for at least two meetings with Petitioners after the later ofthe NAS and SAB .reports is complete,with the first meeting to take place within 30 days ofthe receipt of the later ofthe two reports and the second to take place within 30 days ofthe first meeting. The primary purpose ofthe first meeting will be for Petitioners to present their views to EPA staffregarding appropriate numeric concentration-based effluent limits- for ballast water and appropriate timeframes for regulated entities to come into compliance with-such limits for the Draft Next VGP. The primary purpose ofthe second meeting will be for EPA staffto explain to Petitioners their expectations at that time regarding appropriate numeric concentration-based effluent limits for ballast water and timeframes for regulated entities to come into compliance with such limits for the Draft Next VGP. For purposes ofthis Paragraph,EPA will be deemed to have made appropriate staff available ifEPA has provided Petitioners with their choice ofthree two-hour periods within the prescribed timeframes during which such staffare available to meet with Petitioners either in person or by conference call. EPA will schedule and hold the meetings during the time Petitioners choose.

10 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 1121. Ifwithin 21 days after the second meeting described in Paragraph Z0,any

petitioner provides EPA with written notice that such petitioner believes EPA is unlikely to establish appropriate effluent limits and compliance timeframes for ballast water for the Draft Next VGP,EPA will provide Petitioners with an opportunity for a meeting with appropriate Agency political management (as determined by EPA). For the purposes of this Paragraph, EPA will be deemed to have provided Petitioners with an "opportunity for
a meeting" ifEPA has provided Petitioners with their choice oftwo one-hour periods during which Agency political management is available to meet with Petitioners either in person or by conference call. Barring unforeseen circumstances, EPA will schedule and hold the meeting during the time Petitioners choose. In the event ofunforeseen circumstances,EPA will promptly reschedule the meeting after conferring with Petitioners. 22. In the event any petitioner chooses to attend any meeting scheduled by EPA under Paragraphs 20 or 21 in person rather than via conference call, such petitioner will bear all oftheir costs associated with attendance. 23. EPA will promptly provide Petitioners with copies ofthe NAS and SAB reports when they are "complete" as defined in Paragraph 19. VI.Effective Date 24. This Agreement shall become effective on the date (the "Effective Date") that a fully executed copy ofthe Agreement is delivered by EPA to Petitioners. Such delivery shall be accomplished by sending such executed copy to Petitioners by electronic transmission promptly upon final execution ofthe Agreement by the United States.

11 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 12VII. Release and Reservation ofRights

25. This Agreement shall not constitute or be construed as an admission or adjudication by the United States or EPA ofany question offact or law with respect to any claim related to the VGP. Nor is it an admission ofviolation ofany law,rule, regulation, or policy by the United States or EPA. 26. This Agreement does not waive any petitioner's right to challenge any final agency action following compliance with the terms ofthis Agreement. EPA does not waive any defenses to such a challenge. VII. Termination of Settlement Agreement 27. This Agreement shall terminate on the earlier of(a)the date that EPA fulfills the last ofits obligations under this Agreement,or (b)the date that Petitioners notify EPA that Petitioners have elected to terminate this Agreement and reactivate the Litigation. VIII.Abeyance,Dispute Resolution and Remedy for Non-Compliance 28. Promptly after the Effective Date,the Parties agree to file with the Court a joint motion to hold the Litigation in abeyance. Said joint motion will request that the Court hold said litigation in abeyance until such time as this Agreement is terminated. In the event that this Agreement is terminated because Petitioners have chosen to reactivate the Litigation, the Parties will file motions to govern further proceedings. In the event that this Agreement is terminated because EPA has discharged its obligations hereunder, the Parties agree to join in a motion to dismiss the Litigation with prejudice. The Parties understand and agree that EPA's discharge ofits obligations hereunder will render moot the Notice ofIntent.

12 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 13

### 29. In the event ofa disagreement concerning any aspect ofthis Agreement,

including any asserted noncompliance with the Agreement,EPA or Petitioners (whichever is dissatisfied) shall provide the other with written notice ofthe dispute and a request for negotiations. EPA and Petitioners shall meet and confer in order to attempt to resolve the dispute within 21 days ofthe written notice, or,for a dispute concerning the failure ofthe NAS or the SAB to complete its report by May 31,201 1, within 14 days of the written notice, or such time thereafter as is mutually agreed. IfEPA and Petitioners
are unable to resolve the dispute within 21 days ofsuch meeting,or, for a dispute concerning the failure ofthe NAS or the SAB to complete its report by May 31,2011, within 14 days ofthe meeting,then Petitioners' sole remedy for asserted noncompliance is to reactivate the Litigation, and any such reactivation renders any remaining EPA obligations under this Agreement null and void. EPA does not waive or limit any defense relating to such litigation. The Parties agree that contempt ofcourt is not an available remedy under this Agreement. 30. In order to invoke the procedures and remedies in Paragraph 29,any written notice ofa dispute and request for negotiations under that Paragraph provided by Petitioners must be signed by authorized representatives ofNRDC, NWF and NWEA. IX.Force Majeure 31. The Parties recognize that performance ofthis Agreement is subject to fiscal and procurement laws and regulations ofthe United States which include,but are not limited to, the Anti

-Deficiency Act, 31 U.S.C. § 1341,et sec . The possibility exists that circumstances outside the reasonable control ofEPA could delay EPA's compliance with the deadlines,responsibilities or other expectations specified or contained in this

13 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 14Agreement. Such situations include,but are not limited to, a government shutdown; or

an extreme weather event that prevents EPA staff(or, in the case ofmatters addressed in Paragraph 19,the NAS or SAB) from meeting the deadlines, fulfilling the responsibilities, or meeting the expectations specified or contained in this Agreement; or a catastrophic environmental event that diverts EPA's staffresources away from meeting the deadlines, fulfilling the responsibilities, or meeting the expectations specified or contained in this Agreement. Should a delay occur due to such circumstances, any resulting failure by EPA to meet the responsibilities set forth herein shall not constitute a failure to comply with the terms ofthis Agreement,and any deadlines (including the May 31, 2011 date for completion ofthe NAS and SAB reports) so affected shall be extended
one day for each day ofthe delay. EPA will provide Petitioners with reasonable notice and explanation for the delay (including an explanation ofhow EPAstaffassigned to the VGP were affected by the event causing the delay)in the event that EPA invokes this provision. Any dispute regarding invocation ofthis provision, or the length ofthe claimed delay, shall be resolved in accordance with the dispute resolution provision of Paragraphs 29 and 30 ofthis Agreement. X. Modifications 32. Ifa subsequent change in law relieves EPA ofits responsibilities concerning matters addressed in this Agreement,then the Parties shall amend the Agreement to conform to such changes. Any dispute regarding invocation ofthis provision shall be resolved in accordance with the dispute resolution provision of Paragraphs 29 and 30 ofthis Agreement.

14 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 1533. The Parties may modify any deadline or other term ofthis Agreement in

writing. XI. Agency Discretion 34. Except as expressly provided herein, or in any subsequent amendment to this Settlement Agreement,nothing in this Settlement Agreement shall be construed to limit or modify the discretion accorded to -EPA by the CWA, the Administrative Procedure Act,or by any other law, including general principles ofadministrative law. XII. Notice 35. All notices required or made with respect to this Agreement shall be in writing and shall be effective, unless otherwise stated, on the date that notice is delivered by an overnight mail/delivery service. For any matter relating to this Agreement,the contact persons for Petitioners and EPA are: For Petitioner.NRDC: Thomas Cmar Natural Resources Defense Council,Inc. 2N.Riverside, Ste. 2250 Chicago,IL 60606 For Petitioner NWF: Neil S. Kagan National Wildlife Federation 213 West Liberty Street, Suite 200 Ann Arbor, MI 48104-1398 For Petitioner NWEA.: Allison LaPlante StaffAttorney &Clinical Professor Pacific Environmental Advocacy Center at Lewis &Clark Law School 10015 SW Terwilliger Blvd Portland, OR 97219-7799

15 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 16Fnr F,PA~

Associate General Counsel, Water Law Office Office ofGeneral Counsel (2355) U.S. Environmental Protection Agency 401 M Street, S.W. Washington,DC 20460 Chief Environmental Defense Section Environment &Natural Resources Division United States Department ofJustice P.O. Box 23986 Washington,D.C. 20026-3986 36. Upon written notice to the other Parties, any Party may designate a successor contact person for any matter relating to this Agreement. XIII.Representative Authority 37. Each undersigned representative ofthe Parties certifies that he or she is fully authorized by the Party to enter into, execute,and bind such Party to this Agreement. XIV.Mutual Drafting 38. This Agreement was negotiated between EPA and Petitioners and jointly drafted by the Parties. Accordingly,the Parties 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 ofthis Agreement. XV.Counterparts 39. This Agreement may be executed in any number ofcounterpart originals, each ofwhich shall be deemed to constitute an original Agreement,and all ofwhich shall

16 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 17constitute one Agreement. The execution ofone counterpart by any Party shall have the

same force and effect as ifthat Party had signed all other counterparts. XVI.Use of Settlement Agreement 40. This Agreement shall not constitute an admission or evidence ofany fact, wrongdoing,misconduct,or liability on the part ofany Party. XVII. Compliance with Other Laws 41. No provision ofthis Agreement shall be interpreted as or constitute a commitment or requirement that EPA obligate or pay funds in contravention ofthe AntiDeficiency Act, 31 U.S.C. § 1341, or take any action in contravention ofthe APA,the CWA,or any other law or regulation, either substantive or procedural. XVIII.Applicable Law 42. This Agreement shall be governed by and construed under the laws ofthe United States. XIX.Third Party Beneficiaries 43. Nothing in this Agreement shall be construed to make any other person or entity not executing this Agreement athird-party beneficiary to this Agreement. 44. The Parties consent to the form and substance ofthe foregoing Agreement. XX.Attorneys' Fees 45. The United States shall pay,no later than 45 days after final execution of this agreement,(1)$64,672 to NWEA;(2)$20,408 to NWF;and (3)$37,390 to NRDC, by electronic funds transfer in accordance with instructions provided to EPA's counsel by counsel for each such party. Any obligation ofthe United States to expend funds under this Settlement Agreement are subject to the availability ofappropriations in accordance

17 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 18with the Anti

-Deficiency Act, 31 U.S.C. § 1341,and this Settlement Agreement shall not

be construed to require the United States to obligate or pay funds in contravention of said Act. NWEA,

NWF,and NRDC each agrees that payment pursuant to this paragraph will constitute full and final payment ofall costs of litigation (including reasonable attorneys' fees)incurred by such party in connection with these consolidated cases.. Upon payment, each such party releases the United States, including EPA,from any claims regarding such fees and costs in connection with these consolidated cases. Nothing in this agreement shall be construed to waive any right NWEA, NWF,or NRDC may have to seek attorneys' fees for any costs oflitigation associated with any reactivation of litigation pursuant to paragraph 29 ofthis Agreement and nothing in this agreement shall be construed to limit the United States right to oppose any such claims.

DATE: ~~%~~~r,~ ~ ~ Z6 ~ ~ ~'~` ~~ ~ ~~{.v~'+ MARTIN F. MCDERMOTT United States Department ofJustice Environment and Natural Resources Division Environmental Defense Section P.O. Box 23986 Washington,D.C. 20026-3986 (202)514-4122 Counsel for EPA

~_ DATE: M~~^~`t~,~ 3, ~d1I THOMAS CMAR Natural Resources Defense Council, Inc. 2N.Riverside, Ste. 2250 Chicago, IL 60606 (312)651 -7906 Counsel for NRDC

[F:3 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 19DATE: ~ Zo/ < EIL S. KAGAN

DATE: National Wildlife F de tion 213 West Liberty S e t, Suite 200 Ann Arbor, MI 48104-1398 (734)887-7106 Counsel for NWF

ALLISON LAPLANTE StaffAttorney &Clinical Professor Pacific Environmental Advocacy Center at Lewis &Clark Law School 10015 SW Terwilliger Blvd Portland, OR 97219-7799 (503)768-6894 .Counsel for NWEA

19 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 20DATE: NEIL S. KAGAN National Wildlife Federation 21.3 West Liberty Street, Suite 200 Ann Arbor, MI 48104-1398 (734)887-7106 Counsel for NWF

DATE: 

# 3 LLISON LAPLANTE StaffAttorney &Clinical Professor Pacific Environmental Advocacy Center at Lewis &Clark Law School 10015 SW Terwilliger Blvd Portland, OR 97219-7799 (503)768-6894 Counsel for NWEA

19 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 21

### ATTACHMENT A

~~— Modification ofthe i~GP:This permit is subject to modification in accordance with 40 CFR 124.5 and 122.62. Grounds for such modification include receipt ofnew information that was not available at the time ofpermit issuance (other than revised regulations,guidance, or test methods)and would have justified the application ofdifferent permit conditions at the time ofpermit issuance. With respect to ballast water discharges, new information that will be considered in determining whether to modify this permit includes, but is not limited to,data or information from permittees, the general public, states, academia,scientific or technical articles or studies, and results ofmonitoring conducted under this permit indicating that: ■ Treatment technology has improved such that these improved technologies would have justified the application ofsignificantly more stringent effluent limitations or other permit conditions had they been known at the time of permit issuance; Treatment technologies,known ofat the time ofpermit issuance perform significantly better than understood at the time ofpermit issuance such that this improved performance would have justified the application of significantly more stringent effluent limitations or other permit conditions had this been understood at the time of permit issuance; ■ Scientific understanding ofpollutant effects or ofinvasion biology has evolved such that this new information would have justified the application ofsignificantly more stringent effluent limitations or other permit conditions had this been understood ofat the .time ofpermit issuance; or ■ The cumulative effects ofany discharge authorized by the VGP on the environment are unacceptable.

20 

### Case: 09-1089 Document: 1296922 Filed: 03/08/2011 Page: 22