IN THE UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

)

AMERICAN PETROLEUM INSTITUTE, )

)

Petitioner, )

)

v. ) Docket Nos. 94-1273,

) 94-1274, and 94-1276

U.S. ENVIRONMENTAL PROTECTION )

AGENCY and CAROL M. BROWNER, ) (consolidated cases)

Administrator, U.S. Environmental )

Protection Agency )

)

Respondents. )

)

SETTLEMENT AGREEMENT

BETWEEN THE INSTITUTE OF MAKERS OF EXPLOSIVES

AND THE U.S. ENVIRONMENTAL PROTECTION AGENCY

IN NO. 94-1276

This Settlement Agreement is made this __th day of March, 1996, between the United

States Environmental Protection Agency (“EPA”) and the Institute of Makers of Explosives

(“IME”).

WHEREAS, EPA issued a final rule entitled List of Regulated Substances and Thresholds

for Accidental Release Prevention (59 Fed. Reg. 447), pursuant to section 112 (r) of the Clean

Air Act, as amended, 42 U.S.C. § 7412 (r) (referred to hereafter as “CAA section 112(r)”);

WHEREAS, IME filed a Petition for Review in the above-styled docket objecting to the

inclusion of Division 1.1 explosives in the list of regulated substances;

WHEREAS, EPA and IME desire to resolve this matter without resorting to further

litigation;

WHEREAS, “Other Law”, as defined in Paragraph 2 below, requires nearly all facilities

at which explosives are manufactured or stored to develop emergency response plans;

WHEREAS, Other Law requires, for most facilities, that the owner or operator provide

local emergency responders with copies of Material Safety Data Sheets (“MSDSs”), or lists of

materials for which there are MSDSs (“Current MSDS Requirements”);
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WHEREAS, for most facilities not subject to Current MSDS Requirements, Other Law

requires that the owner or operator of such facilities advise local law enforcement, the fire

department, and the local emergency response committees regarding the type, quantity, and

location of Division 1.1 explosives on site;

WHEREAS, IME acknowledges that the failure of a facility to undertake the actions set

forth in Sections 3(a)-(c) below would be inconsistent with IME’s suggested safety practices;

NOW, THEREFORE, EPA and IME agree as follows:

1. Except as otherwise provided in this Settlement Agreement, all terms herein shall

be defined in accordance with the CAA and regulations promulgated under the authority of the

CAA.

2. For purposes of this Settlement Agreement, “Other Law” shall mean obligations

arising under federal, state, and local laws and regulations other than CAA section 112 (r), and

its implementing regulations.

3. IME member companies, at facilities that they own or control, shall:

a. Post at all normal access routes a sign which states “Danger. Never

Fight Explosive Fires. Explosives are stored on this site. Call

(Emergency Phone Number.)"; 

b. Whenever a Division 1.1 commercial explosives storage or

manufacturing location is established at a temporary job site,

immediately notify Local Emergency Planning Committees

and other local authorities, such as fire departments and local

law enforcement agencies, of the type, quantity, and location

of any Division 1.1 explosive at that new site;

c. At new or existing Division 1.1 commercial explosive

storage or manufacturing locations (not including any

temporary job site) that are not already required by Other

Law to prepare emergency response plans, and that have

5000 pounds or more of Division 1.1 explosives on site at

any one time, prepare emergency response plans for such

sites, notify Local Emergency Planning Committees and

other local authorities, such as fire departments and local law

enforcement agencies, of the type, quantity, and location of

Division 1.1 explosives at the site, and provide such plans to

local emergency responders. Such facilities also shall
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respond to reasonable requests for information about the

type, quantity, and location of any Division 1.1 explosive on

site that may be made by those local authorities.

d. IME member companies shall inform their customers of the

contents of this Settlement Agreement, including the actions

to be taken pursuant to section 3(a)-(c) above.

4. Consistent with its Charter, By-Laws, long-standing practice, and Other Law, IME

will respond to reasonable requests from law enforcement agencies and emergency responders

for information concerning the safe storage, distribution, and use of explosives.

5. IME will distribute to other non-IME commercial explosives manufacturers,

distributors and users of which it has knowledge, a letter informing such manufacturers,

distributors and users of the contents of this Settlement Agreement, including the actions to be

taken pursuant to section 3(a)-(c) above.

6. The obligations set forth in this Agreement shall not substitute for, or supersede,

any obligation on the same subject matter that is imposed by Other Law.

7. EPA intends to conduct notice-and comment rulemaking in accordance with CAA

section 307(d) proposing that 40 C.F.R., section 68.130 be amended to remove Division 1.1

explosives from the list of regulated substances under CAA section 112(r) (i.e., “de-list” Division

1.1 explosives).

8. EPA will use its best efforts to sign a notice of proposed rulemaking on the issue

described in Paragraph 7, no later than nine (9) months after the “Approval Date,” as defined in

Paragraph 11 of this Settlement Agreement. After considering any public comments received,

EPA will use its best efforts to sign a notice of final rulemaking on the issues described in

Paragraph 7, no later than eighteen (18) months after the Approval Date.

9. The parties may extend the dates set forth in Paragraph 8, or otherwise modify this

Settlement Agreement by written stipulation, executed by counsel for the parties.

10. The parties agree and acknowledge that final approval of this proposed Settlement

Agreement is subject to the requirements of CAA section 113(g), 42 U.S.C. § 7413(g). That

subsection provides that notice of this proposed agreement be given to the public, that the public

shall have at least thirty (30) days to make any comments, and that the Administrator or the

Attorney General, as appropriate, must consider those comments in deciding whether to consent

to this Settlement Agreement.

11. The Administrator shall cause notice of this Settlement Agreement requesting

public comment thereon to be forwarded to the Federal Register for publication within 15 days
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of execution of this Settlement Agreement by the parties. Within 30 days after the close of such

public comment period, and after review of any public comments, the Administrator or the

Attorney General, or their delegees, as appropriate, shall determine whether to consent to this

Settlement Agreement. Unless such consent is withheld, the parties shall promptly thereafter

move the Court, based on this Settlement Agreement, to stay further proceedings before the Court

until the Settlement Agreement is implemented as provided in Paragraphs 7 and 8, or until further

motion to the Court. For purposes of this Settlement Agreement, the date the parties file the

finally-approved Settlement Agreement shall constitute the “Approval Date.”

12. Nothing in this Settlement Agreement shall be construed to limit or modify the

discretion accorded to the Administrator by the CAA or by general principles of administrative

law. Nothing in this Settlement Agreement shall be construed to require EPA to obligate or pay

funds or in any other way to take action in violation of the Anti-Deficiency Act or any other

applicable appropriations law.

13. Nothing in this Settlement Agreement shall be construed to limit or modify EPA’s

discretion to alter, amend, or revise the regulations identified in Paragraph 7 from time-to-time

or to promulgate superseding regulations.

14. Nothing in this Settlement Agreement shall be construed to limit or modify the

applicability of CAA section 112(r)(1), 42 U.S.C. § 7412(r)(1), to any stationary source, as that

term is defined in CAA section 112(r)(2).

15. In the event that EPA takes final agency action de-listing explosives within the

time frames specified in Paragraph 8, IME and EPA shall promptly stipulate to the dismissal, with

prejudice, of IME’s petition in Case No. 94-1276 in accordance with Rule 42 of the Federal Rules

of Appellate Procedure. In addition, IME will not exercise whatever rights it may have to seek

review of that final action pursuant to CAA section 307, or otherwise.

16. In the event EPA fails to perform its obligations under this Settlement Agreement,

IME’s sole remedy (except as provided in Paragraph 17) shall be the right to reactivate this

litigation. IME agrees to give EPA thirty (30) days’ notice prior to exercising its rights under this

Paragraph, unless sua sponte action by the Court effectively precludes such notice from being

given.

17. If EPA’s final action under Paragraph 8 does not amend 40 C.F.R. part 68 to delist

explosives, IME may exercise whatever rights it may have to seek review of that final action

pursuant to CAA section 307, or otherwise.

18. Except as expressly provided in this Settlement Agreement, none of the parties

waives or relinquishes any legal rights, claims, or defenses it may have. Each party will bear its

own costs and attorneys’ fees, including but not limited to any costs of monitoring compliance
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with this Settlement Agreement and participating in the rulemaking contemplated by this

Settlement Agreement.
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19. The undersigned representatives of each party certify that they are fully authorized

by the party or parties they represent to bind the respective parties to the terms of this Settlement

Agreement, subject to the provisions of Paragraphs 11 and 12.

For the United States Environmental Protection Agency and Carol M. Browner,

Administrator:

 Date: 

ROBIN L. JUNI

Environmental Defense Section

Environmental and Natural Resources Division

United States Department of Justice

10th Street & Pennsylvania Avenue, N.W.

Washington, DC 20530

(202) 514-3676

 Date: 

JONATHAN C. AVERBACK

Office of General Counsel (2344)

Environmental Protection Agency

401 M Street, S.W.

Washington, DC 20460

(202) 260-7718

For the Institute of Makers of Explosives:

 Date: 

JENNIFER M. PORTER

Andrews & Kurth L.L.P.

1701 Pennsylvania Avenue, NW, Suite 200

Washington, DC 20006

(202) 662-2718
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 Date: 

J. CHRISTOPHER RONAY

President

Institute of Makers of Explosives

1120 19th Street, N.W., Suite 310

(202) 429-9280