1

SETTLEMENT AGREEMENT

WHEREAS, on April 17, 2012, the United States Environmental Protection

Agency (“EPA” or “Agency”) published the “National Emission Standards for

Hazardous Air Pollutants for Polyvinyl Chloride and Copolymers Production,” 77

Fed. Reg. 22,848 (Apr. 17, 2012) (“PVC NESHAP” or “2012 Rule”);

WHEREAS, Oxy Vinyls, LP; The Vinyl Institute, Inc. (“Vinyl Institute”);

PolyOne Corp. (now, Mexichem Specialty Resins, Inc.); Saint-Gobain Corp. and

CertainTeed Corp. (collectively “Petitioners”) filed petitions for review of the 2012

Rule in the United States Court of Appeals for the District of Columbia Circuit

(Case No. 12-1260, and Consolidated Case Nos. 12-1265, 12-1266, and 12-1267)

between June 14, 2012 and June 18, 2012;

WHEREAS, on June 18, 2012, Petitioner Vinyl Institute and others

petitioned for reconsideration and to stay the 2012 Rule pending reconsideration

with EPA;

WHEREAS, on September 28, 2012, EPA granted administrative

reconsideration of the 2012 Rule on at least Petitioners’ claims that the public was

not afforded a reasonable opportunity to comment on emission limits in the final

2012 Rule for process wastewater;
2

WHEREAS, EPA intends to undertake a rulemaking (commencing no later

than January 21, 2015) to withdraw the existing and new area source total nonvinyl chloride organic hazardous air pollutant (“TOHAP”) process wastewater

emission limits in the 2012 Rule that may resolve concerns raised by Petitioners in

the above-noted petitions for review on this issue;

WHEREAS, after the conclusion of briefing in this case, on November 18,

2014, EPA and Petitioners submitted a Joint Motion requesting that the Court sever

Petitioners’ challenge to the existing and new area source TOHAP process

wastewater emission limits, place the issue in abeyance pending ongoing

settlement discussions, and remove the issue from the November 19, 2014 oral

argument in this matter; and

WHEREAS, Petitioners and EPA (collectively, the “Parties”) wish to

implement this Settlement Agreement (this “Agreement”).

NOW, THEREFORE, the Parties, intending to be bound by this Agreement,

hereby stipulate and agree as follows:

1. Promptly after execution of this Agreement, the Parties will notify the

Court in Case No. 12-1260 and consolidated cases that they have reached a

settlement, subject to the required notice provisions described in paragraph 8

below. EPA must file a status report with the Court by February 2, 2015 and every

30 days thereafter.
3

2. By January 21, 2015, the Administrator of EPA will sign a direct final

rule and parallel proposal withdrawing the TOHAP process wastewater emission

limits for new and existing area sources. EPA will transmit the direct final rule

and parallel proposed rule to the Office of the Federal Register as expeditiously as

possible thereafter for publication.

3. To the extent that EPA establishes new TOHAP process wastewater

emission limits for existing and new area sources, those emission limits will be set

pursuant to the reconsideration process or other separate rulemaking, and not

through the direct final rule (described in paragraph 2) or a final rule (described in

paragraph 4). Petitioners reserve any rights they may have to challenge in any

court or administrative proceeding any portion of EPA’s final action following any

such rulemaking.

4. If EPA receives adverse comments on and withdraws the direct final

rule, EPA will make its best efforts to sign a notice taking final action on the

parallel proposal within 15 days of the close of the comment period. EPA will

transmit the signed notice to the Office of the Federal Register as expeditiously as

possible thereafter for publication.

5. Oxy Vinyls, LP will move to dismiss its petition for review, and the

remaining Petitioners will move to dismiss the issue of the existing and new area

source TOHAP process wastewater emission limits from their petitions for review
4

in the above-captioned cases within 7 days following the effective date of the

direct final rule (as described in paragraph 2) or a final rule (as described in

paragraph 4) withdrawing the existing and new area source TOHAP process

wastewater limits. Such motion shall be filed pursuant to Rule 42 of the Federal

Rules of Appellate Procedure, with each party to bear its own costs and attorneys’

fees.

6. If the Administrator of EPA does not sign the direct final rule and

parallel proposal withdrawing the TOHAP process wastewater emission limits for

new and existing area sources by January 21, 2015, or, if EPA receives adverse

comments on and withdraws the direct final rule and does not sign the notice of

final action as described in paragraph 4, Petitioners may request that the Court take

the issue out of abeyance and adjudicate the area source TOHAP process

wastewater emission limits in the 2012 Rule. EPA will not oppose the request to

take the issue out of abeyance, but EPA reserves its right to oppose Petitioners’

claims on the area source TOHAP process wastewater emission limits.

Alternately, Petitioners may request that the Court stay the TOHAP process

wastewater limits for new and existing area sources in the 2012 Rule before the

compliance date of April 17, 2015. EPA will not oppose Petitioners’ request for a

judicial stay. The right to make such requests constitutes Petitioners’ sole judicial

remedy under this Agreement and any provision of law.
5

7. Nothing in this Agreement shall preclude Petitioners from requesting

an administrative stay from EPA under 42 U.S.C. § 7607 in the event that the area

source TOHAP process wastewater emission limits are not withdrawn for any

reason before the April 17, 2015 compliance date.

8. The Parties agree and acknowledge that before this Agreement is

final, EPA must provide notice in the Federal Register and an opportunity for

comment pursuant to Clean Air Act section 113(g), 42 U.S.C. § 7413(g). EPA

shall submit notice of this Agreement to the Federal Register for publication as

expeditiously as possible. After this Agreement has undergone an opportunity for

notice and comment, the Administrator and/or the Attorney General, as

appropriate, shall promptly consider any such written comments in determining

whether to withdraw or withhold their consent to the Agreement in accordance

with section 113(g) of the Clean Air Act. This Agreement shall become final on

the date that EPA provides written notice of such finality to Petitioners.

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

discretion accorded EPA by the Clean Air Act or by general principles of

administrative law. Nothing in this Agreement shall be construed to limit EPA’s

authority to alter, amend, or revise any final rule EPA may issue or to promulgate

superseding regulations, or to limit Petitioners’ ability to seek administrative or
6

judicial review of any such alteration, amendment, revision, or superseding

regulation.

10. Any obligations of EPA to obligate or expend funds under this

Agreement are subject to the availability of appropriations in accordance with the

Anti-Deficiency Act, 31 U.S.C. § 1341. This Agreement shall not be construed to

require the United States to obligate or pay funds in contravention of the AntiDeficiency Act, 31 U.S.C. § 1341.

11. The Parties recognize that the possibility exists that circumstances

outside the reasonable control of EPA could delay compliance with the

commitments contained in this Agreement. Such situations include, but are not

limited to, a government shut-down such as occurred in 1995, 1996, and 2013, or

catastrophic environmental events requiring immediate and/or time-consuming

response by EPA. Should a delay occur due to such circumstances, any resulting

failure to meet the commitments set forth herein shall not constitute a failure to

comply with the terms of this Agreement, and the Parties will meet and confer

about the extension of any deadlines occurring within one hundred twenty (120)

days of the termination of the delay. Such dates shall be extended no less than one

day for each day of the delay. EPA will provide Petitioners with notice as soon as

is reasonably possible under the circumstances in the event that EPA invokes this
7

term of this Agreement and will provide Petitioners with an explanation of EPA’s

basis for invoking this term.

12. If EPA invokes the provisions of paragraph 11, notwithstanding the

fact that any delay in performance due to circumstances beyond EPA’s reasonable

control shall not constitute a failure to comply with this Agreement, Petitioners

may seek judicial or administrative relief from the April 17, 2015 compliance

deadline consistent with paragraphs 6 and 7. In order to effectuate this Agreement,

EPA agrees to consider providing administrative relief to the extent reasonably

possible in light of the circumstances leading to EPA’s invocation of paragraph 11.

13. Except as provided in this Agreement, none of the parties hereto

waives or relinquishes any legal rights, claims, or defenses it may have.

14. The undersigned representatives of each party certify that they are

fully authorized by the party or parties that they represent to bind those respective

parties to the terms of this Agreement.

___________________________

David M. Friedland

Beveridge & Diamond, P.C.

1350 I Street, N.W., Suite 700

Washington, DC 20005

Tel: 202-789-6000

SAM HIRSCH

Acting Assistant Attorney General

___________________________

Angeline Purdy

Environmental Defense Section

Environment & Natural Resources

Division

United States Department of Justice
8

dfriedland@bdlaw.com

Counsel for Petitioner Oxy Vinyls, LP

Dated: December 4, 2014

Environmental Defense Section

P.O. Box 7611

Washington, DC 20044

Tel: 202-514-0996

angeline.purdy@usdoj.gov

Counsel for United States

Environmental Protection Agency

Dated: _____________

/s/ Jean-Cyril Walker

Jean-Cyril Walker

Keller and Heckman LLP

1001 G Street, N.W., Suite 500 West

Washington, DC 20001

Tel: 202-434-4100

walker@khlaw.com

behr@khlaw.com

Counsel for Petitioner Vinyl Institute,

Inc.

Dated: December 4, 2014

/s/ J. Tom Boer

J. Tom Boer

Barg Coffin Lewis & Trapp LLP

350 California Street, 22nd Floor

San Francisco, CA 94104

Tel: 415-228-5400

jtb@bcltlaw.com

Counsel for Petitioner Mexichem

Specialty Resins, Inc.

Dated: December 4, 2014

/s/ Marc. D. Machlin___

Marc D. Machlin

Pepper Hamilton LLP

600 Fourteenth Street, N.W.

Washington, DC 20005

Tel: 202-220-1439

machlinm@pepperlaw.com

Counsel for Petitioner Saint-Gobain

Corporation and CertainTeed

Corporation
9

Dated: December 4, 2014