SETTLEMENT AGREEMENT

WHEREAS, the Complaint in Sierra Club v. Johnson, Case No. 06-CV-4000 (N.D. Il.)

fied by Plaintiffs Sierra Club and the American Bottom Conservancy (collectively "Plaintiffs"),

alleges that the Defendant Stephen L. Johnson, in his individual capacity as Administrator of the

V.S. Environmental Protection Agency (hereafter "EP A"), had a nondiscretionar duty under

Clean Air Act section 505(c), 42 V.S.C. § 766 1 d(c), to issue by May 2, 2006, an operating permit

for the Veolia hazardous waste incinerator located in Sauget, Ilinois (hereafer the "Facilty),

and that he has not done so;

WHREAS, Plaintiffs contend they are entitled to a declaration that EP A failed to

perform that nondiscretionar duty, and an order requiring EP A to issue or deny an operating

permit for the Facilty, under Clean Air Act section 505(c), 42 V.S.C. § 766Id(c);

WHEREAS, Plaintiffs fuher contend they are entitled, pursuant to Clean Air Act section

304(d), 42 V.S.C. § 7604(d), to an award of costs of litigation (including reasonable attorneys'

fees) with respect to the claims asserted in the Complaint;

WHREAS, EPA denies all of the preceding allegations and contentions, and in tu

contends that EP A has discretion to issue or deny an operating permit for the Facilty pursuat to

42 V.S.C. § 7661d(c) and 40 C.F.R. Par 71 within 18 months after May 2,2007;

WHEREAS, Plaintiffs and EPA (collectively the "Paries") wish to effect a settlement of

Sierra Club v. Johnson, Case No. 06-CV-4000 (N.D. 111.), without expensive and protracted

litigation;

WHEREAS, the Paries have agreed to a settlement without admission of any issue of

fact or law;
WHREAS, by entering into ths Settlement Agreement, the Paries do not waive or limit

any claim or defense, on any grounds, related to any final EP A action issuing or denying an

operating permit for the Facilty; and

WHEREAS, the Paries consider this Settlement Agreement to be an adequate and

equitable resolution of the claims in the above-referenced case.

NOW THEREFORE, the Paries agree as follows:

1. EP A in its sole discretion shall, not later than July 18, 2008,. either:

(a) issue a decision denying an operating permit for the Facilty under 42

V.S.C. § 7661d(c) and 40 C.F.R. Par 71; or

(b) complete the public parcipation process for a draft operating permit

Under 42 V.S.C. § 7661d(c) and 40 C.F.R. Par 71.

2. IfEPA does not issue a decision denying an operating permit for the Facilty by

July 18, 2008, then EP A also shall, not later than September 12, 2008, either:

(a) issue a final operating permit for the Facilty under 42 V.S.C. § 7661d(c)

and 40 C.F.R. Part 71; or

(b) issue a final decision denying the draf operating permit under 42 V.S.C. §

766Id(c) and 40 C.F.R. Par 71.

3. The Paries agree ånd acknowledge that before ths Settlement Agreement

becomes final and binding upon EP A, EP A will provide public notice of the proposed settlement

in the Federal Register and an opportity for public comment pursuant to Clean Air Act section

1 13(g), 42 V.S.C. § 7413(g). After this Settlement Agreement has undergone notice and

comment, the Administrator and/or the Attorney General, as appropriate, will promptly consider

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any such wrtten comments in determining whether to withdraw or withhold their consent to the

Settlement Agreement, in accordance with section 1 1 3 (g) of the Clean Air Act. After the

Administrator and/or the Attorney General elect whether or not to withdraw or withhold their

consent to ths Settlement Agreement, EPA will provide wrtten notice of that election to

Plaitiffs as expeditiously as possible.

4. If the Administrator and/or the Attorney General elect not to withdraw or

withhold their consent under Paragraph 3 of the Settlement Agreement, the Paries shall fie the

Stipulation of Dismissal Without Prejudice attached hereto as Exhibit A within 10 business days

after EP A has provided written notice of that election.

5. Nothig in this Settlement Agreement shall be constred to limit or modify the

discretion accorded EP A by the Clean Air Act and by general principles of administrative law,

including the discretion to alter, amend or revise any decision or document contemplated by this

Settlement Agreement. EPA's obligation to perform the actions specified in Paragraphs i and 2

above, and the dates specified in Paragraphs 1 and 2, do not constitute a limitation or

modification of EPA's discretion within the meaning of this paragraph. Moreover, nothing in

this Settement Agreement shall be constred as an admission of any issue of fact or law, or to

waive or limit any claim or defense, on any grounds, related to any final action EP A may take

pursuant to Paragraphs 1 and 2 above.

6. Nothing in this.Settlement Agreement shall be constred to confer upon the

district cour jursdiction to review any decision or document, either procedural or substantive, to

be made, undertaken, or issued by EP A pursuant to ths Settlement Agreement. Nothing in this

Settlement Agreement shall be constred to confer upon the distrct cour jurisdiction to review

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any issues that are within the exclusive jursdiction of the Vnited States Cours of Appeals, or

waive any remedies or defenses the Parties may have, pursuant to sections 307(b)(1) and 505 of

the Clean Air Act, 42 V.S.C. §§ 7607(b)(1), 7661d.

7. If the Administrator and/or the Attorney General elect not to withdraw or

withhold their consent under Paragraph 3 of the Settlement Agreement, within a reasonable time

the United States shall pay $7,250.00 to Plaintiffs by electronic fuds transfer to the ban

account designated by Plaintiffs within 10 days afer receipt of EP A's written notice of election

pursuant to Paragraph 3 hereof, using the Bank Account Designation Form attched as Exhbit B.

8. The Pares recognze and acknowledge that the obligations of the United States

under ths Settlement Agreement can only be performed using appropriated fuds legally

available for such purose. Nothing in this Settlement Agreement shall be interpreted or

construed as a commitment or requirement that the United States obligate or pay fuds in

contravention of the Anti-Deficiency Act, 31 V.S.C. § 1341, or any other applicable provision of

law. In the event that sufficient appropriated fuding is not available, the Parties shall attempt to

adjust the obligations in Paragraphs 1, 2 and 7 accordingly.

9. Plaintiffs agree that performance of the obligations described in Paragraphs 1,2

and 7 shall constitute a ful and complete settlement of all claims that Plaintiffs have asserted or

could have asserted under any provision of law in connection with this case, including those for

attorneys' fees or other litigation costs. Plaintiffs therefore discharge and covenant not to sue the

United States, including EPA, for any such clais upon performance of the obligations described

in Paragraphs 1, 2 and 7.

10. Any notices required or provided for by this Settlement Agreement shall be made

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in wrting, via facsimile or other means, and sent to the following:

For Plaintiffs:

David Bender

Garey McNeil & McGillvray, S.C.

634 W Main Street, Ste 101

Madison, WI 53703

Phone: (608) 256-1003

Fax: (608) 256-0933

For Defendant:

Heather E. Gange

V.S. Deparment of Justice

Environment & Natual Resources Division

Environmenta Defense Section

601 D St., NW, Ste 8000

Washington, DC 20004

Phone: (202) 514-2286

Fax: (202) 514-8865

David Orlin

Offce of General Counsel

V.S. Environnental Protection Agency

1200 Pennsylvana Avenue, N. W.

Mail Code: 2344A

Washington, DC 20460

Phone: (202) 564-1222

Fax: (202) .564-5603

11. In the event EP A fails to fulfill the obligations described in Paragraphs i, 2 or 7 of

ths Settlement Agreement, or in the event of a dispute between the Paries concerning the

interpretation or implementation of any aspect of this Settlement Agreement, the disputing par

shall provide the other par with a wrtten notice outlining the natue of the dispute or failure to

perform and requesting informal negotiations. If the Paries canot reach an agreed-upon

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. . resolution with five (5) busines days afer recpt of the notice, the disputig par's sole and

,exclusive remedy shall be the right to move the Cour to réinstate Case No. 06-CV.-4000 (N.D.

ni). No such motion shall be properly fied unless the disputig par haS followed the . .

procede set fort in ths Pargraph and prvided the other partes with written notice received

at lea,' five business days. before the motion is fied.

i 2. When EP A's obligations under Paragraphs 1, 2 and 7 have been completed. ths

Settlement Agrement shall be termated. and the paries shal fie 'an appropriate stipulation

with the Cour purnt to Fed. R. Civ. P. 41(a)(1)(~)(ii) as soon as practcable so that the

-dism~sa1 is chaged to a dismssal witJ prejudice.

13. The undergned reesentatives of each Par cerfy that they are fuly authorized

by.the Pai that they represent to bincl that Par to the ters of ths Settlement Agrement.

COUNSEL FOR PLAITIFF SIERR CLUB and

TH AMRICAN :GOTTOM CONSERVANCY:,

Dated: ~1- 2~08 .

-- . \ . ~

Ä BENDER '

Garey McNeil & McGillvray

634 W. Main Stree, Ste. 101

Madson, WI 53703

TeL. 608.256.1003

Fax.608.2S6.0933

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COUNSEL FOR DEFENDANT:

Date~i 2008

RONALDJ. TENPAS

Assistt Attorney General

Environment & Natu Resources Division

HEATHER E. G

~~~~

U.S. Deparment of Justice

Environmental Defense Section

P.O. Box 23986

Washington, DC 20026-3986

TeL. 202.514.4206

Fax. 202.514.8865

OF COUNSEL:

DAVID ORLIN

U.S. Environmental Protection Agency

Offce of General Counsel

12.00 Pennsylvana Ave., N.W.

Mail Code 2344A

Washington, D.C. 20460

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EXHIBIT A

STIPULATION OF DISMISSAL

8
UNTED STATES DISTRICT COURT FOR TH

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Plaintiffs,

)

)

)

)

)

)

)

)

)

)

)

)

)

Civil Action No. 06-4000

SIERR CLVB and the AMERICAN

BOTTOM CONSERVANCY,

v.

STEPHEN L. JOHNSON, in his

offcial capacity as Administrator,

Vnited States Environmental Protection

Agency,

Hon. Wayne R. Andersen

Defendant.

STIPULATION OF DISMISSAL WITHOUT PREJUDICE

Plaintiffs Sierra Club and American Bottom Conservancy, and Defendant Stephen L.

Johnon, in his official capacity as Administator of the Vnited States Environmental Protection

Agency, hereby stipulate that the above-captioned matter is dismissed without prejudice pursuant

to Fed. R. Civ. P. 41(a)(I)(ii).

Dated: -' 2008

DAVID BENDER

Garey McNeil & McGilivray

634 W. Main Street, Ste. 101

Madison, WI 53703

TeL. 608.256.1003

Fax. 608.256.0933

Counsellor Plaintif

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Dated:

RONALD J. TENPAS

Assistant Attorney General

Environment & Natual Resources Division

_, 2008

HEATHER E. GANGE

U.S. Deparent of Justice

Environmental Defense Section

P.O. Box 23986

Washington, DC 20026-3986

TeL. 202.514.4206

Fax. 202.514.8865

OF COUNSEL:

DAVI ORLIN

V.S. Environmenta Protection Agency

Office of General Counsel

1200 Pennsylvania Ave., N.W.

Mail Code 2344A

VVashtgton, D.C. 20460

Counsel for Defendant

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EXHIT B

BANK ACCOUNT DESIGNATION FORM

The payment specified in Paragrph 7 of the Settlement Agreement between Sierra Club,

the American Bottom Conservancy and the Vnited States, in the matter styled Sierra Club v.

Johnson, Case No. 06-CV-4000 (N.D. Il.), should be made by electronic fuds transfer to the

following account:

Ban name:

Ban address:

ABA Routing #:

Account #:

Name of Account:

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