IN THE UNITED STATES COURT OF APPEALS

FOR TI-~ DISTRICT OF COLUMBIA CIRCUIT

AMERICAN FOREST &PAPER )

ASSOCIATION, Inc., }

Petitioner, )

v. )

U.S. ENVIRONMENTAL PROTECTION )

AGENCY, }

Respondent. )

No. 10-1284

SETTLEMENT AGREEMENT

WHEREAS the American Forest &Paper Association, Inc., in No. 10-1284

(referred to as "Petitioner" or "AF&PA") filed in the Court of Appeals for the D.C.

Circuit a petition for review captioned above that challenges the regulation titled

"Mandatory Reporting of Greenhouse Gases from Magnesium Production,

Underground Coal Mines, Industrial Wastewater Treatment, and Industrial Waste

Landfills," 75 Fed. Reg. 39,736 (July 12, 2010) ("GHG Reporting Rule"), which

was promulgated under the Clean Air Act by the Environmental Protection Agency

("EPA");

VV~f-~REAS the EPA and AF&PA (collectively the "Parties") wish to

implement this Settlement Agreement ("Agreement") to avoid protracted and

costly litigation and to preserve judicial resources;

NOW, THEREFORE, the Parties and, for purposes of paragraph 1 as set

forth below, the International Paper Company, intending to be bound by this

Agreement, hereby stipulate and agree as follows:

If and when EPA issues a letter to AF&PA that contains substantially

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the same substance as set forth in Attachment A to this Agreement, then Petitioner

shall promptly file a stipulation of dismissal of No. 10- ] 284. Such stipulation of

dismissal shall be in accordance with Rule 42 of the Federal Rules of Appellate

Procedure, with each party to bear its own costs and attorneys' fees. In addition,

Petitioner and the International Paper Company shall not challenge such letter

issued by EPA that contains substantially the same substance as set forth in

Attachment A in any court or administrative proceeding, and the right to raise such

challenge is waived.

2. If EPA does not take action in accordance with the terms of this

agreement then Petitioner's sole remedy under this Agreement regarding the rules

under review in these cases shall be the right to request that the Court lift the stay

of proceedings and establish a schedule for briefing and oral argument,

3. EPA and Petitioner 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 said notice of this Agreement to the Federal Re ister 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 her 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 Petitioner.

4. Nothing in the terms of this Agreement shall be construed to limit or

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

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of administrative law. Nothing in the terms of this Agreement shall be construed

to limit EPA's authority to alter, amend, or revise any final rule, interpretation or

guidance.

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

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

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

construed to require the United States to obligate or pay funds in contravention of

said Anti-Deficiency Act, 31 U.S.C. § 1341.

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

fully authorized by the party that they represent to bind that respective party to the

terms of this Agreement.

IGNACIA ORENO

Assistant tt rney General

£~ciron e a~'id Nat. Resources Division

DAVID J~,I~,~+CP~1~T

U.S. Departmen of Justice

Environmental Defense Section

PO Box 23986

Washington D.C. 20026-3986

(202)514-0997

Counsel for United States

Environmental Protection Agency

Dated: _~~ ~/~

SSELL S. FRYE

FryeLaw PLLC

The Virtua] EHS Law FirmTM

1101 30th Street, N.W. Suite 220

Washington, DC 20007-3769

(202) 572-8267

Counsel for American Forest &

Paper Association, Inc., and the

International Paper Company

Dated: ~ d /8

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ATTACHMENT A

Russell S. Frye

FryeLaw PLLC

l 101 3Q`h Street, N.W.

Suite 200

Washington, D.C. 20007-3769

Dear Mr. Frye:

T'he American Forest & Aaper Association, Inc., ("AF&PA") has raised issues regarding

the application of the monitoring requirements of the Mandatory Reporting of Greenhouse Gases

Rule, Subpart II — Industrial Wastewater Treatment, as they apply to a particular paper mill.

More specifically, AF&PA has raised concerns about how the rule requirements would apply at

three locations in which wastewater flow enters an effluent treatment basin at International Paper

Company's (IP) Prattville Mill in Prattville, AL, as shown in the schematic below that was

provided by tP, AF&PA presented monitoring scenarios for these locations.

At Location 1, regardless of the size of the flow or BOD concentration from this input,

monitoring as outlined in the rule must occur. However, the rule does provide flexibility in the

types of monitoring equipment that might be used. 40 C.F.R. § 98.354(d) states "[y]ou must

measure flowrate using one of the methods specified in paragraphs (d)(1 }through (d)(5) of this

section or as specified by the manufacturer." Thus the Prattville Mill is not limited to installing

the particular technologies listed in these paragraphs that would present logistical difficulties and

ftnancial burden discussed at this site. Alternative monitoring equipment as provided for in

§98.453(d) may be used to reduce the stated cost of compliance. Accordingly, any resolution

may focus on using such alternative measuring devices.

At Location 2, a variable portion of the wastewater from mill operations flows directly to

the treatment basin, As shown on the schematic, a flow meter (A) is already in place that

measures combined flow to this location and Location 3. [n addition, based on your

representations, we understand that a flow meter (B) is already in place before the wastewater

reaches the treatment basin at Location 3. AF&PA has suggested that the difference in

measurements of these two flow meters is sufficient for reporting flow to Location 2 and that

equipment could be instal led that samples BOD concentration at a place that corresponds to

where Flow Meter A is currently installed. EPA agrees that the composition of the wastewater

where the flow is currently being monitored is the same as where it immediately inputs to the

treatment basin and that installation of a BOD concentration sampling equipment at the location

of the existing Flow Meter A and using the difference in measurements between the two Flow

Meters A and B to report flow for Location 2 would be a monitoring configuration that is

consistent with the requirements in §98.354(d).

At Location 3, a meter must be installed that is appropriate for measuring flow from the

open channel after the wastewater exits the aerated stabilization basin (ASB) and before it flows

into the effluent treatment basin, in addition to installing a BOD monitor at the same location.

As stated above, Section 98.354(d) of the rule does, however, provide flexibility in the
monitoring equipment that can be installed. In this regard, you raised the potential of installing a

Flo-Dar meter. EPA believes that installation of such a meter at the specified location is

consistent with Section 98.354(d), as long as such a device measures the required parameter and

is installed, operated, and calibrated according to manufacturer's specifications.

Thank you for your interest in the Greenhouse Gas Reporting Program on behalf of your

client, AF&PA. 1 trust that the information provided in this letter is helpful.

Sincerely,

LOW DO EFFLUENT TREATMENT BASIN AT IP PRATfVILE MILL

(A) Existing Ultrasonic

Flow Meter in Open Channel

Current System Description:

ng Ultrasonic

terin Closed

Flow enters an approximately 550 acre effluent treatment basin from three locations. The basin

contains water with low residual dissolved oxygen (DO).
1) The ash pond comprises approximately ~3% of the flow and less than 0.05 of the BOD loading

(based on weekly grab samples). Flows come from a combination of coal and wood ash

precipitators, the Woodyard flume, landfill leachate, and stormwater.

2) A variable portion of the wastewater from other mill operations flows directly to this treatment

basin. Flows are in the 10-17 million gallons per day range.

3) The outfall from the ASB enters this treatment basin after 5-7 days of retention in the ASB. The

ASB is a clay lined basin. Flows are in the 10-17 million gallons per day range.