### 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. 10-1 284

SETTLEMENT AGREEMENT WHEREAS the American Forest &Paper Association, Inc., in No. 10-1284 (referred to as "Petitioner" or "AF&PA")filed in the Court ofAppeals 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 ofparagraph 1 as set forth below,the International Paper Company,intending to be bound by this Agreement,hereby stipulate and agree as follows:

Ifand 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 ofdismissal ofNo. 10- ] 284. Such stipulation of dismissal shall be in accordance with Rule 42 ofthe Federal Rules ofAppellate 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. IfEPA does not take action in accordance with the terms ofthis 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 ofproceedings 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 ofthis 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)ofthe Clean Air Act. This Agreement shall become final on the date that EPA provides written notice ofsuch finality to Petitioner. 4. Nothing in the terms ofthis 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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### ofadministrative law. Nothing in the terms ofthis Agreement shall be construed

to limit EPA's authority to alter, amend,or revise any final rule, interpretation or guidance. 5. Any obligations ofEPA to obligate or expend funds under this Agreement axe subject to the availability ofappropriations 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 ofeach party certify that they are fully authorized by the party that they represent to bind that respective party to the terms ofthis Agreement. IGNACIA ORENO Assistant tt rney General £~ciron e a~'id Nat. Resources Division
DAVID J~,I~,~+CP~1~T U.S.Departmen ofJustice 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 ofthe monitoring requirements ofthe Mandatory Reporting ofGreenhouse 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 ofthe size ofthe flow or BOD concentration from this input, monitoring as outlined in the rule must occur. However,the rule does provide flexibility in the types ofmonitoring equipment that might be used. 40 C.F.R. § 98.354(d)states "[y]ou must measure flowrate using one ofthe methods specified in paragraphs (d)(1 }through (d)(5)ofthis 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 ofcompliance. Accordingly,any resolution may focus on using such alternative measuring devices. At Location 2,a variable portion ofthe 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 ofthese two flow meters is sufficient for reporting flow to Location 2 and that equipment could be installed that samples BOD concentration at a place that corresponds to where Flow Meter A is currently installed. EPA agrees that the composition ofthe wastewater where the flow is currently being monitored is the same as where it immediately inputs to the treatment basin and that installation ofa BOD concentration sampling equipment at the location ofthe 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)ofthe rule does,however,provide flexibility in themonitoring equipment that can be installed. In this regard, you raised the potential of installing a

Flo-Dar meter. EPA believes that installation ofsuch 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 behalfofyour 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.