IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________________
)
EDISON ELECTRIC INSTITUTE, et al., )
)
Petitioners, )
v. ) No. 93-1474
)
UNITED STATES ENVIRONMENTAL )
PROTECTION AGENCY, )
)
Respondent. )
_______________________________________)
SETTLEMENT AGREEMENT
WHEREAS, Edison Electric Institute ("EEI") filed the instant
petition for review of the final rule promulgated by the United
States Environmental Protection Agency ("EPA") on May 3, 1993 (58
Fed. Reg. 26,420), which corrects technical errors and provides
clarifying amendments to the rule promulgated by EPA, "Hazardous
Waste Management System; Identification and Listing of Hazardous
Waste; Recycled Used Oil Management Standards." 57 Fed. Reg.
41,566 (Sept. 10, 1992) (codified as 40 C.F.R. Part 279);
WHEREAS, EPA represents that the amendment of 40 C.F.R. §
279.10(i) in 1993 was intended to reflect the complementary
nature of the Resource Conservation and Recovery Act ("RCRA") and
the Toxic Substances Control Act ("TSCA") regulations applicable
to used oils containing less than 50 parts per million ("ppm")
polychlorinated biphenyls ("PCBs") (see 58 Fed. Reg. 26,420,
26,423 (May 3, 1993); it was not intended, nor should it be
construed, to regulate under Part 279 PCB-contaminated used oils
at levels of 50 ppm or greater, which are regulated under Part
761 of the TSCA regulations;
WHEREAS, proceedings in this matter have been stayed to
permit settlement negotiations that may resolve this matter;
WHEREAS, EEI and EPA have determined that this matter should
be settled without further litigation;
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
1. EPA shall publish a proposal to amend 40 C.F.R.
§ 279.10(i) to clarify that used oils subject to regulation under
TSCA, i.e., those containing PCBs at levels of 50 ppm or greater
are not subject to the requirements of 40 C.F.R. Part 279, which
was promulgated under RCRA.
2. EPA shall issue an interpretative letter confirming its
view that materials contaminated with used oil, such as soil or
clay-based sorbents which provide little or no energy when burned
(i.e., materials with a low British Thermal Units ("BTU") value),
are not subject to Part 279, if, in addition to a low BTU value,
such contaminated materials do not contain any visible free
flowing oil when they are burned for destruction.
3. If EPA promulgates a final rule consistent with the
proposal described in Paragraph 1, EEI shall move to dismiss its
petition with prejudice within thirty days of the later of (1)
the effective date of the amended rule, or (2) the issuance of
the letter described in Paragraph 2. If EEI does not timely file
such a motion, EPA will so move and EEI will not oppose the
motion.
4. If EPA adopts a final rule that is not consistent with
the proposal described in Paragraph 1, EEI shall file a motion
for an order governing further proceedings in this matter within
thirty days of final action on that rulemaking. If EEI does not
timely file such a motion, EPA may so move.
5. In the event that EPA does not accomplish the items set
forth in Paragraphs 1 and 2 above, EEI's sole remedy for EPA's
failure to complete the actions described in those paragraphs
shall be the right to reactivate this litigation and to seek
imposition of a schedule for briefing.
6. Nothing in the terms of this Agreement shall be
construed to limit or modify the discretion afforded to EPA by
RCRA, TSCA, or the general principles of administrative law.
7. 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.
8. Except as expressly provided in this Agreement, none of
the parties waives or relinquishes any legal rights, claims, or
defenses it may have. Notwithstanding the foregoing, if EPA
amends 40 C.F.R. § 279.10 in conformance with the proposal
described in Paragraph 1, EEI will not exercise whatever rights
it may have pursuant to section 7006 of RCRA, 42 U.S.C. § 6976,
or otherwise, to seek review of that amendment to the extent that
the amendment provides that used oils containing PCBs at levels
of 50 ppm or greater are not subject to the requirements of 40
C.F.R. Part 279. This waiver would not apply to other issues, if
any, addressed by that rulemaking.
9. All parties shall bear their own costs.
SO AGREED:
Assistant Attorney General
Environment and Natural Resources
Division
___________________________ ___________________________________
DOUGLAS H. GREEN EILEEN T. MCDONOUGH
MARIANNE MANCINO THIEDE Environmental Defense Section
Piper & Marbury, L.L.P. U.S. Department of Justice
1200 Nineteenth Street, N.W. 10th St. & Pennsylvania Ave., N.W.
Washington, D.C. 20036 Washington, D.C. 20530
(202) 861-3900 (202) 514-3126
DATED: ___________________
___________________________________
ALEXANDER SCHMANDT
Office of General Counsel
U.S. Environmental Protection
Agency
401 M Street, S.W. (LE-132)
Washington, D.C. 20460
(202) 260-1708
DATED: ___________________