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: ___________________