E7-21321. Proposed Consent Decree Modification, Clean Air Act Citizen Suit

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of Proposed Modification to Consent Decree; Request for Public Comment.

SUMMARY:

In accordance with section 113(g) of the Clean Air Act, as amended (“Act”), 42 U.S.C. 7413(g), notice is hereby given of a proposed modification to a consent decree, to address a lawsuit filed by Environmental Defense: Environmental Defense v. Environmental Protection Agency, No. C 05 2090 (N.D.Cal.). On June 6, 2005, plaintiff Environmental Defense filed a complaint claiming that EPA had failed to perform a nondiscretionary duty to either grant or deny, within eighteen months of receipt, an August 11, 2003 petition submitted to EPA by Environmental Defense asking the Administrator to list diesel engine exhaust as a hazardous air pollutant under section 112(b)(3) of the Clean Air Act, 42 U.S.C. 7412(b)(3). Under the terms of the initial consent decree, EPA agreed to sign a notice for publication in the Federal Register that contained either a proposal to grant (in whole or in part) or a final determination that denies the petition by June 12, 2006. If EPA proposed to grant the petition, then EPA agreed to sign a final notice for publication in the Federal Register either granting or denying (in whole or in part) the petition by May 1, 2007. The original deadlines have been extended to January 7, 2008 and April 2, 2008, respectively, as a result of previous modifications to the original consent decree. Under the terms of the proposed modification, the deadlines above would be changed, respectively, to August 11, 2010 and May 11, 2011. However, EPA will not have to act on Environmental Defense's petition if EPA signs a notice for publication in the Federal Register of a proposed rule proposing to establish emissions standards for the emission of hazardous air pollutants from existing non-emergency stationary diesel engines of 300 horsepower or greater manufactured prior to 1996 pursuant to section 112 of the Clean Air Act, 42 U.S.C. 7412 by February 25, 2009, and signs a notice for publication in the Federal Register of a final rule establishing emission standards for such engines by February 10, 2010.

DATES:

Written comments on the proposed consent decree modification must be received by November 29, 2007.

ADDRESSES:

Submit your comments, identified by Docket ID number EPA-HQ-OGC-2007-1070, online at http://www.regulations.gov (EPA's preferred method); by e-mail to [e-mail]; mailed to EPA Docket Center, Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; or by hand delivery or courier to EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC, between 8:30 a.m. and 4:30 p.m. Monday through Friday, excluding legal holidays. Comments on a disk or CD-ROM should be formatted in Word or ASCII file, avoiding the use of special characters and any form of encryption, and may be mailed to the mailing address above.

FOR FURTHER INFORMATION CONTACT:

Michael Horowitz, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone: [phone]; fax number [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Additional Information About the Proposed Consent Decree

The consent decree modification would establish new deadlines by which date EPA must either grant or deny Environmental Defense's petition to list diesel exhaust as a hazardous air pollutant under section 112 of the CAA. Under the proposed modification, no later than August 11, 2010, EPA shall sign a notice for publication in the Federal Register either a proposal to grant or a final determination to deny the petition with a written explanation of the reasons for EPA's decision. If EPA proposes to grant the petition, then no later than May 11, 2011, EPA shall sign a final notice for publication in the Federal Register either granting or denying the petition. However, EPA will not have to act on Environmental Defense's petition if EPA signs a notice for publication in the Federal Register of a proposed rule proposing to establish emissions standards for the emission of hazardous air pollutants from existing non-emergency stationary diesel engines of 300 horsepower or greater manufactured prior to 1996 pursuant to section 112 of the Clean Air Act, 42 U.S.C. 7412 by February 25, 2009, and signs a notice for publication in the Federal Register of a final rule establishing emission standards for such engines by February 10, 2010.

For a period of thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the proposed modification to the consent decree from persons who were not named as parties or intervenors to the litigation in question. EPA or the Department of Justice may withdraw or withhold consent to the proposed consent decree if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act. Unless EPA or the Department of Justice determines, based on any comment which may be submitted, that consent to the consent decree modification should be withdrawn, the terms of the modification will be affirmed.

II. Additional Information About Commenting on the Proposed Consent Decree

A. How Can I Get A Copy of the Consent Decree?

The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2007-1070) contains a copy of the proposed consent decree. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is [phone], and the telephone number for the OEI Docket is [phone].

An electronic version of the public docket is available through http://www.regulations.gov. You may use the http://www.regulations.gov to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket identification number.

It is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing online at http://www.regulations.gov without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. Information claimed as CBI and other information whose disclosure is restricted by statute is not included in the official public docket or in the electronic public docket. EPA's policy is that copyrighted material, including copyrighted material contained in a public comment, will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the EPA Docket Center.

B. How and to Whom Do I Submit Comments?

You may submit comments as provided in the ADDRESSES section. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment and with any disk or CD ROM you submit. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Use of the http://www.regulations.gov Web site to submit comments to EPA electronically is EPA's preferred method for receiving comments. The electronic public docket system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment. In contrast to EPA's electronic public docket, EPA's electronic mail (e-mail) system is not an “anonymous access” system. If you send an e-mail comment directly to the Docket without going through http://www.regulations.gov, your e-mail address is automatically captured and included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

Dated: October 24, 2007.

Richard B. Ossias,

Associate General Counsel.