03-29182. Proposed Consent Decree, Clean Air Act Citizen Suit

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of Proposed Consent Decree; request for public comment.

SUMMARY:

In accordance with section 113(g) of the Clean Air Act, as amended (“CAA” or “Act”), 42 U.S.C. 7413(g), notice is hereby given of a proposed consent decree to address a lawsuit filed by Our Children's Earth Foundation and Sierra Club: Our Children's Earth Foundation and Sierra Club v. EPA, No. C 03-0770 CW (N.D. Calif., 2003). On February 21, 2003, Our Children's Earth Foundation and Sierra Club filed a complaint claiming that EPA had failed to perform non-discretionary duties under CAA section 111(b) to review and, if appropriate, revise certain new source performance standards (“NSPS”) for electric utility steam generating units (40 CFR part 60, subpart Da); industrial-commercial-institutional boilers (Subparts Db and Dc); and stationary gas turbines (subpart GG). Plaintiffs also claimed that EPA had failed to revise the sulfur dioxide limitations in Subpart Da in accordance with section 403 of the Clean Air Act Amendments (“CAAA”) of 1990. 104 Stat. 2399, 2631 (1990). Under the proposed consent decree, EPA would be required to revise these NSPS subparts or make determinations that revisions are not appropriate within 24 months from when the Court enters the consent decree. Within that 24 months, EPA would also be required to revise the sulfur dioxide limitations in subpart Da in accordance with section 403.

DATES:

Written comments on the proposed consent decree must be received by December 22, 2003.

ADDRESSES:

Submit your comments, identified by docket ID number OGC-2003-0004, online at http://www.epa.gov/​edocket (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 B102, 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 WordPerfect 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:

Andrew Gordon, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW, Washington, DC 20460, telephone [phone].

SUPPLEMENTARY INFORMATION:

I. Additional Information About the Proposed Consent Decree

Under the terms of the proposed consent decree, once the Court enters the decree EPA will initiate a review of NSPS subparts Da, Db, Dc, and GG to determine whether they need to be revised. Within twelve months of entry of the consent decree, the appropriate EPA official will sign and promptly forward to the Office of Federal Register proposed revisions to subparts Da, Db, Dc, and GG or proposed determinations that revisions to any of these subparts is not appropriate in light of readily available information on the efficacy of such standards. EPA would also be required to issue a proposed revision to the sulfur dioxide emission limits in subpart Da in accordance with section 403 of the CAAA of 1990.

Within 24 months from the date of entry of the decree, the appropriate EPA official would need to sign and forward to the Office of Federal Register a final rule revising subparts Da, Db, Dc, and GG or a final determination that revision of any subpart is not appropriate. Within 24 months, EPA would also need to issue a final rule revising the sulfur dioxide emission limits in subpart Da in accordance with section 403 of the CAAA of 1990.

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 consent decree from persons who were not named as parties or interveners 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 determine, based on any comment which may be submitted, that consent to the consent decree should be withdrawn, the terms of the decree will be affirmed.

II. Additional Information About Commenting on the Proposed Consent Decree

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

EPA has established an official public docket for this action under Docket ID No. OGC-2003-0004 which contains a copy of the 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 B102, 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 EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/​edocket/​ 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 on paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information the disclosure of which is restricted by statute. Information claimed as CBI and other information the disclosure of which is restricted by statute is not included in the official public docket or in EPA's 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.

Your use of EPA's electronic public docket 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 EPA's electronic public docket, 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: November 14, 2003.

Lisa K. Friedman,

Associate General Counsel, Air and Radiation Law Office, Office of General Counsel.