03-2934. Proposed Settlement Agreement, Clean Air Act Petition for Review

AGENCY:

Environmental Protection Agency.

ACTION:

Notice of proposed settlement agreement; 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 Settlement Agreement. On December 18, 2001, the Sierra Club (“Sierra Club”) and Group Against Smog and Pollution, Inc. (“GASP”) filed a petition in the United States Court of Appeals for the Third Circuit for review of the Environmental Protection Agency's (“EPA”) final action redesignating the Pittsburgh-Beaver Valley Ozone Nonattainment Area (the “Pittsburgh area”) to attainment of the one-hour National Ambient Air Quality Standard (“NAAQS”) for ground-level ozone, and approving the maintenance plan for the Pittsburgh area as a revision to the Pennsylvania State Implementation Plan (SIP) pursuant to the Act. Sierra Club v. EPA, No. 01-4426 (3rd Cir.). On January 22, 2003, the respondents EPA and EPA Administrator Christine T. Whitman and the petitioners Sierra Club and GASP executed the proposed Settlement Agreement. The Settlement Agreement provides for holding the petition for review in abeyance while the Commonwealth of Pennsylvania has an opportunity to adopt and EPA has an opportunity to approve revisions to the contingency measures portion of the Pittsburgh area maintenance plan. Adoption and approval of the revisions described in Attachment A to the proposed Settlement Agreement will result in a joint motion to dismiss the petition. The agreement further provides for payment in settlement of claims for costs of litigation, including reasonable attorney's fees and expenses.

DATES:

Written comments on the proposed settlement agreement must be received by March 10, 2003.

ADDRESSES:

Written comments should be sent to Kendra Sagoff, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20004. Copies of the proposed Settlement Agreement are available from Phyllis J. Cochran, [phone].

FOR FURTHER INFORMATION CONTACT:

Kendra Sagoff at [phone].

SUPPLEMENTARY INFORMATION:

On October 19, 2001, EPA published a Federal Register notice redesignating the Pittsburgh area to attainment for the one-hour ozone standard, and approving a revision to the area's maintenance plan as a revision to the SIP. 66 FR 53094. On December 18, 2001, Sierra Club and GASP filed a petition for review of this action in the United States Court of Appeals for the Third Circuit, contending that the redesignation did not meet statutorily-required prerequisites for redesignation. Sierra Club v. EPA, No. 01-4426. The Commonwealth of Pennsylvania and the Southwestern Pennsylvania Growth Alliance were granted leave to participate as intervenors. Briefing was stayed pending settlement discussions.

The proposed Settlement Agreement, which was executed on January 22, 2003, provides for a stay of proceedings to allow the Commonwealth of Pennsylvania to submit to EPA, not later than May 1, 2003, a revision to the Pennsylvania contingency measures portion of the maintenance plan SIP that adds additional contingency measures and procedures for implementing them. The contingency measures are outlined in Attachment A to the proposed Settlement Agreement. The Agreement further allows EPA an opportunity to sign a final approval of the revision no later then February 1, 2004, to be forwarded within five business days for publication in the Federal Register, and to sign a final approval of the final rule in finally adopted form, that is referenced in paragraph 1(b) of Attachment A, no later than November 1, 2004. EPA must also provide status reports at 120-day intervals. (In an order dated January 2, 2003, the Court unilaterally changed the interval to 60-days from the date of the Court's order until the settlement agreement has been finalized and implemented.) Petitioners agree not to challenge in any court or administrative proceeding the validity of any EPA action fully approving these revisions. Within 30 days of November 1, 2004, the parties will file a joint stipulation dismissing the petition in accordance with Rule 42 of the Federal Rules of Appellate Procedure if EPA has published the final rulemakings fully approving the revisions and the stay of the litigation has not been lifted. Finally, EPA agrees to pay, and the Petitioners agree to accept, the sum of $30,987.00 in full settlement of all claims by Petitioners for their costs of litigation (including reasonable attorney's fees and expenses).

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 Settlement Agreement 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 Settlement Agreement 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, following the comment period, that consent is inappropriate, the Settlement Agreement will be final.

Dated: January 28, 2003.

Lisa K. Friedman,

Associate General Counsel.