E7-12165. Proposed Settlement Agreement, Clean Air Act Citizen Suit

AGENCY:

Environmental Protection Agency (EPA).

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, to address a lawsuit filed by Environmental Defense, Natural Resources Defense Council, and Sierra Club (hereinafter “Petitioners”): Environmental Defense et al. v. Environmental Protection Agency, No. 06-1164 (DC Cir.). On or about May 9, 2006, Petitioners filed a complaint challenging EPA's Transportation Conformity Hot-Spot Final Rule, alleging that the rule failed to satisfy the Clean Air Act's transportation conformity criteria, that it permitted EPA to issue particulate matter (PM) hot-spot guidance without following required procedures, and that it withdrew a motor vehicle emissions factor model for use in PM hot-spot analysis without following required procedures. Under the terms of the proposed settlement agreement, Petitioners agree to dismiss the claim relating to issuance of PM hot-spot guidance once EPA provides public notice of and an opportunity to comment on such guidance.

DATES:

Written comments on the proposed settlement agreement must be received by July 23, 2007.

ADDRESSES:

Submit your comments, identified by Docket ID number EPA-HQ-OGC-2007-0505, online at 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:

Susmita Dubey, 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 Settlement Agreement

EPA first issued regulations in 1993 to implement the transportation conformity requirement in Section 176(c) of the Clean Air Act. The regulations included a specific requirement that transportation projects be analyzed for local emissions impacts (the “hot-spot” analysis) in addition to required regional emissions analyses. At that time, the hot-spot requirements applied to carbon monoxide and particulate matter less than ten micrometers in diameter (PM₁₀). 58 FR 62188 (November 24, 1993).

In March 2006, EPA amended the conformity regulations to apply the hot-spot analysis requirements to fine particulate matter (PM_2.5). 71 FR 12468 (March 10, 2006) (the “2006 hot-spot rule”). That regulation extended to PM_2.5 the pre-existing provisions that required quantitative PM hot-spot analyses for certain transportation projects only after EPA issues guidance for such analyses and then announces that the quantitative analysis requirement is in effect. 40 CFR 93.123(b)(1) and (b)(4). Until such time, PM₁₀ and PM_2.5 hot-spot analyses are to be done for such projects through a qualitative analysis. 40 CFR 93.123(b)(2). EPA stated in the preamble to the 2006 hot-spot rule that appropriate tools and guidance are needed to ensure credible and meaningful quantitative PM_2.5 and PM₁₀ hot-spot analyses. 71 FR 12498. Guidance for PM quantitative hot-spot analyses would be available in the future. 71 FR 12502.

Several environmental organizations challenged the 2006 hot-spot rule. Petitioners alleged that: (1) The regulation does not require that hot-spot analyses satisfy all of the requirements in Section 176(c) of the Act for demonstrating conformity, (2) the regulation allows EPA to issue quantitative PM modeling guidance without notice-and-comment rulemaking, in violation of the Administrative Procedure Act, and (3) EPA had previously approved its current motor vehicle emissions factor model (MOBILE6.2) for use in PM hot-spot analyses and improperly withdrew that approval in the 2006 hot-spot rule.

Petitioners and EPA negotiated a settlement of the second claim described above. The settlement agreement would require EPA to provide public notice and an opportunity for public comment on its draft guidance for quantitative hot-spot modeling for PM_2.5 and PM₁₀. EPA would publish a notice in the Federal Register announcing the availability of the draft guidance, provide the EPA web page at which the guidance will be available, and allow at least 30 days for the public to comment on the draft guidance. EPA would also agree to make available to the public any information it relied on in developing the draft guidance. Finally, EPA would publish a notice in the Federal Register announcing the final guidance and explaining when the quantitative PM hot-spot modeling requirement will be in effect. Following execution of the settlement agreement, the second claim described above would be severed from the rest of the litigation, placed in a separate docket, and held in abeyance until such time as EPA has completed its obligations under the agreement. At such time, the new docket would be dismissed.

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 determines, based on any comment which may be submitted, that consent to the settlement agreement should be withdrawn, the terms of the agreement will be affirmed.

II. Additional Information About Commenting on the Proposed Settlement Agreement

A. How Can I Get A Copy of the Settlement Agreement?

Direct your comments to the official public docket for this action under Docket ID No. EPA-HQ-OGC-2007-0505, which contains a copy of the settlement agreement. 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 www.regulations.gov. You may use the 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 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 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 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: June 15, 2007.

Richard B. Ossias,

Associate General Counsel.