01-17908. Proposed Settlement Agreement, Clean Air Act Citizen Suit

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, which was filed with the United States Court of Appeals for the District of Columbia Circuit by the United States Environmental Protection Agency (“EPA”) on June 29, 2001, to address a lawsuit filed by the Clean Air Implementation Project and the National Environmental Development Association's Clean Air Regulatory Project (collectively referred to as the “Project”). The Project filed a petition for review pursuant to section 307(b) of the Act, 42 U.S.C. 7607(b), challenging EPA's policy, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunction, Startup and Shutdown,” (“1999 Policy”), which is dated September 20, 1999. Clean Air Implementation Project v. EPA, No. 99-1470 (D.C. Cir.). The 1999 Policy clarifies the types of provisions addressing emissions in excess of applicable emission limits that EPA believes may appropriately be approved as part of a state implementation plan (“SIP”).

DATES:

Written comments on the proposed Settlement Agreement must be received by August 20, 2001.

ADDRESSES:

Written comments should be sent to Jan M. Tierney, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC. 20460. Copies of the proposed Settlement Agreement are available from Phyllis J. Cochran, [phone]. A copy of the proposed Settlement Agreement was filed with the Clerk of the United States Court of Appeals for the District of Columbia Circuit on June 29, 2001.

SUPPLEMENTARY INFORMATION:

The Project alleges that EPA's issuance of the 1999 Policy was arbitrary and capricious and in excess of EPA's statutory authority. EPA issued the 1999 Policy to clarify issues that had arisen since the Agency's pronouncement on the same issues in 1982 and 1983 in two memoranda issued by Kathleen Bennett, who at that time was the Assistant Administrator for Air, Noise and Radiation.

The proposed Settlement Agreement provides for the Project to dismiss its challenge if EPA issues a brief memorandum clarifying certain issues in the 1999 Policy and if that brief memorandum is substantially similar to what is set forth as Attachment A to the proposed Settlement Agreement. In general, the brief memorandum would provide that the 1999 Policy was intended to provide the parameters for EPA review of future SIP submissions and was not intended to be legally dispositive when interpreting existing approved SIPs in the context of enforcement proceedings.

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 interveners 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 proposed Settlement Agreement will be final.

Dated: July 9, 2001.

John T. Hannon,

Acting Associate General Counsel.