E7-16254. Proposed Settlement Agreement, Clean Air Petition for Review

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 (“CAA” or “Act”), 42 U.S.C. 7413(g), notice is hereby given of a proposed settlement agreement, to address a lawsuit filed by the Ingersoll-Rand Company in the U.S. Court of Appeals for the District of Columbia Circuit. Ingersoll-Rand Co. v. United States Environmental Protection Agency, No. 98-1597 (DC Cir.). Ingersoll-Rand's petition for review challenges EPA rules establishing standards for certain nonroad diesel engines. 63 FR 58967 (Oct. 23, 1998) (so-called Tier III standards). Under the terms of the proposed settlement agreement, EPA has agreed to propose rules (or issue direct final rules) amending the Tier III standards to allow certain additional flexibilities for equipment manufacturers which are not vertically integrated with the nonroad diesel engine manufacturer.

DATES:

Written comments on the proposed settlement agreement must be received by September 17, 2007.

ADDRESSES:

Submit your comments, identified by Docket ID number EPA-HQ-OGC-2007-0738, 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:

Steven Silverman, 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

On October 23, 1998, EPA issued so-called Tier III standards for nonroad diesel engines. These standards are based largely on within-engine controls of emissions (as opposed to controls reflecting post-engine, after treatment of emissions, which are the basis for the later rules for these same engines promulgated on June 29, 2004 at 69 Fed. Reg. 38958). Ingersoll-Rand Co. filed a timely petition for review in the District of Columbia Circuit Court of Appeals challenging certain of the Tier III standards. Under the proposed settlement agreement decree, EPA would propose certain amendments to the Tier III standards, and, if EPA adopts these (or substantially similar) amendments, Ingersoll-Rand would move to dismiss its petition for review. The amendments relate to providing increased potential flexibility for equipment manufacturers which are not vertically integrated with engine suppliers if such an equipment manufacturer demonstrates to EPA that it is unable to complete redesign of the equipment within the time required by the Tier III rule due to technical or engineering hardship. Specifically, the equipment manufacturer must show both that its inability to furnish a compliant equipment design is due to the engine supplier, and that the equipment manufacturer has exhausted other flexibilities already provided by the Tier 3 rule. The proposed provision is modeled after a parallel provision in the 2004 rules for nonroad diesel engines (40 CFR 1039.625 (m)), but the amount of relief would be somewhat less than is available under that parallel provision.

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 decree from persons who were not parties or intervenors to the litigation in question. EPA or the Department of Justice may withdraw or withhold consent to the proposed 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?

The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2007-0738) contains a copy of the proposed 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: August 9, 2007.

Richard B. Ossias,

Associate General Counsel.