02-21674. Proposed Settlement Agreement

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, 42 U.S.C. 7413(g), notice is hereby given of a proposed settlement agreement in Sierra Club v. U.S. Environmental Protection Agency, No. 02-1135 (D.C. Circuit). This case concerns the final rule entitled “National Emission Standard for Hazardous Air Pollutants for Source Categories: General Provisions; and Requirements for Control Technology Determinations for Major Sources in Accordance with Clean Air Act section 112(g) and 112(j),” published at 67 FR 16582 on April 5, 2002. The proposed settlement agreement was lodged with the United States Court of Appeals for the District of Columbia Circuit on August 15, 2002.

DATES:

Written comments on the proposed settlement agreement must be received by September 25, 2002.

ADDRESSES:

Written comments should be sent to Timothy D. Backstrom, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. A copy of the proposed settlement agreement is available from Phyllis J. Cochran, [phone]. A copy of the proposed settlement agreement was also lodged in the case with the Clerk of the United States Court of Appeals for the District of Columbia Circuit on August 15, 2002.

SUPPLEMENTARY INFORMATION:

EPA promulgated a final rule amending the MACT General Provisions, 40 CFR part 63, subpart A, and the requirements for case-by-case determinations under Clean Air Act section 112(j), 40 CFR 63.50-63.56, on April 5, 2002. 67 FR 16582. The Sierra Club filed a petition seeking judicial review of this final rule on April 25, 2002. Sierra Club v. U.S. Environmental Protection Agency, No. 02-1135 (D.C. Circuit). On June 4, 2002, Sierra Club also filed a petition seeking administrative reconsideration of certain provisions in the final rule, pursuant to Clean Air Act section 307(d)(7)(B).

Sierra Club and EPA have now reached initial agreement on a settlement of the case which could lead to the voluntary dismissal of the petition for review. The settlement requires the EPA Administrator to sign a proposed rule incorporating certain amendments no later than two months after the date the settlement was signed by counsel for the parties and lodged with the court. The settlement also requires the EPA Administrator to take final action concerning the proposed rule within seven months from the date of signature and lodging.

Under the settlement, EPA will propose to reduce the time period between submission of part 1 applications under Clean Air Act section 112(j), and submission of the more detailed part 2 application, from 24 months to 12 months. EPA originally proposed a time period of 6 months between the two parts. In view of the current schedule for promulgation of remaining MACT standards, EPA anticipates that the one year period will permit proposed MACT standards to be issued prior to the part 2 applications, thereby reducing the burden associated with preparation of the part 2 applications. EPA also anticipates that the one year period should be sufficient to prevent any need for actual issuance of case-by-case determinations under section 112(j) for all or virtually all affected source categories.

The settlement also requires that EPA propose certain amendments to the section in the MACT General Provisions which governs preparation of Startup, Shutdown, and Malfunction (SSM) plans, 40 CFR 63.6(e). EPA considers these changes to be modest in nature and consistent with the policies concerning these SSM plans described in the preamble of the original proposal.

For a period of thirty (30) days following the date of publication of this notice, EPA will receive written comments relating to the proposed settlement agreement. Although the comment opportunity required by section 113(g) is only mandatory with respect to persons who are not named as parties or interveners in the case in question, EPA does not believe it would be appropriate in this instance to exclude comment by those parties who have requested and been granted intervention in the Sierra Club case, or by those parties who have submitted petitions concerning the same rulemaking in consolidated cases. Unlike a consent degree or court-ordered settlement, no action by the Court is required to execute the settlement agreement in this case. Therefore, EPA will exercise its discretion to accept comment on the settlement agreement from all interested persons.

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, 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.

Dated: August 16, 2002.

Lisa K. Friedman,

Associate General Counsel, Air and Radiation Law Office.