05-15739. Proposed Consent Decree, Clean Air Act Citizen Suit

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of Proposed Consent Decree; 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 consent decree, to address a lawsuit filed by Sierra Club and United States Public Interest Research Group (collectively, “Plaintiffs”): Sierra Club, et al. v. Johnson, No. 1:04CV00094 (RBW) (D.D.C.) to compel EPA to issue further regulations containing requirements to control hazardous air pollutants from motor vehicles and motor vehicle fuels. The proposed consent decree would establish a deadline of February 28, 2006 for EPA to sign a notice of proposed rulemaking containing requirements to control hazardous air pollutants from motor vehicles and motor vehicle fuels as the Administrator determines are appropriate pursuant to section 202(l)(2) of the Act, or, in the alternative, propose that no such requirements are necessary. No later than February 9, 2007, EPA shall sign a final rule taking final action on such proposal.

DATES:

Written comments on the proposed consent decree must be received by September 8, 2005.

ADDRESSES:

Submit your comments, identified by docket ID number OGC-2005-0010, online at http://www.epa.gov/​edocket (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 B102, 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 Wordperfect 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 (2366A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone: [phone].

SUPPLEMENTARY INFORMATION:

I. Additional Information About the Proposed Consent Decree

The proposed consent decree would establish a schedule for EPA to take action pursuant to section 202(l)(2) of the Clean Air Act. That provision requires EPA to issue regulations controlling emissions of toxic air pollutants from motor vehicles and motor vehicle fuels. EPA is to establish standards for motor vehicles and motor vehicle fuels reflecting the greatest degree of emission reduction of hazardous air pollutants achievable through application of technology which will be available, taking into consideration, among other things, costs of the technology, noise, energy and safety factors, and lead time.

EPA issued an initial set of standards implementing this provision, and as part of those regulations, indicated that the agency would propose further requirements considered appropriate by July 1, 2003, and would take final action on such a proposal by July 1, 2004. 40 CFR 80.1045 (“What additional rulemaking will EPA conduct?”). EPA did not propose rules or take final action by these dates.

Plaintiffs filed suit pursuant to section 304(a)(2) of the Act (42 U.S.C. 7604(a)(2)) claiming that this regulation established a mandatory duty to act by the dates specified in the regulation. EPA moved to dismiss, arguing that the rule did not create a mandatory duty, and if it did, it was not a duty arising under the relevant chapter of the Act, as required by section 304(a)(2). The District Court rejected both arguments, holding that the rule created a mandatory duty and that it arose from the Clean Air Act. Sierra Club v. Leavitt, 355 F. Supp. 2d 544, 557 (D.D.C. 2005).

Rather than litigate deadlines for EPA to take the actions specified in section 80.1045, the parties have negotiated a draft consent decree. Under the terms of the proposed decree, no later than February 28, 2006, EPA shall sign a proposed rule containing requirements to control hazardous air pollutants from motor vehicles and motor vehicle fuels as the Administrator determines are appropriate pursuant to section 202(l)(2) of the Act, or, in the alternative, propose that no such requirements are necessary. No later than February 9, 2007, EPA shall sign a final rule taking final action on that proposal.

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 consent decree 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 consent decree 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 consent decree should be withdrawn, the terms of the decree will be affirmed.

II. Additional Information About Commenting on the Proposed Consent Decree

A. How Can I Get a Copy of the Consent Decree?

EPA has established an official public docket for this action under Docket ID No. OGC-2005-0010 which contains a copy of the consent decree. 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 B102, 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 EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/​edocket/​ 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 in EPA's electronic public docket as EPA receives them and 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 EPA's 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.

Your use of EPA's electronic public docket 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 EPA's electronic public docket, 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 1, 2005.

Richard B. Ossias,

Acting Associate General Counsel, Air and Radiation Law Office, Office of General Counsel.