2011-23273. 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 (“Act”), 42 U.S.C. 7413(g), notice is hereby given of a proposed settlement agreement to address a lawsuit filed by Allied Energy Company, Gladieux Trading and Marketing, Insight Equity Acquisition Partners, LP, Liquidtitan, LLC and Seaport Refining and Environmental, LLC (“Petitioners”), in the United States Court of Appeals for the District of Columbia Circuit: Allied Energy Company, et al v. EPA, No. 10-1146 (D.C. Cir.). Petitioners filed a petition for review respecting one issue in an EPA rule that, among other things, beginning in June, 2014, forbade the production of diesel fuel that contains up to 500 parts per million (ppm) sulfur for use in older technology locomotive and marine engines. Under the terms of the proposed settlement agreement, EPA anticipates that, by December 31, 2011, it will sign a notice of proposed rulemaking that includes a proposal to allow the continued production of diesel fuel that contains up to 500 parts per million (ppm) sulfur, produced from transmix, for use in older technology locomotive and marine engines outside of the Northeast Mid-Atlantic area during and after 2014.

DATES:

Written comments on the proposed settlement agreement must be received by October 12, 2011.

ADDRESSES:

Submit your comments, identified by Docket ID number EPA-HQ-OGC-2011-0756, online at http://www.regulations.gov (EPA's preferred method); by e-mail to [e-mail]; by mail 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:

Michael Horowitz, 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

This proposed settlement agreement would potentially resolve a petition for judicial review filed by Petitioners for review of a rule promulgating standards for the control of emissions from new ocean-going marine vessels (“Control of Emissions from New Marine Compression-Ignition Engines At or Above 30 Liters Per Cylinder,” 75 FR 22896, April 30, 2010.) One of the actions taken in that rule forbade the production of diesel fuel that contains up to 500 ppm sulfur for use in older technology locomotive and marine engines, beginning June 1, 2014, because a new stream of diesel, that contained up to 1000 ppm sulfur, for use in ocean-going vessels, was being introduced at that time.

Petitioners filed petitions for review and administrative reconsideration regarding this action. Discussions with Petitioners indicates that the stream of diesel fuel available to ocean-going vessels is subject to different distribution than locomotive fuel and that it is not therefore a substitute for the stream of 500 ppm locomotive and marine fuel that was eliminated.

Under the terms of the proposed settlement agreement, EPA states that it anticipates that, by December 31, 2011, it will sign a notice of proposed rulemaking that includes a proposal to revise these provisions to allow the continued production of diesel fuel that contains up to 500 ppm sulfur from transmix for use in older technology locomotive and marine engines during and after 2014. EPA would propose to limit the use of such 500 ppm fuel to outside of the Northeast Mid-Atlantic area and would propose provisions to ensure it is segregated from the point of production to the end-user. EPA states that it further anticipates taking final action, which may include signature of a final rule by the Administrator of EPA, on the proposal by September 30, 2012. Under the proposed settlement agreement, if EPA fails to sign the proposal by March 15, 2012, or to take final action on the proposal by December 15, 2012, Petitioners may move the Court to lift the order holding the matter in abeyance and issue a briefing schedule. EPA will not oppose such a motion in such circumstances. In addition, EPA will not oppose any motion by Petitioners to expedite proceedings. Petitioners shall have no further remedy under the agreement.

Under the proposed settlement agreement, if the relevant provisions of the final rule are in substantial conformance with the revisions in the proposed agreement, then Petitioners agree to the dismissal of the petition for review.

For a period of thirty (30) days following the date of publication of this notice, the Agency will accept 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 submitted, that consent to this 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-2011-0756) 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 http://www.regulations.gov. You may use the http://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, key in the appropriate docket identification number then select “search”.

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 http://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 http://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 http://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: September 6, 2011.

Kevin McLean,

Acting Associate General Counsel.