01-22907. 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 lodged with the United States District Court for the Southern District of New York by the United States Environmental Protection Agency (“EPA”) on August 31, 2001, to address a lawsuit filed by the New York Public Interest Research Group “NYPIRG”). NYPIRG filed a complaint pursuant to section 304(a)(2) of the Act, 42 U.S.C. 7604(a)(2), alleging that EPA had failed to perform an act which is not discretionary. Specifically, NYPIRG alleged that EPA failed to respond to citizen petitions to object to three operating permits within the time provided in section 505(b)(2) of the Act, 42 U.S.C. 7661d((b)(2). NYPIRG, Inc. v. Whitman, No. 00 Civ. 9394 (S.D.N.Y.).

DATES:

Written comments on the proposed consent decree must be received by October 12, 2001.

ADDRESSES:

Written comments should be sent to Apple Chapman, Air and Radiations Law Office (2344), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Copies of the proposed agreement are available from Phyllis J. Cochran, [phone].

SUPPLEMENTARY INFORMATION:

The relevant statutory provisions are as follows. Section 304(a)(2) of the Clean Air Act provides a cause of action and jurisdiction in federal district court “against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this Act which is not discretionary with the Administrator.” Title V of the Clean Air Act sets forth an operating permit program for stationary sources of air pollution. Section 505(b)(1) of the Act provides EPA with an opportunity to object to a permit that a state proposes to issue within 45 days after receiving a copy of the proposed permit if EPA determines that the permit is not in compliance with the applicable requirements of the Act. Under section 505(b)(2), if EPA does not object to a permit on its own initiative, citizens may, within 60 days after the expiration of EPA's 45-day review period, petition the Administrator to issue an objection. Section 113(g) of the Act provides that before a consent order or settlement agreement under the Act to which the United States is a party may become final, EPA must provide a reasonable opportunity by notice in the Federal Register for persons to comment in writing. 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.

These are the key facts pertaining to this notice. The New York State Department of Environmental Conservation issued Title V permits to Yeshiva University, Action Packaging Corp., and Kings Plaza. EPA did not object to those permits on its own initiative, and NYPIRG filed citizen petitions requesting that EPA object. Those petitions were filed well over 60 days ago, and to date EPA has not taken final action to grant or deny them. In NYPIRG, Inc. v. Whitman, NYPIRG alleges that EPA failed to perform a duty which is not discretionary by not responding to these three petitions within the 60 days provided by statute.

The core of the proposed settlement is the agreement between the parties that EPA will take final action granting or denying NYPIRG's Yeshiva, Acting Packaging, and Kings Plaza petitions to object by October 340, 2001. The agreement further provides that the parties will request the court to stay its consideration of the case pending implementation of, and subject to, the terms of the agreement. One of those terms provides that NYPIRG may request the court to lift the stay of the litigation if EPA fails to complete the section 113(g) notice and comment process and make the agreement final within 45 days of its execution. In addition, the agreement provides that one it becomes final, the parties will file a joint motion requesting that the court enter the agreement as a consent order.

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 Settlement Agreement will be final.

Dated: September 5, 2001.

Alan W. Eckert,

Associate General Counsel.