2011-24369. 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 (“CAA”), 42 U.S.C. 7413(g), notice is hereby given of a proposed partial consent decree, to address a lawsuit filed by Sierra Club in the United States District Court for the District of Columbia: Sierra Club v. EPA, No. 1: 10-cv-1541 (CKK). Plaintiff filed a complaint alleging that EPA failed to perform mandatory duties under sections 110(c)(1) and (k)(2) of the CAA, 42 U.S.C. 7410(c)(1), (k)(2), to: (1) Promulgate a federal implementation plan (“FIP”) for the State of Texas that meets the requirements of CAA section 110(a)(2)(D)(i) for the 1997 fine particulate matter (“PM2.5”) and the 1997 8-hour ozone national ambient air quality standards (“NAAQS”); (2) promulgate a FIP for the State of Texas that meets the requirements of CAA Section 110(a)(2) for the 1997 8-hour ozone NAAQS; and (3) take final approval/disapproval action pursuant to CAA section 110(k)(3) on the state implementation plan (“SIP”) that Texas submitted for implementation of the 1997 PM2.5 NAAQS. The partial proposed consent decree establishes deadlines for EPA to take these actions.

DATES:

Written comments on the proposed consent decree must be received by October 24, 2011.

ADDRESSES:

Submit your comments, identified by Docket ID number EPA-HQ-OGC-2011-0785, online at http://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:

Geoffrey L. Wilcox, 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 Consent Decree

The partial proposed consent decree would resolve a lawsuit seeking to compel the Administrator to take various actions under sections 110(c)(1) and 110(k) of the CAA with respect to the State of Texas. These required actions are: (1) To take an action or actions in accordance with section 110(c)(1) to promulgate a federal implementation plan (“FIP”), or an unconditional approval of a SIP, that meets certain specified requirements of CAA section 110(a)(2) for the 1997 8-hour ozone NAAQS; (2) to take an action or actions in accordance with section 110(c) to promulgate a FIP, or an unconditional approval of a SIP, that meets the requirements of section 110(a)(2)(D)(i)(II) concerning interference with prevention of deterioration of air quality for the 1997 PM_2.5 NAAQS; (3) to take an action or actions in accordance with section 110(k) approving or disapproving a SIP submission regarding certain specified requirements of section 110(a)(2) for the 1997 PM_2.5 NAAQS; and (4) to take an action or actions in accordance with section 110(c) to promulgate a FIP, or an unconditional approval of a SIP, that meets the requirements of section 110(a)(2)(D)(i)(II) concerning interference with measures required in other states related to protection of visibility for 1997 8-hour ozone NAAQS and 1997 PM_2.5 NAAQS. Sierra Club and EPA have jointly moved to stay Plaintiff's claim with respect to EPA's obligation to promulgate a FIP for the State of Texas that satisfies the requirements of CAA section 110(a)(2)(D)(i)(I) for the 1997 8-hour ozone NAAQS and the 1997 PM_2.5 NAAQS.

The proposed consent decree provides various dates by which EPA must take action on the claims that are not stayed. No later than 10 business days following signature of a final rule or determination as described in the proposed consent decree, EPA is required to send the notice to the Office of the Federal Register for review and publication in the Federal Register. The proposed consent decree also states that after EPA fulfills its obligations, this case shall be dismissed with prejudice.

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 consent decree 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 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 determines, based on any comment submitted, that consent to this 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?

The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC- 2011-0785) contains a copy of the proposed 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 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 16, 2011.

Kevin W. McLean,

Acting Associate General Counsel.