02-22367. Proposed Settlement Agreement, Clean Air Act Citizen Suit

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 (the “lawsuit”) filed by Louisiana Environmental Action Network (“LEAN”), represented by Tulane Environmental Law Clinic: Louisiana Environmental Action Network v. Whitman, No. 02-226-B-M2 (M.D. La.). On or about March 1, 2001, LEAN filed a Complaint seeking to compel Christine Todd Whitman, in her official capacity as Administrator of the EPA, to respond to two administrative petitions to object to state operating permits issued by the Louisiana Department of Environmental Quality (“LDEQ”). Under the terms of the proposed settlement agreement, EPA will respond to the petitions by September 30, 2002, and October 31, 2002, respectively. Within thirty days of EPA's response to said petitions, LEAN will file a motion for voluntary dismissal of the Complaint, with prejudice to its refiling.

DATES:

Written comments on the proposed settlement agreement must be received by October 3, 2002.

ADDRESSES:

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

SUPPLEMENTARY INFORMATION:

The Clean Air Act affords EPA a 45-day period to review and object to, as appropriate, operating permits proposed by state permitting authorities. Section 505(b)(2) of the Act authorizes any person to petition the EPA Administrator within 60 days after the expiration of this 45-day review period to object to state operating permits if EPA has not done so. LEAN filed two administrative petitions to object to state operating permits issued by LDEQ. The first petition, submitted by letter dated January 2, 2001, challenges the issuance of a Title V operating permit to Borden Chemical, Inc., for the construction of a formaldehyde plant in Geismar, Louisiana (the “Borden Petition”). The second petition, submitted by letter dated June 18, 2001, challenges the issuance of a Title V operating permit to Dow Chemicals, Inc., for construction of a facility in Plaquemine, Louisiana (the “Dow Petition”). The lawsuit alleges that EPA has a nondiscretionary duty to grant or deny such petitions within 60 days, and seeks to compel EPA to respond to the petitions.

The settlement agreement provides that, within ten days after execution by the parties, the parties will file a joint motion with the court requesting the lawsuit be stayed. LEAN may request the court to lift the stay of the lawsuit, and establish a schedule for further proceedings, if EPA fails to sign a response to the Borden Petition by September 30, 2002, or fails to sign a response to the Dow Petition by October 31, 2002.

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, 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 27, 2002.

Lisa K. Friedman,

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