01-25737. Proposed Settlement Agreement, Clean Air Act Citizen Suit

AGENCY:

Environmental Protection Agency.

ACTION:

Notice of proposed settlement agreement; request for pubic 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 four environmental groups, consisting of Louisiana Environmental Action Network, North Baton Rouge Environmental Association, Save Our Lakes and Ducks, and Southern University Environmental Law Society, represented by Tulane Environmental Law Clinic (collectively, “LEAN”). LEAN petitioned for judicial review of a final rule (“the Rule”) promulgated by the United States Environmental Protection Agency (“EPA”) on July 2, 1999, published at 64 FR 35930, approving the revised Post-1996 Rate-of-Progress (“ROP”), Attainment Demonstration, and Contingency Measures State Implementation Plans for the Baton Rouge ozone nonattainment area. Louisiana Environmental Action Network, et al., v. United States Environmental Protection Agency, No. 99-60570 (5th Cir.). These State Implementation Plan (“SIP”) revisions were submitted by the State of Louisiana, through its Department of Environmental Quality (“LDEQ”), pursuant to the Act.

DATES:

Written comments on the proposed Settlement Agreement must be received by November 13, 2001.

ADDRESSES:

Written comments should be sent to Jonathan Weisberg, Office of Regional Counsel (6 RC-M), Region 6, U.S. Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202. Copies of the proposed Settlement Agreement are available from Jonathan Weisberg, [phone].

SUPPLEMENTARY INFORMATION:

In September 1996, the State of Louisiana, through LDEQ, proposed a revised State Implementation Plan (the “revised SIP”) for the attainment of the National Ambient Air Quality Standard (“NAAQS”) for ozone for the Baton Rouge ozone nonattainment area. On July 2, 1999, EPA approved the revised SIP. LEAN objected to EPA's approval of the revised SIP, alleging that the revised SIP must provide for more reductions in VOC emissions, that the contingency plan in the revised SIP was inadequate, and that Louisiana did not demonstrate attainment of the NAAQS for ozone by November 15, 1999.

Under the revised SIP, Louisiana elected to develop a contingency measure plan using Emission Reduction Credits (“ERCs”) held in escrow in the Louisiana Emission Reduction Credit Bank (the “Louisiana ERC Bank”), established pursuant to Louisiana's banking rule, set forth in Title 33 of the Louisiana Administrative Code, Chapter 6. LEAN alleged the ERCs held in escrow in the Louisiana ERC Bank were not adequate to meet requirements for contingency measures.

Subsequent to the initiation of the lawsuit, EPA learned that LDEQ did not interpret the Act to require emission reductions to be discounted to reflect all emission reductions required under the Act, at time of their use, and that LDEQ did not discount ERCs in the Louisiana ERC Bank at time of their use. In part, based on this new information, on October 6, 2000, the parties to the lawsuit filed a joint motion for a partial voluntary remand of EPA's approval of Louisiana's contingency measure plan for the Baton Rouge ozone nonattainment area, and for a stay of all proceedings of the lawsuit (the “joint motion”). On October 19, 2000, the Court granted the joint motion.

Louisiana has been working to develop a new State Implementation Plan (the “new SIP”) for the Baton Rouge ozone nonattainment area. The minimum requirements for SIP submissions are described in 40 CFR part 51. As part of the new SIP, EPA expects Louisiana to submit a new ozone attainment demonstration for the Baton Rouge ozone nonattainment area. The ozone attainment demonstration must document the photochemical modeling procedure used to determine the impacts of both local and regional control measures, must document modeling results, and, to the extent necessary to attain the ozone standard, must document additional control measures that Louisiana has selected. Any additional control measures must be reflected through adopted emission control regulations.

The Settlement Agreement provides that: (1) Tulane Environmental Law Clinic (on behalf of LEAN) will file a motion to dismiss the lawsuit in its entirety, with prejudice to its refiling, within five (5) days after the Settlement Agreement becomes effective; (2) EPA and LDEQ has met and/or will meet with representatives from LEAN to discuss the proper modeling and attainment protocols to calculate and assess the attainment demonstration in the new SIP for the Baton Rouge ozone nonattainment area; and (3) the United States will reimburse LEAN $34,000 in full satisfaction of any claim for attorney's fees and costs that was or could have been asserted in connection with the lawsuit.

LDEQ published notice of the Settlement Agreement in the Louisiana Register (0106Pot2) on June 20, 2001. The notice specified that, to be considered, comments had to be received by July 13, 2001. LDEQ did not receive substantial adverse comment, and LDEQ has opted to proceed with the Settlement Agreement.

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: October 1, 2001.

Alan W. Eckert,

Associate General Counsel.