02-29475. Proposed Consent Decree, Clean Air Act Citizen Suit

AGENCY:

Environmental Protection Agency.

ACTION:

Notice of proposed Consent Decree; 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 Consent Decree. On November 13, 2002, the American Lung Association and eight other public interest groups filed a complaint pursuant to section 304(a) of the Act, 42 U.S.C. 7604(a), alleging that the United States Environmental Protection Agency (“EPA”) failed to meet its mandatory duty to designate areas for the 8-hour ozone national ambient air quality standard (“NAAQS”). American Lung Association, et al. v. EPA, No. 02-2239 (D.D.C.). On November 13, 2002, EPA lodged the Consent Decree with the United States District Court for the District of Columbia Circuit. The Consent Decree establishes a time frame for EPA to promulgate designations for the 8-hour ozone NAAQS.

DATES:

Written comments on the proposed consent decree must be received by December 20, 2002.

ADDRESSES:

Written comments should be sent to Jan M. Tierney, 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 Consent Decree are available from Phyllis J. Cochran, [phone]. On November 13, 2002, a copy of the proposed consent decree was lodged with the Clerk of the United States District Court for the District of Columbia.

SUPPLEMENTARY INFORMATION:

The American Lung Association and eight other public interest groups ^[1] (collectively referred to as “American Lung Association”) allege that EPA failed to promulgate designations for the 8-hour ozone NAAQS by the Congressionally-enacted deadline.

On July 18, 1997, EPA promulgated a revised 8-hour ozone NAAQS. 62 FR 38856 38856. The revised ozone NAAQS was challenged and on May 14, 1999, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) determined that EPA's interpretation of its authority to establish the NAAQS resulted in an unconstitutional delegation of authority. The Court also determined that EPA's implementation scheme was flawed because the CAA mandated that a revised ozone standard be implemented in accordance with specific provisions (“subpart 2”) of the Act, which EPA had indicated would not apply. The Court remanded the rule to EPA. American Trucking Assoc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999) reh'g denied American Trucking Assoc. v. EPA, 195 F.3d 4 (D.C. Cir. 1999). Both EPA and the petitioners sought review in the Supreme Court of several aspects of the D.C. Circuit's decision.^[2]

On February 27, 2001, the Supreme Court issued a decision, holding that EPA's interpretation of its authority to promulgate the 8-hour ozone NAAQS did not constitute an unconstitutional delegation of power. Whitman v. American Trucking Assoc., 121 S.Ct. 903 (2001). The Court also remanded the implementation issue to the Agency to develop a reasonable interpretation that provides a role for subpart 2 in implementing the 8-hour ozone NAAQS.

Section 107(d)(1) of the CAA provides that EPA must designate areas for a revised NAAQS no later than two years following promulgation of the standard. It also provides for the Agency to take an additional year for designating areas if “insufficient information” is available. In June 1998, as part of the Transportation Equity Act for the 21st Century, Public Law 105-178, Congress enacted legislation that expressly provided EPA with three years to promulgate designations for the 8-hour ozone NAAQS. In the fall of 2000, as part of the appropriations bill for EPA, Congress precluded EPA from spending funds to designate areas for the 8-hour ozone NAAQS until the earlier of June 15, 2001 or a ruling by the Supreme Court in the litigation concerning the NAAQS. The Supreme Court issued its decision on February 27, 2001.

The Consent Decree provides that EPA will sign a notice promulgating designations for the 8-hour ozone NAAQS no later than April 15, 2004. It further provides that EPA will submit the designation notice to the Office of Federal Register no later than five days following signature. Finally, it provides for EPA to publish a notice of availability of the promulgated designations no later than April 30, 2004.

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 Consent Decree 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 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 determine, following the comment period, that consent is inappropriate, the Consent Decree will be final.

Dated: November 14, 2002.

Lisa K. Friedman,

Associate General Counsel.

Footnotes

1.  The other eight plaintiffs are: Environmental Defense, Natural Resources Defense Council, Sierra Club, Alabama Environmental Council, Clean Air Council, Michigan Environmental Council, Ohio Environmental Council and Southern Alliance for Clean Energy.

2.  The Court also remanded the rule to EPA because EPA had not considered whether ground-level ozone had beneficial health effects. In particular, some petitioners argued that EPA had ignored whether higher levels of ground-level ozone acted as a shield from the harmful effects of ultraviolet radiation. EPA did not seek Supreme Court review of this issue.