2010-15645. Proposed Settlement Agreement

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 lawsuits filed by Navistar, Inc. (Navistar) in the United States Court of Appeals for the District of Columbia Circuit: Navistar v. EPA, Nos. 09-1113, 09-1114 and 09-1317 (DC Cir.). Navistar filed petitions for review of the following: (1) An EPA rule published January 18, 2001 promulgating standards for new heavy duty motor vehicles and engines; (2) a letter, dated February 18, 2009, sent by the Director of the Compliance and Innovative Strategies Division, Office of Transportation and Air Quality, providing guidance to manufacturers of heavy-duty diesel engines; and (3) an agency notice, published November 9, 2009, approving new scheduled maintenance for new motor vehicles and engines using selective catalytic technologies. Under the terms of the proposed settlement agreement, Navistar agrees to dismiss these petitions with prejudice, to withdraw related Freedom if Information Act requests, and to be precluded from challenging certain other related actions. EPA agrees to engage in a public process within a specific time frame to reexamine its policies, for future model year 2011 and later heavy duty diesel engines, for operation of SCR-equipped engines without DEF, with improper DEF, or when tampering (or some other defect in the SCR system) is detected. The public process shall take the form of a workshop, hearing, or other public process.

DATES:

Written comments on the proposed settlement agreement must be received by July 28, 2010.

ADDRESSES:

Submit your comments, identified by Docket ID number EPA-HQ-OGC-2010-0507, online at http://www.regulations.gov (EPA's preferred method); by e-mail to [e-mail]; by mail 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:

Michael Horowitz, 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 Settlement Agreement

This proposed settlement agreement would potentially resolve petitions for judicial review filed by Navistar for review of the following: (1) An EPA rule published January 18, 2001 promulgating standards for new heavy duty motor vehicles and engines; (2) a letter, dated February 18, 2009, sent by the Director of the Compliance and Innovative Strategies Division, Office of Transportation and Air Quality, providing guidance to manufacturers of heavy-duty diesel engines; and (3) an agency notice, published November 9, 2009, approving new scheduled maintenance for new motor vehicles and engines using selective catalytic technologies. Under the terms of the proposed settlement agreement, Navistar agrees to dismiss these petitions with prejudice and to withdraw related Freedom of Information Act requests. Navistar also agrees that it would be precluded from filing any of the following petitions for review: (1) Petitions challenging directly or indirectly individual certificates of conformity issued for a model year prior to the 2012 model year (excluding action exercising its rights regarding certifications of its own engines in any model year); and (2) petitions challenging a letter dated December 30, 2009 from the Director of the Compliance and Innovative Strategies Division, Office of Transportation and Air Quality, providing revised guidance for certification of heavy-duty diesel engines using SCR technologies (“December 2009 Guidance”). However, Navistar reserves its right to exercise its rights regarding any changes or modifications to that guidance issued after the public process selected by EPA and retains all other rights and remedies to challenge EPA's final action that occurs following the public process selected by EPA.

Under the terms of the proposed settlement agreement, EPA agrees to engage in a public process to reexamine its policies, for future model year 2011 and later heavy duty diesel engines, for operation of SCR-equipped engines without DEF, with improper DEF, or when tampering (or some other defect in the SCR system) is detected. The public process will take the form of a workshop, hearing, or other public process. EPA will issue a public notice of the public process to be published in the Federal Register not later than June 30, 2010 or twenty-eight days after the date this Agreement becomes final, whichever is later. EPA will include in the public notice statements that: (a) The public process is designed to provide a thorough review of EPA's policies regarding operation of SCR-equipped heavy duty diesel engines without DEF, with improper DEF, or when tampering (or some other defect in the SCR system) is detected for future 2011 and later model year engines, in order to ensure, among other things, that SCR-equipped engines are designed to properly control emissions as required under applicable regulations; (b) it is appropriate for EPA to review and reexamine its policies as technologies are introduced into the marketplace; (c) EPA intends to review any information that has become available to determine whether its policies regarding SCR-equipped engines should be revised; and (d) the scope of the review includes the December 2009 Guidance.

EPA will conduct the selected public process not later than sixty days after the publication of the public notice in the Federal Register.

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 settlement agreement 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 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 determines, based on any comment submitted, that consent to this settlement agreement should be withdrawn, the terms of the agreement will be affirmed.

II. Additional Information About Commenting on the Proposed Settlement Agreement

A. How can I get a copy of the settlement agreement?

The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2010-0507) contains a copy of the proposed settlement agreement. 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, select “search,” then key in the appropriate docket identification number.

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: June 21, 2010.

Richard B. Ossias,

Associate General Counsel.