[Federal Register Volume 67, Number 144 (Friday, July 26, 2002)]
[Notices]
[Pages 48896-48897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-18993]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7251-8]
Proposed Settlement Agreement, Clean Air Act Citizen Suit
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed settlement agreement; request for public
comment.
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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 two
proposed settlement agreements. On July 15, 2002, the United States
Environmental Protection Agency (``EPA'') filed one settlement
agreement with the United States Court of Appeals for the District of
Columbia Circuit, and the other settlement agreement with the United
States Court of Appeals for the First Circuit. These two settlement
agreements address challenges to two separate final actions EPA took,
determining that the one-hour ozone national ambient air quality
standard (``NAAQS'') no longer applied in different areas of the
country. On August 8, 1998, Environmental Defense filed a petition for
review pursuant to section 307(b) of the Act, 42 U.S.C. 7607(b),
challenging EPA's June 5, 1998 rule determining that the one-hour ozone
NAAQS no longer applied in approximately 2000 counties across the
country. Environmental Defense v. EPA, No. 98-1363 (DC Cir.). On August
9, 1999, Appalachian Mountain Club filed a petition for review under
section 307(b) of the CAA, challenging EPA's June 9, 1999, final rule
determining that the one-hour ozone standard no longer applied in an
additional ten areas. Appalachian Mountain Club v. EPA, No. 99-1880
(1st Cir.).
DATES: Written comments on the proposed settlement agreements must be
received by August 26, 2002.
ADDRESSES: Written comments should be sent to Jan M. Tierney, Air and
Radiation Law Office (2344), Office of General Counsel, U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460. Copies of the proposed settlement agreements are
available from Phyllis J. Cochran, (202) 564-5566. On July 15, 2002, a
copy of the proposed settlement agreement with Environmental Defense
was filed with the Clerk of the United States Court of Appeals for the
District of Columbia Circuit and a copy of the proposed settlement
agreement with Appalachian Mountain Club was filed with the Clerk of
the United States Court of Appeals for the First Circuit.
SUPPLEMENTARY INFORMATION: Environmental Defense and Appalachian
Mountain Club (collectively referred to as ``Petitioners'') allege that
EPA acted contrary to law by determining that the one-hour ozone
standard no longer applied to the areas in the challenged actions.
The EPA promulgated the one-hour ozone standard in 1979. On July
18, 1997, EPA promulgated a revised ozone standard--the eight-hour
ozone standard. At that time, EPA also promulgated a regulation
providing that the one-hour standard would ``no longer apply to an area
once EPA determines that the area has air quality meeting the 1-hour
standard.'' 62 FR 38856, codified at 40 CFR 50.9(b) (revised on July
20, 2000). In part, EPA based this approach on its interpretation that
the provisions of subpart 2 of part D of title I of the CAA applied
only for purposes of the one-hour ozone standard. Thus, once an area
attained the one-hour standard, EPA could determine the one-hour
standard and thus, subpart 2, no longer applied to that area.
Subsequently, EPA took three final actions in which it determined the
one-hour standard no longer applied to most areas in the country. 63 FR
31014 (June 5, 1998); 63 FR 39432 (July 22, 1998); 64 FR 30911 (June 9,
1999). These actions are commonly referred to as ``revoking'' the one-
hour standard.
[[Page 48897]]
The revised ozone standard was challenged and on May 14, 1999, the
DC Circuit issued an opinion that, among other things, called into
question EPA's authority to implement the revised standard. American
Trucking Assoc. v. EPA, 175 F.3d 1027 (DC Cir. 1999). On rehearing, the
Court made minor modifications to the portion of its decision regarding
implementation, but did not change its earlier conclusions regarding
EPA's implementation authority. American Trucking Assoc. v. EPA, 195
F.3d 4 (DC Cir. 1999). EPA sought review in the Supreme Court of
several aspects of the DC Circuit's decision, including the ruling on
EPA's implementation authority.
In the interim, due to the uncertainty regarding its implementation
authority, on October 25, 1999, EPA proposed to reinstate the one-hour
standard in all areas in which it had been revoked. 64 FR 57425. The
preamble to that proposed rule provides a more thorough history of
EPA's revocation rules and the DC Circuit rulings. See 64 FR at 57424-
57425.
On July 20, 2000, EPA issued a final rule reinstating the one-hour
standard in all areas in which it had been revoked. 65 FR 45182. EPA
also modified the regulatory provision for determining the one-hour
standard no longer applies to provide: ``* * * after the 8-hour
standard has become fully enforceable under part D of title I of the
CAA and subject to no further legal challenge, the 1-hour standards set
forth in this section will no longer apply to an area once EPA
determines that the area has air quality meeting the 1-hour standard.''
On February 27, 2001, the Supreme Court issued a decision,
remanding the implementation issue to the Agency to develop a
reasonable interpretation that provides a role for subpart 2 in
implementing the eight-hour ozone NAAQS.
Each Settlement Agreement provides that upon finalization of the
Settlement Agreement, the Parties will jointly seek a stay of the
litigation pending the following actions. First, no later than three
months following the finalization of the Settlement Agreement, EPA will
propose a stay of its authority under 40 CFR 50.9(b) to determine that
an area has attained the one-hour standard and that therefore the one-
hour standard no longer applies in that area. The basis for the
proposed stay would be for EPA to consider through rulemaking whether
this provision in 40 CFR 50.9(b) should be modified in light of the
Supreme Court's decision in Whitman v. American Trucking Assoc., 121
S.Ct. 903 (2001). In that proposed stay, EPA would state that in the
rulemaking regarding whether that provision in 40 CFR 50.9(b) should be
modified, EPA would take comment on which, if any, implementation
activities for an eight-hour ozone standard, including designations and
classifications, would need to occur before EPA would determine that
the one-hour ozone standard no longer applied to an area, and the
effect of revising the ozone NAAQS on existing designations for the
pollutant ozone. EPA would take final action on its proposed stay no
later than 6 months after the proposal is published in the Federal
Register. Each Settlement Agreement provides for the Petitioners to
dismiss their case if, consistent with the proposal, EPA's final action
(a) stays the effectiveness of the provision in 40 CFR 50.9(b)
regarding the determination of whether an area has met the one-hour
standard until such time as EPA completes a subsequent rulemaking
determining whether that provision should be modified; and (b) commits
to consider and address in the subsequent rulemaking any comments
concerning (i) which, if any, implementation activities for a revised
ozone standard (including but not limited to designation and
classification of areas) would need to occur before EPA would determine
that the one-hour ozone standard no longer applied to an area, and (ii)
the effect of revising the ozone NAAQS on existing designations for the
pollutant ozone.
The sole remedy for the Petitioners under the Settlement Agreement
is the right to ask the Court to lift the stay of proceedings and
establish a schedule for further proceedings regarding the Revocation
Rule.
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: July 22, 2002
Lisa Friedman,
Associate General Counsel.
[FR Doc. 02-18993 Filed 7-25-02; 8:45 am]
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