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Proposed Consent Decree, Clean Air Act Citizen Suit

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Environmental Protection Agency.


Notice of proposed consent decree; request for public comment.


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 Partial Consent Decree, which was lodged with the United States District Court for the District of Columbia by the United States Environmental Protection Agency (“EPA”) on June 29, 2001, to address a lawsuit filed by the Natural Resources Defense Council, Environmental Defense Fund, Conservation Law Foundation, Clean Air Council, Natural Resources Council of Maine, and Sierra Club (collectively referred to as “NRDC”). This lawsuit, which was filed pursuant to section 304(a) of the Act, 42 U.S.C. 7604(a), claims EPA failed to meet a mandatory deadline under section 110(c) of the Act, 42 U.S.C. 7410(c), to promulgate federal implementation plans (“FIPs”) establishing attainment demonstrations for certain ozone nonattainment areas classified as serious or severe and located in the eastern part of the United States and to impose sanctions in those areas. NRDC v. EPA, No. 1:99CV02976 (D.D.C.).


Written comments on the proposed consent decree must be received by August 20, 2001.


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 Partial Consent Decree are available from Phyllis J. Cochran, (202) 564-5566. A copy of the proposed Partial Consent Decree was lodged with the Clerk of the United States District Court for the District of Columbia on June 29, 2001.

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In its complaint, NRDC alleges that EPA has a mandatory duty to promulgate FIPs and impose sanctions on 13 nonattainment areas located in 14 States and the District of Columbia. On June 12, 2000, EPA and NRDC filed with the court a Partial Consent Decree that addressed 9 of the 13 areas (“June 2000 Decree”). See also 64 FR 71453 (Dec. 21, 1999) (notice under 113(g) of Partial Consent Decree). At that time, three of the areas that were the subject of NRDC's complaint were not subject to the 1-hour ozone standard pursuant to a determination by EPA under 40 CFR 50.9(b) that the areas had attained the 1-hour standard and that the 1-hour standard no longer applied. See 64 FR 30911 (June 9, 1999). These three areas are the Boston-Lawrence-Worcester nonattainment area, located in Massachusetts and New Hampshire; the Portsmouth-Dover-Rochester nonattainment area, located in New Hampshire; and the Providence nonattainment area, Rhode Island. However, at the time the June 2000 Decree was entered by the court, EPA had proposed to reinstate the applicability of the 1-hour standard, including designations, in those areas. 64 FR 57424 (Oct. 25, 1999) (preamble language) and 64 FR 60477 (Nov. 5, 1999) (regulatory text). Paragraph 5a of the June 2000 Decree provided that the parties agreed to stay the case with respect to those three areas and provided that the stay would expire if any of certain events occurred, including a final action by EPA reinstating the 1-hour standard and the associated 1-hour designations in those areas. On July 20, 2000, EPA took final action reinstating the 1-hour standard and the associated designations in all areas for which EPA had previously determined that standard did not apply. Subsequently, the parties negotiated the proposed Partial Consent Decree to address NRDC's claims for these three areas.

The three areas addressed in the proposed Partial Consent Decree are all currently designated nonattainment but, based on monitoring data from 1998-2000, have air quality meeting the 1-hour standard. The proposed Partial Consent Decree provides that EPA will promulgate a full attainment demonstration FIP for each area if a violation of the 1-hour ozone standard occurs in the future in that area. See paragraphs 2 and 3. For the Boston and Portsmouth areas, EPA's obligation to propose a FIP would ripen in September of the year following the year in which the violation occurs and EPA's obligation to finalize a FIP would ripen 9 months later—the following June. Because EPA currently does not have an attainment demonstration submission for the Providence area, the proposed Partial Consent Decree provides an additional six months for EPA to propose a FIP. Thus, EPA's obligation to propose a FIP for Providence would ripen in March of the second year following the violation and EPA's obligation to finalize a FIP would ripen 9 months later—in December of that same year.

Paragraph 4 of the proposed Partial Consent Decree sets forth the three circumstances under which EPA's obligation to propose or promulgate a FIP will be extinguished: (1) The date that EPA fully approves an attainment demonstration SIP for an area; (2) the date EPA redesignates an area from nonattainment to attainment; or (3) once EPA has approved a SIP or promulgated a FIP under the NOX SIP Call for each upwind state for an area, the latest source compliance date in an approved SIP or promulgated FIP.

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 Partial 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 Partial 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 final Partial Consent Decree will be entered with the court and will establish deadlines for promulgation of FIPs consistent with the conditions of the Partial Consent Decree.

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Dated: July 9, 2001.

John T. Hannon,

Acting Associate General Counsel.

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[FR Doc. 01-18196 Filed 7-19-01; 8:45 am]