[Federal Register Volume 66, Number 177 (Wednesday, September 12, 2001)]
[Notices]
[Pages 47476-47477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-22907]


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ENVIRONMENTAL PROTECTION AGENCY


Proposed Settlement Agreement, Clean Air Act Citizen Suit

AGENCY: Environmental Protection Agency.

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 a 
proposed settlement agreement, which was lodged with the United States 
District Court for the Southern District of New York by the United 
States Environmental Protection Agency (``EPA'') on August 31, 2001, to 
address a lawsuit filed by the New York Public Interest Research Group 
``NYPIRG''). NYPIRG filed a complaint pursuant to section 304(a)(2) of 
the Act, 42 U.S.C. 7604(a)(2), alleging that EPA had failed to perform 
an act which is not discretionary. Specifically, NYPIRG alleged that 
EPA failed to respond to citizen petitions to object to three operating 
permits within the time provided in section 505(b)(2) of the Act, 42 
U.S.C. 7661d((b)(2). NYPIRG, Inc. v. Whitman, No. 00 Civ. 9394 
(S.D.N.Y.).

DATES: Written comments on the proposed consent decree must be received 
by October 12, 2001.

[[Page 47477]]


ADDRESSES: Written comments should be sent to Apple Chapman, Air and 
Radiations Law Office (2344), Office of General Counsel, U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460. Copies of the proposed agreement are available 
from Phyllis J. Cochran, (202) 564-5566.

SUPPLEMENTARY INFORMATION: The relevant statutory provisions are as 
follows. Section 304(a)(2) of the Clean Air Act provides a cause of 
action and jurisdiction in federal district court ``against the 
Administrator where there is alleged a failure of the Administrator to 
perform any act or duty under this Act which is not discretionary with 
the Administrator.'' Title V of the Clean Air Act sets forth an 
operating permit program for stationary sources of air pollution. 
Section 505(b)(1) of the Act provides EPA with an opportunity to object 
to a permit that a state proposes to issue within 45 days after 
receiving a copy of the proposed permit if EPA determines that the 
permit is not in compliance with the applicable requirements of the 
Act. Under section 505(b)(2), if EPA does not object to a permit on its 
own initiative, citizens may, within 60 days after the expiration of 
EPA's 45-day review period, petition the Administrator to issue an 
objection. Section 113(g) of the Act provides that before a consent 
order or settlement agreement under the Act to which the United States 
is a party may become final, EPA must provide a reasonable opportunity 
by notice in the Federal Register for persons to comment in writing. 
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.
    These are the key facts pertaining to this notice. The New York 
State Department of Environmental Conservation issued Title V permits 
to Yeshiva University, Action Packaging Corp., and Kings Plaza. EPA did 
not object to those permits on its own initiative, and NYPIRG filed 
citizen petitions requesting that EPA object. Those petitions were 
filed well over 60 days ago, and to date EPA has not taken final action 
to grant or deny them. In NYPIRG, Inc. v. Whitman, NYPIRG alleges that 
EPA failed to perform a duty which is not discretionary by not 
responding to these three petitions within the 60 days provided by 
statute.
    The core of the proposed settlement is the agreement between the 
parties that EPA will take final action granting or denying NYPIRG's 
Yeshiva, Acting Packaging, and Kings Plaza petitions to object by 
October 340, 2001. The agreement further provides that the parties will 
request the court to stay its consideration of the case pending 
implementation of, and subject to, the terms of the agreement. One of 
those terms provides that NYPIRG may request the court to lift the stay 
of the litigation if EPA fails to complete the section 113(g) notice 
and comment process and make the agreement final within 45 days of its 
execution. In addition, the agreement provides that one it becomes 
final, the parties will file a joint motion requesting that the court 
enter the agreement as a consent order.
    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: September 5, 2001.
Alan W. Eckert,
Associate General Counsel.
[FR Doc. 01-22907 Filed 9-11-01; 8:45 am]
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