[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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