[Federal Register Volume 67, Number 224 (Wednesday, November 20, 2002)]
[Notices]
[Pages 70070-70071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-29475]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL-7410-7]


Proposed Consent Decree, Clean Air Act Citizen Suit

AGENCY: Environmental Protection Agency.

[[Page 70071]]


ACTION: Notice of proposed Consent Decree; 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 Consent Decree. On November 13, 2002, the American Lung 
Association and eight other public interest groups filed a complaint 
pursuant to section 304(a) of the Act, 42 U.S.C. 7604(a), alleging that 
the United States Environmental Protection Agency (``EPA'') failed to 
meet its mandatory duty to designate areas for the 8-hour ozone 
national ambient air quality standard (``NAAQS''). American Lung 
Association, et al. v. EPA, No. 02-2239 (D.D.C.). On November 13, 2002, 
EPA lodged the Consent Decree with the United States District Court for 
the District of Columbia Circuit. The Consent Decree establishes a time 
frame for EPA to promulgate designations for the 8-hour ozone NAAQS.

DATES: Written comments on the proposed consent decree must be received 
by December 20, 2002.

ADDRESSES: 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 Consent Decree are 
available from Phyllis J. Cochran, (202) 564-5566. On November 13, 
2002, a copy of the proposed consent decree was lodged with the Clerk 
of the United States District Court for the District of Columbia.

SUPPLEMENTARY INFORMATION: The American Lung Association and eight 
other public interest groups \1\ (collectively referred to as 
``American Lung Association'') allege that EPA failed to promulgate 
designations for the 8-hour ozone NAAQS by the Congressionally-enacted 
deadline.
---------------------------------------------------------------------------

    \1\ The other eight plaintiffs are: Environmental Defense, 
Natural Resources Defense Council, Sierra Club, Alabama 
Environmental Council, Clean Air Council, Michigan Environmental 
Council, Ohio Environmental Council and Southern Alliance for Clean 
Energy.
---------------------------------------------------------------------------

    On July 18, 1997, EPA promulgated a revised 8-hour ozone NAAQS. 62 
FR 38856 38856. The revised ozone NAAQS was challenged and on May 14, 
1999, the United States Court of Appeals for the District of Columbia 
Circuit (``D.C. Circuit'') determined that EPA's interpretation of its 
authority to establish the NAAQS resulted in an unconstitutional 
delegation of authority. The Court also determined that EPA's 
implementation scheme was flawed because the CAA mandated that a 
revised ozone standard be implemented in accordance with specific 
provisions (``subpart 2'') of the Act, which EPA had indicated would 
not apply. The Court remanded the rule to EPA. American Trucking Assoc. 
v. EPA, 175 F.3d 1027 (D.C. Cir. 1999) reh'g denied American Trucking 
Assoc. v. EPA, 195 F.3d 4 (D.C. Cir. 1999). Both EPA and the 
petitioners sought review in the Supreme Court of several aspects of 
the D.C. Circuit's decision.\2\
---------------------------------------------------------------------------

    \2\ The Court also remanded the rule to EPA because EPA had not 
considered whether ground-level ozone had beneficial health effects. 
In particular, some petitioners argued that EPA had ignored whether 
higher levels of ground-level ozone acted as a shield from the 
harmful effects of ultraviolet radiation. EPA did not seek Supreme 
Court review of this issue.
---------------------------------------------------------------------------

    On February 27, 2001, the Supreme Court issued a decision, holding 
that EPA's interpretation of its authority to promulgate the 8-hour 
ozone NAAQS did not constitute an unconstitutional delegation of power. 
Whitman v. American Trucking Assoc., 121 S.Ct. 903 (2001). The Court 
also remanded the implementation issue to the Agency to develop a 
reasonable interpretation that provides a role for subpart 2 in 
implementing the 8-hour ozone NAAQS.
    Section 107(d)(1) of the CAA provides that EPA must designate areas 
for a revised NAAQS no later than two years following promulgation of 
the standard. It also provides for the Agency to take an additional 
year for designating areas if ``insufficient information'' is 
available. In June 1998, as part of the Transportation Equity Act for 
the 21st Century, Public Law 105-178, Congress enacted legislation that 
expressly provided EPA with three years to promulgate designations for 
the 8-hour ozone NAAQS. In the fall of 2000, as part of the 
appropriations bill for EPA, Congress precluded EPA from spending funds 
to designate areas for the 8-hour ozone NAAQS until the earlier of June 
15, 2001 or a ruling by the Supreme Court in the litigation concerning 
the NAAQS. The Supreme Court issued its decision on February 27, 2001.
    The Consent Decree provides that EPA will sign a notice 
promulgating designations for the 8-hour ozone NAAQS no later than 
April 15, 2004. It further provides that EPA will submit the 
designation notice to the Office of Federal Register no later than five 
days following signature. Finally, it provides for EPA to publish a 
notice of availability of the promulgated designations no later than 
April 30, 2004.
    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 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 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 Consent Decree will be final.

    Dated: November 14, 2002.
Lisa K. Friedman,
Associate General Counsel.
[FR Doc. 02-29475 Filed 11-19-02; 8:45 am]
BILLING CODE 6560-50-P