[Federal Register Volume 68, Number 225 (Friday, November 21, 2003)]
[Notices]
[Pages 65700-65702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29184]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7589-5]


Proposed Settlement Agreement, Clean Air Act Petitions for Review

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 a 
proposed settlement agreement to address petitions for review filed by 
the Utility Air Regulatory Group, Clean Air Implementation Project, Air 
Permitting Forum, Alliance of Automobile Manufacturers, and the 
National Environmental Development Association's Clean Air Regulatory 
Project (collectively, ``Petitioners'') in the U.S. Court of Appeals 
for the District of Columbia Circuit: Utility Air Regulatory Group v. 
EPA, No. 02-1290 (and Consolidated Nos. 02-1291, 02-

[[Page 65701]]

1303, 02-1304, and 02-1325) (D.C. Cir.). On or about September 18, 
2002, and thereafter, Petitioners filed petitions for review 
challenging EPA's interpretation of the sufficiency monitoring rules 
under the Act's Title V operating permits program, 40 CFR 70.6(c)(1) 
and 71.6(c)(1), as stated in the preamble to an interim final rule 
published on September 17, 2002 (67 FR 58529), and challenging EPA's 
State and Federal operating permits program rules in 40 CFR parts 70 
and 71, as interpreted. Under the terms of the proposed settlement 
agreement, Petitioners and EPA (collectively, the ``Parties'') will 
promptly file a stipulation for dismissal of the petitions for review 
if EPA takes final action: (1) Declining to adopt the proposed revision 
to the text of Sec. Sec.  70.6(c)(1) and 71.6(c)(1) published on 
September 17, 2002 (67 FR 58561); and (2) indicating that 
notwithstanding the recitation in Sec. Sec.  70.6(c)(1) and 71.6(c)(1) 
of monitoring as a permit element, EPA has determined that the correct 
interpretation of Sec. Sec.  70.6(c)(1) and 71.6(c)(1) is that these 
provisions do not establish a separate regulatory standard or basis for 
requiring or authorizing review and enhancement of existing monitoring 
independent of any review and enhancement as may be required under 40 
CFR 70.6(a)(3) and 71.6(a)(3). EPA also has indicated that it does not 
intend in such final action ``to address what constitutes a ``gap'' 
under [sections] 70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B) or criteria for 
how that ``gap'' should be filled.''

DATES: Written comments on the proposed settlement agreement must be 
received by December 22, 2003.

ADDRESSES: Submit your comments, identified by docket ID number OGC-
2003-0005, online at http://www.epa.gov/edocket (EPA's preferred 
method); by e-mail to [email protected]; mailed to EPA Docket Center, 
Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460-0001; or by hand delivery or courier to 
EPA Docket Center, EPA West, Room B102, 1301 Constitution Ave., NW., 
Washington, DC, between 8:30 a.m. and 4:30 p.m. Monday through Friday, 
excluding legal holidays. Comments on a disk or CD-ROM should be 
formatted in Wordperfect or ASCII file, avoiding the use of special 
characters and any form of encryption, and may be mailed to the mailing 
address above.

FOR FURTHER INFORMATION CONTACT: Kerry E. Rodgers, Air and Radiation 
Law Office (2344A), Office of General Counsel, U.S. Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460, 
telephone (202) 564-5671.

SUPPLEMENTARY INFORMATION:

I. Additional Information About the Proposed Settlement Agreement

    Title V of the Clean Air Act requires major stationary sources of 
air pollution to obtain comprehensive operating permits that assure 
compliance with applicable requirements under the Act. EPA's 
regulations in 40 CFR parts 70 and 71 establish minimum requirements 
for State and Federal Title V operating permits programs, which include 
monitoring requirements. Petitioners in these consolidated cases 
challenged EPA's interpretation of the Title V sufficiency monitoring 
rules, Sec. Sec.  70.6(c)(1) and 71.6(c)(1), as stated in the preamble 
to an interim final rule published on September 17, 2002 (67 FR 58529), 
as well as EPA's State and Federal operating permits program rules in 
40 CFR parts 70 and 71, as interpreted.\1\ On September 17, 2002, EPA 
also published a proposed rule (67 FR 58561) requesting public comment 
on the same interpretation as that set forth in the interim final rule.
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    \1\ Case No. 02-1304 did not raise this second challenge.
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    The proposed settlement agreement provides that within two days of 
its execution by the Parties, the Parties will file a joint motion 
notifying the Court of the agreement and requesting that briefing in 
these cases be suspended and that the cases be held in abeyance pending 
implementation of the agreement. The proposed settlement agreement 
further provides that the Parties will promptly file a stipulation for 
dismissal of the petitions for review if EPA issues a final action: (1) 
Declining to adopt the proposed revision to the text of Sec. Sec.  
70.6(c)(1) and 71.6(c)(1) published on September 17, 2002 (67 FR 
58561); and (2) indicating that notwithstanding the recitation in 
Sec. Sec.  70.6(c)(1) and 71.6(c)(1) of monitoring as a permit element, 
EPA has determined that the correct interpretation of Sec. Sec.  
70.6(c)(1) and 71.6(c)(1) is that these provisions do not establish a 
separate regulatory standard or basis for requiring or authorizing 
review and enhancement of existing monitoring independent of any review 
and enhancement as may be required under Sec. Sec.  70.6(a)(3) and 
71.6(a)(3). EPA also has indicated that it does not intend in such 
final action ``to address what constitutes a `gap' under [sections] 
70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B) or criteria for how that `gap' 
should be filled.''
    Under the proposed settlement agreement, if EPA does not issue such 
final action by January 15, 2004, or if EPA otherwise fails to comply 
with the terms of the proposed settlement agreement, Petitioners may 
request that the Court lift the stay and establish a schedule for 
briefing and argument in these cases and EPA will join Petitioners in a 
motion making that request. Petitioners will not challenge any final 
action that is the same in substance as items (1) and (2) above, 
although Petitioners reserve any rights they may have to challenge any 
portion of such final action that is not the same in substance.
    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 intervenors 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, based on any comment which may be 
submitted, that consent to the settlement agreement should be 
withdrawn, the terms of the agreement will be affirmed.

II. Additional Information About Commenting on the Proposed Settlement 
Agreement

A. How Can I Get a Copy of the Settlement Agreement?

    EPA has established an official public docket for this action under 
Docket ID No. OGC-2003-0005 which contains a copy of the settlement 
agreement. The official public docket is available for public viewing 
at the Office of Environmental Information (OEI) Docket in the EPA 
Docket Center, EPA West, Room B102, 1301 Constitution Ave., NW., 
Washington, DC. The EPA Docket Center Public Reading Room is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the OEI Docket is (202) 566-
1752.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents

[[Page 65702]]

of the official public docket, and to access those documents in the 
public docket that are available electronically. Once in the system, 
select ``search,'' then key in the appropriate docket identification 
number.
    It is important to note that EPA's policy is that public comments, 
whether submitted electronically or in paper, will be made available 
for public viewing in EPA's electronic public docket as EPA receives 
them and without change, unless the comment contains copyrighted 
material, CBI, or other information whose disclosure is restricted by 
statute. Information claimed as CBI and other information whose 
disclosure is restricted by statute is not included in the official 
public docket or in EPA's electronic public docket. EPA's policy is 
that copyrighted material, including copyrighted material contained in 
a public comment, will not be placed in EPA's electronic public docket 
but will be available only in printed, paper form in the official 
public docket. Although not all docket materials may be available 
electronically, you may still access any of the publicly available 
docket materials through the EPA Docket Center.

B. How and to Whom Do I Submit Comments?

    You may submit comments as provided in the ADDRESSES section. 
Please ensure that your comments are submitted within the specified 
comment period. Comments received after the close of the comment period 
will be marked ``late.'' EPA is not required to consider these late 
comments.
    If you submit an electronic comment, EPA recommends that you 
include your name, mailing address, and an e-mail address or other 
contact information in the body of your comment and with any disk or CD 
ROM you submit. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. Any identifying or 
contact information provided in the body of a comment will be included 
as part of the comment that is placed in the official public docket, 
and made available in EPA's electronic public docket. If EPA cannot 
read your comment due to technical difficulties and cannot contact you 
for clarification, EPA may not be able to consider your comment.
    Your use of EPA's electronic public docket to submit comments to 
EPA electronically is EPA's preferred method for receiving comments. 
The electronic public docket system is an ``anonymous access'' system, 
which means EPA will not know your identity, e-mail address, or other 
contact information unless you provide it in the body of your comment. 
In contrast to EPA's electronic public docket, EPA's electronic mail 
(e-mail) system is not an ``anonymous access'' system. If you send an 
e-mail comment directly to the Docket without going through EPA's 
electronic public docket, your e-mail address is automatically captured 
and included as part of the comment that is placed in the official 
public docket, and made available in EPA's electronic public docket.

    Dated: November 14, 2003.
Lisa K. Friedman,
Associate General Counsel, Air and Radiation Law Office, Office of 
General Counsel.
[FR Doc. 03-29184 Filed 11-20-03; 8:45 am]
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