Proposed Consent Decree, Clean Air Act Citizen Suit

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of proposed consent decree; request for public comment.

SUMMARY:

In accordance with section 113(g) of the Clean Air Act, as amended (“CAA” or the “Act”), notice is hereby given of a proposed consent decree to address a lawsuit filed by Center for Biological Diversity, Center for Environmental Health, and Neighbors for Clean Air (“Plaintiffs”) in the United States District Court for the Northern District of California: Center for Biological Diversity, et al. v. EPA, No. 4:15-cv-4663-SBA (N.D. CA.). On December 14, 2015, Plaintiffs filed a First Amended Complaint alleging that Gina McCarthy, in her official capacity as Administrator of the United States Environmental Protection Agency (“EPA”), failed to perform specific duties mandated by the CAA. First, Plaintiffs allege that EPA failed to make a finding concerning whether the State of California has made a complete state implementation plan (“SIP”) submission to address nonattainment new source review (“NNSR”) requirements related to the 2006 fine particulate matter (“PM2.5”) National Ambient Air Quality Standard (“NAAQS”) for El Dorado and Yolo-Solano air districts in California. Second, Plaintiffs allege that EPA failed to take final action to approve, disapprove, or conditionally approve, in whole or in part, certain complete SIP submissions from the States of Arizona, California, Idaho, Oregon, and Utah intended to address NNSR or other specific requirements related to the 2006 PM_2.5 NAAQS for certain designated nonattainment areas. Third, Plaintiffs allege that EPA has failed to meet a duty to promulgate a federal implementation plan (“FIP”) for the State of Montana with respect to SIP requirements pertaining to state boards that approve permits or enforcement orders, or to the head of an executive agency with similar powers. The proposed consent decree would establish deadlines for EPA to take certain specified actions.

DATES:

Written comments on the proposed consent decree must be received by May 4, 2016.

ADDRESSES:

Submit your comments, identified by Docket ID number EPA-HQ-OGC-2016-0172, online at www.regulations.gov (EPA's preferred method); by email to oei.docket@epa.gov; by mail 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 3334, 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 Word 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:

Geoffrey L. Wilcox, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone: (202) 564-5601; fax number: (202) 564-5603; email address: wilcox.geoffrey@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Additional Information About the Proposed Consent Decree

The proposed consent decree would resolve a lawsuit filed by the Plaintiffs seeking to compel EPA to take various actions required under CAA. The proposed consent decree would establish deadlines by which EPA must take certain actions specified in order to resolve the claims in the First Amended Complaint. Those actions are described generally below; see the proposed consent decree for the specific details.

First, Plaintiffs allege that EPA failed to meet a duty under section 110(k)(1)(B) to make a finding concerning whether the State of California has made a complete state implementation plan (“SIP”) submission to address nonattainment new source review (“NNSR”) requirements related to the 2006 fine particulate matter (“PM2.5”) National Ambient Air Quality Standard (“NAAQS”) for El Dorado and Yolo-Solano air districts in California. In the proposed consent decree, EPA agrees to take action to determine whether or not the state has made a complete SIP submission to address these requirements for each of these two areas by no later than May 30, 2016.

Second, Plaintiffs allege that EPA failed to meet a duty under section 110(k) to take final action to approve, disapprove, or conditionally approve, in whole or in part, certain complete SIP submissions from the States of Arizona, California, Idaho, Oregon, and Utah intended to address NNSR or other specific requirements related to the 2006 PM_2.5 NAAQS for certain designated nonattainment areas. In the proposed consent decree, EPA agrees to take final action under section 110(k)(2)-(4) on each of the specific SIP submissions identified in the table in paragraph 1(b) of the proposed consent decree. The dates for final action by EPA for each of these SIP submissions are likewise specified in the table in paragraph 1(b) of the proposed consent decree.

Third, Plaintiffs allege that EPA has failed to meet a duty under section 110(c) to promulgate a federal implementation plan (“FIP”) for the State of Montana with respect to requirements of section 110(a)(2)(E)(ii) and section 128 pertaining to state boards that approve permits or enforcement orders, or to the head of an executive agency with similar powers. In the proposed consent decree, EPA agrees to take final action no later than September 30, 2016, with respect to this claim.

For all of the actions governed by the proposed consent decree, EPA would be required to deliver the notice to the Office of Federal Register for review and publication within 15 days of signature.

The proposed consent decree is in the docket for this action. For a period of thirty (30) days following the date of publication of this notice, the Agency will accept written comments relating to the proposed consent decree from persons who are 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 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 determines that consent to this proposed consent decree should be withdrawn, the terms of the consent decree will be affirmed.

II. Additional Information About Commenting on the Proposed Consent Decree

A. How can I get a copy of the proposed consent decree?

The official public docket for this action (identified by EPA-HQ-OGC-2016-0172) contains a copy of the proposed consent decree. 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 3334, 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 www.regulations.gov. You may use www.regulations.gov to submit or view public comments, access the index listing of the contents of the official public docket, and access those documents in the public docket that are available electronically. Once in the system, key in the appropriate docket identification number then select “search”.

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 online at www.regulations.gov 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 the 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 email 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.

Use of the www.regulations.gov Web site 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, email 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 (email) system is not an “anonymous access” system. If you send an email comment directly to the Docket without going through www.regulations.gov,, your email 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.