Proposed Settlement Agreements on Regulations Under Section 126 of the Clean Air Act Reducing Regional Transport of Ozone

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

EPA hereby gives notice of three proposed Settlement Agreements regarding certain issues in the case entitled Appalachian Power v. EPA, Nos. 99-1200, et al. (D.C. Cir.). Specifically, the Settlement Agreements address issues in the following cases, consolidated with Appalachian Power v. EPA: Weyerhaeuser Co. v. EPA, No. 00-1126; West Virginia Manufacturers Ass'n, et al. v. EPA, Nos. 99-1246 & 00-1125; West Virginia Chamber of Commerce et al. v. EPA, Nos. 99-1205 & 00-1024; Birchwood Power Partners, et al. v. EPA, No. 00-1116; Southern Energy Gen. L.L.C. v. EPA, No. 00-1117. EPA issues this notice in accordance with section 113(g) of the Clean Air Act, as amended (the “ACT”), which requires EPA to give notice and provide an opportunity for public comment on proposed settlement agreements.

The litigation concerns EPA's promulgation of two final rules under section 126 of the Act (collectively the “section 126 rule”) pertaining to control of interstate transport of ozone. See 64 FR 28250 (May 25, 1999); 65 FR 2674 (January 18, 2000). Under the section 126 rule, certain upwind stationary sources of nitrogen oxides (No_X) emissions in twelve states and the District of Columbia must hold NO_X emission allowances equivalent to the quantity of their NO_X emissions. The section 126 rule allocates quantities of NO_X allowances to each covered source. Various parties have filed petitions for review of the section 126 rule under section 307(b)(1) of the Act. Several of these parties have raised claims that EPA incorrectly allocated NO_X allowances to certain units under the section 126 rule and that the parties did not have the opportunity to comment on the incorrect allocations during the rulemaking process. The proposed Settlement Agreements provide that EPA will propose a rule to modify the allowance allocations for certain units and that the parties will dismiss these claims if EPA issues a final rule consistent with the proposed rule.

Persons who were not named as parties or interveners to this litigation may submit written comments on the proposed settlement agreement to EPA. EPA will accept such comments for a period of thirty days from the date of publication of this notice. EPA or the Department of Justice may withhold or withdraw consent to the proposed Settlement Agreement if the comments disclose facts or circumstances that indicated that the agreement is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act. Unless EPA or the Department of Justice makes such a determination following the comment period, EPA will take the actions set forth in the Settlement Agreement.

A copy of the proposed Settlement Agreement is available from Phyllis Davis, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, (202) 564-5566. Written comments should be sent to Alexandra Teitz, Esq., at the above address and must be submitted on or before December 13, 2000.