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###### Environmental Protection Agency

          - [FRL-8949-9]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Notice.

# SUMMARY:

On December 19, 2008, the United States Court of Appeals for the District of Columbia Circuit (DC Circuit) vacated two provisions in EPA's General Provisions Rule promulgated under section 112 of the Clean Air Act that exempt sources from the requirement to comply with otherwise applicable section 112(d) emission standards during periods of startup, shutdown and malfunction. We are announcing the public availability of a letter that EPA has issued addressing concerns that have been raised regarding the impact of that decision if the mandate effectuating the vacatur issues.

# DATES:

August 26, 2009, EPA announces the availability of EPA's letter related to a recent court decision regarding 40 CFR 63.6(f)(1) and (h)(1).

# FOR FURTHER INFORMATION CONTACT:

                        Mr. Charlie Garlow, U.S. EPA Office of Enforcement and Compliance Assurance, Office of Civil Enforcement, Air Enforcement Division (MAIL CODE 2242A), 1200 Pennsylvania Avenue, Washington, DC 20460, telephone number (202) 564-1088, fax number (202) 564-0068, e-mail address:                         *garlow.charlie@epa.gov.*

# SUPPLEMENTARY INFORMATION:

                    EPA recently issued a letter, dated July 22, 2009, from Adam Kushner, Director, Office of Civil Enforcement, to various parties that addresses concerns that have been raised regarding the impact of the decision in                     *Sierra Club*                     v.                     *EPA,*                     551 F.3d 1019 (DC Cir. 2008). In that decision, the United States Court of Appeals for the District of Columbia Circuit (DC Circuit) vacated 40 CFR 63.6(f)(1) and (h)(1), which are two provisions in EPA's General Provisions Rule promulgated under section 112 of the Clean Air Act that exempt sources from the requirement to comply with otherwise applicable section 112(d) emission standards during periods of startup, shutdown and malfunction. Industry Intervenors appealed the December 2008                     *Sierra Club*                     decision by filing petitions for rehearing. On July 30, 2009, the DC Circuit denied these petitions. On August 5, 2009, EPA filed a motion seeking a 60-day stay of the mandate. On August 6, 2009, Industry Intervenors filed a motion to stay the mandate pending their appeal of the decision to the United States Supreme Court. Until the D.C.  Circuit issues a mandate effectuating the vacatur, 40 CFR 63.6(f)(1) and (h)(1) remain in effect. EPA has posted a copy of the July 22, 2009 letter and a copy of the                     *Sierra Club*                     decision on the EPA Office of Enforcement and Compliance Assurance Web site at http://                    *www.epa.gov/​compliance/​civil/​caa/​ssm.html.*                     EPA has also included on the Web site a copy of relevant pleadings in the                     *Sierra Club*                     litigation. EPA intends to update this Web site as appropriate with additional information relating to the                     *Sierra Club*                     decision.                

Dated: August 14, 2009.

Cynthia Giles, 

Assistant Administrator, Office of Enforcement and Compliance Assurance.

[FR Doc. E9-20593 Filed 8-25-09; 8:45 am]

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