02-12708. Proposed Settlement Agreement

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of Proposed Settlement Agreement; request for public comment.

SUMMARY:

In accordance with section 113(g) of the Clean Air Act, as amended, 42 U.S.C. 7413(g), notice is hereby given of a proposed settlement agreement in the following consolidated cases: Assoc. of Irritated Residents, et al. v. U.S. EPA, et al. No. 02-70160, Medical Alliance for Healthy Air, et al. v. Whitman, et al., No. 02-70177, Communities for a Better Environment v. U.S. EPA, No. 02-70191 (9th Circuit). These cases concern the U.S. Environmental Protection Agency's (EPA) full approval of the part 70 operating permit programs in 34 air districts in the State of California, published at 66 FR 63503 (December 7, 2001). The proposed settlement agreement was signed by the last party on May 14, 2002.

DATES:

Written comments on the proposed settlement agreement must be received by June 20, 2002.

ADDRESSES:

Written comments should be sent to Carol S. Holmes, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. A copy of the proposed settlement agreement is available on EPA's Web Page at http://www.epa.gov/​region09/​air. You may also obtain a copy from Phyllis J. Cochran, [phone].

SUPPLEMENTARY INFORMATION:

EPA granted full approval of the 34 California part 70 operating permit programs (also known as “title V” permit programs) on November 29, 2001. 66 FR 63503 (December 7, 2001). The following groups of petitioners filed a timely petition for review: (1) Association of Irritated Residents (AIR) and Communities for Land, Air and Water (CLAW); (2) Natural Resources Defense Council (NRDC), Sierra Club, Medical Alliance for Healthy Air; and (3) Citizens for a Better Environment (CBE) and Our Children's Earth Foundation (OCEF). Petitioners challenged EPA's action due to California Health and Safety Code section 42310(e), which provides in relevant part that “a permit shall not be required for * * * * (e) any equipment used in agricultural operations in the growing of crops or the raising of fowl or animals * * * .” (Petitioners CBE and OCEF made additional challenges to the Bay Area Air Quality Management District part 70 program that are not a part of this proposed settlement agreement.) The parties engaged in settlement discussions and entered the Ninth Circuit Mediation Program.

The proposed settlement agreement provides that EPA will send a Notice of Deficiency (NOD) for publication to the Office of the Federal Register by May 15, 2002. Such NOD will provide notice to the State of California that the 34 local air districts covered by the December 2001 rule are not adequately administering or enforcing their part 70 programs because the districts lack adequate authority to issue permits to, and assure compliance by, all major agricultural sources required to have a permit under Title V of the Clean Air Act as a result of the exemption in section 42310 of the California Health and Safety Code. The proposed settlement agreement also provides that no later than July 19, 2002, the Regional Administrator of EPA Region 9 shall sign and forward to the Office of the Federal Register a Notice of Proposed Rulemaking (“NPRM”) that will propose, pursuant to 40 CFR 70.10(b)(2)(i), to partially withdraw approval of those portions of the 34 part 70 programs that relate to major sources using equipment involved in the growing of crops or raising of fowl or animals that would be subject to Title V but for the state agricultural exemption (“state-exempt agricultural sources”). In such NPRM, the Regional Administrator also shall propose that EPA will implement a partial federal operating permits program under 40 CFR part 71 (“Part 71 program”) for major state-exempt agricultural sources. A signed, final rule must to sent to the Office of the Federal Register no later than October 2, 2002. Finally, the proposed settlement agreement sets forth application deadlines for sources subject to the part 71 federal permit program in the event the final rule implements such a program, as well as the deadline for EPA to act on any such part 71 permit applications.

For a period of thirty (30) days following the date of publication of this notice, EPA will receive written comments relating to the proposed settlement agreement 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 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.

Dated: May 14, 2002.

Alan W. Eckert,

Associate General Counsel, Air and Radiation Law Office.