E9-13730. 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 “Act”), 42 U.S.C. 7413(g), notice is hereby given of a proposed consent decree, to address a lawsuit filed by Association of Irritated Residents in the United States District Court for the Northern District of California: Association of Irritated Residents v. EPA, No. 08-cv-05650 CW (N.D. Cal.). Plaintiff filed a deadline suit to compel the Administrator to take action under section 110(k) of the Act on two specific revisions to the state implementation plan (SIP) submitted by the California Air Resources Board on behalf of the San Joaquin Valley Unified Air Pollution Control District (“District”). The two SIP revisions include Rule 3170, which provides for the payment of fees by certain sources when the District fails to attain certain air quality standards by a specified date and Rule 4570, which is intended to reduce emissions from volatile organic compounds on certain confined animal facilities located in the District. Under the terms of the proposed consent decree, the parties agree that the Rule 4570 claim is moot and warrants dismissal with prejudice in light of the state court ruling setting aside the District's adoption of Rule 4570. In addition, the proposed consent decree establishes deadlines for EPA to take action on Rule 3170.

DATES:

Written comments on the proposed consent decree must be received by July 13, 2009.

ADDRESSES:

Submit your comments, identified by Docket ID number EPA-HQ-OGC-2009-0376, online at http://www.regulations.gov (EPA's preferred method); by e-mail to [e-mail]; 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:

Jan Tierney, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone: [phone]; fax number [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Additional Information About the Proposed Consent Decree

This proposed consent decree would resolve a lawsuit seeking to compel action by EPA under section 110(k) of the CAA on the following two SIP revisions submitted by the California Air Resources Board on behalf of the San Joaquin Valley Unified Air Pollution Control District (“District”). The two SIP revisions include Rule 3170, which provides for the payment of fees by certain sources when the District fails to attain certain air quality standards by a specified date and Rule 4570, which is intended to reduce emissions from volatile organic compounds on certain confined animal facilities located in the District. On January 22, 2009, the Superior Court of California, upon remand from the Court of Appeals for the State of California, in Association of Irritated Residents v. San Joaquin Valley Unified Air Pollution Control District, 168 Cal. App. 4th 535 (Cal. App. 5 Dist. 2008) entered a judgment and writ of mandate which was amended on March 12, 2009, declaring that the District failed to perform an adequate assessment of Rule 4570's impact on the public health before its adoption as required by California Health and Safety Code section 40724.6(e)(2). The court ordered the District to perform the public health assessment and to set aside the adoption of Rule 4750 pending that assessment. Under the terms of the proposed consent decree, the parties agree that the claim regarding Rule 4570 is moot and warrants dismissal with prejudice.

In addition, the proposed consent decree provides that EPA will sign for publication in the Federal Register notice of the Agency's proposed action pursuant to CAA section 110(k) on Rule 3170 by June 30, 2009. EPA will sign notice of the Agency's final action pursuant to CAA section 110(k) on Rule 3170 by November 13, 2009. If EPA fulfills its obligations, Plaintiff has agreed to dismiss this suit with prejudice.

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 consent decree from persons who were not named as parties 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, based on any comment which may be submitted, that consent to the consent decree should be withdrawn, the terms of the decree will be affirmed.

II. Additional Information About Commenting on the Proposed Consent Decree

A. How Can I Get a Copy of the Consent Decree?

The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2009-0376) 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 [phone], and the telephone number for the OEI Docket is [phone].

An electronic version of the public docket is available through http://www.regulations.gov. You may use http://www.regulations.gov to submit or view public comments, access the index listing of the contents 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 online at http://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 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.

Use of the http://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, 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 http://www.regulations.gov,, 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: June 5, 2009.

Sara Schneeberg,

Acting Associate General Counsel.