Proposed Settlement Agreement, Clean Air Act Petitions for Review

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 (“Act”), 42 U.S.C. section 7413(g), notice is hereby given of a proposed settlement agreement, to address lawsuits filed by Our Children's Earth Foundation, Plumbers and Steamfitters Union Local 342 and International Brotherhood of Electrical Workers Local 302, and Communities for a Better Environment (“plaintiffs”): Our Children's Earth Foundation v. EPA (No. 04-70643) (9th Cir.); Plumbers and Steamfitters Union Local 342 v. EPA (No. 04-70688) (9th Cir.); and Communities for a Better Environment v. EPA (No. 04-70776) (9th Cir.) (consolidated). On or about February 12, 2004, February 13, 2004, and February 17, 2004 plaintiffs filed petitions for judicial review of EPA's dismissal of several administrative “veto” petitions filed under title V of the Act, which requested that the EPA Administrator object to operating permits issued by the Bay Area Air Quality Management District (“District”) for several oil refineries in the San Francisco Bay Area. Under the terms of the proposed settlement agreement, the parties would request a continuation of the stay of the petitions for review while the District finalizes new versions of the title V permits at issue, the Plaintiffs file new veto petitions on those new permits, and EPA responds to the new veto petitions.

DATES:

Written comments on the proposed settlement agreement must be received by September 2, 2004.

FOR FURTHER INFORMATION CONTACT:

Kevin S. Minoli, Air and Radiation Law Office (2333A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460, telephone: (202) 564-5551.

ADDRESSES:

Submit your comments, identified by docket ID number OGC-2004-0006, online at http://www.epa.gov/edocket (EPA's preferred method); by e-mail to oei.docket@epa.gov; mailed 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 B102, 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 Wordperfect or ASCII file, avoiding the use of special characters and any form of encryption, and may be mailed to the mailing address above.

SUPPLEMENTARY INFORMATION:

I. Additional Information About the Proposed Settlement

The petitions for review seek judicial review of EPA's November 2003 dismissal of several administrative petitions filed under title V of the Act. The petitions requested that the EPA Administrator object to operating permits issued by the District for several oil refineries in the San Francisco Bay Area. EPA dismissed the administrative petitions as unripe after EPA informed the District that the permits had to be reopened because the District had failed to provide the Agency with proposed permits as required by 40 CFR part 70.

The proposed settlement sets a deadline for EPA's response to new petitions plaintiffs will file once the District forwards new proposed permits for these refineries to EPA. Should EPA receive the proposed permits by July 31, 2004, as expected, the deadline for responding to any petitions filed by plaintiffs on those permits would be March 15, 2005. The Agreement allows EPA and plaintiffs to opt out of the Agreement should the District fail to provide EPA with the proposed permits by July 31, 2004. During the stay, EPA would be required to inform the 9th Circuit Mediator's Office whether it is on track to meet the March 15, 2005, deadline on three occasions: September 1, 2004; January 10, 2005, and March 1, 2005.

If the deadlines are met, plaintiffs will seek an indefinite stay of their litigation. The purpose of the indefinite stay is to allow plaintiffs to maintain their pending petitions for review as protective filings only, to be litigated only in the event that a court later determines that any challenge by plaintiffs to the merits of the Administrator's decisions on the anticipated petitions must be raised in the above-captioned litigation rather than a later-filed lawsuit.

The proposed settlement calls for the government to pay attorneys' fees in the amount of $30,000.

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 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.

II. Additional Information About Commenting on the Proposed Settlement

A. How Can I Get A Copy of the Settlement?

EPA has established an official public docket for this action under Docket ID No. OGC-2004-0006 which contains a copy of the settlement. 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 B102, 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 EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ 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 in EPA's electronic public docket as EPA receives them and 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 EPA's 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.

Your use of EPA's electronic public docket 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 EPA's electronic public docket, 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.