[Federal Register Volume 77, Number 162 (Tuesday, August 21, 2012)]
[Notices]
[Pages 50506-50508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-20518]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL 9719-8]


Proposed Settlement Agreement, Clean Air Act Citizen Suit

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Proposed Settlement Agreement; Request for Public 
Comment.

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SUMMARY: In accordance with section 113(g) of the Clean Air Act, as 
amended (``CAA''), 42 U.S.C. 7413(g), notice is hereby given of a 
proposed settlement agreement to address lawsuits filed by the Imperial 
County Air Pollution Control District and the California Department of 
Parks and Recreation (together, ``Petitioners'') in the United States 
Court of Appeals for the Ninth Circuit: Imperial County Air Pollution 
Control District v. EPA, No. 10-72709 (9th Cir.) and California 
Department of Parks and Recreation v. EPA, No. 10-72729 (9th Cir.). 
Petitioners filed petitions for review challenging EPA's final rule, 
approving in part and disapproving in part, a state implementation plan 
(``SIP'') submission made by the California Air Resources Board on 
behalf of the Imperial Valley Air Quality Control District. The SIP 
submission at issue included local pollution control measures intended 
to address emissions of PM10 from sources located within the 
Imperial Valley Planning Area referred to as Imperial County Air 
Pollution Control District Rules 800 through 806 (``Regulation VIII''). 
The proposed settlement agreement establishes deadlines for both the 
Imperial Valley Air Pollution Control District and EPA to take 
specified actions to resolve the lawsuits.

DATES: Written comments on the proposed settlement agreements must be 
received by September 20, 2012.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-HQ-
OGC-2012-0644, online at www.regulations.gov (EPA's preferred method); 
by email to [email protected]; 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: Geoffrey L. Wilcox, Air and Radiation 
Law Office (2344A), Office of General Counsel, U.S. Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; 
telephone: (202) 564-5601; fax number (202) 564-5603; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Additional Information About the Proposed Settlement Agreement

    The California Air Resources Board (``CARB''), on behalf of the 
Imperial Valley Air Polluton Control District (the ``District''), made 
a SIP submission to EPA containing Regulation VIII as a SIP revision 
intended to address emissions of PM10 from certain sources 
located within the Imperial Valley PM10 nonattainment area. 
EPA approved this submission in part, and disapproved it in part, based 
upon EPA's evaluation of

[[Page 50507]]

the submission itself and evaluation of related claims by the District 
that monitor data on certain days should be treated as ``exceptional 
events'' and thus excluded from regulatory determinations. 75 FR 39,366 
(July 8, 2010). The District and the California Department of Parks and 
Recreation (``Parks'') challenged EPA's partial disapproval of the 
submission and EPA's related actions on the claimed exceptional events. 
These challenges were filed in the United States Court of Appeals for 
the Ninth Circuit (the ``Court'') in Imperial County Air Pollution 
Control District v. EPA, No. 10-72709 (9th Cir.) and California 
Department of Parks and Recreation v. EPA, No. 10-72729 (9th Cir.).
    The Court heard oral argument on the consolidated challenges on 
February 15, 2012. On February 17, 2012, the Court issued an Order that 
referred the case to mediation and stayed further proceedings on the 
case pending such mediation. Thus, at the suggestion of the Court, EPA, 
the District, and Parks engaged in settlement discussions to determine 
whether the legal and factual disputes at issue in the litigation could 
be resolved through a settlement agreement. This notice describes and 
seeks comment on the proposed settlement agreement that the parties 
have negotiated.
    The proposed settlement agreement establishes deadlines for both 
the District and EPA to take specified actions to resolve the 
litigation. The objective of the parties in the settlement agreement is 
to address the underlying legal and factual disputes in a way that will 
be more effective and efficient to achieve the overarching goals of 
meeting CAA requirements and improving air quality in the Imperial 
Valley PM10 nonattainment area. Thus, both the District and 
EPA propose to agree to take a series of actions by set deadlines that 
will result in a resolution of the legal and substantive concerns with 
Regulation VIII that were the basis for EPA's partial disapproval. In 
particular, the District and EPA propose to agree to take actions on an 
expedited schedule in order to assure that appropriate revisions to 
Regulation VIII are in place in the SIP quickly.
    First, the proposed settlement agreement requires that within 
ninety (90) days of execution of the agreement, the District must 
revise Regulation VIII and submit it along with supporting 
documentation to the District's Governing Board. These revisions must 
be substantially the same as those set forth in Attachment B to the 
settlement agreement. Attachment B reflects revisions intended by the 
parties to resolve the legal and substantive concerns with Regulation 
VIII that were the basis for EPA's partial disapproval. It is 
understood that these revisions must still meet all local, state, and 
federal administrative process and substantive requirements before they 
are deemed to meet applicable requirements and could be incorporated 
into the SIP for the Imperial Valley PM10 nonattainment 
area.
    Second, the proposed settlement agreement requires that within 
fourteen (14) days of the Governing Board's adoption of the revised 
Regulation VIII rules, the District must submit the revised Regulation 
VIII rules to CARB for expedited submittal to EPA for incorporation 
into the California SIP.
    Third, the proposed settlement agreement requires that within sixty 
(60) days of submittal by CARB, EPA must sign for publication in the 
Federal Register a notice of proposed rulemaking that proposes taking 
action on the submission pursuant to CAA section 110(k), 42 U.S.C. 
7410(k). If the revised Regulation VIII is substantially the same in 
substance as set forth in Attachment B, the notice to be signed by EPA 
must propose full approval of the submission pursuant to CAA sections 
110(k) and 189(b)(1)(B), 42 U.S.C. 7410(k), 7513a(b)(1)(B).
    Fourth, if EPA proposes full approval, then within the notice of 
proposed rulemaking EPA must make a statement that EPA's preliminary 
view is that the revised Regulation VIII will constitute ``reasonable 
control'' of the sources covered by Regulation VIII for the purpose of 
evaluating whether an exceedance of the PM10 NAAQS is an 
``exceptional event'' including reasonable and appropriate control 
measures on significant contributing anthropogenic sources. This 
statement will not extend to exceedances of NAAQS other than the 
PM10 NAAQS, or to events that differ significantly in terms 
of meteorology, sources, or conditions from the events that were at 
issue in the litigation.
    Fifth, if EPA proposes full approval of the revised Regulation 
VIII, EPA must also sign for publication in the Federal Register a 
notice making an interim final determination to defer imposition of 
sanctions pursuant to the Administrative Procedure Act, 5 U.S.C. 
553(d)(1) pending public comments on the proposed action.
    Sixth, within sixty (60) days of the close of public comment on the 
proposed action, EPA must sign for publication in the Federal Register 
a notice of final rulemaking that takes final action on the submission 
containing the revised Regulation VIII pursuant to CAA section 110(k), 
42 U.S.C. 7410(k). Thereafter, EPA must promptly deliver the notice of 
final rulemaking to the Office of Federal Register for review and 
publication.
    The proposed settlement agreement also contains various provisions 
that will govern what may happen if either the District or EPA fails to 
meet the terms of the agreement.
    For a period of thirty (30) days following the date of publication 
of this notice, EPA will accept written comments relating to the 
proposed settlement agreement from persons who were not named as 
parties or intervenors to the litigation in question. EPA or the 
Department of Justice may withdraw or withhold consent to the proposed 
settlement agreement if these comments disclose facts or considerations 
that indicate that such consent is inappropriate, improper, inadequate, 
or inconsistent with the requirements of the CAA. Unless EPA or the 
Department of Justice determines that consent to this settlement 
agreement should be withdrawn, the terms of the agreement will be 
affirmed.

II. Additional Information About Commenting on the Proposed Settlement 
Agreement

A. How can I get a copy of the settlement agreement?

    The official public docket for this action (identified by Docket ID 
No. EPA-HQ-OGC-2012-XXXX) contains a copy of the proposed settlement 
agreement. 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 (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 
www.regulations.gov. You may use 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, key in 
the appropriate docket identification number then select ``search''.
    It is important to note that EPA's policy is that public comments, 
whether submitted electronically or on paper, will be made available 
for public

[[Page 50508]]

viewing online at 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 email 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 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, email 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 
(email) system is not an ``anonymous access'' system. If you send an 
email comment directly to the Docket without going through 
www.regulations.gov, your email 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: August 14, 2012.
Lorie J. Schmidt,
Associate General Counsel.
[FR Doc. 2012-20518 Filed 8-20-12; 8:45 am]
BILLING CODE 6560-50-P