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Proposed Settlement Agreement

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Environmental Protection Agency.

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Notice of proposed settlement agreement; request for public comment.


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 case: Communities for a Better Environment, et al. v. U.S. EPA, No. 02-70191 (9th Circuit). This case concerns the U.S. Environmental Protection Agency's (EPA) full approval of the part 70 operating permit program for the Bay Area Air Quality Management District in the State of California, published at 66 FR 63503 (December 7, 2001). The proposed settlement agreement was signed by the last party on January 7, 2003.

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of Justice determine, based on any comment which may be submitted, that consent to the settlement agreement should be withdrawn, the terms of the agreement will be affirmed.


Written comments on the proposed settlement agreement must be received by February 13, 2003.


Written comments should be sent to Paul Cort, Office of Regional Counsel, U.S. EPA (ORC-2), 75 Hawthorne Street, San Francisco, CA 94105. A copy of the proposed settlement agreement is available on EPA's webpage at​region09/​air/​index.html. You may also obtain a copy from David Wampler, Region IX Air Permits Office, U.S. EPA (AIR-3), 75 Hawthorne Street, San Francisco, CA 94109, (415) 972-3975.

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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). Communities for a Better Environment and Our Children's Earth Foundation filed petitions challenging EPA's approval of the Bay Area Air Quality Management District (“BAAQMD” or “District”) part 70 program. Petitioners alleged deficiencies in the District's program related to the exemption for portable equipment and the definition of “administrative permit amendment.” The parties engaged in settlement discussions and entered the Ninth Circuit Mediation Program.

The proposed settlement agreement outlines rulemaking actions and deadlines to be met by the District. If the District fails to take any of the outlined actions or fails to meet any of the specified deadlines, the settlement agreement provides that EPA will send a proposed Notice of Deficiency (NOD) for publication to the Office of the Federal Register no later than 30 days from the relevant deadline. After considering comment on the proposed NOD, EPA shall forward to the Office of Federal Register a final rulemaking on the NOD within 90 days after publication of the proposal.

As appropriate, the proposed NOD will inform the District that the portable engine exemption in BAAQMD Rule 2-6-113 must be revised to be consistent with the term “stationary source” as it is defined in the Clean Air Act, 42 U.S.C. 7602(z), and EPA's implementing regulations, 40 CFR 70.2, as well as the definition of “nonroad engine” at 40 CFR 89.2. In addition, if applicable, the notice of proposed rulemaking shall inform the District that the definition of “administrative permit amendment” in BAAQMD Rule 2-6-201 must be revised to be consistent with the definition of “administrative permit amendment” set forth in 40 CFR 70.7(d)(i)—(iv).

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Dated: January 7, 2003.

Lisa K. Friedman,

Associate General Counsel, Air and Radiation Law Office.

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[FR Doc. 03-738 Filed 1-13-03; 8:45 am]