2024-08612. Proposed Settlement Agreement, Clean Air Act Suit

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 (“CAA” or “the Act”), the Environmental Protection Agency (“EPA” or “the Agency”) is providing notice of a proposed settlement agreement in Cleveland-Cliffs, Inc. v. Environmental Protection Agency, Case No. 16-2643 (8th Cir.) (and consolidated cases). Petitioners Cleveland-Cliffs, Inc. (Cliffs) and Cleveland-Cliffs Steel, LLC (Cliffs Steel) filed petitions for review in the United States Court of Appeals for the Eighth Circuit, challenging final rules promulgated by EPA under the CAA related to regional haze best available retrofit technology determinations for taconite facilities in Michigan and Minnesota. The proposed settlement agreement would establish deadlines for EPA to take certain, specified actions.

DATES:

Written comments on the proposed settlement agreement must be received by May 23, 2024.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2024-0179 online at https://www.regulations.gov (EPA's preferred method). Follow the online instructions for submitting comments.

Instructions: All submissions received must include the Docket ID number for this action. Comments received may be posted without change to https://www.regulations.gov/​, including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the “Additional Information about Commenting on the Proposed Settlement Agreement” heading under the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Christopher Grubb, Office of Regional Counsel, U.S. Environmental Protection Agency Region 5; telephone [phone]; email address [e-mail].

SUPPLEMENTARY INFORMATION:

I. Obtaining a Copy of the Proposed Settlement Agreement

The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2024-0179) 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 [phone], and the telephone number for the OEI Docket is [phone].

The electronic version of the public docket for this action contains a copy of the proposed settlement agreement, and is available through https://www.regulations.gov. You may use https://www.regulations.gov to submit or view public comments, access the index listing of the contents of the official public docket, and 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.”

II. Additional Information About the Proposed Settlement Agreement

In February 2013, EPA issued a Regional Haze (RH) Federal Implementation Plan (FIP) that established nitrogen oxide (NO_x) and sulfur dioxide (SO₂) best available retrofit technology emission limits for taconite facilities in Minnesota and Michigan, entitled “Approval and Promulgation of Air Quality Implementation Plans; States of Minnesota and Michigan; Regional Haze State Implementation Plan; Federal Implementation Plan for Regional Haze” at 78 FR. 8706 (February 6, 2013) (the “Original FIP Rule”). In September 2013, EPA issued partial disapprovals of Minnesota's and Michigan's regional haze SIPs for failure to require BART for the taconite furnaces, entitled “Approval and Promulgation of Air Quality Implementation Plans; States of Michigan and Minnesota; Regional Haze,” at 78 FR 59825 (September 30, 2013) (the “SIP Rule”). Petitioners Cliffs and Cliffs Steel each filed a petition for review challenging the SIP Rule, and those petitions for review have been consolidated in the United States Court of Appeals for the Eighth Circuit under lead Case No. 13-3573. In 2016, EPA revised the Original FIP Rule to address administrative petitions related to EPA's actions, entitled “Air Plan Approval; Minnesota and Michigan; Revision to 2013 Taconite Federal Implementation Plan Establishing BART for Taconite Plants; Final Rule,” at 81 FR 21672 (April 12, 2016) (the “Revised FIP Rule”). Petitioners Cliffs and Cliffs Steel each filed a petition for review challenging the Revised FIP Rule, and those petitions for review have been consolidated in the United States Court of Appeals for the Eighth Circuit under lead Case No. 16-2643.

The proposed settlement agreement, if finalized, provides a process for resolving all of Cliffs' and Cliffs Steel's challenges to the SIP Rule and the Revised FIP Rule. Under the proposed settlement agreement, no later than November 22, 2024, EPA would sign a proposed rulemaking proposing changes to the Revised FIP Rule that is substantially consistent with, and includes equations identical to those set forth in, Attachment A to the Settlement Agreement. If EPA timely signs a final rule that includes changes that are substantially consistent with, and includes equations identical to those set forth in, Attachment A to the Settlement Agreement, after the final rule has been published in the Federal Register , Cliffs and Cliffs Steel would promptly file an appropriate pleading for the dismissal with prejudice of Case Nos. 16-2643, 16-2653, 16-3446, 13-3573, 13-3575, and 14-1712, which will resolve the litigation.

The proposed Settlement Agreement also includes standard language regarding resolution of costs and attorneys' fees, stipulation of extensions, lapses in appropriations, disputes in implementation, preservation of Agency discretion, and the CAA section 113(g) process.

In accordance with section 113(g) of the CAA, for a period of thirty (30) days following the date of publication of this document, the Agency will accept written comments relating to the proposed settlement agreement. 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.

III. Additional Information About Commenting on the Proposed Settlement Agreement

Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2024-0179, via https://www.regulations.gov. Once submitted, comments cannot be edited or removed from this docket. EPA may publish any comment received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file-sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/​dockets/​commenting-epa-dockets. For additional information about submitting information identified as CBI, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section of this document. Note that written comments containing CBI and submitted by mail may be delayed and deliveries or couriers will be received by scheduled appointment only.

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. 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 https://www.regulations.gov website 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.

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.

Gautam Srinivasan,

Associate General Counsel.