E8-13064. 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 (“Act”), 42 U.S.C. 7413(g), notice is hereby given of a proposed consent decree, to address a lawsuit filed by Desert Rock Energy Company, LLC and Dine Power Authority (collectively, “Plaintiffs”) in the United States District Court for the Southern District of Texas: Desert Rock Energy Company, LLC, et al. v. EPA, No. 08-872 (S.D. TX). On March 21, 2008, Plaintiffs served upon the United States a Complaint alleging that EPA failed to perform a mandatory duty under Clean Air Act section 165(c), 42 U.S.C. 7475(c), to take action on Plaintiffs' application (“Permit Application”) for a Prevention of Significant Deterioration permit to construct a coal-fired power plant on land held by the United States government in trust for the benefit of the Navajo Nation. Under the terms of the proposed consent decree, by July 31, 2008, EPA shall issue a final permit decision on the Permit Application, within the meaning of 40 CFR 124.15(a).

DATES:

Written comments on the proposed consent decree must be received by July 11, 2008.

ADDRESSES:

Submit your comments, identified by Docket ID number EPA-HQ-OGC-2008-0488, online at http://www.regulations.gov (EPA's preferred method); by e-mail to [e-mail]; 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 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:

Brian Doster, 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

The proposed consent decree would resolve the suit filed by the Plaintiffs alleging that EPA has a mandatory duty under Clean Air Act section 165(c), 42 U.S.C. 7475(c), to take action on Plaintiffs' application (“Permit Application”) for a Prevention of Significant Deterioration (“PSD”) permit to construct a coal-fired power plant on land held by the United States government in trust for the benefit of the Navajo Nation. No later than July 31, 2008, EPA shall issue a final permit decision on the Permit Application, within the meaning of 40 CFR 124.15(a). EPA Region IX is the reviewing authority for the Permit Application. Background on the Permit Application and Region IX's review may be obtained on the following Web site: http://www.epa.gov/​region09/​air/​permit/​desertrock/​index.html.

The consent decree becomes final and effective after EPA provides notice in the Federal Register and provides an opportunity for public comment pursuant to Clean Air Act section 113(g). 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 or intervenors 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?

Direct your comments to the official public docket for this action under Docket ID No. EPA-HQ-OGC-2008-0488 which contains a copy of the 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 the http://www.regulations.gov Web site to review the consent decree, 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, 2008.

Richard B. Ossias,

Associate General Counsel.