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###### Environmental Protection Agency

          - [FRL-9234-1]

# 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 WildEarth Guardians:                         *WildEarth Guardians*                         v.                         *Jackson,*                         Civil Action No. 1:10-cv-01672-RPM (D. CO). On or about July 14, 2010, WildEarth Guardians filed a complaint alleging that EPA Administrator Jackson failed to fulfill a mandatory duty to respond to an administrative petition to object to issuance of air permit No. 96OPMR129 to the Public Service Company of Colorado doing business as Xcel Energy to operate the Pawnee coal-fired power plant in Morgan County, Colorado (the “Pawnee Petition”) within the 60 days specified in section 505(b)(2) of the Clean Air Act and asking the court to enter judgment: (i) Declaring that EPA has violated the Clean Air Act by failing to grant or deny the administrative petition; and, (ii) Ordering EPA to grant or deny the administrative petition in accordance with an expeditious schedule prescribed by the Court. On September 1, 2010, WildEarth Guardians filed a first amended complaint alleging that EPA Administrator Jackson failed to fulfill a mandatory duty to respond to administrative petitions to object to the issuance of air permit No. 96OPAD137 to Xcel Energy to operate the Cherokee                               ( print page 74047)                            coal-fired power plant in Denver, Colorado (the “Cherokee Petition”) and air permit No. 960PBO131 to Xcel Energy to operate the Valmont coal-fired power plant in Boulder County, Colorado (the “Valmont Petition”). Under the terms of the proposed consent decree, EPA agrees to: (i) Sign a response to the Pawnee Petition no later than June 30, 2011; (ii) sign a response to the Valmont Petition no later than September 30, 2011; and, (iii) sign a response to the Cherokee Petition no later than October 31, 2011.                    

# DATES:

                        Written comments on the proposed consent decree must be received by                         *December 30, 2010.*

# ADDRESSES:

                        Submit your comments, identified by Docket ID number EPA-HQ-OGC-2010-0984, online at                         *http://www.regulations.gov*                         (EPA's preferred method); by e-mail to                         *oei.docket@epa.gov;*                         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:

                        Richard H. Vetter, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;                         *telephone:*                         (919) 541-2127; fax number (919) 541-4991;                         *e-mail address: vetter.rick@epa.gov.*

# SUPPLEMENTARY INFORMATION:

## I. Additional Information About the Proposed Consent Decree

On or about July 14, 2010, WildEarth Guardians, a non-profit conservation organization, filed a complaint in the United States District Court for the District of Colorado (Civil Action No. 1:10-cv-01672-RPM). In the complaint, WildEarth Guardians alleges that EPA has failed to fulfill a mandatory duty to respond to an administrative petition to object to issuance of air permit No. 96OPMR129 to the Colorado Public Service Company, doing business as Xcel Energy for the Pawnee coal-fired power plant in Morgan County, Colorado (the “Pawnee Petition”) within the 60 days specified in section 505(b)(2) of the Clean Air Act. On September 1, 2010, WildEarth Guardian filed a first amended complaint alleging that EPA Administrator Jackson failed to fulfill a mandatory duty to respond to administrative petitions to object to the issuance of air permit No. 960PAD137 to Xcel Energy to operate the Cherokee coal-fired power plant in Denver, Colorado (the “Cherokee Petition”) and air permit No. 960PBO131 to Xcel Energy to operate the Valmont coal-fired power plant in Boulder County, Colorado (the “Valmont Petition”) within the 60 days specified in section 505(b)(2) of the Clean Air Act.

The EPA and WildEarth Guardians chose to enter into a proposed consent decree to avoid protracted and costly litigation and to preserve judicial resources. Under the terms of the proposed consent decree, EPA is to: (i) Sign a response to the Pawnee Petition no later than June 30, 2011; (ii) sign a response to the Valmont Petition no later than September 30, 2011; and, (iii) sign a response to the Cherokee Petition no later than October 31, 2011.

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 Clean Air Act. Unless EPA or the Department of Justice determines 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-2010-0984 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 (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                     *http://www.regulations.gov.*                     You may use the                     *http://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 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,                           ( print page 74048)                        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: November 23, 2010.

Richard B. Ossias,

Associate General Counsel.

[FR Doc. 2010-30106 Filed 11-29-10; 8:45 am]

BILLING CODE 6560-50-P