Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Environmental Protection Agency

          - [FRL-9246-1]

# 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”), 42 U.S.C. 7413(g), notice is hereby given of a proposed settlement agreement between the following groups of Petitioners: (1) The States of New York, California, Connecticut, Delaware, Maine, New Mexico, Oregon, Rhode Island, Vermont, and Washington, the Commonwealth of Massachusetts, the District of Columbia, and the City of New York (collectively “State Petitioners”); and (2) Natural Resources Defense Council, Sierra Club, and Environmental Defense Fund (collectively “Environmental Petitioners”), and Respondent, the U.S. Environmental Protection Agency (“EPA”) (collectively “the Parties”). This proposed settlement is intended to resolve threatened litigation over the EPA's failure to respond to United States Court of Appeals for the District of Columbia Circuit's remand in                         *State of New York, et al.*                         v.                         *EPA,*                         No. 06-1322. Under the terms of the proposed settlement agreement deadlines have been established for EPA to take action.                    

# DATES:

Written comments on the proposed settlement agreements must be received by January 31, 2011.

# ADDRESSES:

                        Submit your comments, identified by Docket ID number EPA-HQ-OGC-2010-1057, 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:

                        Elliott Zenick, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;                         *telephone:*                         (202) 564-1822; fax number (202) 564-5603;                         *e-mail address: zenick.elliott@epa.gov.*

# SUPPLEMENTARY INFORMATION:

## I. Additional Information About the Proposed Settlement Agreements

                    EPA published a final action entitled “Standards of Performance for Electric Utility Steam Generating Units, Industrial-Commercial-Institutional Steam Generating Units, and Small Industrial-Commercial-Institutional Steam Generating Units,” 71 FR 9866 (Feb. 27, 2006) (the “Final Rule”), which included amendments to the standards of performance for electric utility steam generating units subject to 40 CFR part 60, subpart Da (“EGUs”) but did not establish standards of performance for greenhouse gas (“GHG”) emissions. The State and Environmental Petitioners filed petitions for judicial review of the Final Rule under the CAA Section 111, 42 U.S.C. 7411, contending,                     *inter alia,*                     that the Final Rule was required to include standards of performance for GHG emissions from EGUs. The portions of State and Environmental Petitioners' petitions for review of the Final Rule that related to GHG emissions were severed from other petitions for review of the Final Rule, and were formerly pending before the United States Court of Appeals for the District of Columbia Circuit (the “Court”) under the caption                     *State of New York, et al.*                     v.                     *EPA,*                     No. 06-1322. Following the Supreme Court's decision in                     *Massachusetts*                     v.                     *EPA,*                     549 U.S. 497 (2007), EPA requested remand of the Final Rule to EPA for further consideration of the issues related to GHG emissions in light of that decision and the Court remanded the Final Rule to EPA for further proceedings. The State Petitioners submitted letters to EPA dated June 16, 2008 and August 4, 2009 inquiring as to the status of EPA's action on the remand and stating their position that EPA had a legal obligation to act promptly to comply with the requirements of Section 111. The Environmental Petitioners submitted a letter to EPA on August 20, 2010 seeking commitments to rulemaking on GHG emissions from EGUs as a means of avoiding further litigation. These letters are included in the docket for this notice.                

Under the proposed settlement agreement, EPA will sign by July 26, 2011, and will transmit to the Office of the Federal Register within five business days, a proposed rule under section 111(b) that includes standards of performance for GHGs for new and modified EGUs that are subject to 40 CFR part 60, subpart Da. EPA will also sign by July 26, 2011, and will transmit to the Office of the Federal Register within five business days, a proposed rule under section 111(d) that includes emissions guidelines for GHGs from existing EGUs that would have been subject to 40 CFR part 60, subpart Da if they were new sources. Under the proposed settlement agreement EPA will take final action with respect to the proposed rule no later than May 26, 2012. The proposed settlement agreement provides that EPA's fulfillment of its obligations under the agreement shall result in a full and final release of any claims that State and Environmental Petitioners may have under any provision of law to compel EPA to respond to the Court's Remand Order with respect to GHG emissions from EGUs.

                    For a period of thirty (30) days following the date of publication of this notice, the Agency 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                           ( print page 82393)                        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 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-2010-1057) 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                     *http://www.regulations.gov.*                     You may use                     *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, 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: December 23, 2010.

Patricia A. Embrey,

Acting Associate General Counsel.

[FR Doc. 2010-32935 Filed 12-29-10; 8:45 am]

BILLING CODE 6560-50-P