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###### Environmental Protection Agency

          - [FRL-8950-5]

# 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 (“CAA” or “Act”), 42 U.S.C. 7413(g), notice is hereby given of a proposed consent decree, to address a lawsuit filed by Sierra Club in the U.S. District Court for the Eastern District of Kentucky:                         *Sierra Club*                         v.                         *Johnson*, No. 2:09-CV-00085-WOB (E. D. KY). On September 5, 2008, Sierra Club filed suit to compel the Administrator to issue or deny the CAA title V operating permit for the Hugh L. Spurlock Generating Station (Spurlock Station), operated by the East Kentucky Power Cooperative, Inc. Sierra Club later amended the complaint to include a claim to compel the Administrator to respond to a petition dated April 28, 2008, seeking EPA's objection to a revised CAA title V operating permit issued by the Kentucky Division of Air Quality (KDAQ) for the Spurlock Station. Under the terms of the proposed consent decree, EPA has agreed to respond to the third claim contained in Sierra Club's petition (regarding MACT determinations) by no later than September 21, 2009, and to respond to the remaining claims contained in the petition by no later than November 30, 2009. The consent decree allows Sierra Club sixty (60) days following entry of the decree by the Court to file a motion for costs of litigation (including attorneys' fees).                    

# DATES:

                        Written comments on the proposed consent decree must be received by                         *September 28, 2009*.                    

# ADDRESSES:

                        Submit your comments, identified by Docket ID number EPA-HQ-OGC-2009-0657, online at                         *http://www.regulations.gov*                         (EPA's preferred method); by e-mail to                         *oei.docket@epa.gov*; mailed to EPA Docket Center, Environmental Protection Agency, Mailcode: 2822T,                               ( print page 43699)                            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:

                        Kristi Smith, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone: (202) 564-3068; fax number (202) 564-5603; e-mail address:                         *smith.kristi@epa.gov*.                    

# SUPPLEMENTARY INFORMATION:

## I. Additional Information About the Proposed Consent Decree

On August 30, 2008, pursuant to CAA section 505(b)(2), EPA issued an order objecting, in part, to the CAA title V operating permit issued by KDAQ for the Spurlock Station. On September 5, 2008, Sierra Club filed suit to compel the Administrator to issue or deny the CAA title V operating permit for the Spurlock Station, arguing that the Administrator had a non-discretionary duty to issue or deny the permit under CAA section 505(c). Sierra Club also sought, in the alternative, an order declaring that the Administrator was unreasonably delayed in taking action to issue or deny the permit. Prior to filing that case, on April 28, 2008, Sierra Club had submitted a petition to the Administrator of the Environmental Protection Agency pursuant to CAA section 505(b)(2), requesting that she object to the issuance of a revised title V operating permit by KDAQ for the Spurlock Station. Sierra Club has amended its complaint in the pending lawsuit to include a claim to compel the Administrator to respond to that petition.

Under the terms of the proposed consent decree, EPA shall grant or deny an objection based on the third claim in Sierra Club's petition (regarding MACT determinations for mercury and other hazardous air pollutants) by no later than September 21, 2009, and shall grant or deny an objection based on the petition's remaining claims by no later than November 30, 2009. The consent decree allows Sierra Club sixty (60) days following entry of the decree by the Court to file a motion for costs of litigation (including attorneys' fees). The consent decree becomes an order of the Court upon entry, and, consistent with the terms of the consent decree, the case shall be dismissed with prejudice after EPA has fulfilled its obligations and Sierra Club's claims for litigation costs have been resolved.

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?

The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2009-0657) contains a copy of the proposed 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, 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                           ( print page 43700)                        comment that is placed in the official public docket, and made available in EPA's electronic public docket.                

Dated: August 21, 2009.

Richard B. Ossias,

Associate General Counsel.

[FR Doc. E9-20731 Filed 8-26-09; 8:45 am]

BILLING CODE 6560-50-P