[Federal Register Volume 77, Number 2 (Wednesday, January 4, 2012)]
[Notices]
[Pages 282-284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33758]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9615-8]


Proposed Settlement Agreement

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Proposed Settlement Agreement; Request for Public 
Comment.

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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 settlement agreement to address lawsuits filed by EnerNOC, 
Inc., EnergyConnect, Inc., CPower, Inc., and Innoventive Power, LLC 
(``Petitioners'') in the United States Court of Appeals for the 
District of Columbia Circuit: EnerNOC, et al v. EPA, No. 10-1090 (DC 
Cir.) and EnerNOC, et al v. EPA, No. 10-1336 (DC Cir.). Petitioners 
filed for review of two EPA rulemakings that revised the National 
Emission Standards for Hazardous Air Pollutants for Reciprocating 
Internal Combustion Engines (the RICE NESHAP). Under the terms of the 
proposed settlement agreement, by April 20, 2012, the Agency will sign 
a notice of proposed rulemaking that includes a proposal to revise the 
RICE NESHAP and the stationary internal combustion engine new source 
performance standards (ICE NSPS) to allow owners and operators of 
emergency stationary internal combustion engines to operate emergency 
stationary internal combustion engines in emergency conditions, as 
defined in those regulations, as part of an emergency demand response 
program for 60 hours per year or the minimum hours required by 
Independent System Operator tariff, whichever is less. The notice of 
proposed rulemaking may also allow for more hours of operation. In 
addition, under the terms of the proposed settlement agreement, by 
December 14, 2012, the Administrator of EPA will sign a final action on 
this proposal, which may include signature of a final rule by the 
Administrator. If EPA promulgates in final form an amendment to the 
RICE NESHAP and ICE NSPS that includes changes that are substantially 
the same substance as that set forth in the settlement agreement, then 
Petitioners shall promptly file a stipulation of dismissal of Nos. 10-
1090 and 10-1336.

DATES: Written comments on the proposed settlement agreement must be 
received by February 3, 2012.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-HQ-
OGC-2011-1030, online at www.regulations.gov (EPA's preferred method); 
by email to [email protected]; 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: Michael Horowitz, Air and Radiation 
Law Office (2344A), Office of General Counsel, U.S. Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; 
telephone: (202)

[[Page 283]]

564-5583; fax number (202) 564-5603; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Additional Information About the Proposed Settlement Agreement

    This proposed settlement agreement would potentially resolve a 
petition for judicial review filed by Petitioners for review of two 
rulemakings revising the National Emission Standards for Hazardous Air 
Pollutants for Reciprocating Internal Combustion Engines (the RICE 
NESHAP), 75 FR 9648 (March 3, 2010) and 75 FR 51570 (August 20, 2010). 
The RICE NESHAP allows emergency engines to operate for 15 hours 
annually as part of a demand response program if the regional 
transmission organization or equivalent balancing authority and 
transmission operator has determined that there are emergency 
conditions that would lead to a potential electrical blackout, such as 
unusually low frequency, equipment overload, capacity or energy 
deficiency, or unacceptable voltage level. RICE would not meet the 
definition of emergency engine if they operated more than fifteen hours 
in such circumstances.
    Petitioners filed petitions for review and reconsideration 
indicating that 15 hours is insufficient to ensure that emergency 
engines can be relied upon for dispatch under emergency demand response 
programs. The petition for reconsideration provided significant 
evidence that the NESHAP should be revised to allow owners and operator 
of emergency engines to operate for 60 hours per year or the minimum 
hours required by Independent System Operator tariff, whichever is 
less, as part of an emergency demand response program.
    Under the terms of the proposed settlement agreement, EPA states 
that it anticipates that, by April 20, 2012, the Agency will sign a 
notice of proposed rulemaking that includes a proposal to revise the 
RICE NESHAP and, for consistency, the ICE NSPS to allow owners and 
operators of emergency stationary internal combustion engines to 
operate emergency stationary internal combustion engines in emergency 
conditions, as defined in those regulations, as part of an emergency 
demand response program for 60 hours per year or the minimum hours 
required by Independent System Operator tariff, whichever is less. The 
notice of proposed rulemaking may also allow for more hours of 
operation. In addition, under the terms of the proposed settlement 
agreement, by December 14, 2012, the Administrator of EPA will sign a 
final action on this proposal, which may include signature of a final 
rule by the Administrator. Under the proposed settlement agreement, if 
EPA fails to sign the proposal by April 20, 2012, or to take final 
action on the proposal by December 14, 2012, Petitioners may move the 
Court to lift the order staying proceedings and establish a briefing 
schedule. Petitioners shall have no further remedy under the agreement.
    Under the proposed settlement agreement, if the relevant provisions 
of the final rule are in substantial conformance with the revisions in 
the proposed agreement, then Petitioners agree to dismiss the petition 
for review.
    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 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, based on any comment submitted, 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-2011-1030) 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 
www.regulations.gov. You may use the 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 in paper, will be made available 
for public viewing online at 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 email 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 www.regulations.gov Web site to submit comments to EPA 
electronically is EPA's preferred method for receiving comments. The 
electronic

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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. In 
contrast to EPA's electronic public docket, EPA's electronic mail 
(email) system is not an ``anonymous access'' system. If you send an 
email comment directly to the Docket without going through 
www.regulations.gov, your email 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 28, 2011.
Kevin McLean,
Acting Associate General Counsel.
[FR Doc. 2011-33758 Filed 1-3-12; 8:45 am]
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