[Federal Register Volume 77, Number 89 (Tuesday, May 8, 2012)]
[Notices]
[Pages 27055-27057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-11046]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9667-8]


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 (``CAA'' or the ``Act''), 42 U.S.C. 7413(g), notice is hereby 
given of a proposed settlement agreement between EPA and the industry 
petitioners in Portland Cement Ass'n v. EPA, No. 10-1358 (D.C. 
Circuit). Under the settlement agreement, EPA would propose action on 
pending reconsideration issues and on issues raised by the court's 
remand in Portland Cement Ass'n v. EPA by June 15, 2012

[[Page 27056]]

(proposal) and December 20, 2012 (final). EPA would also address the 
issue of whether there should be new compliance dates for amended 
standards for existing sources as part of that process. In exchange, 
industry petitioners would agree not to seek rehearing or rehearing en 
banc of the DC Circuit's opinion in Portland Cement Ass'n v. EPA, 665 
F. 3d 177.

DATES: Written comments on the proposed settlement agreement must be 
received by June 7, 2012.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-HQ-
OAR-2011-0344, 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, D.C. 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: Steven Silverman, Air and Radiation 
Law Office (2344A), Office of General Counsel, U.S. Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; 
telephone: (202) 564-5523; fax number (202) 564-5654; email address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Additional Information About the Proposed Settlement Agreement

    The proposed settlement agreement seeks to prevent further 
litigation in Portland Cement Ass'n v. EPA, 665 F. 3d 177 (D.C. Cir. 
2011), which involved National Emission Standards for Hazardous Air 
Pollutants (NESHAP) for the portland cement source category. The court 
upheld the NESHAP itself (as well as the contemporaneous section 111 
New Source Performance Standard), but found that EPA had arbitrarily 
failed to grant reconsideration of the NESHAP to consider the effect of 
EPA's Nonhazardous Secondary Materials (NHSM) rule on the standards, 76 
FR 15456 (Mar. 21, 2011), which rule had the effect of reclassifying 
some cement kilns as commercial and solid waste incinerators. Portland 
Cement Ass'n v. EPA, 665 F. 3d 177, 186-189 (D.C. Cir. 2011). Following 
issuance of the court's opinion, but before the deadline for seeking 
rehearing from the panel which decided the case, or seeking rehearing 
en banc from the entire Circuit, EPA chose to reconsider aspects of the 
NHSM rule. 76 FR 80452 (Dec. 23, 2011).
    Under the proposed settlement agreement, EPA would propose action 
on reconsideration of the NESHAP by June 15, 2012 and take final action 
on that proposal by December 20, 2012. In that rulemaking, EPA would 
agree to address the remand of the D.C. Circuit, all issues on which 
EPA has already granted reconsideration (see 76 FR 28318 (May 17, 
2011)), and a pending petition for reconsideration of the NESHAP filed 
on November 15, 2011 by Holcim Cement. If supported by the 
administrative record, EPA would also agree to propose to extend the 
existing source compliance date of September 10, 2013, or in any case 
to discuss the possibility of extending that date, and to take final 
action by December 20, 2012 regarding the date of compliance.
    In turn, industry petitioners would agree not to seek panel 
rehearing or rehearing en banc. In the event that EPA does not propose 
to extend the compliance date for existing sources until at least 
September 9, 2015, or EPA does not complete any of the other actions 
set out in the proposed settlement, industry petitioners could request 
the court (either the panel or the en banc court) to rehear the case.
    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 are 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 that consent to this settlement 
agreement should be withdrawn, the terms of the settlement 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-OAR-2011-0344) 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 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

[[Page 27057]]

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 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: April 24, 2012.
Kevin W. McLean,
Acting Associate General Counsel.
[FR Doc. 2012-11046 Filed 5-7-12; 8:45 am]
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