Proposed Settlement Agreement, Clean Air Act Suit

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of proposed settlement agreement; request for public comment.

SUMMARY:

In accordance with the Clean Air Act, as amended (CAA or the Act), notice is given of a proposed settlement agreement in Nevada Cement Co., LLC v. EPA et al. On April 14, 2023, Plaintiff Nevada Cement Company, LLC filed a petition for review in the United States Court of Appeals for the Ninth Circuit in Case No. 23-682. On June 5, 2023, Plaintiff filed a petition for review in the same court in Case No. 23-1098. Plaintiff disputes the Environmental Protection Agency's (EPA) disapproval of a state implementation plan submitted by the State of Nevada and promulgation of the final rule entitled “Federal `Good Neighbor Plan' for the 2015 Ozone National Ambient Air Quality Standards.” The proposed settlement agreement would establish a process and deadlines by which Plaintiff would apply to EPA for a Case-by-Case Emissions Limit Request for its Fernley, Nevada, facility, in exchange for agreeing to lift a judicial stay entered by the U.S. Court of Appeals for the Ninth Circuit.

DATES:

Written comments on the proposed settlement agreement must be received by May 31, 2024.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2024-0204, online at https://www.regulations.gov (EPA's preferred method). Follow the online instructions for submitting comments.

Instructions: All submissions received must include the Docket ID number for this action. Comments received may be posted without change to https://www.regulations.gov, including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the “Additional Information about Commenting on the Proposed Settlement Agreement” heading under the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Kyle Durch, Air and Radiation Law Office, Office of General Counsel, U.S. Environmental Protection Agency; telephone (202) 564-1809; email address durch.kyle@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Obtaining a Copy of the Proposed Settlement Agreement

The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2024-0204) 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.

The electronic version of the public docket for this action contains a copy of the proposed settlement agreement and is available through https://www.regulations.gov. You may use https://www.regulations.gov to submit or view public comments, access the index listing of the contents of the official public docket, and 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.”

II. Additional Information About the Proposed Settlement Agreement

The Environmental Protection Agency (“EPA” or “Agency”) promulgated a final rule disapproving the State of Nevada's and 20 other states' ozone interstate transport state implementation plan submissions for the 2015 ozone NAAQS. “Air Plan Disapprovals; Interstate Transport of Air Pollution for the 2015 8-Hour Ozone National Ambient Air Quality Standards,” 88 FR 9336 (February 13, 2023) (“SIP Disapproval”). In a subsequent rule, EPA established emissions-control requirements for various sources in 23 states, including in Nevada, of interstate ozone in the “Federal `Good Neighbor Plan' for the 2015 Ozone National Ambient Air Quality Standards,” 88 FR 36654 (June 5, 2023) (“Good Neighbor Plan”). These actions were taken, in accordance with Clean Air Act (“CAA”) section 110(a)(2)(D)(i)(I). 42 U.S.C. 7410(a)(2)(D)(i)(I). Nevada Cement Company (“NCC”) filed petitions for review challenging each of these actions. Nevada Cement Co. LLC v. EPA et al., No. 23-682 (9th Cir. filed Apr. 14, 2023) (challenging the SIP Disapproval as to Nevada); Nevada Cement Co. LLC v. EPA et al., No. 23-1098 (9th Cir. filed June 5, 2023) (challenging the Good Neighbor Plan as to Nevada).

The proposed settlement agreement with Nevada Cement Company (“NCC”) would establish a process for NCC to apply to EPA for a Case-by-Case Emissions Limit Request (“CBCELR”), consistent with procedures outlined in 40 CFR 52.40(e)(2), which, if approved, would bring its Fernley, Nevada, facility into compliance with the Good Neighbor Plan. To do this, NCC would first submit to EPA, by June 27, 2024, an Engineering Study Report concerning the feasibility and emissions-reduction efficiency of Low-NO_X Burners (“LNB”) installed on each kiln at its Fernley facility, as operated in conjunction with the existing selective non-catalytic reduction (“SNCR”) at such kilns. NCC would determine, subject to EPA's review and dispute resolution procedures, whether that report supports installing LNB; if not, and EPA concurs, it would proceed to apply for a CBCELR based on existing technology at the facility. If LNB is selected, NCC would install LNB on the kilns and would submit a CBCELR no later than March 27, 2026, which would include a limit based on a 180-day demonstration period with LNB installed on the kilns at the Fernley facility, and operated in an optimized manner with the existing SNCR at such kilns. EPA would lift its administrative stay of the Good Neighbor Plan as to the Fernley facility no later than October 15, 2026.

Further, no later than ten business days after moving the court to hold these cases in abeyance—which would be filed no later than five business days after the Settlement Agreement is final—EPA and NCC would file a joint motion with the court in Case No. 23-682 to lift the court's stay of the State Implementation Plan (“SIP”) Disapproval as to the State of Nevada. The proposed settlement agreement includes informal and formal dispute resolution procedures, and the sole remedy of either party under the proposed settlement agreement is to reinitiate the litigation.

In accordance with section 113(g) of the CAA, for a period of thirty (30) days following the date of publication of this document, the Agency will accept written comments relating to the proposed settlement agreement. 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.

III. Additional Information About Commenting on the Proposed Settlement Agreement

Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2024-0204, via https://www.regulations.gov. Once submitted, comments cannot be edited or removed from this docket. EPA may publish any comment received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. For additional information about submitting information identified as CBI, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section of this document. Note that written comments containing CBI and submitted by mail may be delayed and deliveries or couriers will be received by scheduled appointment only.

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. 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 https://www.regulations.gov website 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.

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.