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Notice of Lodging of Partial Consent Decree Pursuant to the Clean Air Act

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Under 28 CFR 50.7, notice is hereby given that on April 24, 2006, the United States lodged a proposed partial Consent Decree (“Consent Decree”) in the United States District Court for the Northern District of Alabama in the matter captioned United States, et al. v. Alabama Power Company, (Civil Action No. 2:01-cv-00152-VEH).

The Consent Decree would resolve the liability of Alabama Power Company (“APC”) relating to the Fifth Claim for Relief included in the United States' Amended Complaint in this action, which the United States brought pursuant to Sections 113 and 167 of the Clean Air Act (“the Act”), 42 U.S.C. 7413, 7477. The United States' Fifth Claim for Relief concerned the construction of Units 3 and 4 at Alabama Power Company's James H. Miller, Jr. coal-fired electric power plant, located near the town of West Jefferson, in Jefferson County, Alabama (“Plant Miller”). The United States alleged in its Fifth Claim for Relief that APC violated the Prevention of Significant Deterioration (“PSD”) requirements of the Act, 42 U.S.C. 7470-92, and regulations promulgated thereunder, including the State Implementation Plan (“SIP”) approved under the Act for the State of Alabama, by failing to obtain a PSD permit from EPA for Plant Miller Unit 3, or the appropriate PSD permit for Plant Miller Unit 4, incorporating Best Available Control Technology (“BACT”) requirements. The United States alleged that these PSD permit requirements became applicable, inter alia, by virtue of APC's failure to undertake and implement a continuous program of on-site construction and/or to complete construction of Plant Miller Units 3 and 4 within a reasonable time. In the alternative, the United States alleged that APC violated Section 111(e) of the Act by operating Plant Miller Units 3 and 4 without complying with an applicable standard of performance—40 CFR part 60, Subpart Da—promulgated by EPA pursuant to the New Source Performance Standards (“NSPS”) provisions of the Act. The United States alleged that the NSPS Subpart Da regulations became applicable by virtue of APC's failure to commence a continuous program of on-site construction of the boilers for Plant Miller Units 3 and 4 until after September 19, 1978.

Plaintiff-Intervenor Alabama Environmental Council, Inc., which is also a party to the Consent Decree, alleged similar PSD violations concerning the Plant Miller Units 3 and 4 in its Ninth and Tenth Claims for Relief included in its complaint in intervention in this action.

Under the terms of the proposed Consent Decree, the civil claims for Start Printed Page 26110relief concerning Plant Miller alleged by the United States and Alabama Environmental Council, Inc. in their respective complaints would be resolved, and APC would be required to (1) Commence continuous year-round operation of Selective Catalytic Reduction (“SCR”) technology at each of Plant Miller Units 3 and 4 for control of nitrogen oxide (“NOX”) emissions on a year-round basis beginning in 2008, and thereafter achieve and maintain specified NOX emission rates from those units; (2) install and begin year-round operation of Flue Gas Desulfurization (“FGD” or “scrubber”) technology at each of Plant Miller Units 3 and 4 for control of sulfur dioxide (“SO2”) emissions by December 31, 2011, and thereafter maintain a specified SO2 emission removal efficiency for those units; (3) achieve by December 31, 2006, and thereafter maintain a specified emission rate for particulate matter (“PM”) emissions from Plant Miller Units 3 and 4; and (4) install and operate by December 31, 2008, and thereafter report to EPA data collected from, a mercury continuous emissions monitoring system (“Mercury CEMS”) at Plant Miller Units 3 and 4. In addition, the Consent Decree would require APC to purchase and permanently retire $4.9 million worth of vintage 2007 SO2 emissions allowances, restrict APC's right to transfer any surplus SO2 emissions allowances it may generate from Plant Miller Units 3 and 4 after the year 2020, and require APC to pay a civil penalty of $100,000.

The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the above-described Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to United States, et al. v. Alabama Power Company, D.J. Ref. No. 90-5-2-1-06994.

During the public comment period, the proposed Consent Decree may also be examined on the following Department of Justice Web site, http://www.usdoj.gov/​enrd/​open.html. A copy of the proposed Consent Decree may also be obtained by mail from the Consent Decree Library, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611 or by faxing or e-mailing a request to Tonia Fleetwood (tonia.fleetwood@usdoj.gov), fax no. (202) 514-0097, phone confirmation number (202) 514-1547. In requesting a copy from the Consent Decree Library, please enclose a check in the amount of $14.50 (25 cents per page reproduction cost) payable to the U.S. Treasury.

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Bruce S. Gelber,

Chief, Environmental Enforcement Section, Environment and Natural Resources Division.

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[FR Doc. 06-4167 Filed 5-2-06; 8:45 am]

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