[Federal Register Volume 84, Number 248 (Friday, December 27, 2019)]
[Notices]
[Pages 71407-71409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28014]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OGC-2019-0685; FRL-10003-78-OGC]


Proposed Settlement Agreements, Clean Water Act Claims

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice; request for public comment.

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SUMMARY: In accordance with the Environmental Protection Agency (EPA) 
Administrator's October 16, 2017 Directive Promoting Transparency and 
Public Participation in Consent Decrees and Settlement Agreements, 
notice is hereby given of three proposed settlement agreements to 
address petitions for review of EPA's final National Pollutant 
Discharge Elimination System (NPDES) general permits for discharges of 
stormwater from Small Municipal Separate Storm Sewer System (MS4) in 
Massachusetts and New Hampshire under Clean Water Act (CWA). The 
proposed settlements represent the results of mediation supervised by 
the U.S. Court of Appeals for the District of Columbia Circuit 
Mediation Program between EPA and petitioners the National Association 
of Homebuilders (NAHB), the Home Builders and Remodelers Association of 
Massachusetts, Inc. (HBRAMA), the New Hampshire Home Builders 
Association (NHHBA), the Center for Regulatory Reasonableness (CRR), 
the Massachusetts Coalition for Water Resources Stewardship (MCWRS), 
the Town of Franklin, Massachusetts, (Franklin), the City of Lowell, 
Massachusetts (Lowell), the Conservation Law Foundation (CLF), and the 
Charles River Watershed

[[Page 71408]]

Association (CRWA). Two of the proposed settlement agreements include 
commitments for EPA to propose certain modifications to the 2016 
Massachusetts Small MS4 General Permit and the 2017 New Hampshire Small 
MS4 General Permit, and then to take final action on each proposal. The 
third settlement agreement commits EPA to process an individual small 
MS4 permit application from the City of Lowell, Massachusetts.

DATES: Written comments on the proposed settlement agreements must be 
received by January 27, 2020.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-HQ-
OGC-2019-0685, online at www.regulations.gov (EPA's preferred method). 
For comments submitted at www.regulations.gov, follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from www.regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically 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. The EPA 
generally will 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, please contact 
the persons identified in the FOR FURTHER INFORMATION CONTACT section. 
For the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Peter Z. Ford, Water Law Office, 
Office of General Counsel, (2355A), Environmental Protection Agency, 
1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone: (202) 564-
5593; email address: [email protected]; or Erin Flannery-Keith, Office 
of Regional Counsel, Region 1, Environmental Protection Agency, 5 Post 
Office Square, Boston, MA 02109; telephone: (617) 918-1096; email 
address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Additional Information About the Proposed Settlement Agreements

    On April 4, 2016, EPA issued a final NPDES general permit for 
discharges of stormwater from small MS4s in Massachusetts (the MA MS4 
Permit) under Clean Water Act (CWA) section 402(p). 33 U.S.C. 1342(p). 
On July 18, 2016, the Center for Regulatory Reasonableness (CRR) filed 
a petition for review of the permit in the U.S. Court of Appeals for 
the D.C. Circuit. CLF, CRWA, MCWRS, Franklin, NAHB, HBRAMA, and the 
City of Lowell also filed petitions for review of the permit, all of 
which were consolidated with CRR's petition in the D.C. Circuit. Center 
for Regulatory Reasonableness, et al. v. EPA, No. 16-1246 (D.C. Cir.) 
(2016 Massachusetts Small MS4 General Permit consolidated cases). On 
January 18, 2017, EPA issued a final NPDES general permit for 
discharges of stormwater from small MS4s in New Hampshire (the NH MS4 
Permit). On February 1, 2017, CLF filed a petition for review of the 
permit in the U.S. Court of Appeals for the First Circuit. CRR, NAHB, 
and NHHBA later filed petitions for review in the D.C. Circuit. The 
First Circuit then transferred the CLF petition to the D.C. Circuit, 
where the D.C. Circuit consolidated it with the CRR, NAHB, and NHHBA 
petitions. Center for Regulatory Reasonableness et. al v. EPA, 
Conservation Law Foundation, Intervenor No. 17-1060 (D.C. Cir.) (2017 
New Hampshire Small MS4 General Permit consolidated cases). The parties 
to both cases entered into mediation in 2017, and the D.C. Circuit has 
held the cases in abeyance during that time. The first two proposed 
settlement agreements describe the modifications that EPA would propose 
to the MA MS4 Permit and NH MS4 Permit. The proposed permit 
modifications would reflect the substantive agreements that parties 
reached during mediation. The agreements also specify that EPA would 
take final action on each proposed modification within nine months of 
the Agency's posting of the notice of availability (NOA) of the Draft 
Permit Modifications on its website and in the Federal Register; that 
petitioners would then dismiss their current petitions for review with 
prejudice; and that petitioners would agree not to challenge EPA's 
respective final actions if they modify the permits in a manner 
substantially similar to the proposed modifications (with one 
exception, discussed in the New Hampshire settlement agreement). The 
third settlement agreement commits Lowell, Massachusetts to voluntarily 
dismiss its petition without prejudice and commits EPA to process 
Lowell's individual permit application and then to take final action on 
Lowell's individual permit application, taking into consideration 
Lowell's application materials, public comments, and any additional 
information obtained in the course of the permit proceeding, in 
accordance with 40 CFR part 124.
    For a period of thirty (30) days following the date of publication 
of this action, the Agency will accept written comments on the proposed 
settlement agreements from persons who are not named as parties or 
intervenors to the litigation in question. If so requested, EPA will 
also consider holding a public hearing on whether to enter into the 
proposed settlement agreements. EPA or the Department of Justice may 
withdraw or withhold consent to the proposed settlement agreements 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 these proposed settlement agreements should 
be withdrawn, EPA will agree to the terms of the proposed settlement 
agreements and so inform the Court.
    In this action, EPA is soliciting comment only as to whether to 
enter the settlement agreements. EPA's planned proposed permit 
modifications to the Massachusetts and New Hampshire permits and 
statements of basis describing those proposed modifications are 
attached as Exhibits A and B to the Massachusetts and New Hampshire 
settlement agreements. EPA will subsequently offer the public the 
opportunity to comment on those proposed permit modifications pursuant 
to the regular permitting process as specified in 40 CFR part 124. The 
parties may execute the settlement agreements after this 30-day public 
notice period concludes. Following any Office of Management and Budget 
(OMB) review of the proposed Massachusetts and New Hampshire permit 
modifications, EPA will promptly transmit for publication in the 
Federal Register notices of availability (NOAs) of the proposed 
modifications to the two permits that are the same as the documents 
marked Exhibit A to both the Massachusetts and New Hampshire proposed 
settlement agreements, excepting non-substantive or typographical 
corrections. EPA will post the Draft Permit Modifications and 
accompanying fact sheets, see 40 CFR 124.8, that include the language 
attached as Exhibit B to both the Massachusetts and New Hampshire

[[Page 71409]]

proposed settlement agreements, on EPA Region 1's website. The NOAs 
will explain that EPA is reopening and reexamining specific parts of 
the permits. EPA will email notifications of the Draft Permit 
Modifications to regulated parties, the parties to this mediation, and 
the other interested parties on EPA Region 1's NPDES permit mailing 
list. The NOAs will provide for at least a 30-day public comment period 
that may, in EPA's discretion, be extended. Pursuant to 40 CFR 
124.12(a), if EPA determines that there is a significant degree of 
public interest in the Draft Permit Modifications, EPA may schedule a 
public hearing and publish a notice of hearing on the same web page as 
the NOAs. In addition, at the time EPA submits the NOAs for 
publication, EPA will ask Massachusetts and New Hampshire to provide a 
water quality certification pursuant to Section 401 of the Clean Water 
Act, 33 U.S.C. 1341. After considering any public comments, EPA will 
take final action on the Draft Permit Modifications (``Final Agency 
Action'') within nine months of the Agency's posting of the NOAs of the 
Draft Permit Modifications on its website.
    Regarding the proposed settlement agreement between EPA and the 
City of Lowell, Massachusetts, EPA similarly requests only comments on 
the settlement agreement. The proposed settlement agreement would 
commit EPA to take final action on Lowell's individual permit 
application in accordance with 40 CFR part 124, including providing 
public notice of any draft permit and offering opportunities for public 
comments and, if requested, public hearings on the permit's substantive 
requirements.

II. Additional Information About Commenting on the Proposed Settlement 
Agreements

A. How can I get a copy of the proposed settlement agreements?

    The official public docket for this action (identified by EPA-HQ-
OGC-2019-0685) contains copies of the proposed settlement agreements. 
The official public docket is available for public viewing at 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 Docket Center 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 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.
    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 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. 
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 18, 2019.
Steven M. Neugeboren,
Associate General Counsel.
[FR Doc. 2019-28014 Filed 12-26-19; 8:45 am]
 BILLING CODE 6560-50-P