[Federal Register Volume 85, Number 22 (Monday, February 3, 2020)]
[Notices]
[Pages 5955-5956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01998]



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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OGC-2019-0667; FRL-10004-89-OGC]


Proposed Consent Decree, Clean Water Act and Administrative 
Procedures Act Claims

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed consent decree; 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 a proposed consent decree to address claims 
in a lawsuit filed by the Natural Resources Defense Council, Clean 
Water Action, and the Environmental Justice Health Alliance for 
Chemical Policy Reform (collectively, ``Plaintiffs'') in the United 
States District Court for the Southern District of New York. On March 
21, 2019, Plaintiffs filed a complaint alleging, inter alia, that the 
United States Environmental Protection Agency (``EPA'') had a duty 
under Clean Water Act (``CWA'') section 311(j)(5)(A)(i), to issue 
regulations that require an owner or operator of a non-transportation-
related onshore ``facility described in subparagraph (C) to prepare and 
submit to the President a plan for responding, to the maximum extent 
practicable, to a worst case discharge, and to a substantial threat of 
such a discharge, of . . . a hazardous substance'' (the ``Hazardous 
Substance Worst Case Discharge Planning Regulations'') by August 18, 
1992. The proposed consent decree would set deadlines for EPA to 
complete a notice of proposed rulemaking pertaining to the issuance of 
the Hazardous Substance Worst Case Discharge Planning Regulations, and 
for publication of a notice taking final action following notice and 
comment rulemaking pertaining to the issuance of Hazardous Substance 
Worst Case Discharge Planning Regulations.

DATES: Written comments on the proposed consent decree must be received 
by March 4, 2020.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-HQ-
OGC-2019-0667, 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 person 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: Richard L. Albores, Solid Waste and 
Emergency Response Law Office (7013D), Office of General Counsel, U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, 
DC 20460; telephone: (202) 564-7102; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Additional Information About the Proposed Consent Decree

    On March 21, 2019, Plaintiffs filed suit in the Federal district 
court for the Southern District of New York: Natural Resources Defense 
Council, et. al v. United States Environmental Protection Agency, et. 
al, No. 1:19-cv-02516 (S.D.N.Y., filed Mar. 21, 2019). Plaintiffs' 
Complaint brought two claims alleging violations of CWA section 
311(j)(5)(A)(i), and the Administrative Procedures Act (``APA''). 
Plaintiffs' first claim alleged that EPA failed to issue ``regulations 
mandated by the [CWA] requiring non-transportation-related substantial-
harm facilities to plan, prevent, mitigate and respond to worst-case 
spills of hazardous substances . . . constitutes a failure to perform a 
non-discretionary duty or act in violation of the [CWA].'' (Compl. 
Para. 34). Plaintiffs also claimed, ``EPA's failure to issue these 
regulations constitute[d] agency action unlawfully withheld contrary to 
and in violation of the [APA] and the [CWA].'' (Compl. Para. 45). 
Plaintiffs requested an order from the Court to compel EPA to 
promulgate Hazardous Substance Worst Case Discharge Planning 
Regulations (Compl. at 12). Following EPA's Answer, filed on June 4, 
2019, Plaintiffs and EPA entered into discussions regarding a potential 
resolution of the lawsuit.
    The proposed consent decree announced here would resolve the claims 
of the suit. As described in paragraph 3 of the proposed consent 
decree, within two years (24 months) of entry of the proposed consent 
decree, EPA will sign a notice of proposed rulemaking pertaining to the 
issuance of the Hazardous Substance Worst Case Discharge Planning 
Regulations. Under paragraph 4 of the proposed consent decree, EPA will 
sign a notice taking final action following notice and comment 
rulemaking pertaining to the issuance of Hazardous Substance Worst Case 
Discharge Planning Regulations. See the proposed consent decree for 
specific details.
    For a period of thirty (30) days following the date of publication 
of this notice, the Agency will accept written comments relating to the 
resolution of the claims contained in the proposed consent decree from 
the public. If so requested, EPA will also consider holding a public 
hearing on whether to enter into the proposed consent decree. EPA, the 
Department of Justice, and the United States Attorney for the Southern 
District of New York may withdraw or withhold consent to the proposed 
consent decree if the public comments disclose facts or considerations 
that indicate that such consent decree is inappropriate, improper, 
inadequate, or inconsistent with the requirements of the CWA. Unless 
EPA, the Department of Justice, or the United States Attorney for the 
Southern District of New York determines that this proposed consent 
decree should be withdrawn, the terms of the proposed consent decree 
will be affirmed and entered with the Court.

II. Additional Information About Commenting on the Proposed Consent 
Decree

A. How can I get a copy of the proposed consent decree?

    The official public docket for this action (identified by EPA-HQ-
OGC-2019-0667) contains a copy of the proposed consent decree. 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,

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and the telephone number for the OEI Docket is (202) 566-1752.
    An electronic version of the public docket is available on EPA's 
website at https://www.epa.gov/ogc/proposed-consent-decrees-and-draft-settlement-agreements#NRDCetalv.epa and 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, 
above. 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: January 23, 2020.
John R. Michaud,
Associate General Counsel.
[FR Doc. 2020-01998 Filed 1-31-20; 8:45 am]
 BILLING CODE 6560-50-P