[Federal Register Volume 85, Number 198 (Tuesday, October 13, 2020)]
[Pages 64455-64456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22576]



[EPA-HQ-OGC-2020-0509; FRL 10015-50-OGC]

Proposed Consent Decree, Clean Air Act Citizen Suit

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed consent decree; request for public comment.


SUMMARY: In accordance with section 113(g) of the Clean Air Act, as 
amended (``CAA'' or the ``Act''), the United States Environmental 
Protection Agency (``EPA'') gives notice of a proposed consent decree 
in Our Children's Earth Foundation v. Wheeler, No. 4:20-cv-00396-JSW 
(N.D. Cal.). In this litigation, Our Children's Earth Foundation 
(``OCEF'') alleged that the Administrator of EPA failed to perform 
certain non-discretionary duties to timely respond, in accordance with 
the Act, to numerous state implementation plan (``SIP'') submittals 
from the State of California. The proposed consent decree would 
establish deadlines for EPA to take action in response to these 
California SIP submittals. The proposed consent decree does not require 
EPA to take any specific, particular action in response to the 

DATES: Written comments on the proposed consent decree must be received 
by November 12, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OGC-2020-0509, 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 Consent Decree'' heading under the 
SUPPLEMENTARY INFORMATION section of this document. Out of an abundance 
of caution for members of the public and our staff, the EPA Docket 
Center and Reading Room are closed to the public, with limited 
exceptions, to reduce the risk of transmitting COVID-19. Our Docket 
Center staff will continue to provide remote customer service via 
email, phone, and webform. We encourage the public to submit comments 
via https://www.regulations.gov, as there may be a delay in processing 
mail and faxes. Hand deliveries and couriers may be received by 
scheduled appointment only. For further information on EPA Docket 
Center services and the current status, please visit us online at 

FOR FURTHER INFORMATION CONTACT: Charles Starrs, Air and Radiation Law 
Office (2344A), Office of General Counsel, U.S. Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; 
telephone: (202) 564-1996; email address: [email protected].


I. Obtaining a Copy of the Proposed Consent Decree

    The official public docket for this action (identified by Docket ID 
No. EPA-HQ-OGC-2020-0509) contains a copy of the proposed consent 
    The electronic version of the public docket for this action 
contains a copy of the proposed consent decree, 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 Consent Decree

    The proposed consent decree would fully resolve two lawsuits filed 
by OCEF seeking to compel the Administrator to take action, in 
accordance with CAA section 110, 42 U.S.C. 7410, to respond to numerous 
California SIP submittals. Both lawsuits were filed in the United 
States District Court for the Northern District of California: the 
first, OCEF v. Wheeler, No. 4:20-cv-00396-JSW, was

[[Page 64456]]

filed on January 20, 2020 and the second, OCEF v. Wheeler, No. 3:20-cv-
01380-WHA, was filed on February 24, 2020. Subsequently, by Order dated 
June 15, 2020, both cases were consolidated in one action, OCEF v. 
Wheeler, No. 4:20-cv-00396-JSW.
    In the consolidated action, OCEF alleges that the State of 
California made 72 specifically-identified SIP submittals over a period 
of years (the majority from 2016-2018) and that EPA has failed to meet 
its non-discretionary duty to take timely action in response to each of 
those submittals. In the ordinary course of its administrative action, 
EPA continues to evaluate and take action on SIP submittals from all 
the states, including the State of California, and does not necessarily 
suspend such on-going action because of pending litigation, such as the 
consolidated action that is the subject of the proposed consent decree. 
In fact, during the pendency of this litigation, EPA has taken final 
action on some of the California SIP submittals originally at issue in 
the litigation.\1\

    \1\ See, for example, 85 FR 57714 (September 16, 2020), 85 FR 
57703 (September 16, 2020). and 85 FR 57712 (September 16, 2020).

    Under the terms of the proposed consent decree, EPA shall, in 
accordance with a stated schedule, take final action in response to all 
the California SIP submittals identified in the litigation that are 
still at issue (i.e. that EPA has not otherwise taken action on during 
the pending litigation). The schedule requires EPA to take such action 
on a certain specified number of the California SIP submittals that are 
at issue by each of four successive dates--December 22, 2020, September 
30, 2021, September 30, 2022, and June 30, 2023--such that by the last 
such date EPA will have taken action on all the submittals. In some 
instances, the schedule specifically identifies particular SIP 
submittals in response to which EPA must take action by a specified 
date, but otherwise, the schedule states that EPA must take action on a 
minimum number of submittals by each date. It is possible, while this 
litigation is pending and before the proposed consent decree is final, 
as EPA continues in the ordinary course of its administrative 
activities, that EPA may take action on more of the California SIP 
submittals presently at issue (and which the proposed consent decree 
currently addresses). In that event, the parties subsequently may 
slightly adjust the proposed consent decree to ensure that the consent 
decree is limited to the remaining outstanding SIP submittals. The 
structure and essence of the proposed consent decree would be 
unchanged, though, and EPA will be required to take action on all of 
the remaining SIP submittals at issue in accordance with the prescribed 

    \2\ EPA would not regard any such future adjustments (if any) to 
the proposed consent decree as material and does not intend, in such 
event, to give further notice of the proposed consent decree.

    In addition to setting out a schedule for EPA to take action on the 
California SIP submittals at issue, the proposed consent decree 
provides that if California withdraws any of the submittals, EPA no 
longer has an obligation (under the proposed consent decree) to take 
action in response to such withdrawn submittal(s). The proposed consent 
decree also requires that, as EPA takes action in response to the 
California SIP submittals at issue, EPA shall send the actions to the 
Office of the Federal Register for publication in the Federal Register. 
See the proposed consent decree in the docket for other terms and 
    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 consent decree. EPA or the Department of Justice may 
withdraw or withhold consent to the proposed consent decree 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 Consent 

    Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2020-
0509, via https://www.regulations.gov. Once submitted, comments cannot 
be edited or removed from this docket. The 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. The 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 

Gautam Srinivasan,
Associate General Counsel.
[FR Doc. 2020-22576 Filed 10-9-20; 8:45 am]