[Federal Register Volume 87, Number 153 (Wednesday, August 10, 2022)]
[Notices]
[Pages 48659-48661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17197]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OGC-2022-0683; FRL-10129-01-OGC]
Proposed Settlement, Clean Water Act Claim
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed settlement; request for public comment.
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SUMMARY: In accordance with the Environmental Protection Agency (EPA)
Administrator's March 18, 2022, memorandum regarding ``Consent Decrees
and Settlement Agreements to resolve Environmental Claims Against the
Agency,'' notice is hereby given of a proposed settlement in Northwest
Environmental Advocates, et al., v. US EPA, No. 1:13-cv-263 (D. Idaho).
On September 24, 2013, the Northwest Environmental Advocates and the
Idaho Conservation League (collectively ``Plaintiffs'') filed an
amended complaint against the EPA alleging, among other things, that
the Agency had failed to complete its mandatory duty under the Clean
Water Act (``CWA'') to prepare and publish proposed water quality
standards for mercury pollution
[[Page 48660]]
to protect aquatic life following its disapproval of related water
quality standard revisions by the State in 2008. On July 19, 2021, the
Court issued a ruling concluding that, under the circumstances of this
case, EPA's disapproval created a mandatory duty for the Agency to
promulgate new criteria for the State. Having ruled against EPA on
liability, the Court directed the parties to file briefs regarding an
appropriate remedy. EPA seeks public input on a proposed stipulated
order on remedy (``Proposed Order'') prior to its final decision-making
to settle the remedy portion of the litigation.
DATES: Written comments on the Proposed Order must be received by
September 9, 2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OGC-2022-0683 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, see the
``Additional Information About Commenting on the Proposed Settlement''
heading under the SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Thomas Glazer, Water Law Office
(2355A), Office of General Counsel, U.S. Environmental Protection
Agency; telephone: (202) 564-0908; email address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Additional Information About the Proposed Settlement
On June 15, 2013, Plaintiffs filed suit in the Federal district
court for the District of Idaho against the Fish and Wildlife Service
and the National Marine Fisheries Service (collectively, ``the
Services''). The complaint alleged that the Services unreasonably
delayed or unlawfully withheld completion of Endangered Species Act
(``ESA'') consultation with EPA regarding new and revised water quality
standards that were submitted in 1996 and/or 1997. On September 24,
2013, Plaintiffs filed an amended complaint adding various CWA and ESA
claims against EPA regarding dozens of Idaho water quality standard
submissions dating back to 1994. Broadly speaking, Plaintiffs' claims
fell into two categories: claims that EPA failed to consult with the
Services on various water quality standard approval actions and claims
that EPA failed to complete its mandatory duties under the CWA with
respect to various new and revised water quality standards adopted by
the State. In April 2015, the Services entered a stipulated dismissal
with Plaintiffs by which they agreed to complete certain ESA
obligations. This left EPA as the sole defendant in the case.
On February 28, 2019, the Court partially granted EPA's motion to
dismiss a number of claims on statute of limitations grounds. On
January 21, 2021, the Court entered a stipulated order of partial
dismissal, which resolved all but one remaining claim against EPA: that
EPA failed to act under section 303(c)(4) of the CWA to promulgate
aquatic life mercury criteria following EPA's December 12, 2008,
disapproval of State revisions to its existing mercury criteria. On
July 19, 2021, the Court held that, under the circumstances of this
case, EPA's disapproval created a mandatory duty for the Agency to
promulgate new criteria for the State. See Nw. Env't Advocs. v. United
States Env't Prot. Agency, 549 F. Supp. 3d 1218 (D. Idaho 2021).
The parties have negotiated a settlement framework regarding an
appropriate remedy in the form of a stipulated order on remedy.
Pursuant to the agreed-upon terms, EPA would sign for publication in
the Federal Register proposed aquatic life mercury criteria for the
State of Idaho within 18 months of entry of the Proposed Order with the
Court. EPA would have nine months after publication to (1) determine
whether ESA section 7 consultation with the Services is required and
(2) initiate any such consultation. If consultation occurs, EPA would
have to finalize the criteria within eight months of the conclusion of
that consultation. Alternatively, if EPA determines that consultation
is not required, EPA would have to notify the Plaintiffs and finalize
the criteria within eight months of that determination. As part of the
agreement, EPA would include in its proposal water column
concentrations, or default water column values that can be modified on
a case-by-case basis, if EPA determines there are sufficient data
available to support this form of criteria. If EPA declines to propose
water column concentrations or default water column values, then it
would explain and take comment on its reasoning for not doing so. EPA's
commitment to promulgate these criteria will be null and void if the
State adopts and EPA approves new aquatic life mercury criteria.
For a period of thirty (30) days following the date of publication
of this notice, EPA will accept written comments relating to the
Proposed Order from persons who are not parties to the litigation. EPA
also may hold a public hearing on whether to enter into the Proposed
Order. EPA or the Department of Justice may withdraw or withhold
consent to the Proposed Order if the comments received disclose facts
or considerations that indicate that such consent is inappropriate,
improper, inadequate, or inconsistent with the requirements of the
Clean Water Act.
II. Additional Information About Commenting on the Proposed Settlement
A. How can I get a copy of the proposed settlement?
The official public docket for this action (identified by Docket ID
No. EPA-HQ-OGC-2022-0683) contains a copy of the Proposed Order. 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 Order 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.''
B. How and to whom do I submit comments?
Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2022-
0683 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
[[Page 48661]]
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.
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.
Steven Neugeboren,
Associate General Counsel.
[FR Doc. 2022-17197 Filed 8-9-22; 8:45 am]
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