[Federal Register Volume 87, Number 217 (Thursday, November 10, 2022)]
[Notices]
[Pages 67899-67901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24502]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OGC-2022-0884; FRL-10395-01-OGC]
Proposed Consent Decree, Clean Water Act and Administrative
Procedure 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 March 18, 2022, memorandum regarding ``Consent Decrees
and Settlement Agreements to resolve Environmental Claims Against the
Agency,'' notice is hereby given of a proposed consent decree in
Environmental Law & Policy Center, et al., v. United States
Environmental Protection Agency, No. 3:19-cv-295 (N.D. Ohio). On
February 7, 2019, the Environmental Law & Policy Center, which was
later joined by the Lucas County Board of Commissioners, (collectively
``Plaintiffs'') filed a complaint against the EPA alleging that the
Agency's approval of Ohio's 2018 section 303(d) list was arbitrary and
capricious under the Administrative Procedure Act (APA) and that EPA
had failed to perform duties mandated by the Clean Water Act (``CWA'')
with respect to Ohio's obligation to develop a Total Maximum Daily Load
(``TMDL'') to address nutrient pollution in western Lake Erie. EPA
seeks public input on a proposed consent decree prior to its final
decision-making to settle the litigation.
DATES: Written comments on the proposed consent decree must be received
by December 12, 2022.
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ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OGC-2022-0884 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 Consent
Decree'' heading under the SUPPLEMENTARY INFORMATION section of this
document.
FOR FURTHER INFORMATION CONTACT: Thomas Glazer, Water Law Office,
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 Consent Decree
EPA approved Ohio's 2018 CWA section 303(d) list on July 9, 2018.
The Environmental Law & Policy Center filed a complaint on February 7,
2019, challenging that approval as arbitrary and capricious on grounds
alleging that the list did not give western Lake Erie a high enough
priority for TMDL development. The complaint also alleged that Ohio
constructively submitted no TMDL for Lake Erie, thereby triggering a
mandatory duty by EPA to act. On June 21, 2019, the Court consolidated
the complaint with another similar complaint from the Board of Lucas
County Commissioners.
On February 13, 2020, Ohio initiated a public comment period on its
draft 2020 303(d) list, which announced that it was making western Lake
Erie a high priority for TMDL development and that the State would
develop a TMDL addressing multiple segments of western Lake Erie
impaired by nutrient pollution and algae for submission to EPA within
the following 2-3 years. Following the public comment period, the State
submitted its 2020 303(d) list to EPA, which approved the list on May
29, 2020, and since that time, the State has been developing the TMDL.
See https://epa.ohio.gov/divisions-and-offices/surface-water/reports-data/maumee-river-watershed.
In the litigation, the parties completed summary judgment briefing
in May 2020 and participated in oral argument on July 24 & July 30,
2020. Following oral argument, the parties initiated settlement
discussions, which ultimately produced the proposed consent decree. The
State is a party to the proposed consent decree and has agreed to
intervene in the case so that it would be bound by its terms.
EPA and Ohio would each have obligations under the consent decree
that work to create a binding schedule for the development of a TMDL to
address the nutrient and algae impairments in western Lake Erie. The
consent decree's schedule is based on the State's current projected
timeline for completing the TMDL work it began in 2020. Under the
decree, Ohio would be required to public notice a draft TMDL by
December 31, 2022, with submission of a final TMDL to EPA to follow by
June 30, 2023. EPA's obligations under the consent decree would be
contingent upon Ohio's actions. If Ohio does not submit a final TMDL by
June 30, 2023, and the deadline is not extended by the Court, EPA would
be required to develop the TMDL within six months. The proposed consent
decree also provides that if EPA disapproves the TMDL submission,
Plaintiffs would not object to EPA taking up to six months to develop
its own TMDL. Any of these deadlines may be extended by the Court on
written finding of good cause.
For a period of thirty (30) days following the date of publication
of this notice, EPA will accept written comments relating to the
proposed consent decree from persons who are not parties to the
litigation. EPA also may hold a public hearing on whether to enter into
the proposed consent decree. EPA or the Department of Justice may
withdraw or withhold consent to the proposed consent decree 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 or Administrative
Procedure Act.
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 Docket ID
No. EPA-HQ-OGC-2022-0884) 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-
0884 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 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
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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. 2022-24502 Filed 11-9-22; 8:45 am]
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