[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]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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.

[[Page 67900]]


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

[[Page 67901]]

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]
BILLING CODE 6560-50-P