[Federal Register Volume 88, Number 173 (Friday, September 8, 2023)]
[Notices]
[Pages 62079-62080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19431]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OGC-2023-0452; FRL-11385-01-OGC]


Proposed Interim Consent Decree and Proposed Interim Settlement 
Agreement, Clean Water Act and Administrative Procedure Act Claims

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed interim consent decree and proposed interim 
settlement agreement; 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 interim consent decree 
and proposed interim settlement agreement in Northwest Environmental 
Advocates v. EPA, No. 19-01537 (W.D. Wash.). On September 26, 2019, 
Plaintiff Northwest Environmental Advocates filed a complaint alleging 
that EPA failed to perform duties mandated by the Clean Water Act (CWA) 
regarding Washington's obligation to develop Total Maximum Daily Loads 
(TMDLs) to address waters identified on the state's impaired waters 
list and that EPA's inaction was arbitrary and capricious under the 
Administrative Procedure Act (APA), among other claims. EPA seeks 
public input on a proposed interim consent decree and proposed interim 
settlement agreement prior to its final decision-making regarding 
entering into the proposed documents.

DATES: Written comments on the proposed interim consent decree and 
proposed interim settlement agreement must be received by October 10, 
2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OGC-2023-0452 online at 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 www.regulations.gov, including any personal information provided. 
For detailed instructions on sending comments, see the ``Additional 
Information About Commenting on the Proposed Interim Consent Decree and 
Proposed Interim Settlement Agreement'' heading under the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Elise O'Dea, Water Law Office, Office 
of General Counsel, U.S. Environmental Protection Agency; telephone: 
(202) 564-4201; email address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Additional Information About the Proposed Interim Consent Decree and 
Proposed Interim Settlement Agreement

    On September 26, 2019, Plaintiff filed a complaint \1\ in the 
federal district court for the Western District of Washington alleging 
that EPA actions and inactions concerning the state of Washington's 
water quality assessment and listing program and TMDL program violated 
the APA and section 303(d) of the CWA. Among other claims, Plaintiff 
asserted that EPA violated the CWA by failing to disapprove 
Washington's alleged constructive submission of no TMDLs for waters on 
the state's 1996 list of impaired waters needing TMDLs and to establish 
TMDLs for such waters. In August 2020, the district court granted 
Washington's motion to intervene as a defendant in the litigation. The 
parties initiated settlement negotiations shortly thereafter, which led 
to the development of the proposed interim consent decree and proposed 
interim settlement agreement that are the subject of this notice.
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    \1\ Plaintiff filed an amended complaint on January 24, 2020.
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    The proposed interim consent decree and proposed interim settlement 
agreement would constitute the first part of a potential two-phase 
settlement framework and thus completion of the commitments set forth 
in each document would not result in dismissal of the litigation. 
Specifically, the proposed interim consent decree would require 
Washington to submit three TMDLs to EPA by December 2025 (Soos Creek 
fine sediment, Drayton Harbor bacteria, and Whatcom Creek bacteria) and 
would prohibit the Plaintiff from filing any new TMDL constructive 
submission lawsuits in Washington for a period of 34 months. Under the 
proposed interim settlement agreement, while the litigation was held in 
abeyance, an EPA-funded contractor would review and evaluate 
Washington's TMDL program to inform an EPA report providing 
recommendations for improving the program, particularly with respect to 
the timely development of TMDLs. Upon completion and consideration of 
the report, the parties would reengage in settlement discussions in an 
effort to reach a final agreement that would resolve the litigation.
    For a period of thirty (30) days following the date of publication 
of this notice, EPA will accept written comments relating to the 
proposed interim consent decree and proposed interim settlement 
agreement from persons who are not parties to the litigation. EPA also 
may hold a public hearing on whether to enter into the proposed interim 
consent decree and proposed interim settlement agreement. EPA or the 
Department of Justice may withdraw or withhold consent to the proposed 
interim consent decree and proposed interim settlement agreement if the 
comments received disclose facts or considerations that indicate that 
such consent is inappropriate, improper, inadequate, or inconsistent 
with the requirements of the CWA or APA.

II. Additional Information About Commenting on the Proposed Interim 
Consent Decree and Proposed Interim Settlement Agreement

A. How can I get a copy of the proposed interim consent decree and 
proposed interim settlement agreement?

    The official public docket for this action (identified by Docket ID 
No. EPA-HQ-OGC-2023-0452) contains a copy of the proposed interim 
consent decree and proposed interim settlement agreement. 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 interim consent decree and proposed 
interim settlement agreement 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

[[Page 62080]]

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-2023-
0452 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 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 does not plan to consider these late 
comments.

Steven Neugeboren,
Associate General Counsel.
[FR Doc. 2023-19431 Filed 9-7-23; 8:45 am]
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