[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]


=======================================================================
-----------------------------------------------------------------------

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.

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

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]
BILLING CODE 6560-50-P


