Proposed Consent Decree, Clean Water Act and Administrative Procedures Act Claims, 5955-5956 [2020-01998]

Download as PDF Federal Register / Vol. 85, No. 22 / Monday, February 3, 2020 / Notices ENVIRONMENTAL PROTECTION AGENCY [EPA–HQ–OGC–2019–0667; FRL–10004–89– OGC] Proposed Consent Decree, Clean Water Act and Administrative Procedures Act Claims Environmental Protection Agency (EPA). ACTION: Notice of proposed consent decree; request for public comment. AGENCY: In accordance with the Environmental Protection Agency (EPA) Administrator’s, October 16, 2017, Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements, notice is hereby given of a proposed consent decree to address claims in a lawsuit filed by the Natural Resources Defense Council, Clean Water Action, and the Environmental Justice Health Alliance for Chemical Policy Reform (collectively, ‘‘Plaintiffs’’) in the United States District Court for the Southern District of New York. On March 21, 2019, Plaintiffs filed a complaint alleging, inter alia, that the United States Environmental Protection Agency (‘‘EPA’’) had a duty under Clean Water Act (‘‘CWA’’) section 311(j)(5)(A)(i), to issue regulations that require an owner or operator of a non-transportationrelated onshore ‘‘facility described in subparagraph (C) to prepare and submit to the President a plan for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge, of . . . a hazardous substance’’ (the ‘‘Hazardous Substance Worst Case Discharge Planning Regulations’’) by August 18, 1992. The proposed consent decree would set deadlines for EPA to complete a notice of proposed rulemaking pertaining to the issuance of the Hazardous Substance Worst Case Discharge Planning Regulations, and for publication of a notice taking final action following notice and comment rulemaking pertaining to the issuance of Hazardous Substance Worst Case Discharge Planning Regulations. DATES: Written comments on the proposed consent decree must be received by March 4, 2020. ADDRESSES: Submit your comments, identified by Docket ID number EPA– HQ–OGC–2019–0667, online at www.regulations.gov (EPA’s preferred method). For comments submitted at www.regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from lotter on DSKBCFDHB2PROD with NOTICES SUMMARY: VerDate Sep<11>2014 16:47 Jan 31, 2020 Jkt 250001 www.regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically 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. The EPA generally will 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, please contact the person identified in the ‘‘For Further Information Contact’’ section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/ commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Richard L. Albores, Solid Waste and Emergency Response Law Office (7013D), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone: (202) 564–7102; email address: Albores.Richard@epa.gov. SUPPLEMENTARY INFORMATION: I. Additional Information About the Proposed Consent Decree On March 21, 2019, Plaintiffs filed suit in the Federal district court for the Southern District of New York: Natural Resources Defense Council, et. al v. United States Environmental Protection Agency, et. al, No. 1:19–cv–02516 (S.D.N.Y., filed Mar. 21, 2019). Plaintiffs’ Complaint brought two claims alleging violations of CWA section 311(j)(5)(A)(i), and the Administrative Procedures Act (‘‘APA’’). Plaintiffs’ first claim alleged that EPA failed to issue ‘‘regulations mandated by the [CWA] requiring non-transportation-related substantial-harm facilities to plan, prevent, mitigate and respond to worstcase spills of hazardous substances . . . constitutes a failure to perform a nondiscretionary duty or act in violation of the [CWA].’’ (Compl. Para. 34). Plaintiffs also claimed, ‘‘EPA’s failure to issue these regulations constitute[d] agency action unlawfully withheld contrary to and in violation of the [APA] and the [CWA].’’ (Compl. Para. 45). Plaintiffs requested an order from the Court to compel EPA to promulgate Hazardous Substance Worst Case Discharge Planning Regulations (Compl. at 12). Following EPA’s Answer, filed on June PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 5955 4, 2019, Plaintiffs and EPA entered into discussions regarding a potential resolution of the lawsuit. The proposed consent decree announced here would resolve the claims of the suit. As described in paragraph 3 of the proposed consent decree, within two years (24 months) of entry of the proposed consent decree, EPA will sign a notice of proposed rulemaking pertaining to the issuance of the Hazardous Substance Worst Case Discharge Planning Regulations. Under paragraph 4 of the proposed consent decree, EPA will sign a notice taking final action following notice and comment rulemaking pertaining to the issuance of Hazardous Substance Worst Case Discharge Planning Regulations. See the proposed consent decree for specific details. For a period of thirty (30) days following the date of publication of this notice, the Agency will accept written comments relating to the resolution of the claims contained in the proposed consent decree from the public. If so requested, EPA will also consider holding a public hearing on whether to enter into the proposed consent decree. EPA, the Department of Justice, and the United States Attorney for the Southern District of New York may withdraw or withhold consent to the proposed consent decree if the public comments disclose facts or considerations that indicate that such consent decree is inappropriate, improper, inadequate, or inconsistent with the requirements of the CWA. Unless EPA, the Department of Justice, or the United States Attorney for the Southern District of New York determines that this proposed consent decree should be withdrawn, the terms of the proposed consent decree will be affirmed and entered with the Court. 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 EPA–HQ–OGC– 2019–0667) contains a copy of the proposed consent decree. 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, E:\FR\FM\03FEN1.SGM 03FEN1 lotter on DSKBCFDHB2PROD with NOTICES 5956 Federal Register / Vol. 85, No. 22 / Monday, February 3, 2020 / Notices and the telephone number for the OEI Docket is (202) 566–1752. An electronic version of the public docket is available on EPA’s website at https://www.epa.gov/ogc/proposedconsent-decrees-and-draft-settlementagreements#NRDCetalv.epa and through www.regulations.gov. You may use 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.’’ It is important to note that EPA’s policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing online at www.regulations.gov without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. Information claimed as CBI and other information whose disclosure is restricted by statute is not included in the official public docket or in the electronic public docket. EPA’s policy is that copyrighted material, including copyrighted material contained in a public comment, will not be placed in EPA’s electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the EPA Docket Center. and cannot contact you for clarification, EPA may not be able to consider your comment. Use of the 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. In contrast to EPA’s electronic public docket, EPA’s electronic mail (email) system is not an ‘‘anonymous access’’ system. If you send an email comment directly to the Docket without going through www.regulations.gov, your email address is automatically captured and included as part of the comment that is placed in the official public docket, and made available in EPA’s electronic public docket. B. How and to whom do I submit comments? You may submit comments as provided in the ADDRESSES section, above. Please ensure that your comments are submitted within the specified comment period. 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 and with any disk or CD ROM you submit. 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 AGENCY: VerDate Sep<11>2014 16:47 Jan 31, 2020 Jkt 250001 Dated: January 23, 2020. John R. Michaud, Associate General Counsel. [FR Doc. 2020–01998 Filed 1–31–20; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY [Petition I–2019–3; FRL–10004–45–Region 1] Clean Air Act Operating Permit Program; Petition for Objection to State Operating Permit for Wheelabrator Environmental System Inc., Wheelabrator Concord Company, L.P., Concord, New Hampshire Environmental Protection Agency (EPA). ACTION: Notice of final order on petition to object to state operating permits. The EPA Administrator signed an Order, dated October 30, 2019, denying a petition dated March 14, 2019, filed by Anthony Caplan, Katherine Lajoie, Rebecca MacKenzie, and Janet Ward (the Petitioners). The Petitioners requested that the EPA object to a proposed Clean Air Act (CAA) title V operating permit (Permit No. TV–0032) issued by the New Hampshire Department of Environmental Services (NHDES) to Wheelabrator Environmental System, Inc., Wheelabrator Concord Company, L.P. (Wheelabrator), a large municipal waste incinerator located in Concord, New Hampshire. ADDRESSES: Copies of the Order, the petition, and all pertinent information relating thereto are on file at the following location: EPA Region 1; Air SUMMARY: PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 and Radiation Division; 5 Post Office Square—Suite 100, (Mail code 05–2), Boston, MA 02109–3912. The Order is also available electronically at the following address: https://www.epa.gov/ sites/production/files/2019-11/ documents/wheelabrator_ rensponse2019.pdf. FOR FURTHER INFORMATION CONTACT: Jessica Kilpatrick, Air Permits, Toxics, and Indoor Programs Branch, U.S. Environmental Protection Agency, EPA Region 1, 5 Post Office Square—Suite 100, (Mail code 05–2), Boston, MA 02109–3912, tel. (617) 918–1652, email kilpatrick.jessica@epa.gov. SUPPLEMENTARY INFORMATION: The CAA affords the EPA a 45-day period to review and, as appropriate, the authority to object to operating permits proposed by state permitting authorities under title V of the CAA, 42 U.S.C. 7661–7661f. Section 505(b)(2) of the CAA and 40 CFR 70.8(d) authorizes any person to petition the EPA Administrator to object to a title V operating permit within 60 days after the expiration of the EPA’s 45-day review period if the EPA has not objected on its own initiative. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise these issues during the comment period or the grounds for the issues arose after this period. The Petitioners submitted a petition on March 14, 2019, requesting that the EPA object to the proposed CAA title V operating permit issued by NHDES to Wheelabrator (Permit No. TV–0032). The Petitioners alleged that (1) the operation of the Wheelabrator incinerator violates New Hampshire’s Revised Statutes Annotated (RSA) 125– C, Title 10 Public Health, Chapter 125– C Air Pollution Control, Section 125– C:1 and releases persistent toxic substances, such as lead, mercury, cadmium, and dioxin, that ‘‘accumulate in our bodies (known as body burden) and in our environment (known as toxic loading) and cause harm in low doses;’’ (2) that ‘‘[s]napshot testing of smokestack emissions can neither determine nor ensure continuous compliance with air standards that are themselves not health based;’’ and that NHDES ‘‘has discretionary authority to either deny or approve a Title V permit and is not constrained by a requirement to only consider whether Wheelabrator’s stack test results comply with emission standards;’’ (3) Wheelabrator violated state and federal law by incinerating E:\FR\FM\03FEN1.SGM 03FEN1

Agencies

[Federal Register Volume 85, Number 22 (Monday, February 3, 2020)]
[Notices]
[Pages 5955-5956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01998]



[[Page 5955]]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OGC-2019-0667; FRL-10004-89-OGC]


Proposed Consent Decree, Clean Water Act and Administrative 
Procedures 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, October 16, 2017, Directive Promoting Transparency and 
Public Participation in Consent Decrees and Settlement Agreements, 
notice is hereby given of a proposed consent decree to address claims 
in a lawsuit filed by the Natural Resources Defense Council, Clean 
Water Action, and the Environmental Justice Health Alliance for 
Chemical Policy Reform (collectively, ``Plaintiffs'') in the United 
States District Court for the Southern District of New York. On March 
21, 2019, Plaintiffs filed a complaint alleging, inter alia, that the 
United States Environmental Protection Agency (``EPA'') had a duty 
under Clean Water Act (``CWA'') section 311(j)(5)(A)(i), to issue 
regulations that require an owner or operator of a non-transportation-
related onshore ``facility described in subparagraph (C) to prepare and 
submit to the President a plan for responding, to the maximum extent 
practicable, to a worst case discharge, and to a substantial threat of 
such a discharge, of . . . a hazardous substance'' (the ``Hazardous 
Substance Worst Case Discharge Planning Regulations'') by August 18, 
1992. The proposed consent decree would set deadlines for EPA to 
complete a notice of proposed rulemaking pertaining to the issuance of 
the Hazardous Substance Worst Case Discharge Planning Regulations, and 
for publication of a notice taking final action following notice and 
comment rulemaking pertaining to the issuance of Hazardous Substance 
Worst Case Discharge Planning Regulations.

DATES: Written comments on the proposed consent decree must be received 
by March 4, 2020.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-HQ-
OGC-2019-0667, online at www.regulations.gov (EPA's preferred method). 
For comments submitted at www.regulations.gov, follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from www.regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically 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. The EPA 
generally will 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, please contact 
the person identified in the ``For Further Information Contact'' 
section. For the full EPA public comment policy, information about CBI 
or multimedia submissions, and general guidance on making effective 
comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Richard L. Albores, Solid Waste and 
Emergency Response Law Office (7013D), Office of General Counsel, U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, 
DC 20460; telephone: (202) 564-7102; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Additional Information About the Proposed Consent Decree

    On March 21, 2019, Plaintiffs filed suit in the Federal district 
court for the Southern District of New York: Natural Resources Defense 
Council, et. al v. United States Environmental Protection Agency, et. 
al, No. 1:19-cv-02516 (S.D.N.Y., filed Mar. 21, 2019). Plaintiffs' 
Complaint brought two claims alleging violations of CWA section 
311(j)(5)(A)(i), and the Administrative Procedures Act (``APA''). 
Plaintiffs' first claim alleged that EPA failed to issue ``regulations 
mandated by the [CWA] requiring non-transportation-related substantial-
harm facilities to plan, prevent, mitigate and respond to worst-case 
spills of hazardous substances . . . constitutes a failure to perform a 
non-discretionary duty or act in violation of the [CWA].'' (Compl. 
Para. 34). Plaintiffs also claimed, ``EPA's failure to issue these 
regulations constitute[d] agency action unlawfully withheld contrary to 
and in violation of the [APA] and the [CWA].'' (Compl. Para. 45). 
Plaintiffs requested an order from the Court to compel EPA to 
promulgate Hazardous Substance Worst Case Discharge Planning 
Regulations (Compl. at 12). Following EPA's Answer, filed on June 4, 
2019, Plaintiffs and EPA entered into discussions regarding a potential 
resolution of the lawsuit.
    The proposed consent decree announced here would resolve the claims 
of the suit. As described in paragraph 3 of the proposed consent 
decree, within two years (24 months) of entry of the proposed consent 
decree, EPA will sign a notice of proposed rulemaking pertaining to the 
issuance of the Hazardous Substance Worst Case Discharge Planning 
Regulations. Under paragraph 4 of the proposed consent decree, EPA will 
sign a notice taking final action following notice and comment 
rulemaking pertaining to the issuance of Hazardous Substance Worst Case 
Discharge Planning Regulations. See the proposed consent decree for 
specific details.
    For a period of thirty (30) days following the date of publication 
of this notice, the Agency will accept written comments relating to the 
resolution of the claims contained in the proposed consent decree from 
the public. If so requested, EPA will also consider holding a public 
hearing on whether to enter into the proposed consent decree. EPA, the 
Department of Justice, and the United States Attorney for the Southern 
District of New York may withdraw or withhold consent to the proposed 
consent decree if the public comments disclose facts or considerations 
that indicate that such consent decree is inappropriate, improper, 
inadequate, or inconsistent with the requirements of the CWA. Unless 
EPA, the Department of Justice, or the United States Attorney for the 
Southern District of New York determines that this proposed consent 
decree should be withdrawn, the terms of the proposed consent decree 
will be affirmed and entered with the Court.

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 EPA-HQ-
OGC-2019-0667) contains a copy of the proposed consent decree. 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,

[[Page 5956]]

and the telephone number for the OEI Docket is (202) 566-1752.
    An electronic version of the public docket is available on EPA's 
website at https://www.epa.gov/ogc/proposed-consent-decrees-and-draft-settlement-agreements#NRDCetalv.epa and through www.regulations.gov. 
You may use 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.'' It is important to note 
that EPA's policy is that public comments, whether submitted 
electronically or in paper, will be made available for public viewing 
online at www.regulations.gov without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. Information claimed as CBI and 
other information whose disclosure is restricted by statute is not 
included in the official public docket or in the electronic public 
docket.
    EPA's policy is that copyrighted material, including copyrighted 
material contained in a public comment, will not be placed in EPA's 
electronic public docket but will be available only in printed, paper 
form in the official public docket. Although not all docket materials 
may be available electronically, you may still access any of the 
publicly available docket materials through the EPA Docket Center.

B. How and to whom do I submit comments?

    You may submit comments as provided in the ADDRESSES section, 
above. Please ensure that your comments are submitted within the 
specified comment period.
    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 and with any disk or CD 
ROM you submit. 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 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. 
In contrast to EPA's electronic public docket, EPA's electronic mail 
(email) system is not an ``anonymous access'' system. If you send an 
email comment directly to the Docket without going through 
www.regulations.gov, your email address is automatically captured and 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.

    Dated: January 23, 2020.
John R. Michaud,
Associate General Counsel.
[FR Doc. 2020-01998 Filed 1-31-20; 8:45 am]
 BILLING CODE 6560-50-P
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