2021-22582. Proposed Stipulated Partial Settlement Agreement, Endangered Species Act Claims

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of proposed stipulated partial settlement agreement; 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 stipulated partial settlement agreement that resolves part of the Center for Environmental Health, et al., v. Wheeler, et al., case in the United States District Court for the Northern District of California (4:18-cv-03197) that alleges that EPA and the United States Fish and Wildlife (FWS) failed to comply with certain procedural and substantive duties under the Endangered Species Act (ESA). Defendant-Intervenor joins this stipulated partial settlement agreement.

DATES:

Written comments on the proposed stipulated partial settlement agreement must be received by November 17, 2021.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2021-0674, 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 and additional information on the rulemaking process, see the “Additional Information about Commenting on the Proposed Settlement Agreement” heading under the SUPPLEMENTARY INFORMATION section of this document. Out of an abundance of caution for members of the public and our staff, the EPA Docket Center and Reading Room are closed to the public, with limited exceptions, to reduce the risk of transmitting COVID-19. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. We encourage the public to submit comments via https://www.regulations.gov,, as there may be a delay in processing mail and faxes. Hand-deliveries and couriers may be received by scheduled appointment only. For further information on EPA Docket Center services and the current status, please visit us online at https://www.epa.gov/​dockets.

EPA continues to carefully and continuously monitor information from the CDC, local area health departments, and our federal partners so that we can respond rapidly as conditions change regarding COVID-19.

FOR FURTHER INFORMATION CONTACT:

Michele Knorr, Pesticides and Toxic Substances Law Office MC-2333A, Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone [phone]; email address [e-mail].

SUPPLEMENTARY INFORMATION:

I. Obtaining a Copy of the Proposed Settlement Agreement

The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2021-0674) contains a copy of the proposed settlement agreement.

The electronic version of the public docket for this action contains a copy of the proposed 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 system, key in the appropriate docket identification number then select “search.”

II. Additional Information About the Proposed Settlement Agreement

Prior to this lawsuit being filed, on January 18, 2017, EPA submitted to FWS a nationwide biological evaluation regarding the effects of malathion and two other active ingredients on species listed as threatened or endangered under the ESA, 16 U.S.C. 1531 et seq., and their designated critical habitats and requested initiation of consultation pursuant to ESA section 7(a)(2), 16 U.S.C. 1536(a)(2) (the Malathion Consultation). The Malathion Consultation has been ongoing since that date.

Plaintiffs filed their original case in May 2018. The Plaintiffs amended the complaint on July 25, 2018, and on November 27, 2018 alleging that: (1) EPA violated its procedural duty under ESA section 7(a)(2) to complete consultation and its substantive duty under ESA section 7(a)(2) to avoid jeopardy with respect to 21 malathion-containing pesticide product registrations under the Federal Insecticide Fungicide, and Rodenticide Act (FIFRA), and the FWS violated its procedural duty to complete consultation under ESA section 7(a)(2); (2) these failures constitute unlawfully withheld or unreasonably delayed agency action in violation of Section 706(1) of the Administrative Procedure Act, 5 U.S.C. 706(1); and (3) EPA failed to comply with ESA section 7(d) when it “maintained the registrations of these same pesticide products and continued to reregister and register pesticide products containing malathion.”

Unless one of the contingencies set forth in the proposed stipulated partial settlement agreement occurs (which may result in an extension of time), FWS will issue its Final Biological Opinion and conclude the Malathion Consultation no later than February 28, 2022. Court approval of this stipulated partial settlement agreement would result in the dismissal with prejudice of portions of the claims in Count 1 and Count 2 against Federal Defendants for violation of their ESA section 7(a)(2) procedural duties to complete the Final Biological Opinion. This agreement only resolves EPA's procedural duties under the ESA section 7(a)(2); claims related to EPA's substantive ESA section 7(a)(2) duties are not covered. Additionally, claims against EPA for its alleged failure to comply with the ESA section 7(d) requirements are not covered by this agreement. Defendant-Intervenor joins this stipulated partial settlement agreement.

For a period of thirty (30) days following the date of publication of this notice, the Agency will accept written comments relating to the proposed stipulated partial settlement agreement from persons who are not named as parties to the litigation in question. EPA or the Department of Justice may withdraw or withhold consent to the proposed stipulated partial settlement agreement if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the ESA or FIFRA. Unless EPA or the Department of Justice determines that consent should be withdrawn, the terms of the proposed stipulation and stipulated notice of dismissal will be affirmed.

III. Additional Information About Commenting on the Proposed Settlement Agreement

Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2021-0674, 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. Note that written comments containing CBI and submitted by mail may be delayed and deliveries or couriers will be received by scheduled appointment only.

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.

Christopher E. Kaczmarek,

Acting Associate General Counsel.