06-1744. Request for Public Comment on Proposed Settlement Agreement Involving Pesticides and the Endangered Species Act

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of availability; request for public comment.

SUMMARY:

EPA is making available for comment a proposed Settlement Agreement that would establish a series of deadlines for the Agency to make “effects determinations” on atrazine as it relates to any of 21 identified endangered or threatened species or their designated critical habitat. If the Agency determines atrazine “may affect and is likely to adversely affect” any of the listed species, the Agency will initiate formal consultation with the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS), as appropriate. EPA will evaluate all comments received during the public comment period to determine whether all or part of the proposed Settlement Agreement warrants reconsideration. This proposed Settlement Agreement, if entered by the Court, would resolve a lawsuit brought against EPA by the Natural Resources Defense Council (NRDC or plaintiff).

DATES:

Comments must be received on or before March 13, 2006.

ADDRESSES:

Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2005-0516, by one of the following methods:

• http://www.regulations.gov/​. Follow the on-line instructions for submitting comments.
• Mail: Public Information and Records Integrity Branch (PIRIB) (7502C), Office of Pesticide Programs (OPP), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.
• Hand Delivery: Public Information and Records Integrity Branch (PIRIB) (7502C), Office of Pesticide Programs (OPP), Environmental Protection Agency, Rm. 119, Crystal Mall #2, 1801 S. Bell St., Arlington, VA, Attention: Docket ID number EPA-HQ-OPP-2005-0516. The docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the docket facility is [phone]. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to docket ID number EPA-HQ-OPP-2005-0516. EPA's policy is that all comments received will be included in the public docket without change and may be made available on-line at http://www.regulations.gov/​, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be captured automatically and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD ROM you submit. 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. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​docket.htm/​.

Docket: All documents in the docket are listed in the regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically at http://www.regulations.gov/​ or in hard copy at the Public Information and Records Integrity Branch (PIRIB) (7502C), Office of Pesticide Programs (OPP), Environmental Protection Agency, Rm. 119, Crystal Mall #2, 1801 S. Bell St., Arlington, VA. The docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the docket facility is [phone].

FOR FURTHER INFORMATION CONTACT:

Arty Williams, Environmental Fate and Effects Division (7507C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: 703-305-7695; fax number: 703-305-6309; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

This action is directed to the public in general, and may be of particular interest to the Natural Resources Defense Council, other public interest groups, state regulatory partners, other interested federal agencies, pesticide registrants and pesticide users. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

B. What Should I Consider as I Prepare My Comments for EPA?

1. Submitting CBI. Do not submit this information to EPA through www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When submitting comments, remember to:

i. Identify the document by docket number and other identifying information (subject heading, Federal Register date and page number).

ii. Follow directions. The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used.

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustrate your concerns, and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

II. What Action is the Agency Taking?

EPA is making available for comment a proposed Settlement Agreement that would establish a series of deadlines for the Agency to make “effects determinations” on atrazine as it relates to any of 21 identified endangered or threatened species or their designated critical habitat. If the Agency determines atrazine “may affect and is likely to adversely affect” any of the listed species, the Agency will initiate formal consultation with the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS), as appropriate. EPA will evaluate all comments received during the public comment period to determine whether all or part of the proposed Settlement Agreement warrants reconsideration. This proposed Settlement Agreement, if entered by the Court, would resolve a lawsuit brought against EPA by the Natural Resources Defense Council (NRDC or plaintiff).

III. Background

On August 21, 2003, plaintiff filed a lawsuit in the Federal District Court of Maryland alleging that EPA failed to comply with section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. 1536(a)(2) (NRDC v. EPA, Case No. Civ. No: 03-CV-02444 RDB).

EPA has reached an agreement with the plaintiff. The agreement is embodied in a proposed Settlement Agreement. The proposed Settlement Agreement sets a series of deadlines for the Agency to make “effects determinations” on the potential for atrazine to affect any of the following species (or their designated critical habitat): Loggerhead sea turtle, leatherback sea turtle, green sea turtle, Kemp's ridley sea turtle, shortnose sturgeon, dwarf wedge mussel, Barton Springs salamander, Alabama sturgeon, pink mucket pearly mussel, shiny pigtoe pearly mussel, fine-rayed pigtoe mussel, rough pigtoe mussel, heavy pigtoe mussel, ovate clubshell mussel, southern clubshell mussel, stirrup mussel, pallid sturgeon, Topeka shiner, fat pocketbook pearly mussel, purple cat's paw pearly mussel, and northern riffleshell. An “effects determination” considers whether use of a pesticide: (1) Has no effect on a listed species; (2) may affect but is not likely to adversely affect a listed species; or (3) may affect and is likely to adversely affect a listed species. If the Agency determines atrazine “may affect and is likely to adversely affect” any of the 21 named species or their designated critical habitat, EPA will initiate formal consultation with the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) as described in the Settlement Agreement. In addition, during the pendency of the schedule for effects determinations outlined in the Settlement Agreement, the plaintiff agrees not to seek any injunction or other use restriction for any of the pesticides subject to the Settlement Agreement. Pursuant to the Settlement Agreement, in the event EPA makes a “may affect and is likely to adversely affect” determination for atrazine on any of the listed species named in the lawsuit, the plaintiff reserves the right to seek use restrictions for that pesticide by filing a new complaint with the Court.

Beginning today, EPA is opening a 15-day comment period on the proposed Settlement Agreement. EPA will use the comments to determine whether all or part of the proposed Settlement Agreement warrants reconsideration. If EPA determines that any part of the proposed Settlement Agreement merits reconsideration, EPA will provide the plaintiff with a written request for further negotiations and the proposed Settlement Agreement shall not be entered with the Court unless the parties can reach agreement on needed changes. If EPA determines that the proposed Settlement Agreement does not need to be reconsidered, the terms of the proposed Settlement Agreement shall become effective upon entry by the U.S. District Court for Maryland. Once the Settlement Agreement is entered by the U.S. District Court, EPA will post on its web site at www.epa.gov/​pesticides a notice indicating the Settlement Agreement has been so entered.

List of Subjects

• Environmental protection
• Endangered species

Dated: February 15, 2006.

Margaret Schneider,

Acting Assistant Administrator, Office of Prevention, Pesticides and Toxic Substances.