2023-02351. Proposed Consent Decree, Resource Conservation and Recovery Act Citizen Suit

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 March 18, 2022, Memorandum entitled Consent Decrees and Settlement Agreements to Resolve Environmental Claims Against the Agency, this will provide notice and opportunity for public comment on a proposed Consent Decree in the matter of Statewide Organizing for Community eMpowerment v. U.S. Environmental Protection Agency, No. 1:22-cv-2562-JDB (D.D.C.).

On August 25, 2022, a coalition of environmental organizations filed a complaint in the United States District Court for the District of Columbia. In the complaint, Plaintiffs allege that EPA has violated section 2002(b) of the Resource Conservation and Recovery Act (RCRA), by failing to perform its non-discretionary duty under to review and, if necessary, revise a regulation that exempts inactive coal combustion residuals (CCR) landfills from the CCR disposal regulations. The proposed consent decree would establish deadlines for EPA to sign proposed and final actions.

DATES:

Written comments on the proposed consent decree must be received by March 6, 2023.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2023-0055, 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 Consent Decree” heading under the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Laurel Celeste, Solid Waste and Emergency Response Law Office, Office of General Counsel, U.S. Environmental Protection Agency; telephone [phone]; email address [e-mail].

SUPPLEMENTARY INFORMATION:

I. Obtaining a Copy of the Proposed Consent Decree

The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2023-0055) 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 [phone], and the telephone number for the OEI Docket is [phone].

The electronic version of the public docket for this action contains a copy of the proposed consent decree 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 Consent Decree

On August 25, 2022, a coalition of environmental organizations (collectively “Plaintiffs”) filed a complaint in the United States District Court for the District of Columbia alleging that EPA had failed to perform its non-discretionary duty under RCRA section 2002(b) of RCRA, 42 U.S.C. to review and, if necessary, revise a regulation that exempts inactive CCR landfills from the CCR disposal regulations at 40 CFR part 257. 40 CFR 257.50(d). “Inactive” CCR landfills are those that stopped receiving waste before October 17, 2016.

RCRA provides that “Each regulation promulgated under this chapter shall be reviewed and, where necessary, revised not less frequently than every three years.” 42 U.S.C. 6912(b). Citizens may file a claim against EPA for failure to comply with a mandatory duty. Any person may commence a civil action against the Administrator “where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.” 42 U.S.C. 6972(a)(2).

The proposed consent decree, if finalized, would establish deadlines for EPA to take certain actions under RCRA. Specifically, the proposed consent decree would require that EPA: (1) on or before May 5, 2023, either complete a review of 40 CFR 257.50(d), and determine that no revision is necessary or sign a proposed rule to revise 40 CFR 257.50(d); and (2) if a proposal has been issued, take final action regarding EPA's proposed revision of 40 CFR 257.50(d), no later than May 6, 2024.

In accordance with the EPA Administrator's March 18, 2022, Memorandum entitled Consent Decrees and Settlement Agreements to Resolve Environmental Claims Against the Agency, for a period of thirty (30) days following the date of publication of this document, the Agency will accept written comments relating to the proposed consent decree. EPA or the Department of Justice may withdraw or withhold consent to the proposed consent decree if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act.

III. Additional Information About Commenting on the Proposed Consent Decree

Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2023-0055, 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.

Jennifer Lewis,

Acting Associate General Counsel.