2019-18132. Proposed Stipulated Partial Settlement Agreement, Endangered Species Act Claims  

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    AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of proposed stipulated partial settlement agreement; request for public comment.

    SUMMARY:

    In accordance with the EPA Administrator's October 16, 2017, Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements, notice is Start Printed Page 44298hereby given of a proposed stipulated partial settlement agreement in the United States District Court for the Northern District of California in the case of Center for Biological Diversity et. al., v. United States Environmental Protection Agency et al., No. 3:11 cv 0293 (N.D.Ca.). Plaintiffs filed the original case on January 20, 2011, asserting a single claim against EPA for allegedly violating section 7(a)(2) of the Endangered Species Act (ESA) by failing to initiate and reinitiate consultation with the Services with respect to its ongoing oversight of 382 pesticide active ingredients. After several motions to narrow the case and an appeal to the Ninth Circuit Court of Appeals, the plaintiffs filed their fourth amended complaint on June 29, 2018 for failure to initiate ESA section 7(a)(2) consultation for certain pesticide products containing 35 pesticide active ingredients. After several settlement discussions, the parties reached a partial agreement in this case. The parties are proposing to reach a settlement in the form of a stipulated partial settlement agreement. Among other provisions, this agreement would set a February 14, 2021, deadline for EPA to complete ESA section 7(a)(2) effects determination for carbaryl and methomyl, and, as appropriate, request initiation of any ESA section 7(a)(2) consultations with the National Marine Fisheries Service (NMFS) and/or the United States Fish and Wildlife Service (USFWS) that EPA may determine to be necessary as a result of those effects determinations. Additional deadlines would include August 14, 2021, for atrazine and simazine, and August 14, 2024, for brodifacoum, bromadiolone, warfarin, and zinc phosphide for EPA to complete effects determinations, and, as appropriate, request initiation of any ESA consultations with NMFS and/or USFWS. The stipulated partial settlement agreement would also include a meet and confer deadline of August 30, 2021, for all parties to discuss possible resolution of the remaining issues in this case.

    DATES:

    Written comments on the proposed stipulated partial settlement agreement must be received by September 23, 2019.

    ADDRESSES:

    Submit your comments, identified by Docket ID number EPA-HQ-OGC-2019-0478 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 http://www2.epa.gov/​dockets/​commenting-epa-dockets.

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    FOR FURTHER INFORMATION CONTACT:

    Michele Knorr, Pesticides and Toxic Substances Law Office (2333A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone: (202) 564-5631; email address: knorr.michele@epa.gov.

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    SUPPLEMENTARY INFORMATION:

    I. Additional Information About the Proposed Stipulated Settlement Agreement

    On January 20, 2011, Plaintiffs (non-governmental environmental organizations) filed a complaint in the United States District Court in the Northern District of California asserting a single claim against EPA for allegedly violating section 7(a)(2) of the ESA by failing to initiate and reinitiate consultation with the Services with respect to 382 pesticide active ingredients. After motions practice and an appeal to the Ninth Circuit Court of Appeals, the plaintiffs filed their fourth amended complaint on June 29, 2018 for failure to initiate consultation under ESA section 7(a)(2) for certain pesticide products containing 35 pesticide active ingredients. After several settlement discussions, the parties reached a partial agreement in this case. Specifically, Paragraph 1.a. of the proposed stipulated partial settlement provides that EPA would agree to complete ESA section 7(a)(2) effects determinations, compiled into a biological evaluation, by February 14, 2021, for carbaryl and methomyl, and, as appropriate, request initiation of any ESA section 7(a)(2) consultations with the NMFS and/or the USFWS that EPA may determine to be necessary as a result of those effects determinations. Additional deadlines for completing ESA section 7(a)(2) effects determinations, compiled into a biological evaluation, included in Paragraphs 2.a. and 3.a., respectively, would be August 14, 2021, for atrazine and simazine, and August 14, 2024, for brodifacoum, bromadiolone, warfarin, and zinc phosphide, and, as appropriate, request initiation of any ESA consultations with NMFS and/or USFWS.

    The agreement also includes statements of EPA's intent to take certain actions, in addition to the deadlines associated with specific biological evaluations, including: (1) To complete draft biological evaluations no later than one year prior to the deadline for the final biological evaluations, as well to provide notice and a 60-day opportunity for public comment on any such draft, (2) consistent with current practice, EPA would, within 30 business days of receipt from the USFWS of any draft biological opinions on the effects of chlorpyrifos and diazinon, make the draft available to the public for a 60-day comment period, (3) consistent with current practice, conduct nationwide-scale effects determinations, and (4) to complete biological evaluations for glyphosate and propazine on the same schedule as simazine and atrazine.

    The stipulated partial settlement also includes provisions that would require EPA to meet specific milestones connected to the deadlines in Paragraphs 1.a, 2.a, and 3.a. These provisions included in Paragraphs 1.b., 2.b., and 3.b would include: (1) No later than 90 days prior to EPA's commitment to complete draft biological evaluations, EPA would provide a status report to the Court and other parties on its progress toward completing these drafts; and (2) EPA would provide a status report to the Court and the parties 90 days prior to the deadline to complete the final biological evaluations. Additionally, Paragraphs 1.c., 2.c., and 3.c. would include provisions for modifying the final biological evaluation deadlines. The stipulated partial settlement agreement would also include a meet and confer deadline of August 30, 2021 for all parties to discuss resolving the remaining issues in this case.

    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 from persons who are not named as parties to the litigation in question. If so requested, EPA will also consider holding a public hearing on whether to Start Printed Page 44299agree to the proposed joint stipulation and stipulated notice of dismissal. EPA or the Department of Justice may withdraw or withhold consent to the proposed stipulated partial settlement 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.

    II. Additional Information About Commenting on the Proposed Stipulation and Stipulated Notice of Dismissal

    A. How can I get a copy of the proposed stipulated partial settlement agreement?

    The official public docket for this action (identified by EPA-HQ-OGC-2019-0478) contains a copy of the proposed stipulated partial settlement agreement. 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.

    An electronic version of the public docket is available on EPA's website at [Insert URL] 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. 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.

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    Dated: August 13, 2019.

    Joseph E. Cole,

    Associate General Counsel.

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    [FR Doc. 2019-18132 Filed 8-22-19; 8:45 am]

    BILLING CODE 6560-50-P

Document Information

Published:
08/23/2019
Department:
Environmental Protection Agency
Entry Type:
Notice
Action:
Notice of proposed stipulated partial settlement agreement; request for public comment.
Document Number:
2019-18132
Dates:
Written comments on the proposed stipulated partial settlement agreement must be received by September 23, 2019.
Pages:
44297-44299 (3 pages)
Docket Numbers:
EPA-HQ-OGC-2019-0478, FRL 9998-70-OGC
PDF File:
2019-18132.Pdf
Supporting Documents:
» Megasuit Proposed Stipulated Partial Settlement